Female Genital Mutilation Prosecution Guidance
- Definition of Female Genital Mutilation
- Legislation on Female Genital Mutilation
- Penalties for offences
- Definitions of Girl and UK National
- Charging in Female Genital Mutilation cases
- Evidential Considerations
- Public Interest Considerations
- Social services/Local Authorities evidence
- Expert Evidence
- International Evidence
- Annex A: Contact details for national support agencies and sources of information relating to FGM
- Annex B: Further information on FGM
- Annex C: Aide memoire: Offence/Behaviours experienced by victims of FGM
Female Genital Mutilation (FGM) is a collective term for a range of procedures which involve partial or total removal of the external female genitalia for non-medical reasons. It is sometimes referred to as female circumcision, or female genital cutting. The practice is medically unnecessary, is extremely painful and has serious health consequences, both at the time when the mutilation is carried out, and in later life.
FGM has been classified by the World Health Organization (WHO) into four major types, all of which may be relevant to the offences arising under the FGM Act 2003:
- Type I: Clitoridectomy: partial or total removal of the clitoris;
- Type II: Excision: partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora;
- Type III: Infibulation: narrowing of the vaginal opening through the creation of a covering seal:
- Type IV: Other: all other harmful procedures to the female genitalia for non-medical purposes, e.g. pricking, piercing, incising, scraping and cauterizing the genital area.
Female genital mutilation has been a specific offence since the Prohibition of Female Circumcision Act 1985 came into force on 16 September 1985.
The 1985 Act was replaced by the Female Genital Mutilation Act 2003.
The Female Genital Mutilation (FGM) Act came into force on 3 March 2004 and was amended by sections 70 to 75 Serious Crime Act 2015. Sections 70 to72 which came into force on 3 May 2015, and which:
- extended the scope of extra-territorial offences
- granted victims of FGM lifelong anonymity; and
- introduced a new offence of failing to protect a girl from risk of FGM.
Sections 73 came into force on 17 July 2015; section 74 came into force on 31 October 2015. These provisions introduced FGM Protection Orders and a mandatory duty for front line professionals to report FGM. Section 74 provides for issue of statutory guidance on FGM, this provision has not yet come into force.
The Act refers to "girls", though it also applies to women.
The offences are:
Section 1 Offences of female genital mutilation
- It is a criminal offence to excise, infibulate or otherwise mutilate the whole or any part of a girl's labia majora, labia minora or clitoris
- But no offence is committed by an approved person who performs -
- a surgical operation on a girl which is necessary for her physical or mental health, or
- a surgical operation on a girl who is in any stage of labour, or has just given birth, for purposes connected with the labour or birth.
- The following are approved persons -
- in relation to an operation falling within subsection (2)(a), a registered medical practitioner,
- in relation to an operation falling within subsection (2)(b), a registered medical practitioner, a registered midwife, or a person undergoing a course of training with a view to becoming such a practitioner or midwife.
- There is also no offence committed by a person who -
- performs a surgical operation falling within subsection (2)(a) or (b) outside the United Kingdom, and
- in relation to such an operation exercises functions corresponding to those of an approved person
- For the purpose of determining whether an operation is necessary for the mental health of a girl it is immaterial whether she or any other person believes that the operation is required as a matter of custom or ritual
A person is guilty of an offence if he aids, abets, counsels or procures a girl to excise, infibulate or otherwise mutilate the whole or any part of her own labia majora, labia minora or clitoris.
Section 3 Offence of assisting a non-UK person to mutilate overseas a girl's genitalia
- A person is guilty of an offence if he aids, abets, counsels or procures a person who is not a United Kingdom national or a United Kingdom resident to do a relevant act of female genital mutilation outside the United Kingdom.
- An act is a relevant act of female genital mutilation if
- it is done in relation to a United Kingdom national or a United Kingdom resident, and
- it would, if done by such a person, constitute an offence under section 1
- But no offence is committed if the relevant act of female genital mutilation
- is a surgical operation falling within section 1(2)(a) or (b), and
- is performed by a person who, in relation to such an operation, is an approved person or exercises functions corresponding to those of an approved person.
