The Serious Crime Act 2015: the FGM provisions

Cris McCurleyBen Hoare Bell LLP
Zimran SamuelDoughty Street Chambers

The Serious Crime Act 2015 (SCA 2015) contains provisions to tackle the practice of female genital mutilation (FGM).

The SCA 2015 makes provision for:

  • female genital mutilation protection orders
  • a duty to notify police of female genital mutilation
  • an offence of failing to protect girl from risk of genital mutilation
  • anonymity for victims of female genital mutilation
  • guidance about female genital mutilation
  • extra-territorial acts

Section 73 inserts a new Section 5A and Schedule 2 into the Female Genital Mutilation Act 2003 (FGMA 2003), making provision for FMG protection orders (FGMPOs_.

The FGMPO is available in England, Wales and Northern Ireland and offers protection to girls and women who are victims or may be at risk of FGM.

Why is it important?

The criminal law on FGM has been in place since 1985 but there has not been a single successful prosecution.

There are many cases in which victims are reluctant to come forward because of the impression that the only possible result may be that the full force of the criminal law is brought against their close family members.

However, the framework of civil orders offers much more flexibility in terms of how a court proceeds with such a case.

Importantly, whereas the criminal law is intended to punish perpetrators after FGM has happened, the new civil orders allow for intervention to prevent potential victims from being subjected to FGM in the first place.

FGMPOs can come with a whole host of restrictions against potential perpetrators and it’s hoped that the new orders will also act as a strong deterrence against the practice of FGM.

Practice and procedure

The Forced Marriage Civil Protection Act model

The procedure surrounding FGMPOs is modelled on forced marriage protection orders (FMPO), which were introduced by the Forced Marriage Civil Protection Act 2007.

Current figures for FMPO applications indicate that of the 173 applications made in 2013:

  • 72 were made by the person to be protected or their legal representative
  • 51 by the relevant third party
  • 50 by other third parties – such as a family member, friend or someone in the community

The figures for this period also show that the majority of applications for FMPOs were made to protect minors (persons age 17 or under). Of the 173 applications made:

  • 112 were to protect persons age 17 or under
  • 57 to protect persons over 17

In four cases, the age of the person to be protected was unknown.

Procedure

The procedural court rules for FGMPOs are contained in Part 11 of the Family Procedure Rules 2010.

Application

An application for an FGMPOs can be made on form FGM001.

Applications can be made by the person seeking protection or by a ‘connected’ person on her behalf. Applications can also be made by ‘relevant third parties’.

The lord chancellor will be passing regulations to approve a list of those bodies that are designated as ‘relevant third parties’.

The regulation currently released by the lord chancellor only makes provision for local authorities to apply as relevant third parties.

The commencement of the FGMPO provisions was brought forward to coincide with school summer holidays when the risk of girls being taken abroad for FGM is particularly high.

FGM can occur at different ages and in different forms from tribe to tribe and from country to country. The consequences of the wrong decision being made by the court can have life-long implications for the health and wellbeing of the potential victim, so it's essential that the court is provided with as much information as possible to assist the making of the correct decision.

In cases where the allegations of risk of harm are denied, children may be made parties to the proceedings. Many instances involve parents denying any intent to inflict or arrange FGM.

FGMA 2003

Part 1 of Schedule 2 sets out:

  • the power of the court to make an FGMPO, including prohibitions, restrictions, requirements or any other terms it considers necessary to protect the girl, including in relation to the conduct of the respondents. The court can also specify that the order can be made for a period of time or until varied or discharged
  • the circumstances in which an order can be applied for, made, varied or discharged, including the occasions on which a court can make an order without an application being made to it, including in criminal proceedings for FGM offences
  • the consequences if the order is breached, including proceedings for a criminal offence or for contempt of court
  • provisions for applying for a warrant of arrest for breach and remanding respondents in custody
  • the court’s power to make a FGMPO without notice being given to the respondent

Designated courts

23 family courts have been designated to deal with applications for FGMPOs. These courts have been selected in order to build up expertise in this area and given the specialist nature of these cases.

The following courts have been designated:

  • Central Family Court
  • Birmingham Civil and Family Justice Centre
  • Bradford Combined Court
  • Brighton Family Court Hearing Centre
  • Bristol Civil and Family Justice Centre
  • Cardiff Civil and Family Justice Centre
  • Derby Combined Court
  • East London Family Court
  • Leeds Combined Court
  • Leicester County Court and Family Centre
  • Liverpool Civil and Family Court Hearing Centre
  • Luton County Court and Family Court
  • Manchester County Court and Family Court
  • Newcastle upon Tyne Combined Court Centre
  • Norwich Combined Court and Family Hearing Centre
  • Oxford Combined Court and Family Court Hearing Centre
  • Plymouth Combined Court
  • Portsmouth Combined Court Centre
  • Preston Family Court
  • Reading County Court and Family Court Hearing Centre
  • Sheffield Combined Court Centre
  • Teesside Combined Court
  • West London Family Court

Applications may also be heard at the High Court. The High Court is most likely the correct forum for international cases (for example, where there’s evidence that a girl has been taken abroad for FGM to be carried out).

Use of experts

FGM cases usually involve complex cultural issues, often with an international dimension.

It may often be necessary for the court to require the assistance of an anthropologist or cultural expert.

Often cases may be contested, so the court will need as much information to be placed before it as possible in order to make a finding of risk.

Training

In recognition of the complex nature of the matters to be proved, Resolution is to provide training and accreditation in respect of FGM applications.