Female Genital Mutilation and Breast Ironing in the Context of Evolving Jurisprudence

1. Female Genital Mutilation and Breast Ironing in the Context of EvolvingJurisprudence NkumbeEkaney QC, 1 Garden Court Charlotte Proudman, Goldsmith Chambers

2. Contents i) FGM Overview of the practice of FGM The Criminal Law Update following the introduction of the Serious Crime Act 2015 Care proceedings: In the matter of B & G (Children) (2) 2015 EWFC 3 Implications for section 31 CA 1989, welfare and proportionality FGM Protection Orders ii) Breast Ironing

3. Overview of the practice of FGM *Warning: Images shown on the following slides are graphic.

4. Type I — Partial or total removal of the clitoris and/or the prepuce (clitoridectomy). Type II — Partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora (excision). . What is FGM?

5. Type III — Narrowing of the vaginal orifice with creation of a covering seal by cutting and positioning the labia minora and/or the labia majora, with or without excision of the clitoris (infibulation). Type IV — All other harmful procedures to the female genitalia for non-medical purposes, for example: pricking, piercing, incising, scraping and cauterisation. Note – Argument about “Harm Reduction” – See Economist article (2016).

6. Prevalence of FGM At least 200 million girls and women alive today have undergone FGM in 30 countries. Half of the girls, and women who have been cut live in three countries – Egypt, Ethiopia and Indonesia (UNICEF, 2016). Note the UN map does not include the Middle East. See National FGM Centre for an updated prevalence map

7. Prevalence in England and Wales • Data estimates from Equality now and City University(2014): • Over 130,000 women are estimated to be living with FGM in the UK • 60,000 girls under the age of 15 are at risk of FGM in the UK • Data from the Health & Social Care Information Centre showed that during April 2015 to March 2016 there were: • 5,702 newly recorded cases of FGM reported. • 106 girls under 18 were reported to have undergone FGM. • 43 cases involved women and girls born in the UK [40% had undergone type IV piercing].

8. Type of FGM

9. The World Health Organisation states that FGM has no health benefits. It interferes with the natural functions of girls' and women's bodies. Physical Short term: Infections, severe pain,urine retention, and tetanus. Long term: Pain and discomfort during sex, chronic pain, uterus, vaginal and pelvic infections, cysts, abscesses, difficulties in menstruation, and fertility problems. Psychological Severe psychological trauma, including flashbacks, panic attacks, anxiety and depression. Women who have undergone FGM have the same levels of Post Traumatic Stress Disorder (PTSD) as adults who have been subjected to early childhood abuse, and that the majority of the women (80 per cent) suffer from affective (mood) or anxiety disorders. Social Source of personal and collective identity, social position and respect, as well as power in the household. Failure to conform leads to difficulty in finding a husband, shame, stigmatisation, loss of social position, honour and protection, resulting in the family’s social exclusion in the community. Consequences of FGM

10. The roots of FGM are complex and multi-faceted. The reasons for the practice often reflect the views of the practicing community. Justifications given usually relate to the following categories: Gender and sexuality Religion Culture and tradition Resistance to anti-FGM laws that are viewed as quasi- Colonial (see Bronwyn Winter 1994) Rationale for FGM

11. Introduction to Criminal Legislation

12. Female Genital Mutilation Act 2003 Female genital mutilation has beena criminal offence since 1985, and yet there has not been one successful prosecution. Why? Difficulties of gathering evidence; FGM is performed on girls/babies; FGM is performed abroad; Professionals unaware FGM is a criminal offence; and Professionals fear intervening due to ‘race anxiety.’

13. 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 2. But no offence is committed by an approved person who performs – a. a surgical operation on a girl which is necessary for her physical or mental health, or b. 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. 3. The following are approved persons - a. in relation to an operation falling with subsection (2)(a) a registered medical practitioner, b. 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. 4. There is also no offence committed by a person who - a. performs a surgical operation falling within subsection (2)(a) or (b) outside the United Kingdom, and b. in relation to such an operation exercises functions corresponding to those of an approved person 5. 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 Section 1: Offences of FGM

14. Section 2 Offence of assisting a girl to mutilate her own genitalia 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.