Section 3A Offence of failing to protect a girl from risk of genital mutilation
Section 72 of the Serious Crime Act 2015 inserts Section 3A into the FGM Act 2003 to create an offence of failing to protect a girl from FGM, with effect from 3 May 2015.
- If an offence of FGM is committed against a girl under the age of 16, each person who is responsible for the girl at the time that FGM occurred will be guilty of an offence.
- For the purpose of this section a person is responsible for a girl in the following circumstances:
- The first case where the person:
- has parental responsibility for the girl, and
- has frequent contact with her.
- The second case is where the person:
- is aged 18 or over, and
- has assumed (and not relinquished) responsibility for caring for the girl in the manner of a parent.
- It is a defence for a defendant to show that
- at the relevant time, the defendant did not think that there was a significant risk of FGM being committed against the girl, and could not reasonably have been expected to be aware that there was any such risk; or
- the defendant took such steps as he or she could reasonably have been expected to take to protect the girl from being the victim of an FGM offence.
- A person is taken to have shown the fact mentioned in subsection (5)(a) or (b) if
- sufficient evidence of the fact is adduced to raise an issue with respect to it, and
- the contrary is not proved beyond reasonable doubt.
- For the purposes of subsection (3)(b), where a person has frequent contact with a girl which is interrupted by her going to stay somewhere temporarily, that contact is treated as continuing during her stay there.
- In this section an offence of FGM means an offence under section 1, 2 or 3 and for the purpose of subsection (1) the prosecution does not have to prove which section it is.
Section 3A evidential considerations
To be "responsible" for a girl, the person will either: have "parental responsibility" for the girl (for example, mothers, fathers married to the mothers at the time of birth, and guardians) and have "frequent contact" with her; or be a person aged 18 or over who has assumed responsibility for caring for the girl "in the manner of a parent" (for example family members to whom parents might send their child during the summer holidays).
The requirement for "frequent contact" is intended to ensure that a person who, in law, has parental responsibility for a girl, but who in practice has little or no contact with her, would not be liable.
"In the manner of a parent" is intended to ensure that a person who is looking after a girl for a very short period such as a babysitter would not be liable.
To prove the section 3A offence the following evidence may be considered:
- Evidence of the relationship between the girl and her parents / those with parental responsibility
- Evidence the girl had suffered FGM. This includes medical evidence of the initial discovery (e.g. a nurse), as well as expert evidence confirming that FGM has been carried out and what type of FGM.
- If possible, evidence that the girl had been born with normal genitalia or whether the medical expert can indicate that it can be presumed.
- Consider obtaining evidence that FGM was illegal in the country where it is alleged the procedure was carried out. This may support the "knowledge of those with parental responsibility"; i.e. that they didn't take the necessary precautions to avoid the mutilation knowing of the risk and the illegality.
Where a defence is raised based on having left the child with another for some time, consideration might be given to obtaining evidence of the immediate effects of the operation. In many cases the child is bound by the legs for some time - the recovery period is not short. They will be in pain and bed-bound for a significant time. An FGM expert may be able to assist here.
Section 4 extends the offences outlined in sections 1 - 3A to any act done outside the UK by a UK national or UK resident.
An offence under section 3A can be committed wholly or partly outside the United Kingdom by a person who is a United Kingdom national or a United Kingdom resident. In the case of a suspect who gives birth abroad in order that FGM can take place there, the section 3A offence is most likely to involve a failure to protect a girl from an offence under section 3 (the offence of assisting a non-UK person to mutilate overseas a girl's genitalia), in which case the nationality or residence status of the victim is relevant.
Under section 2 of the British Nationality Act 1981, a child born abroad to British citizen parents in the circumstances described in that section would inherit their British citizenship.
In terms of habitual residence the legal position is less clear and will depend on the factual situation. However, the Supreme Court judgement in Re A (Children) (AP)  UKSC 60 appears to open up the possibility that a child may be considered habitually resident in the UK without actually having been here, if (for instance) his family are UK residents. Ultimately, it will be a matter for the courts to decide.
The effect of this is that, where the offence under this Act is committed outside the UK, proceedings may be taken and the offence may be treated as having been committed anywhere in England, Wales or Northern Ireland.
