Prosecution of female genital mutilation in the UK: injustice at the intersection of good public health intentions and the criminal law

02/03/2020 Comments Off on Prosecution of female genital mutilation in the UK: injustice at the intersection of good public health intentions and the criminal law

by Marge Berer

This article was accepted for publication on 1 March 2020 by Medical Law International. This is the pre-publication, accepted text of the article under Sage Publications’ green access policy. © 2020 Marge Berer

Abstract

FGM (female genital mutilation) is a harmful traditional practice and a serious public health issue in the countries where it is carried out. It is also a violation of the rights of the girls to whom it is done. The main action taken in the UK to stop FGM has been to criminalise it. Public health measures, such as the provision of specialist clinics for those who experience complications of FGM have been opened as well, and some education in schools is provided. This paper is about the injustice that has arisen from the pursuit of prosecutions for FGM in the UK, in spite of good public health intentions. Since 2012, there have been four criminal cases, several arrests that never came to trial, and for reasons of safeguarding, unknown numbers of investigations with the threat of girls being taken into care, and people stopped from travelling to visit their families in FGM-practising countries. To date, only one criminal case in 2019 – R v N (Female Genital Mutilation) – which is the main subject of this article, has resulted in a guilty verdict. This article outlines this history in relation to the criminal law and uses courtroom observation to analyse what happened in the 2019 case in detail. It argues that the conviction depended on medical opinion and the highly uncertain evidence of two children, and was influenced by a spurious link to witchcraft that should never have been permitted in the courtroom. It argues that this conviction is unsafe and should be appealed. It further argues that to use protection orders only because a child’s mother had FGM, in the absence of any evidence of risk, is discriminatory and a form of impermissible racial/ethnic profiling. It calls for the current law against FGM to be reconsidered and replaced with positive measures for countering FGM which have the support and involvement of the community groups to whom they are addressed.

Introduction

FGM (female genital mutilation) is a harmful traditional practice and a serious public health issue in the countries where it is carried out. It is also a violation of the rights of the girls to whom it is done. The main action taken in the UK to stop FGM has been to criminalise it. Public health measures, such as the provision of specialist clinics for those who experience complications of FGM have been opened as well, and some education in schools is provided. FGM was first criminalised in the UK in 1985. Since then, there has been a persistent, hegemonic belief that many parents in the UK wish to subject their daughters to FGM, and that they must be stopped before it happens or punished subsequently. A growing demand for prosecutions in recent years has been based on exaggerated estimates of how many girls in the UK are thought to be at risk, which in turn is based on the numbers of women living in the UK who have reported having FGM as children in other countries. These estimates are not supported by evidence.[1] This paper is about the injustice that has arisen from the pursuit of prosecutions for FGM in the UK, in spite of good public health intentions.

There were no successful prosecutions under the Prohibition of Female Circumcision Act 1985. The law was reformed in 2003, but again, no prosecutions resulted under the Female Genital Mutilation Act of that year.[2] Then, due to increased attention from the Conservative government, anti-FGM NGOs and the media, the law was amended yet again by the Serious Crime Act 2015, which introduced a new offence of failing to protect a girl from the risk of genital mutilation[3], and empowered courts to issue Female Genital Mutilation Protection Orders.[4] All this has put the Crown Prosecution Service (CPS) and social services under increasing pressure to find and prosecute perpetrators.

Since 2012, there have been four criminal cases, several arrests that never came to trial, and for reasons of safeguarding, unknown numbers of girls being taken into care, and people stopped from travelling to visit their families in FGM-practising countries. The earliest reported case of an attempt to take a child into care for safeguarding was in 2014 in Leeds Family Court, relevant here because it found that expert opinion on whether a child’s genitals were normal, had been injured or were cut, was contradictory. To date, only one criminal case in 2019 – R v N (Female Genital Mutilation) – which is the main subject of this article, has resulted in a guilty verdict. This article outlines this history in relation to the criminal law and uses courtroom observation to analyse what happened in the 2019 case in detail. It argues that the conviction depended on medical opinion and the highly uncertain evidence of two children, and was influenced by a spurious link to witchcraft that should never have been permitted in the courtroom. It also argues that this conviction is unsafe and should be appealed. It further argues that to use protection orders only because a child’s mother had FGM, in the absence of any evidence of risk, is discriminatory and a form of impermissible racial/ethnic profiling. Women from FGM-practising countries have said that FGM was never much practised in the UK, and has disappeared in many communities here because it has been recognised as harmful.[5] The paper concludes that the UK should stop recording a history of FGM in women seeking healthcare. It calls for the current law against FGM to be reconsidered and replaced with positive measures for countering FGM which have the support and involvement of the community groups they are addressed to.

I write this article as a non-lawyer. I am an editor and author with expertise in sexual and reproductive health and rights, who has covered two FGM trials to date as an observer, written journal articles and blogs on FGM and published reports and journal articles on FGM by others.

A Short History of the Law against FGM in the UK

Starting in 2014, as part of a public campaign against FGM, the government encouraged the CPS to go looking for “perpetrators”. Police officers were sent to airports to hand out leaflets that stated FGM was illegal to “suspicious” (African) travellers, and Border Agency staff were encouraged to be on the lookout for “victims” (African children travelling with family members) in case they were being taken abroad to be cut, particularly during the school holidays.[6]

In 2014-15, there were three sets of arrests in airports that never came to trial, which were indicative of racial profiling and discrimination against black African travellers, as regards suspicion of FGM risk:

  • In 2014 a 72-year-old man was arrested at Heathrow Airport after arriving with an 11-year-old girl on a flight from Kampala. Specialist officers took the girl, a UK national, into the care of social services.
  • A 40-year-old woman was arrested in East London under Section 2, FGM Act 2003, for “aiding, abetting, counselling or procuring a girl to carry out FGM on herself”. Both she and the girl were taken into custody in July 2014. No further information was published.
  • A 42-year-old Zimbabwean-born British woman was arrested as she was about to board a flight to Ghana at Heathrow. Her daughter, aged 8, was taken into care after her arrest. This was reported in February 2015. No further action was taken. She was later released and reunited with her daughter.[7]

Furthermore, dubious efforts to estimate FGM prevalence in the UK between 2009 and 2014 led to some widely exaggerated figures being published,[8] creating a kind of moral panic. The government mandated that data be collected through the National Health Service (NHS) on every girl and woman living in or usually resident in the UK who had ever had FGM. They issued procedural information with the Serious Crimes Act 2015 on the mandatory reporting of FGM.[9] The Health and Social Care Information Centre (now NHS Digital) has been collecting data quarterly and publishing it since April 2015.[10]

The Care Proceedings at Leeds Family Court 2014

This civil case is relevant to the criminal cases discussed in this article because of significant dicta in the judgment by Sir James Munby, President of the Family Division of the High Court  (as he then was), which problematised the question of expertise. The case was heard in Leeds in November 2014.[11] It involved two children (a girl and a boy) with parents of African origin, who had temporarily been placed with foster parents as the mother was having mental health problems. The local authority sought to take the children into care as a form of safeguarding. This was in response to accusations that FGM had been carried out, based on visual examination of the girl by so-called experts. Munby J stated in relation to the girl G, then aged 3:

“The suspicion that G had been subjected to FGM first arose in November 2012 in country S after blood had been found in her nappy when she was at nursery. She was examined by two doctors who found (I quote the translation) ‘no sign [she] had any damage to female organs’. A further medical report states ‘outer and inner labia normal and the clitoris is normal. No sign of any circumcision’. The question was raised again in November 2013 when the foster carer [in the UK] reported G’s ‘irregular genitalia’.”[12]

Both parents denied that G had been subjected to FGM. Three people, all of whom presented themselves as experts, were invited to examine G and testify in court. According to the judgment, Expert 1 was an expert in child sexual abuse, who described herself as an expert in the assessment of female genitalia ‒ but not for FGM. She had examined approximately five girls with FGM over the previous three years, but only one was a baby. Expert 2 was a midwife with extensive experience of pregnant women with FGM; she described herself as an FGM, reproductive and public health specialist. She had knowledge of and expertise in many aspects of FGM and its medical and other consequences, and has published and spoken extensively on FGM in the UK and abroad. Her oral evidence, however, showed she had almost no experience of FGM in babies. Expert 3 had an established, specialist clinic for women with health consequences from FGM, and a great deal of experience of them, and was the only one of the three with paediatric FGM expertise.