15. 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 resident to do a relevant act of female mutilation outside the United Kingdom. An act is a relevant act of female genital mutilation if a. it is done in relation to a United Kingdom national or a United Kingdom resident, and b. it would, if done by such a person, constitute an offence under section 1 3. But no offence is committed if the relevant act of female genital mutilation a. is a surgical operation falling within section 1(2)(a) or (b), and b. it 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.

16. Section 3 Offence of assisting a non-UK person to mutilate overseas a girl's genitalia This section makes it an offence for a person in the UK to aid, abet, counsel or procure the performance outside the UK of a relevant FGM operation that is carried out by a person who is not a UK national or permanent UK resident or UK habitual resident. This offence only applies where the victim of the FGM operation is a UK national or permanent UK resident or UK habitual resident. So the person who, for example, arranges by telephone from his home in England for his UK national daughter to have an FGM operation carried out abroad by a foreign national (who does not live permanently in the UK) commits an offence.

17. Serious Crime Act 2015 4 key changes

18. 1. Offence of FGM: Extra-territorial Acts The Female Genital Mutilation Act 2003 was originally concerned with acts done by UK nationals or permanent UK residentsto girls or women who are UK nationals or permanent UK residents. The Serious Crime Act amends sections 1 to 3 of the 2003 Act so that it applies to UK nationals and habitual residents.

19. 2. Anonymity for victims of FGM Injunctions are available to prohibit the publication of any matter that could lead the public to identify the alleged victim of an offence under the Act. The prohibition lasts for the lifetime of the alleged victim. The rationale is that anonymisation will encourage women and girls to report FGM offences committed against them, and to increase the number of prosecutions.

20. 3. Offence of failing to protect a girl from risk of FGM A new offence of failing to protect a girl under the age of 16 from risk of FGM is introduced into the 2003 Act. A person is liable for the offence if they are responsible for a girl at the time when an offence is committed against her AND when FGM has actually occurred. The term "responsible" covers two classes of person: first, a person who has 'parental responsibility' for the girl and has 'frequent contact' with her, and, second, any adult who has assumed responsibility for caring for the girl in the manner of a parent, for example, grandparents who might be caring for the girl during the school holidays.

21. Defence It is a defence for a defendant to show that: a. 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 b. 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 above if: a. sufficient evidence of the fact is adduced to raise an issue with respect to it, and b. the contrary is not proved beyond reasonable doubt. 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.

22. 4. Duty to notify police of FGM A duty is placed on persons who work in a 'regulated profession' in England and Wales, namely healthcare professionals, teachers and social care workers, to notify the police when, in the course of their work, they discover that an act of FGM appears to have been carried out on a girl who is under 18. The term 'discover' would refer to circumstances where the victim discloses to the professional that she has been subject to FGM, or where the professional observes the physical signs of FGM. The section does not apply to girls or women who might be at risk of FGM or cases where professionals discover a woman who is 18 or over has endured FGM.

23. Further recommendations for legal change Further recommendations and legislative changes were identified in the House of Commons Home Affairs Committee's report and the Bar Human Right’s reportincluding: The introduction of a legal requirement for mandatory training for regulated professions. The need to examine whether section 1(2)(a) of the 2003 Act provides a loophole for FGM to be performed under the guise of female genital cosmetic surgery on the basis that the surgery is 'necessary for physical or mental health' reasons.

24. Female Genital Mutilation Protection Orders Section 5A and Schedule 2 Female Genital Mutilation Act 2003

25. FGMPOs FGM Protection Orders modelled on Forced Marriage Protection Orders. High Court or Family Court can make an order. An order can be made to protect either a girl at risk of FGM or to protect a girl when FGM has been committed. Order can include prohibitions/restrictions and other requirements to protect a girl. Order may relate to conduct outside England & Wales as well as within the country. Consider all the circumstances inchealth, safety, and well-being of the girl. Named respondents can be broad. Order for specified period of time or until varied or discharged. Ex parte orders can be sought. Breach/warrant of arrest.