Section 72 of the Serious Crime Act 2015 inserts section 4A (and Schedule 1) into the FGM Act 2003 to make provision for the anonymity of victims of FGM. The effect of these provisions is to prohibit the publication of any matter that would be likely to lead members of the public to identify a person as the alleged victim of any offence under the FGM Act 2003. The prohibition lasts for the lifetime of the alleged victim and covers any information which, whether on its own or pieced together with other information would be likely to lead to members of the public to identify the alleged victim.
Publication is given a broad meaning and would include traditional print media, broadcasting and social media such as Twitter or Facebook.
There are two limited circumstances where the court may disapply the restrictions on publication:
- Where a person being tried for an FGM offence, could have their defence substantially prejudiced if the restriction to prevent identification of the person against whom the allegation of FGM was committed is not lifted; or
- Where preventing identification of the person against whom the allegation of FGM was committed, could be seen as a substantial and unreasonable restriction on the reporting of the proceedings and it is considered in the public interest to remove the restriction.
Breach of the restrictions
Contravention of the prohibition on publication is an offence. It will not be necessary for the prosecution to show that the defendant intended to identify the victim. In relations to newspapers or other periodicals (whether in print form or online editions) and radio and television programmes, the offence is directed at proprietors, editors, publishers or broadcasters rather than individual journalists. Any prosecution for the offence requires the consent of the Attorney General. This is a summary only offence.
There are two defences:
- Where the defendant had no knowledge (and no reason to suspect) that the publication included content that would be likely to identify a victim or that a relevant allegation had been made.
- Where the victim (when aged 16 or over) had freely given written consent to the publication.
These defences impose a reverse burden on the defendant, that is, it is for the defendant to prove that the defence is made out on a balance of probabilities, rather than imposing a requirement on the prosecution to show, beyond reasonable doubt, that the defence does not apply.
All offences (with the exception of s.4A which is summary only) are triable either way. A person guilty of an offence under sections 1, 2 and 3 of this Act is liable:
- on conviction on indictment, to imprisonment for a term not exceeding 14 years or a fine (or both);
- on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum (or both).
A person guilty of an offence under section 3A of this Act is liable:
- on conviction on indictment, to imprisonment for a term not exceeding 7 years and/or an unlimited fine;
- on summary conviction, to imprisonment for a term not exceeding six months and/or an unlimited fine.
A person guilty of an offence under section 4A of this Act is liable on summary conviction to an unlimited fine.
The term "girl" includes "woman".
A United Kingdom national is an individual who is:
- a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen;
- a person who under the British Nationality Act 1981 is a British subject; or
- a British protected person within the meaning of that Act.
A United Kingdom resident is defined as "an individual who is habitually resident in the UK.
The term "habitually resident" covers a person's ordinary residence, as opposed to a short temporary stay in a country.
Cases involving FGM should be referred to the CPS Area FGM lead prosecutor, given their experience and knowledge in dealing with these cases.
In circumstances where the nationality or residence of the suspect(s) or victim is relevant and it may be difficult to support an offence under the FGM Act, prosecutors should consider the full range of relevant offences outlined in Annex C: Aide memoire: offences/behaviours experienced by victims of Female Genital Mutilation.
Prosecutors should be aware, when dealing with a case of FGM, that the victim may not just be a victim of FGM. The victim may also have been subjected to rape and other sexual offences, or may have been subject to a forced marriage. The victim may be under 18, and may also be a victim of ill treatment.
FGM cases may be challenging to prosecute for a number of reasons, but primarily because of difficulties in obtaining evidence from the victim and ensuring their continued engagement with criminal proceedings,
When reviewing a case of FGM, prosecutors should establish;
- Early consultation with the police; this is vital in establishing the willingness of a victim to testify at the trial, as well as discussing other evidential issues:
- Is the victim likely to give evidence? Victims are often reluctant to make a statement or, if they do, retract because of family and cultural pressure;
- Whether there has been a risk assessment for the victim and for any other (female) siblings;
- What other evidence is available? Consider if other family members, close friends, general practitioner and school authorities can assist;
- Consider instructing a medical expert to confirm FGM;
- Ensure special measures applications are made in time.