Experts 1 and 2 both examined G and said they thought they had seen evidence of FGM. However, their descriptions of the FGM differed. Expert 1 later changed her evidence and said she had made a mistake. The judge described Expert 2’s evidence as “confused, contradictory and wholly unreliable”. Expert 3 did not examine G but saw the two other reports and watched a DVD of their examination of G. She said she saw no evidence of FGM.

The local authority argued that if G had been subjected to FGM, that was reason enough to initiate adoption proceedings. Sir James Munby said there were three issues to consider: Had FGM occurred? Did it amount to significant harm, and if so, what were the implications?[13] He concluded that the “local authority is unable on the evidence to establish that G either has been or is at risk of being subjected to any form of FGM”. In a lengthy and thoughtful consideration of the implications, he also cautioned that even had FGM been found, “local authorities and judges are probably well advised not to jump too readily to the conclusion that proven FGM should lead to adoption”.[14] His insights are highly relevant to all the criminal cases pursued to date.

The First Three Criminal Cases in the UK: 2015-2018

The first criminal case, which I observed, opened in early 2015. It was the prosecution of a doctor from a South Asian background who was called into the labour ward of a busy London hospital to handle an emergency delivery in 2012. The doctor was not from an FGM-practising culture and had never dealt with FGM clinically. His patient had had FGM and been infibulated as a child, before coming to the UK. A specialist clinic in London had de-infibulated her at her own request before she became pregnant. The baby came quickly, and the doctor made a small cut in her vulval scar tissue to ease its passage. Afterwards, as the cut did not stop bleeding, he put in a stitch to stop it. For this, he was accused of re-infibulating her, contrary to the 2003 Act. The claim that this was FGM was demolished in court, however, and in February 2015 the defendant was acquitted after a 30-minute deliberation by the jury, having spent two years awaiting trial, during which time he was unable to practise as a doctor.[15] The acquittal was important in that the defence counsel, with the help of a range of experts on FGM, provided verbal and visual clinical information on what is and is not involved in FGM throughout the trial. This educated not only the judge and jury but also the prosecution, the media and the public who were observing.

The criminal case in Bristol, which ended on 22 February 2018, was reported in a documentary on Channel 4 television[16] on 27 February 2018, that for two years followed and filmed the Detective Inspector as she led the investigation of a Somali taxi driver.[17] The judge threw the case out of court 15 minutes after it opened, because the evidence presented was “wholly inconclusive”. The child, who was examined more than once, had no visible injury to her genitals. The Detective Inspector was an active member of a local anti-FGM group at the time, and at the end of the television programme, she appeared to continue to believe that the accused father was guilty, in spite of the absence of evidence. It was only in a public meeting a year later, following the presentation of qualitative research by academics from the Universities of Bristol and Cardiff, which showed how negatively members of the Somali British community were being treated by local safeguarding professionals in the police, the health system and their children’s schools,[18] that the Detective Inspector understood and apologised. This report may be the first to address this issue entirely from the point of view of people who are assumed to support FGM, and shows the extent to which they have been treated like criminals purely because they are of Somali background. However, the report has had almost no influence on thinking nationally amongst the police, the CPS or the government.

The Bristol case was followed within a week by another, very brief court case in 2018, brought by the Metropolitan Police, reported in both the Guardian[19] and the Daily Mail.[20] In July 2017, a girl aged 16 said she had been subjected to FGM twice, once in 2009 or 2010 and again in 2013. She said that both times, she was made to lie on a mat in the hallway of her home, naked from the waist down, for her genitals to be cut by someone she could not identify, while her father “egged the person on”. The court also heard the girl had been cut as a form of punishment for stealing money from the family home. The father, a 50-year-old solicitor of West African origin, was also accused of violence towards his children. He denied all charges. He claimed that as a Catholic he did not believe in FGM, as if this was a guarantee of innocence. His defending counsel, a prominent barrister, said the parents’ divorce had led the mother to turn the children against him, and they had rewritten their own histories. A medical expert testified that the girl’s genitalia had been cut; the scars were described as unusual. No other perpetrator was identified, yet the father was acquitted. This acquittal is difficult to explain based on the scant information available.

The outcomes of all three cases will have been an embarrassment for the police and the CPS, given the pressure they were under to find and punish the many perpetrators who were believed to exist. For example, an emotional Guardian article, published two weeks after the Bristol case ended, was titled ‘Those involved in FGM will find ways to evade UK law: Despite a nearly fivefold increase in alleged FGM, lack of evidence to prove it is happening is hampering prosecutions’.[21]

Against this backdrop, the fourth criminal case assumed a very high profile. There was widespread anticipation of a guilty verdict, and on 1 February 2019, Mrs Justice Whipple delivered it.

The Fourth Criminal Case and the First Guilty Verdict: 2019

R v N (Female Genital Mutilation) was heard at the Central Criminal Court in London in January/February 2019. I observed almost all of this case and discussed it with others in the public gallery, including some who knew the defendants. This case is an example of the increasingly stigmatising way in which the British justice system has treated those they suspected of FGM. I believe the conviction was unsafe, both due to the lack of substantive evidence and because the verdict was tainted by an unwarranted association of FGM with witchcraft, which I will discuss below.

The case involved a woman and a man from two different African countries, their daughter aged 3 at the time she was injured, and the woman’s son, aged 8. At that time, the couple were no longer in a relationship but remained friends. They were living near each other and amicably sharing responsibility for the children. On 26 August 2017, the father’s mother died in his home country. He was devastated and spent most of his time over that weekend in the back garden of the mother’s small flat, texting and on the phone with his family, who were preparing the funeral. He stayed overnight because he could not bear to be alone, and slept in the sitting room. The children, who both lived with their mother, slept in the one bedroom with her.

On 27 August, the girl was running about inside and fell against the television, bruising her head, which caused bleeding. The mother called 999, but ambulances were in short supply. The bleeding stopped, the girl seemed fine, so the ambulance was cancelled. The girl clearly enjoyed running about and was said to imitate her brother a lot, including his penchant for climbing on things.

On 28 August, when the FGM was alleged to have taken place, the father had been present in the morning, left to go back to his room to shower and returned. He was in the back garden, on the phone with his family; his daughter was outside too. She was wearing a long dress and wellies and was happy and running about. It was noted that she was not wearing knickers (sic). She asked her father if she could have a biscuit. They went into the kitchen where he got her a biscuit from a bowl sitting on top the microwave on top the counter. They went back outside together and he got back on the phone. Soon afterwards, she said she wanted to go in to her mother, and went inside alone. The father said that within a few minutes, the girl was suddenly crying/screaming inside. He went in right away.