26. FGMPOs Re E (Children) (Female Genital Mutilation Protection Orders) [2015] EWHC 2275 (Fam) A female genital mutilation protection order was made in respect of three children originally from Nigeria on 24 July 2015 by their mother. and CE v NE [2016]EWHC 1052 (Fam)

27. FGM and Care Proceedings: s.31 Children Act 1989

28. B and G (Children) (No 2) [2015] EWFC 3 Background of relevant facts… Care proceedings involving two young children - a boy aged 4 and a girl aged 3. The parents are from an African country. The proceedings were precipitated by the mother abandoning the girl in an alleyway in the centre of a northern town. The mother had a diagnosis of a schizoaffective disorder www.goldsmithchambers.com

29. The children were placed in foster care and the foster mother expressed concerns about the unusual appearance of the girl’s genitalia. At the local authority’s instigation, the child was subjected an intimate examination by a local respected paediatrician experienced in the investigation of sexual abuse. A second joint examination was undertaken by the paediatrician and a court appointed an expert - a midwife, experienced in the treatment and management of women victims of FGM. The local authority case was that the child had been subjected to Type IV FGM and as such she had suffered significant harm. In support of their assertion that the threshold criteria were made out, the authority alleged that the children had been neglected and been exposed to the mother’s serious mental health problems and to parental disharmony and abuse.

30. Three issues Was the girl subjected to FGM as alleged? 2. If the girl was subjected to FGM as alleged, did this amount to significant harm? Section 31(2)Children Act 1989 provides as follows: A court may only make a care order or supervision order if it is satisfied – (a) that the child concerned is suffering, or is likely to suffer, significant harm; and (b) that the harm, or likelihood of harm, is attributable to – (i)  the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or  (ii) the child's being beyond parental control. 3. What are the implications?

31. The significance of FGM. In paragraph 78 of B & G Munby P says this... “Local authorities need to be pro-active and vigilant in taking appropriate protective measures to prevent girls being subjected to FGM and, as I have already said, the court must not hesitate to use every weapon in it’s protective arsenal if faced with a case of actual anticipated FGM. An important tool which lies readily to hand for use by Local authorities is that provided by section 1 of the 1989 Act. The inherent jurisdiction as well as all the other jurisdictions of the High Court and the Family Court must be as vigorously modernised in the prevention of FGM as they have hitherto in relation to forced marriage… Given what we now know is the distressingly great prevalence of FGM in this country, even today, some 30 years after FGM was first criminalised, it is sobering to reflect that this is not merely the first care case where FGM has featured but also, if not the first one of only a handful of FGM cases that have yet found their way to the Family Court. The courts alone, whether the family courts or the criminal courts, cannot eradicate this great evil, they have an important role to play and a very much pivotal role than they have hitherto been able to play.”

32. THE EXPERTS Dr Alison Share: Expert (1) Dr Share, Consultant Paediatrician examined the child. The examination was recorded on DVD using video colposcope. She concluded that there was evidence that part of the child’s clitoris and clitoral hood had been removed with scarring present to her clitoral area. It was appropriate that a second opinion be sought, but in her opinion the child had been the victim of Female Genital Mutilation Type I and possibly Type II. Dr Share and the now court appointed court expert, Comfort Momoh, Specialist Midwife carried out a joint intimate examination of the child. This was also recorded on DVD using a video colposcope. The two experts had discussed Dr Share’s earlier findings, significantly her finding of scarring. The notes of the joint examination [regarding the clitoris] were to the effect that the “hood of clitoris (clitoris not visible)” “right labia minora (appears missing)” . The midwife’s conclusion was that the child had been subjected to some form of FGM as the “...vulva does not appear normal..” The paediatrician’s report of the same examination was that the “clitoris appears to be deficient with the possibility of scarring on the left side”. The agreed opinion was that the child was a victim of FGM.