Where there are delays in police actioning requests / obtaining further information / evidence, requests should be elevated to more senior officers.
In cases of FGM, where there is sufficient evidence to support a prosecution, it is likely to be in the public interest to prosecute; however each case must be considered on its own facts and merits. When considering the public interest stage of the Full Code Test, prosecutors should always take into account the circumstances and is the consequences for the victim of the decision to prosecute, and any views expressed by the victim. Prosecutors should ask the police to provide information about family circumstances and the likely effect of a prosecution on the victim. Social services and specialist FGM support agencies may be able to help by providing the police with this type of information.
Section 4A and Schedule 1 of the FGM Act make provision for the anonymity of victims of FGM (see section 4A above).
Where the victim indicates before trial that she no longer wishes to give evidence, consider whether the prosecution may proceed without the victim. The police should be advised to take a statement setting out why the victim no longer wishes to give evidence. A key issue is whether the decision to withdraw support from the prosecution is voluntary or as a result of pressure being brought to bear on the victim.
Prosecutors should assess as soon as possible whether there is other sufficient evidence to proceed without the need for the victim to give evidence (for example, admissions in interview, evidence of medical expert, travel or planned travel out of the UK: passports, flight tickets and bookings, flight manifests, diary entries dates and notes of where and when the procedure is to take place, payment for procedure).
Where a victim is reluctant to attend court and the case can only continue with her evidence to prove the case, a witness summons may be considered.
The victim should be made aware of the range of Special measures that can be applied for at court to support and assist them.
Prosecutors are reminded of the guidance on Provision of Therapy to Child Witnesses Prior to a Criminal Trial.
FGM Protection Orders (FGM PO)
Section 5A of the FGM Act 2003 provides for the making of FGM Protection Orders (FGM POs) with effect from 17 July 2015. Orders can be obtained in either the Family or Criminal Court. This is a civil law measure which can be made by a court to protect a girl who has either been, or may become, a victim of FGM. The orders may contain prohibitions, restrictions or requirements as the court considers appropriate and apply to conduct within or outside England and Wales. Examples include surrendering passports, prohibiting travel, or prohibiting others from making arrangements for FGM. The Crown court can also make a FGM PO without application where there are on-going criminal proceedings for FGM, for example to protect siblings.
Breach of a FGM PO is a criminal offence and can be dealt with by the family court or the criminal court. In cases where the police arrest those suspected of being in breach of the Order, the CPS will decide whether to prosecute, in conjunction with any other offences that might be disclosed. Breach of an Order is punishable on summary conviction with up to 12 months' imprisonment or a fine; or on conviction on indictment, with up to 5 years' imprisonment or a fine.
Mandatory Duty to Report
Section 5B of the FGM Act 2003 introduces a mandatory reporting duty for FGM with effect from 31 October 2015. Regulated health and social care professionals and teachers are required to report cases of FGM in girls under the age of 18, which they identify in the course of their professional work, to the police. Sanctions for not reporting will be determined by the regulatory authority for the relevant professional.
In cases involving a young victim of Female Genital Mutilation (FGM), the local authority or social services are likely to have material or information which might be relevant to the prosecution case. If the material or information might be capable of undermining the prosecution case or of assisting the defence, prosecutors should take steps to obtain it. For further guidance see The 2013 Protocol and Good Practice Model: Disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings.
Prosecutors should consider instructing an expert witness to confirm that FGM has been carried out and the type of FGM. A list of obstetricians and gynaecologists who can assist as expert witnesses in criminal proceedings for women who have had FGM and 2 key clinicians who can assist as expert witnesses for child victims and women has been recommended by the Royal College of Obstetricians and Gynaecologists. Contact the CPS Operational Policy lead for FGM for assistance with details.
In cases where the FGM procedure has been carried out overseas, prosecutors should request the police to investigate and obtain evidence from that country. Evidence may be obtained from travel or flight records, or the Home Office Border force. Assistance in making enquiries may also be provided by the CPS International Division.
Child Abuse Investigation Command/Project Azure
Telephone: 020 7161 2888
Metropolitan Police - Project Azure
London Safeguarding Children Board
59 Southwark Street
London SE1 0AL
Telephone: 020 7934 9683
London Safeguarding Children Board - FGM resource pack
Child Protection Helpline
Telephone: 0808 800 5000 (advice for adults worried about a child)
Foundation for Women's Health Research & Development (FORWARD)
Telephone: 020 8960 4000
Equality Now website
Daughters of Eve
National Society for the Prevention of Cruelty to Children (NSPCC)
Telephone: 0808 800 5000
Telephone: 0800 1111 (24 hr free helpline for children)
FGM National Clinical Group
Foreign and Commonwealth Office
Telephone: 020 7008 1500
Sources of information
Section 75 of the Serious Crime Act 2015 provides for the Secretary of State to issue guidance to whoever the SoS considers appropriate about the effect of any provision in the Act or other matters relating to FGM, the date of commencement is the end of 2015.
Guidance can be found in the Multi-Agency Practice Guidelines on FGM, which has been published to assist and inform frontline professionals who have responsibilities to safeguard children and protect adults from FGM. This includes reporting any female who appears to have had FGM.
Prosecutors should make themselves aware of the guidelines which can be accessed at: https://www.gov.uk/government/collections/female-genital-mutilation
Female Genital Mutilation (FGM) involves procedures, which include the partial or total removal of the external female genital organs for cultural or other non-therapeutic reasons. The practice is medically unnecessary, extremely painful and has serious health consequences, both at the time when the mutilation is carried out, and in later life. It can also be psychologically damaging.
Age and procedure
The procedure is typically performed on girls aged between 5 and 8, but in some cases, FGM is performed on newborn infants or on young women prior to marriage or pregnancy. Many of the victims are therefore young and vulnerable. A number of girls die as a direct result of the procedure, from blood loss or infection. In the longer term, women who have undergone some form of FGM are twice as likely to die in childbirth, and four times more likely to give birth to a stillborn child.
FGM is usually carried out by the older women in a practicing community, for whom it is a way of gaining prestige and, in some communities, can be a lucrative source of income.
The procedure usually involves the child being held down on the floor by several women and the procedure carried out without medical expertise, attention to hygiene and anaesthesia. The instruments used include unsterilised household knives, razor blades, broken glass and sharpened stones. In addition, the child is subjected to the procedure unexpectedly.
There are no health benefits to a victim who undergoes a FGM procedure, and it harms girls and women in a number of ways. The different types of FGM involve removing and damaging healthy and normal female genital tissue, and interferes with the natural functions of girls' and women's bodies.
Immediate complications can include severe pain, shock, haemorrhage (bleeding), tetanus or sepsis (bacterial infection), urine retention, open sores in the genital region and injury to nearby genital tissue. Further the long-term effects can include:
- recurrent bladder and urinary tract infections;
- an increased risk of childbirth complications and newborn deaths;
- the need for later surgeries. For example, the FGM procedure that seals or narrows a vaginal opening (type 3 above) needs to be cut open later to allow for sexual intercourse and childbirth. Sometimes it is stitched again several times including after childbirth, hence the woman goes through repeated opening and closing procedures. Under FGM Act it is an offence for any medical professional (or anyone, for that matter) to reinfibulate or "close" a woman after she has been defibulated during labour for childbirth.
Cultural, religious and social causes
The reasons why FGM occurs are varied. The justification for the practice is often cited as custom or tradition and FGM is often seen not as an abuse but as an initiation into adulthood. Some individuals and families who support the practice of FGM often see this as a natural and beneficial practice by a loving family who believe that it is in the girl's or woman's best interests. This may limit a girl's incentive to come forward to raise concerns or talk openly about FGM - reinforcing the need for all professionals to be aware of the issues and risks of FGM.
In patriarchal communities, FGM is considered essential for marriage, and without marriage a woman's honour and even survival maybe be compromised. Girls who don't get cut risk stigma and alienation. FGM is used as a means of controlling and de-sexualising women, and repressing sexual desire. Those who practise these procedures believe it will reduce the chances of promiscuity in marriage on the part of the women.