The mother and the son, who had been watching television together, according to the boy, also went to the kitchen. The little girl said she had climbed up onto the kitchen counter to get another biscuit and fallen onto the open door of the cupboard below. The cupboard door’s upper edge was a U-shape, with narrow metal-coated edges, described by the mother as “sharp metal edges”.[22] The child was bleeding from her genitals. She was wrapped in a towel, which was found by police the next day in the washing machine, unwashed and full of blood stains. The mother called emergency services, and she was told how to stop the bleeding. The mother took the girl to the toilet and cleaned her up, trying to stop the bleeding. Due to the shortage of ambulances that day too, the family took her to hospital by taxi. As they were leaving, the mother asked the father to take a photo of the cupboard door on his phone, to show the hospital where she had hurt herself.

At the hospital accident and emergency department, the triage nurse called in a doctor to examine the girl. The doctor suspected FGM and contacted the on-call consultant, who was said to have experience of FGM. The doctor did not say what he thought, he just asked the consultant to examine her. The consultant said he thought the girl had experienced FGM. One of her inner labia was torn off completely (the tissue was not found). The other had also been cut but the tissue was still attached, described as “hanging by a thread”. There was a small cut in the hood of the clitoris. There was also a haematoma. The girl had to have anaesthesia as the examination was causing her a lot of pain. The tissue was sutured. A blood transfusion was considered but not required. Her mother stayed with her overnight. Her father took her brother home, where he said he cleaned up the blood on the kitchen floor and in the toilet room. He and the boy returned to the hospital the next day.

The police were notified by the consultant of his suspicion of FGM. They arrested both parents at the hospital the next day, although they were not charged with FGM until a year later. The boy, aged 8 at the time, was immediately taken into emergency foster care, although he was at no known risk. This was never challenged. When the girl was released from hospital several days later, she was taken to the same foster home. In early November 2017, the children were moved to another foster home, where they have remained until, during and after the trial.

Before the little girl left hospital, four different doctors had examined her genitals. The labial cuts were described as “sheer”.[23] One of the admitting doctors had never seen a labial FGM-type cut in a living child. Only the two who saw her after she had been sutured are experts in paediatric FGM. All four agreed that the damage could have been caused by her falling on the cupboard door, and that “one could never say never”, but none of them thought she had fallen in this way. A straddle injury, they said, would have caused different injuries as well as bruising, while cuts in three different places from one fall were highly unlikely. The haematoma was apparently not counted as bruising. Beyond these medical opinions, there was no evidence of the crime, however. Medical opinion, no matter how firmly held, is not conclusive.[24] Yet the absence of other supporting evidence of FGM was never seriously challenged in court.

The timeline of events and the parents’ movements on the day in question came from 10,000 pages of data from their smart phones. The father’s barrister said only a handful of those pages were relevant for his client, but in them, he was able to find proof that the father was not inside the flat at the time of the alleged crime.

The short space of time between the girl going into the kitchen alone and screaming was said to be only a few minutes. That was not enough time for anyone to have cut her genitals. The mother was not shown to have done the cutting herself. Nor would she have had the considerable skill needed to make sheer cuts in the child’s inner labia, that would each have been only 1cm long. One police officer reportedly refused to rule out the involvement of a third party, but he also acknowledged that investigators had found no evidence that anyone else had been in the flat that day.[25]

No cutting instrument was ever found. Nowhere else in the flat where the cutting could have happened was identified, let alone some other place outside the flat. The father described cleaning blood from the kitchen floor, where the girl said she had fallen on the cupboard door. Yet the police detected no traces of blood on the cupboard door or the kitchen floor or anywhere else, except on the towel.

In court the police interviews with both parents (August 2017, November 2017, January 2018) and with social workers for the parents and children were presented in writing, and read out at length. The two foster mothers were interviewed; one gave evidence. Both parents were questioned by the Crown and by both barristers for many hours over several days. In spite of intense and at times aggressive questioning by the Crown, however, both parents maintained their innocence throughout.

Indeed, when she was first questioned at the hospital and accused by the police of FGM, the mother said she had never heard of FGM. From then until the time the case went to court 16 months later, throughout the trial, and even when she was found guilty, she continued to insist that she was innocent. Importantly, she told the court that FGM is not practised in the ethnic group she comes from. This is corroborated by a 2016 Demographic & Health Survey from her country of origin, where only 0.3% of girls/women have had FGM, mostly in one part of the country, and only about 54% of women in the country as a whole had ever heard of FGM.[26] She told the court she had not had FGM herself and offered to be examined to prove it. She said no one in her family or ethnic group had ever been cut either. She also said that when she had been told what FGM was, she was shocked by it, but she was not believed. The father’s ethnic group does not practise FGM either, and he stated that no-one in his family had ever been cut.

The father stood by the mother throughout and never changed his insistence that she had never said or done anything to make him believe she had had their daughter cut, let alone done it herself. He firmly believed that his daughter had fallen on the cupboard door. The prosecution barrister accused him many times of lying in support of the mother; but he rejected every accusation. However, when she asked him if he could counter the four medical opinions that his daughter had been cut – asked him not once but several times – the barrister did not accept his answers until he acknowledged that he could not. This was an important victory for the Crown (“unless an admission can be obtained from the Defence…”).[27]

What I observed in court

  • Using witchcraft to destroy the mother’s credibility

When questioned in court, the mother defended herself mainly by repeating that she had not done it – again and again and again. Her character was attacked by the Crown and her credibility destroyed, however, through the presentation of information that she practised witchcraft and spells, that she had a relationship with a man in another country who was made to sound like a dubious person, and that she took advice by phone from a traditional spiritual advisor in Africa, whom she had never met. Although irrelevant to the charge of FGM, the Crown used this to strengthen their case.

Witchcraft has been associated with magic, evil and the devil since biblical times. Accusations of witchcraft led to the deaths by torture, burning, drowning and hanging of tens of thousands of women in Europe between the 15th and 18th centuries.[28] I would contend that such evidence should have been ruled inadmissible, not only due to its prejudicial effect, but because witchcraft does not exist.

Under the Criminal Justice Act 2003, non-expert opinion evidence, evidence of bad character or previous convictions, hearsay evidence, and unreliable evidence are normally excluded from trials.[29] I would suggest that witchcraft comes within each of these categories. However, on the first day, when the mother’s barrister asked for anything related to witchcraft to be declared inadmissible, the judge refused the application. The prosecution barrister provided the court with many verbal and visual details of some of the practices used by the mother. When questioned, the mother denied she believed in or practised witchcraft but acknowledged that she sometimes used “spells” to ward off danger to herself and her family, and to try to make trouble go away. She also admitted she had taken advice by phone from the spiritual advisor on “cleansing herself”, while she was awaiting trial. Some of the “spells” came from him; others from an easily accessible website. But although some of them sounded unpleasant, they were harmless expressions of powerlessness.[30]

Early on, however, a letter from a witness for the prosecution which claimed FGM and witchcraft in Africa are related was admitted in evidence. The claims the letter was based on were false, as I will show below. It was only much later in the proceedings that the mother’s barrister adduced a letter from a counter-witness which stated that there was no connection between FGM and witchcraft. However, by then it was probably too late to make any difference.

In her summing up, the judge stressed a number of times that some of the mother’s beliefs and practices should not be taken as evidence of guilt. Yet she also described them as “repulsive”. This stigmatising language contributed to the condemnation of the mother, already accomplished so effectively by the Crown.

The media had a field day with the accusations of witchcraft. Within an hour of the verdict being announced, the mother and FGM were associated with witchcraft across the country in every news report, even on the BBC.[31] The Evening Standard reported that Detective Chief Inspector Ian Baker, of the Metropolitan Police’s child abuse and sexual offences command, said “none of his officers had suffered any ill effects that could be explained by spells”.[32]

  • Evidence from the children

Evidence from the children proved damning, despite being highly questionable. Both children were interviewed multiple times (the girl three times and the boy four times). The interviews were videotaped and shown in court. Some reports of conversations they had with social workers and their foster mother were also shared. What each child said was consistent (she fell on the cupboard door) until their final interviews. Then, separately, to different people and at two different points in time, more than a year after the events of 28 August 2017, each changed their story. In my view the girl’s new claims were not credible, but the court seemed to accept them. The boy’s response (he was aged 10 at the time of the trial) was more damning, but on the last day of the trial it had to be withdrawn.

Why were the children questioned so often until they changed their stories, yet believed without question when they implicated their mother? I ask this because both children made up elaborate stories at different moments when being interviewed, which were demonstrated to be complete fantasies. The boy invented a family summer holiday trip that had never taken place. The girl said that while she was being bathed at her foster mother’s house, a male relative of her foster mother would bathe her and had touched her inappropriately on her private parts. She even drew pictures about it. Then, laughing, she said it was all untrue, just a joke.[33]

With some 16 months between the arrest and the trial, these children would have been exposed to multiple conversations among the adults around them – hospital staff, medical experts, police, social workers, foster parents, lawyers – and could as easily have misunderstood as understood what was being said about their parents.[34]

The court was shown videos of all three interviews with the girl, all with the same two social workers. In the first two interviews, she was allowed to run around the room, draw pictures, chatter, laugh. Each time, she was asked questions designed to probe whether she had fallen or been cut. For example, it was considered significant that when asked to point out things that were wood, plastic and paper, she was able to do so, but she did not know what metal was – even though she had said she had fallen on the metal on the cupboard door. Her last interview took place after she told her foster mother a “secret” – that people who go to jail are bad, her mother was bad, her mother was going to jail, and she had lied, she had been cut. This was of course reported onwards. In the interview, the girl was again asked how she had hurt her private parts. At first, she said she had fallen when trying to get a biscuit. But she was pressed and questioned increasingly heavily until she was made to feel she had done something wrong. There was no running about this time. No laughter. As the social workers continued to question her, sitting cross-legged on the floor facing each other with her nearby, the one woman wrapped her in a blanket and clamped her into her lap facing the other woman, and they continued to ask questions until the girl said she had been cut. It felt threatening just watching it.

The girl also said, in response to a series of questions, that there was another woman in her mother’s kitchen that day. She said the woman had pink skin (Was she black like you or white like me?), she was old (Was she young or old?), with silver hair (What colour was her hair?), and had hurt her on her private parts (Where did she hurt you?). She also said she had been standing up when it happened (Were you lying down? No, I was standing up). When asked what the woman’s name was, she replied that her mother had called the woman a witch. She also said that her parents had held her while she was cut. Yet the father was not in the flat when she began screaming. The child was not asked further questions to try and determine who the woman might have been, and she was never identified.

I contend that the girl’s “confession” was unsafe. The Crown, the judge and the jury accepted it as credible only because they lacked understanding of how FGM would have to be carried out on such a small child, as I explain below.

The boy was very anxious about what would happen to him and his sister, and whether or not they would ever go back to their mother. In all four of his interviews he indicated that his sister fell in the kitchen and injured herself, and that his parents were innocent. He said he was watching television with his mother when the girl fell, but the day before the case opened, he told the foster mother he wanted to write a letter to one of the policewomen and to one of the social workers. She gave him paper, pen and envelopes; he wrote alone in his room. In both letters the boy said he had lied and that his mother sometimes told lies to get out of trouble. When the foster mother was asked by the police why he had wanted to write the letters, she stated that he replied either: “I want to tell the truth” or “I want to prove our case”. These do not mean the same thing. Both were reported in court because, after handing in the boy’s letters, the foster mother made a statement to the police in her own language. This was translated into written English, and she was asked to sign only the English version, not the one in her own language.[35] The boy read out one of the letters to camera and signed it; this was shown in court. Arrangements were made to bring him into court on the final day of the trial to be questioned about what he had said and written. This was clearly expected to be the coup de grâce. However when the morning came, he refused to attend court. We never learned from him why he wrote what he did or why he then refused to attend.

When he became aware that the boy had refused to attend, the father’s barrister indicated that he would apply to have the boy’s evidence omitted as unreliable.[36] The judge agreed he could do so. An attempt to carry on for two extra days in the hope the boy would change his mind proved fruitless.

Apart from the children’s “confessions”, the opinions of the medical experts were the only basis on which to find the mother guilty. In her summing up, the judge directed the jury that they needed to decide whether the children’s evidence was reliable or not. The following morning the jury took only a few hours to reach a verdict – the mother was found guilty, the father was acquitted. The judge indicated that the mother would receive a long sentence.

Why did no one question the ethics of depending on these children as witnesses? Was a girl aged 3 or 4 competent to give evidence at all, let alone more than a year after the incident happened? Could her brother have been expected to know what happened in the circumstances? Why was each of them disbelieved and re-interviewed until they implicated their mother? Finally, is it credible that the girl would lie about what happened to her – for over a year – in the face of expert questioning and probing by social workers?

In the context of family proceedings, 2011 guidelines specify that:

“in deciding whether a child should give evidence, the court’s principal objective should be achieving a fair trial. With that objective the court should carry out a balancing exercise between the following primary considerations: i) the possible advantages that the child being called will bring to the determination of truth balanced against; ii) the possible damage to the child’s welfare from giving evidence i.e. the risk of harm to the child from giving evidence….”[37]

These guidelines list over 25 serious considerations to take into account, which include: whether the case depends on the child’s allegations alone; corroborative evidence; the length of time since the events in question; whether the child has retracted allegations; and much more. Since these guidelines are intended for family, not criminal, proceedings they are not strictly relevant to a criminal case; however, I would contend that each one of these considerations was pertinent in this case.

  • Sentencing

At sentencing on 8 March, the judge stated:

“There is much which remains unknown about the circumstances of your offending. We do not know whether you cut [her] by your own hand or whether you held [her] down while the cutting was done by the “witch-lady” about whom [the girl] spoke in her recorded police interview. We do not know precisely how [she] was cut beyond knowing that a sharp instrument was used – a knife, scissors or scalpel. We do not know whether [she] was given any local anaesthetic to dull the pain. We do not know why you did this: you do not come from a culture where FGM is practised; there were suggestions during the trial that your crime was connected with witchcraft or that you cut [her] to cleanse her in some way – these suggestions derived from witchcraft objects found at your home and various messages found on your phone – but they are no more than possibilities.”[38]

Given that so much was unknown, it is questionable how the verdict could be safe. Yet the judge said she was more sure of “other evidence”: “You committed this offence with another, as part of a joint plan…”. Aside from the little girl’s “witch” story, however, there was no basis on which she could make this statement.

The judge also raised the possibility that FGM could have taken place during the 12 hours before the girl was taken to hospital. Yet this was not feasible either. No evidence was presented that she had been bleeding or in pain for so long; on the contrary, her father gave evidence that the opposite was true as she had been with him outside until a few minutes before she was injured. Given that the hospital reported she had been bleeding heavily, almost enough to need a transfusion, she could not have been bleeding for up to 12 hours before being taken to hospital.

FGM, the judge said, was child abuse, barbaric, a serious crime against a vulnerable child, the effects of which may not appear for years. The mother’s barrister responded, correctly, that in law FGM and child abuse are not the same crime.[39] She asked for mitigation in sentencing because the little girl was taken to hospital. However, she did not stress the absence of evidence, or the irrelevance of witchcraft, or the lack of credibility of the little girl’s “confession” in mitigation.

The judge stated that the mother may have coached the child regarding what to say about the injuries in the hospital waiting room. No one reported hearing this, however. And the judge stated more than once that FGM was not only comparable to child abuse, but analogous to domestic violence, assault, grievous bodily harm and child cruelty, all of which are crimes that could attract a life sentence. I had the impression that she wanted the mother to feel lucky she was not being jailed for life.

She sentenced the mother to the maximum of 14 years imprisonment,[40] minus time already served. The time already served was due to the mother and father having spoken to each other about how the children were doing during the 16 months between their arrest and trial, which landed them in jail for some months before they went to court, as they were not allowed to talk to each other.

A critique of how the court proceeded

  • The court’s lack of expertise regarding FGM

As stated earlier, the little girl’s story of how she was cut is not credible as a description of FGM performed on a small child. The cutting could not possibly have occurred while she was standing up, no matter how skilled the cutter. Yet no one in the courtroom questioned this.

Based on the father’s evidence, FGM could only have happened at the point when the child started screaming and was found bleeding in the kitchen. Was that feasible? Unlike in the first criminal trial outlined above, no one actually explained the FGM procedure to the jury in this trial. It would, in my view, have been appropriate to have started proceedings by explaining: “How do you actually cut the inner labia of a three-year-old girl?”

The answer is that the girl would have to be immobilised, lying on her back, legs held wide open. The outer labia (±3 cm long) would have to be held open to expose the inner labia, which around the age of three are only ±1 cm long.[41] Two sheer cuts to remove the inner labia would require a cutting instrument capable of the task and a lot of skill. It would be extremely painful for the child. Only someone practised at FGM on such a small child could manage it. It could not have been done with the child standing up, let alone by one person acting alone.

Zainab Nur (Hayaat Women’s Trust, Cardiff), a community advocate with knowledge of FGM, confirms this:

“One of the key things I felt was left out of the trial, was that the jury was not told it’s impossible to cut a girl without a team to hold her down. Any of my women that share their stories of being cut will tell you that many people are involved in doing FGM on a young girl. Every part of her body has to be held down and every limb has to be put into a state that means the child has no power to move. There would be blood everywhere – on her thighs, on the floor, and bruising from being held down. She would also be traumatised. I know from my personal experience that it’s the most painful thing, and that you would hate anyone that was involved or around you when the cutting happens. Normally, all cutters are experienced women. It’s never been known, in any community, that a mother would cut her daughter, unless she was a traditional, experienced cutter.”[42]

Secondly and importantly, there is no evidence that adults who come from non-FGM-practising cultures in Africa, as the case here, arrange for their children to be cut. This is widely known and understood in international public health circles. However, no one from an FGM-practising ethnic background was called to give evidence and educate the court about the practice of FGM, its history as a cultural practice or how and where it is or is not carried out.

The need for education of UK medical professionals who see patients with a history of FGM was understood some years ago. For example, the Royal College of Nursing published a document for nurses and midwives in 2006, updated in 2015, and Health Education England published an e-learning programme for GPs and others in July 2014.[43] Appropriate training for those seeing patients is also provided.

What was or might have been misunderstood in all four of the criminal cases to date suggests that it is vital that judges, lawyers and barristers, as well as juries and witnesses, are educated about FGM to be in a position to recognise whether evidence is accurate, fair and current.

  • The problematic linking of FGM and witchcraft

The admission in court of false information linking FGM, spells and witchcraft shows that witchcraft remains an influence in people’s minds today including, unexpectedly, among the legal profession and the mainstream media.[44]

The claim of a link between FGM and witchcraft appears to have originated from the National FGM Centre/Barnardo’s. On 20 January 2019, I wrote to the senior press officer at Barnardo’s asking for evidence of this supposed link. A response was received only after the trial was over (on 2 February) and after two follow-up requests. It pointed to a Refinery29 article[45] published during the case, that was reprinted in full by the Evening Standard the same day. Refinery 29 and the National FGM Centre/Barnardo’s cited each other as their source that a link existed. Barnardo’s also named four other publications as evidence of a link, yet the following are the only statements in those publications about FGM and witchcraft:

“During one cutting procedure, the girl collapsed. Her elders’ explanation? ‘They tell you it’s witchcraft,’ she says. ‘If the girl dies, they’ll just say it’s because the mother is a witch’.”[46]

“Many people in Kuria [Kenya] fear the ‘witchcraft’ used by the Elders to incite people to cut their girls. They believe the Elders can reach out through this witchcraft and harm them and their loved ones.”[47]

“One study in the Gambia and Senegal showed that only those who were already critical of FGM believed in the information on health risks. One reason for this is that the immediate complications of FGM are often attributed to other factors such as witchcraft or evil spirits.”[48]

“It is believed that un-mutilated girls and women are unclean, promiscuous, and unmarriageable. It is also believed that the clitoris can be used to bewitch husbands and make it impossible for them to take more wives. In this instance, women who would not permit their husbands to take more wives are branded witches.”[49]

None of these claims is evidence of a link between the practice of FGM and witchcraft. This evidence should therefore have been questioned in court and excluded.

What were the key questions for the trial to determine?

I return now to the three pertinent questions asked by Sir James Munby in the 2014 family care proceedings in Leeds, summarised above:

– First, had FGM occurred? In this case, I do not believe the answer was clear beyond a reasonable doubt.

– Second, did it amount to significant harm? No matter how the injuries happened, if the bleeding had not been stopped and the child had not been taken to hospital, the harm would have been serious. However, the mother sought emergency health service advice, did her best to try to stop the bleeding, and she and the father rushed the child to hospital where she was treated successfully. In the videos of her shown in court there appeared to be no evidence of serious physical or emotional damage, as she was running about cheerfully in all but the last one.

If there is any damage in the future, it is far more likely to result from the psychological harm of having been removed from her parents at such an early age, subjected to examinations and questioning, and particularly the harm from learning – when she is old enough to understand – the consequences of this case for herself and her family.

– Third, what are the implications? Sir James Munby cautioned against removing children from their parents unnecessarily, even if FGM had taken place. In relation to this case, then, it must be asked whether it was necessary for both children to be placed in foster care in the 16 months preceding the trial, presumably in order to prevent their parents from talking to them, let alone after the trial until they reach adulthood – when they have a father who has sought to get them back, as well as other family in London who are willing to help to look after them.

Why the judgment should be appealed

No application for leave to appeal was lodged in this case. I believe an appeal against the conviction is called for on the basis that the conviction is unsafe. It would then be open to the Court of Appeal  to quash the mother’s conviction. Alternatively, if it considered it appropriate, the court could order a re-trial, based on additional and more accurate information about FGM and the weakness of the evidence presented in this case. Such information would include the parents not coming from FGM-practising countries, the implausibility of the little girl’s “confession”, the unreliability of the boy’s confession, the absence of an identified cutter and cutting instrument, the lack of a time and place where the cutting could have been done, the irrelevant but prejudicial influence of witchcraft and spells, the effect of the pressure placed on the children to “confess”, and whether the four medical opinions were enough to condemn the mother.

Were the four medical opinions as certain as possible? No photographs were taken of the girl’s injuries pre-surgery, when the two non-experts on childhood FGM injuries saw them. The two doctors who are experts on childhood FGM injuries saw the girl’s labia only after they were sutured. There appeared to be no possibility, time-wise or skills-wise, that the mother could have cut her daughter, nor that a skilled FGM cutter could have arrived, done the job without a lot of other adults to hold the child down and then vanish within minutes.

It is important to acknowledge that the injuries were not what might be expected from a fall. However, experts on the subject of unusual injuries from falls could be called on appeal.

The court cases to date described in this paper are significant, not because they show how difficult it is to prove FGM when it has actually happened, as is often claimed, but because cases with little or no evidence of wrongdoing are the only ones that have been found and they are being pursued relentlessly to try to obtain convictions. In October 2019, for example, the CPS put out a statement entitled: “FGM perpetrators have no hiding place”.[50] Some anti-FGM campaigners are also relentless in their push for more prosecutions, even if it means making false claims about FGM.[51] And some people are making money out of anti-FGM campaigns.[52]

Campaigns against FGM in the past 25+ years internationally have convinced a growing number of people to stop practising it. Yet despite the lack of evidence since 1985 of the extent to which the practice has existed in the UK, few UK commentators have considered how rare it might be.[53]

Conclusions and future perspectives

Consider what has happened to this family. The mother is in jail. The father had previously lost a wife and daughter, who were killed in a car accident in his home country before he ever came to the UK. While awaiting trial, he lost his job and the room where he was living. He applied in good time for his visa to remain in the UK to be renewed – but will he be able to gain custody of his daughter and the boy, both of whom he loves dearly? Or will the children be forced to stay in foster care until they are of age? This family’s lives have all been blighted. All of them have been punished even though only one of them has gone to jail.

In this article, I have argued that it is problematic to conclude that the mother was guilty of FGM, or of arranging FGM. I fear for the children’s long-term well-being – particularly when they are old enough to understand their pivotal role in condemning their mother. I would argue that this concern far outweighs the exaggerated fears expressed by Mrs Justice Whipple as to possible lifelong consequences of damage to the girl’s genitals.[54]

A small but growing number of women’s health and rights advocates and health professionals have voiced opposition to how the criminalisation of FGM has played out in the UK. I first raised this as a problem in 2015.[55] The 2019 convictions – both this case and in Dublin[56] – make this even more urgent. Sarah Johnsdotter, an expert researcher, has also expressed concerns about injustice based on her research in Sweden.[57] Whether or not these views are applicable in African countries where FGM is still widely practised is a different question.

In the UK, there has been a negative cumulative effect from: (1) the demand for more prosecutions in the absence of prosecutable cases, (2) the requirement to record and report details of women with a history of FGM (which is a potential violation of privacy and medical confidentiality and should be stopped immediately), and (3) increased use of protection orders to take children into care only because the mother had FGM as a child or the family want to visit relatives in their home country. It would appear that there are still a few children who are being taken abroad to be cut,[58] but this does not justify the heavy-handed behaviour being exhibited, or in my opinion the terms of the terms of the 2015 amendments.

These concerns are part of a wider examination of the role of the criminal law in regard to bodily autonomy and human rights in relation to sexuality, gender and reproduction, led by feminist human rights lawyers and advocates. Some of the most important issues being raised are to do with harm prevention vs. harm production – that is, whether in some cases the criminal law is causing more harm than the criminalised practice does.[59] Other concerns are related to differential vulnerability, depending on the sex, ethnic background and race of the children involved.[60] Thus, circumcision of newborn boys is considered a positive religious and cultural practice amongst Jews and Muslims, while FGM by Africans is seen as a moral outrage. This is not to justify or excuse FGM in any way, but rather to point out the serious inconsistencies in how these matters are treated.

For all these reasons, I believe the current UK law against FGM should be reconsidered,[61] and replaced with positive measures for countering FGM which have the support and involvement of the communities they are addressed to. Yet many members of the UK Parliament who approved increased “safeguarding” powers in 2019 and support taking more children into care in case they are at risk could not be further from agreeing.[62]

FGM is/was a traditional, communal rite of passage into adulthood in Africa for girls from the ethnic groups who practise(d) it. The World Health Organization defines it as a harmful traditional practice, based on this history. UNICEF showed in a 2013 publication that the practice of FGM has been decreasing globally for 20 years as a growing number of its practitioners have recognised that it is harmful. They also point out that where FGM is a social norm, it is very difficult for individuals not to practise it, because there is a high price to pay, including social exclusion, criticism, ridicule, stigma and perhaps most importantly, the inability to find their daughters suitable marriage partners. UNICEF argues that challenging this norm is what is needed, and that the people best placed to do so are from the communities involved.[63]

Shahvisi and Earp wrote in 2019:

“Successful abandonment campaigns share several core features. Among them: centring affected women, engaging local religious or cultural leaders, accommodating the interdependence of communities and their decision-making, showing appropriate respect for cultures, reinforcing their positive aspects and focusing on local values and aspirations… In other words, initiatives which positively engage communities and allow abandonment to be led from within are most likely to be successful. Blanket criminalisation based on double standards, by contrast, is unlikely to foster an atmosphere of cooperation and mutual understanding.”[64]

Women from affected communities, especially those who have been born in the UK, say that they feel both silenced and persecuted by current UK law and practice. They say children from their communities are being stigmatised by some of the school-based education on FGM being provided by some anti-FGM groups.[65] A packed meeting of several hundred people held at the School of Oriental & African Studies on 15 February 2019 heard these views from many young women living in different parts of the UK from communities that used to practise FGM in other countries and another century. All argued that they were not at risk of FGM, but felt that they and their families were being watched, stigmatised and suspected without evidence. These young women were from cities, towns and different backgrounds across the UK. Their voices need to be heard.[66]

The criminal cases in the UK to date are examples of the injustice that is taking place at the intersection of good public health intentions and the heavy hand of the criminal law. The government, members of Parliament and the Crown Prosecution Service, members of the judiciary and legal profession, the police and the National Health Service need to start listening to community voices about what is and is not happening. The growing use of FGM protection orders and children being taken into care is occurring on an assumption of risk instead of evidence of risk basis. This deepens existing racial profiling and creates further injustice. I would argue that greater use of these orders is not a replacement for failed prosecutions or the failure to find non-existent perpetrators. A positive way forward is needed, some of the best examples of which are specialist clinics for women with complications of FGM, which exist across the country,[67] and the work of groups such as the Hayaat Women’s Trust, who represent and defend women in their own community who have been accused unjustly.

Acknowledgements

Thanks to Bríd Hehir, editor/author of the blog Shifting Sands, for conversations about both the 2015 and 2019 criminal cases, which we attended together as observers, and to Zainab Nur of Hayaat Women’s Trust Cardiff for allowing me to quote her description of how FGM is done to small children, and for reviewing an earlier version of this manuscript. To Susan Bewley, Brenda Kelly and Alison MacFarlane for valuable conversations and their work on the issues covered here, and Marie Fox for directing me to relevant legal sources.

Marge Berer is the founder editor of the journal Reproductive Health Matters (1992-2015). The journal was among the first to raise the problematic relationship between FGM, cosmetic genital surgery and male circumcision in terms of differentiating how they are treated in law. She published a widely read blog on the first criminal trial in 2015 and other blogs on FGM since then, which can be found at The Berer Blog.

References


[1] A. MacFarlane, ‘Misleading use of FGM statistics compounds concerns about their reliability’ (Letter). BMJ (2019) 364;1927. This letter to the BMJ summarises and condemns the exaggerated numbers of girls believed to be at risk of FGM. It concludes that although the “data are somewhat piecemeal, taken together and correctly interpreted, they do not support claims that FGM is widespread among girls born in England and Wales to mothers from countries that practise FGM. At most, they suggest that a small number of girls still undergo or are threatened with FGM.” The author, who is an expert on these data, is unwilling to venture an estimate herself because what is known is so scattered and incoherent.

[2] The Female Genital Mutilation Act 2003 applies to England, Wales and Northern Ireland; the Scottish equivalent is the Prohibition of Female Genital Mutilation (Scotland) Act 2005/

[3] S.3A Female Genital Mutilation Act 2003 (as amended).

[4] S.5A Female Genital Mutilation Act 2003 (as amended).

[5] ‘’FGM has stopped in Wales’ but women still ‘persecuted’ BBC Wales News, 12 June 2018. https://www.bbc.co.uk/news/uk-wales-44440167 last accessed 27 February 2020.

[6]See, for example: S. Laville. ‘Anti-FGM campaign at UK airports seeks to stop mutilation of girls.’ The Guardian. 9 May 2014. https://www.theguardian.com/society/2014/may/09/anti-fgm-airports-heathrow-met-action-nigeria-sierra-leone, last accessed 27 February 2020;  ‘Met chief says UK may turn to mandatory medical tests for FGM.’ The Guardian. 9 May 2014. https://www.theguardian.com/society/2014/may/09/fgm-met-chief-medical-tests, last accessed 27 February 2020; and R Sanghani. ‘Airport officers fight to save British girls from FGM and forced marriage.’ The Telegraph. 31 August 2015. https://www.telegraph.co.uk/women/womens-life/11830366/FGM-forced-marriage-trafficking-UK-airports-fight-to-save-girls.html, last accessed 27 February 2020.

[7] See P. Donnelly, ‘Police arrest 72-year-old man on suspicion of conspiracy to commit FGM after he arrived at Heathrow Airport with 11-year-old girl on flight from Uganda.’ Daily Mail. 26 July 2014. http://www.dailymail.co.uk/news/article-2706675/TWO-HELD-IN-FGM-CONSPIRACY-PROBE.html#ixzz3X1MrC7hz, last accessed 27 February 2020; ‘Two bailed in FGM probe after man and girl stopped at Heathrow.’ BBC News. 27 July 2014. https://www.bbc.co.uk/news/uk-england-london-28516382, last accessed 27 February 2020; and ‘No further action over FGM arrest at Heathrow Airport.’ BBC News. 17 February 2015. http://www.bbc.com/news/uk-england-northamptonshire-31491324, last accessed 27 February 2020

[8] Op cit., note 1.

[9] Mandatory reporting of FGM: procedural information, 2015. https://www.gov.uk/government/publications/mandatory-reporting-of-female-genital-mutilation-procedural-information, last accessed 27 February 2020.

[10] M. Berer. ‘Is the NHS collection of patient identifiable data of women with FGM unethical and a breach of confidentiality?’ The Berer Blog. 16 August 2015. https://bererblog.wordpress.com/2015/08/16/is-the-nhs-collection-of-patient-identifiable-data-of-women-with-fgm-unethical-and-a-breach-of-confidentiality/, last accessed 27 February 2020.

[11] Re B and G (Children) (No 2) [2015] EWFC 3.

[12] Ibid., at [13]-[14].

[13] Ibid., at [36].

[14] Information describing the case of Re B and G (Children) (No 2) [2015] EWFC 3 was handed out to observers at the first criminal trial. See also: M. Berer. ‘Another FGM case in Britain that found no harm.’ The Berer Blog. 5 September 2015. https://bererblog.wordpress.com/2015/09/05/another-fgm-case-in-britain-that-found-no-harm/

[15] For details of this case, see M. Berer. ‘Acquittals in the FGM case in London: justice was done and was seen to be done, but what now?’ The Berer Blog. 10 February 2015. https://bererblog.wordpress.com/2015/02/10/acquittals-in-the-fgm-case-in-london-justice-was-done-and-was-seen-to-be-done-but-what-now/ , last accessed 27 February 2020.

[16] The FGM Detectives. Channel 4 TV. https://www.channel4.com/programmes/the-fgm-detectives/on-demand/64645-001. See also S. Morris. ‘Police promise to learn lessons after collapse of FGM trial in Bristol.’ The Guardian. 22 February 2018. https://www.theguardian.com/uk-news/2018/feb/22/bristol-father-found-not-guilty-female-genital-mutilation-trial-six-year-old-daughter, last accessed 27 February 2020.

[17] M. Berer, ‘The role of the police and the courts in prosecuting allegations of FGM: a review of “The FGM Detectives”, Channel 4 TV, and the case that just ended at the Old Bailey.’ The Berer Blog. 26 March 2018. https://bererblog.wordpress.com/2018/03/26/the-role-of-the-police-and-the-courts-in-prosecuting-allegations-of-fgm-a-review-of-the-fgm-detectives-channel-4-tv-and-the-case-that-just-ended-at-the-old-bailey/, last accessed 27 February 2020.

[18] S. Karlsen, N. Carver, M. Mogilnicka and C. Pantazis, When Safeguarding Becomes Stigmatising: a report on the experiences of Somali families in Bristol with anti-FGM safeguarding policies. 6 March 2019. https://research-information.bristol.ac.uk/files/187177083/Karlsen_et_al_2019_When_Safeguarding_become_Stigmatising_Final_Report.pdf, last accessed 27 February 2020.

[19] A. Topping, ‘UK solicitor cleared of forcing daughter to undergo FGM.’ The Guardian. 22 March 2018. https://www.theguardian.com/society/2018/mar/22/uk-solicitor-acquited-forcing-daughter-fgm-female-genital-mutilation, last accessed 27 February 2020.

[20] Ibid., and see also ‘Britain’s FGM Prosecution Failure’ Daily Mail. 22 March 2018. https://www.dailymail.co.uk/news/article-5532839/Britains-FGM-prosecution-failure.html, last accessed 27 February 2020.

[21] H. Summers, ‘Those involved in FGM will find ways to evade UK law’ The Guardian. 7 March 2018. https://www.theguardian.com/society/2018/mar/07/reported-cases-fgm-rise-sharply-uk-no-court-convictions, last accessed 27 February 2020.

[22] The kitchen cupboards were in a bad state; hanging open. The mother had asked the council to come and repair the broken hinges many times, which was recorded in council repair reports but ignored in court.

[23] That is, straight, not uneven or jagged.

[24] “Evidence given by a suitably qualified doctor that simply reports the injuries sustained by a victim to an assault is not evidence of opinion and is rarely likely to be disputed. Whether a particular injury amounts to grievous or actual bodily harm is a matter for the bench or jury to determine. Prosecutors need to be aware that where a doctor expresses a view as to the cause or likely cause of an injury, this is opinion and is subject to CrimPR19, unless an admission can be obtained from the Defence, or the medical evidence is not otherwise disputed.” CPS: Expert Evidence: Medical. https://www.cps.gov.uk/legal-guidance/expert-evidence Updated 9/10/2019.

[25] K. Clifton. Evening Standard. 1 February 2019. https://www.standard.co.uk/news/crime/mother-of-threeyearold-girl-becomes-first-person-in-uk-to-be-found-guilty-of-female-genital-a4055536.html, last accessed 27 February 2020.

[26] Source withheld as it identifies the country.

[27] Op cit. at n.24.

[28] See for example: E. Castelow, Witches in Britain, Historic UK.com, undated. https://www.historic-uk.com/CultureUK/Witches-in-Britain/. See also: https://allthatsinteresting.com/history-of-witches

26 See A. Kean and P. McKeown, The Modern Law of Evidence (12th edition) (OUP, 2018) chapters 8, 11 and 17.

[30] I have chosen not to give examples here for the same reason I think they should have been inadmissible – they were irrelevant to the charge of FGM.

[31] ‘FGM: mother guilty of genital mutilation of daughter.’ BBC News. 1 February 2019. https://www.bbc.co.uk/news/uk-england-47094707, last accessed 27 February 2020.

[32] K Clifton, ‘Mother of three-year-old girl becomes first person in UK to be found guilty of female genital mutilation.’ Evening Standard. 1 February 2019. https://www.standard.co.uk/news/crime/mother-of-threeyearold-girl-becomes-first-person-in-uk-to-be-found-guilty-of-female-genital-a4055536.html, last accessed 27 February 2020.

[33] See this in-depth analysis: E. Ernberg, et al. ‘Court evaluations of young children’s testimony in child sexual abuse cases.’ (2018) 23(2) Legal and Criminological Psychology 176.

[34] On the problems with child witnesses in criminal cases, see M. Burton, R. Evans and A. Sanders. ‘Vulnerable and intimidated witnesses and the adversarial process in England and Wales.’ (2007) 11(1) International Journal of Evidence and Proof 23.

[35] Issues of misinterpreting limited English as a second language by police in this case deserve examining, which were also salient in previous FGM investigations and cases. See above at note 9.

[36] Under s.116 of the Criminal Justice Act 2003.

[37] Guidelines in Relation to Children Giving Evidence in Family Proceedings. FJC11/01/04. https://www.judiciary.uk/wp-content/uploads/JCO/Documents/FJC/Publications/Children+Giving+Evidence+Guidelines+-+Final+Version.pdf, last accessed 27 February 2020.

[38] In the Central Criminal Court. R v N (Female Genital Mutilation). Sentencing Remarks of Mrs Justice Whipple, 8 March 2019. https://www.judiciary.uk/wp-content/uploads/2019/03/r-v-n-female-genital-mutilation-sentencing-remarks-whipple-j.pdf , last accessed 27 February 2020.

[39] Although the defence barrister is right, the judge is not the only person to equate the two. The Metropolitan Police website does too: https://www.met.police.uk/advice/advice-and-information/caa/child-abuse/female-genital-mutilation-fgm/.

[40] S.5 Female Genital Mutilation Act 2003.

[41] One of the four doctors who was a witness provided these details.

[42] Personal e-mail, 24 April 2019.

[43] Female genital mutilation: An RCN resource for nursing and midwifery practice (2nd edition), 2015.

https://www.rcn.org.uk › media › publications › february › pub-004773; and Health Education England. FGM: e-learning to improve awareness and understanding. https://www.e-lfh.org.uk/programmes/female-genital-mutilation/, last accessed 27 February 2020.

[44] In the FGM trial that recently concluded in Dublin, there were troubling similarities and a similar lack of hard evidence. See B. Hehir. ‘Shifting Sands’, 9 December 2019. https://www.shiftingsands.org.uk/maybe-irelands-first-fgm-case-really-was-a-straddle-injury/, last accessed 27 February 2020. The trial was covered every few days by the Irish Times, though superficially (see, for example, ‘Couple found guilty of female genital mutilation of their daughter’ Irish Times 28 November 2019 https://www.irishtimes.com/news/crime-and-law/courts/circuit-court/couple-found-guilty-of-female-genital-mutilation-of-their-daughter-1.4098174), last accessed 27 February 2020.

[45] N. Gil. Refinery29. 17 January 2019. https://www.refinery29.com/en-gb/2019/01/221872/fgm-female-genital-mutilation-witchdraft (This article was “revised” in March 2019 but not withdrawn.)

[46] Simmons E. Broadly – Vice. 17 August 2015. https://broadly.vice.com/en_us/article/43ggem/women-cutting-women-female-genital-mutilation-and-those-who-practice-it

[47] ‘Churches’ Response to FGC in Kuria’ Orchid Project, 27 March 2015 available at https://orchidproject.org/churches-response-to-fgc-in-kuria-2, last accessed 27 Feb

[48] ‘Africans Unite Against Abuse. What is FGM?’ 2009. http://www.afruca.org/wp-content/uploads/2013/06/SACUS04_What-is-FGM.pdf

[49] R. Johansen et al., ‘What works and what does not: a discussion of popular approaches for the abandonment of female genital mutilation’ (2013) Obstetrics & Gynaecology International 1. Quoted in a Barnardo’s publication (No longer accessible Dec 2019).

[50] 19 October 2019. https://www.cps.gov.uk/cps/news/fgm-perpetrators-have-no-hiding-place

[51] The full text of the Manifesto to end FGM in the UK by 2030 by five anti-FGM groups can be found at: https://www.shiftingsands.org.uk/critique-of-manifesto-to-end-fgm-in-the-uk-by-2030/. My critique of its inaccurate assertions can be found at: https://bererblog.wordpress.com/2020/01/30/response-to-a-manifesto-by-actionfgm-dahlia-project-savera-uk-magool-and-the-vavengers/, last accessed 27 February 2020.

[52] See, for example, this advertisement by a private firm of a one-day meeting on FGM in London in September 2019, which was charging £345 per person to attend. The publicity claimed: “170,000 women and girls are estimated to be living with FGM in the UK today, with a further 65,000 girls under the age of 13 considered at risk”. Available at http://www.westminster-briefing.com/event/working-collaboratively-tackle- fgm-implementing-revised-vawg-strategy, last accessed 27 February 2020.

[53] Above at note 1.

[54] Op cit. at note 38.

[55] M. Berer. ‘The history and role of the criminal law in anti-FGM campaigns: Is the criminal law what is needed, at least in countries like Great Britain?’ (2015) 23(46) Reproductive Health Matters 145.

[56] Op cit. at note 44.

[57] S. Johnsdotter. ‘Meaning well while doing harm: compulsory genital examinations in Swedish African girls.’ (2019) 27(2) Sexual and Reproductive Health Matters 87.

[58] Op cit. at note 1.

[59] See, for example, A. M. Miller, M. J. Roseman (eds), Beyond Virtue and Vice: Rethinking Human Rights and Criminal Law. (Philadelphia: University of Pennsylvania Press, 2019), particularly J. N. Erdman, ‘Harm production: an argument for decriminalization’ at 248.

[60] M. Fox and M. Thomson. ‘Bodily integrity, embodiment, and the regulation of parental choice.’ (2017) 44(4) Journal of Law and Society 501..

[61] M. Berer, ‘The history and role of the criminal law in anti-FGM campaigns: Is the criminal law what is needed, at least in countries like Great Britain?’ (2015) 23(46) Reproductive Health Matters 145.

[62] See the parliamentary debates at https://hansard.parliament.uk/commons/2019-02-25/debates/af5dd9d2-224a-430a-9c58-67c0b1942c66/ChildrenAct1989(Amendment)(FemaleGenitalMutilation)Bill(Lords)

[63] UNICEF. Female Genital Mutilation/Cutting: A statistical overview and exploration of the dynamics of change. July 2013. https://www.unicef.org/cbsc/files/UNICEF_FGM_report_July_2013_Hi_res.pdf

[64] A. Shahvisi and B.D. Earp, ‘The law and ethics of female genital cutting’ in S. Creighton and L. Liao (eds). Female Genital Cosmetic Surgery: Solution to What Problem? (Cambridge: Cambridge University Press, 2019). 7

[65] Op cit. at note 18.

[66] S. Johnsdotter, ‘Hidden voices: the importance of ethnography in FGM storytelling.’ Shifting Sands, 20 February 2019. https://www.shiftingsands.org.uk/hidden-voices-the-importance-of-ethnography-in-fgm-storytelling/

[67] See NHS Specialist Services for Female Genital Mutilation. (NHS England, October 2017). https://www.nhs.uk/Conditions/female-genital-mutilation/Documents/FGM%20clinic%20list%20Nov%2017.pdf, last accessed 27 February 2020.

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