33. Dr Share is an experienced and highly regarded consultant Community Paediatrician but did not put herself forward as having particular expertise in FGM. She candidly admitted that her initial findings were wrong and that she changed her mind even after the second examination. The President found that she was an entirely honest, open and frank witness.

34. Expert (2): Dr Comfort Momoh Midwife and FGM, Reproductive and Public Health Specialist (see paragraph 18 of B & G). Dr Momoh merited all the harsh criticism expressed by Mr M and Mr E. Whatever her expertise in relation to FGM in pregnant women, in relation to young children, it was extremely limited. Her report and oral evidence were well below the standard required for an expert witness. She was not a reliable witness. Her oral evidence was exceedingly unsatisfactory (see paragraph 45 of B & G).

35. Expert (3): Professor Sarah Creighton Instructed following a Part 25A application by the father’s team. She is a Consultant Gynaecologist with a major interest in paediatric and adolescent gynaecology, reconstructive genital surgery and female genital mutilation. See paragraph 19 of B & G. Professor Crieghton concluded that G’s clitoris, labia minora, labia majora and vagina are within normal limits. This was on an examination of the DVDs and not an intimate examination. There was no evidence of removal of any genital tissue. There was no evidence of WHO FGM types I,II or III. She was unable [from the DVDs] to confirm the scar to the left lateral aspect of the child’s clitoris as described by the two other experts. A scar of this nature, if present could be consistent with type IV FGM.

36. Expert Meeting An experts’ meeting took place and it is plain that Professor Crieghton with her vast experience of FGM carried the day. The President remarked that she was the only one of the three with real experience of FGM in the paediatric context. Her evidence, both written and oral was clear and measured; it did not change; it was delivered with authority; it carried conviction. The decision was that the court was not persuaded of the presence of a scar which was now the only feature relied upon by the local authority in support of the allegation of FGM (paragraph 51). There was no evidential basis for finding that the child was at risk of being subjected to FGM in the future. Professor Crieghton discounted as a matter of principle the risk of the child being subjected to further FGM in the future. There is a limited number or dearth of experts in this field. One specialist paediatric FGM clinic in the UK (Professor Sarah Crieghton’s).

37. Lessons to be learned See paragraph 79 of B & G. Whoever is conducting the examination, it is vital that clear and detailed notes are made, recording (with the use of appropriate drawings or diagrams) exactly what is observed. If an opinion is expressed in relation to FGM it is vital that (a) the opinion is expressed by reference to the precise type of FGM that has been diagnosed which must be identified clearly and precisely and (b) that the diagnosis is explained, clearly and precisely by reference is recorded as having been observed.

38. FGM Threshold/Proportionality Munby P enquired at the outset of the case whether type IV FGM, the type which was alleged the child had suffered in this case, satisfied the threshold criteria. And, if proved, was adoption proportionate if that was the sole threshold finding. In order to fully understand B & G it is important to reiterate that the harm alleged to have been suffered by the child was type IV FGM, that is a cut or nick causing a small scar to the left of the child’s clitoris. More radical and/or invasive FGM was not alleged. Munby P said “I do not want there to be any doubt, FGM is a criminal offence under the Female Genital Mutilation Act 2003. It is an abuse of human rights. It has no basis in any religion”. The President described it as “barbarous” and a practice which is beyond “the pale”. It was however said that there was a particular issue in relation to FGM Type IV which “cannot be shirked”. The academic debate about the objections for FGM apply to male circumcision. In other words, how does one justify the law’s prohibition on FGM in all forms with the law’s toleration of male circumcision? How do you rationalise it using Section 31 of the Children Act?

39. Is FGM significant harm ? Significant harm: See paragraph 67 and 68 of the judgement in B & G. FGM cannot be said to be trivial or unimportant when considering harm in the test set out by Lady Hale in Re B (Care Proceedings: Appeal) [2013] UK SC 33 at paragraph 185. Inconsistency with criminal law – (1) unclear if type IV is defined as mutilation; (2) CPS in 2015 decided not to prosecute case of Type IV FGM on a baby whose family originate from Malaysia; (3) Apparently a type IV FGM case is being prosecuted on grounds of “child cruelty rather than FGM.”

40. Is FGM reasonable parenting, particularly Type IV? The two limbs of section 31; what is significant harm and what is reasonable parenting? Given the objection of society to FGM, it cannot be said to be reasonable as male circumcision is. Necessary to distinguish between FGM and male circumcision as the latter is more invasive than type IV FGM and thus constitutes “significant harm.” Distinguished between them on grounds of reasonable parenting. FGM can never be reasonable however male circumcision can. Society and the law, including the family law, are prepared to tolerate non-therapeutic circumcision performed for religious or even for purely cultural or conventional reasons, while no longer being willing to tolerate FGM in any of its forms, there are, after all, at least two important distinctions between the two. FGM has no basis in any religion. Male circumcision is often performed for religious reasons. FGM has no medical justification and confers no health benefits. Male circumcision is seen by some (although opinions are divided) as providing hygienic or prophylactic benefits. Be that as it may, “reasonable” parenting is treated as permitting male circumcision (paragraph 72 B & G).

41. Issues arising… The girl and boy distinction; the threshold may be crossed for the girl but not for the boy so how is the welfare analysis to be undertaken and the balance be struck? Local authorities and judges are probably well advised not to jump too readily to the conclusion that proven FGM should lead to adoption (paragraph 77). Culture not a defence. Everything should be done to prevent it. Support those at risk of the practice and safeguard them. Support survivors in coping with the consequences of FGM.

42. Breast Ironing

43. Breast ironing, also known as breast flattening, is the pounding and massaging of a pubescent girl's breasts, using hard or heated objects, to prevent breasts from developing.

44. Prevalence of breast ironing According to UN estimates, up to 3.8 million girls worldwide are affected. Breast ironing is particularly widespread in the West African nations of Cameroon, Guinea-Bissau, Chad, Togo and Benin. The prevalence rate, method, rationale, and reported outcomes vary significantly by region and individual, and have no proven correlation with socio-economic level, urban or rural living, religious affiliation, or ethnicity. Approximately 1,000 girls in West African communities across the UK have been subjected to the practice.

45. Motives Breast ironing in its current form may have proliferated as a response to a growing social need to discourage pre-marital sexual activity. As women gain access to education and careers, there is an increased incentive to marry later to allow a woman to attain a higher level of education before becoming a mother. However, during the time period between menarche and marriage, a woman is fertile and therefore at risk of becoming pregnant before marriage. The cultural stigma against pre-marital sex and pregnancy remains. Breast ironing may have emerged as a coping mechanism for women with few options, with the intention of creating the illusion that a teenager is still a child, in turn allowing the girl to continue her studies and secure a job before becoming a mother.

46. Perpetrators Breast ironing is performed most often by the girl’s own mother, but also by a nurse or caretaker, aunt, older sister, grandmother, the girl herself and, in a minority of cases, by a traditional healer, father, brother, cousin, friend…

47. Objects Tools used include a grinding stone, a wooden pestle, a spatula or broom, a belt to tie or bind the breasts flat, leafs thought to have special medicinal or healing qualities, napkins, plantain peels, stones, fruit pits, coconut shells, salt, ice, and others. Typically, the object is heated in the ashes of a wood fire in the kitchen and then applied in a pressing, pounding, or massaging motion.

48. Medical impact To date, no medical studies have been conducted on breast ironing, nor the long- and short-term, physical and psychological side effects. Often cited side effects include an immediate delay or halting of breast growth; swelling, burning, irritation, pimples on the breasts, abscesses, fever, extreme pain; a long-term overgrowth of one or both breasts or failure for one or both breasts to grow; difficulty to breast-feed; scarring; and breast cancer. Additionally, many girls report suffering psychological distress including internalising blame, experiencing perpetual fear and shame, or resulting social exclusion

49. Legal remedies available Criminal law Family law Care proceedings Inherent jurisdiction 2.Proposed legislative changes Create a specific offence Mandatory reporting Training of professionals Breast Ironing Protection Orders

50. Dealing with cases of FGM on the ground: