Response to a Manifesto by Action:FGM, Dahlia Project, Savera UK, Magool, and The VAvengers

30/01/2020 Comments Off on Response to a Manifesto by Action:FGM, Dahlia Project, Savera UK, Magool, and The VAvengers

Your Manifesto has been shared with me as someone who has written on FGM and published papers on it in the journal Reproductive Health Matters while I was the editor.

I am absolutely not willing to sign your manifesto. Here is why:

First, it is incorrect in a number of places:

1. FGM is not an epidemic. An epidemic is: “the widespread occurrence of an infectious disease”. FGM is a harmful traditional practice. Moreover, its prevalence has been falling internationally since at least 2013, thanks to positive educational campaigns about why it is harmful and also because so many women in the communities where it was traditionally practised have decided themselves to stop the practice. Including in the UK.

2. You have distorted the figures about prevalence in the UK. You seem to be making the false assumption that all the daughters of all the women in the UK who had FGM as children in another country are at risk. There is absolutely no credible evidence to show this. You may believe these figures since so many other anti-FGM groups use them as well. But they are absolutely wrong and all of you should stop bandying them about without checking the source — because you actually do not understand what the source says.

3. Your description of FGM uses gross exaggeration. The severity of the cutting in many countries has been greatly reduced because of educational campaigns, and also because many people are going to medical doctors for it, the same as they are doing with male circumcision. You don’t even mention this. I would very much like to know where you got your information to claim that FGM is done many times, let alone more than once, to the same child. I have never seen any such published, peer-reviewed evidence.

4. Can you also provide published, peer-reviewed evidence that “A survivor may require invasive surgeries throughout her life as a result”. Do you have any evidence that this happens in the UK, since your call for action is about the UK?

5. Can you also provide published, peer-reviewed evidence that “FGM is part of a continuum of violence against women and girls”?

6. And again, what is your evidence regarding this claim: “Tackling FGM provides the pathway to eradicating these other forms of gender-based violence.” It’s a completely spurious claim, not least because you don’t define what you mean by “tackling FGM”.

It is highly irresponsible to make these claims without evidence. People’s lives are put at risk, children are being taken away from their parents for no reason, and whole communities are affected.

As regards “what needs to be done”:

7. You call for more convictions and yet if you look at the number of times the police and the DPP have sought convictions and failed, because they arrested people without credible evidence, because they were overly keen to prosecute, you might want to think again. Has it ever crossed your minds that the reason there have been next to no convictions is because FGM is not being done much in the UK? It’s not possible ethically or legally to assume risk exists because of ethnic origin or, for example, to treat everyone in an airport with suspicion, arrest them and put their children into care just because they are going abroad (which has happened).

8. You call for every female patient in the country to be questioned by GPs, thus criminalising all of us??? This is absurd and unethical.

9. You mention the recent conviction in Ireland. Are you aware that when the police were unable to identify anyone who could have carried out the alleged cutting, they said it must have been a witch? And are you aware that in the conviction here in London last year, the mother who was sent to prison was also accused of witchcraft, and false claims were made in court that FGM and witchcraft are linked, and that this successfully demonised her? Do you actually think this represents justice? Or do you yourselves believe in witches?

10. You want to pay people to report cases? Welcome to the Stasi in East Germany. Or don’t you know that people will lie for money.

I recommend you withdraw this manifesto because it contains unsubstantiated information, proposes nothing of value, discredits you and your groups, and if taken seriously, can do serious harm to innocent people because it calls for criminalising large numbers of people because they are women, and due to their ethnic and racial background. I think it’s shameful.

How not to succeed in publishing a paper on an FGM trial, and keep trying

27/07/2019 Comments Off on How not to succeed in publishing a paper on an FGM trial, and keep trying

In February 2019 an African-born woman living in the UK was the first person to be convicted of the genital cutting (FGM) of her small daughter. I observed the trial and wrote a long blog about it, which I posted here. I have never previously considered a “blog” to be a published piece of writing. As a journal editor, I believe what is published needs to be peer reviewed or go through at least some sort of editorial process. To me, a blog is a thinking place, to get your ideas down, and then work on them until they’re ready for submission for publication. Or at least, that is what I tell myself today. However, to be honest, I hadn’t really thought about it at all until I found myself unable to publish a revised version of the article in a “real” publication because an earlier version of it had appeared on my blog — even though very few people read this blog — and a survey would probably show that they (you) are not readers of at least three if not all four of the places I’ve submitted it for publication so far.

The sentencing took place on 8 March 2019. I revised the paper because of that. I had already revised it when I decided it should be submitted somewhere for publication. So far, I have revised it at least four or five times.

Of the four places I have submitted it to so far, the first one (a clinical journal) turned it down because they were afraid they might be sued for being critical of the legal handling of the case. What? my friends said, of course people can criticise lawyers and judges. But this was a medical journal. The second one (a review magazine) accepted the paper. I was thrilled. Then several weeks later they must have noticed on the last page during editing that an earlier version could be found on my blog (well,  I wasn’t trying to hide it!). So they dumped it. They didn’t think there was anything wrong with accepting a paper and then changing their minds. Indeed, they even offered to pay me for the loss of time involved. I felt that would make me complicit in breaking what I have always understood as a contractual agreement, so I said no, very cheesed off. My friends said there must be another reason. I thought they were right. But there wasn’t.

Then I sent it to a newspaper that publishes longer papers every week. No reply at all… The fourth place (a medico-legal journal) also said they would like to publish it but again, I would need to revise it substantially from the version on the blog first. In hopes it might help, I took the blog post down. It didn’t help. Frankly, I don’t know what they expected. The bulk of the paper is a description of what happened in the trial. I couldn’t rewrite that. I revised a fair amount of the commentary/discussion sections of the paper, sharpening my thinking, bringing in new information, but I was kidding myself to think they would accept it, just as they were kidding themselves that I could revise it to their satisfaction.

Never mind. As an editor, I know too well how often authors go through this. Why should I be exempt? And the paper was getting better and better in the process, if I do say so myself. Unfortunately, no one was reading it except me.

So, in case you’re wondering why it isn’t posted here anymore, this is why. And in the five months I have lost on this so far, I have discovered to my great disappointment that two publications that I respected a lot were more concerned about publishing something that had appeared in an earlier version on a blog than doing their part to help challenge the conviction of a woman that I believe was unsafe. A woman who is in prison for the next 13 years. Which is why I wrote the paper in the first place. What does that say about their priorities and sense of political responsibility as publications, do you think?

I’ve not given up. I revised it again last night, even more than before… I submitted it to another journal, but their word limit was half the length of the paper and it took them less time to reject it than it took me to go through the online submission process. Then I sent it to the editor of a journal whose subject is totally in line with the dual issues covered by the paper. No, thanks, it’s not academic enough, but more like a blog. Now what?

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

26/03/2018 Comments Off on 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 Channel 4 TV programme was shown on 27 February 2018, reported by Cathy Newman. It depicted the failure of a British detective named Leanne Pook to bring a successful prosecution against a Somali father of a six-year-old girl for allegedly arranging for her to have FGM, after an investigation that took two years. The programme was supportive of the police action right to the end, yet it provides a disturbing picture of why the police and the Crown Prosecution Service have failed to successfully prosecute cases of FGM four times now. The case also highlights, as have previous court cases, the important role of the court in not allowing the accused parent to be found guilty, due to the lack of evidence. It shows, in my opinion, that the involvement of the police and the criminal law is not the way to prevent FGM, or to support those who have had or may be at risk of FGM.

The programme illustrated how the right to bodily integrity of a six-year-old girl believed by the police to be a victim of FGM was violated by the police. The investigation was based entirely on the uncorroborated report of a conversation between a taxicab driver, the girls’ father, and a passenger in his cab. The passenger, who was a member of an anti-FGM group in Bristol called Integrate, presumably raised the issue of FGM with the driver because he was Somali. The passenger alleged that the father said he was not against minor forms of FGM, and that he had had that done to his daughter.

The programme opens: “Thousands of British women and girls have had their vaginas deliberately mutilated.” This is false. First, there is no evidence worth the name that most of those living with FGM in Britain have had FGM in Britain. Secondly, FGM is practised on the external female genitalia, the clitoris and labia, and sometimes also by sewing the edges of the vaginal opening together. There is no mutilation of the vagina.

DCI Pook, who led the investigation of the case was, in addition to being a police officer, a trustee of the local anti-FGM group in Bristol called Integrate. The taxicab passenger reported his conversation with the driver to someone more senior than him at Integrate, who in turn reported it to DCI Pook. The programme follows her investigation of the taxi driver, his wife and his six-year-old daughter, and her unsuccessful attempts to gather any evidence to prosecute the father for FGM beyond the passenger’s description of his conversation with the father.

The police considered the passenger’s statement to be enough for them to pursue the case. DCI Pook was very keen to do this; she wanted to be the first to bring a successful FGM prosecution in this country, which emerged strongly during the programme, raising questions about her ability to be impartial, question which were asked after the trial collapsed.

The programme was extremely vague about why the investigation should have taken two years. The police did not prosecute the girl’s mother, though they found the phone number of a “circumciser” on her phone, who the father said had been contacted to circumcise one of his sons. The programme did not indicate whether the circumciser was ever questioned and nothing more was said about him. In the programme, the investigation never went beyond the questioning of the girl and her parents, and discussion about the examination at two different times of the girl’s genitals. Yet one would expect other family members, friends, neighbours and other Somali community members close to this family to be questioned.

Yet, 17 minutes into the programme, DCI Pook is shown to be participating in a street demonstration against FGM with women and children from Bristol and is also shown talking to a group of parents and adults, about the importance of investigating FGM. This is followed by a meeting with youth members of Integrate, where a discussion about claims that a small nick is not abuse are challenged. This shows that DCI Pook’s role as both the investigating police officer and anti-FGM advocate are completely intertwined in this investigation, with no question of a possible conflict of interest being raised. The question of the consequences for the child or her parents that the whole community knows about this investigation is never mentioned.

The girl’s parents deny ever having had anything done to their daughter, and her father denies ever making the comment that he was accused of making while driving his taxi.

The only other possible source of evidence shown by the programme to be sought, was the girl herself. Investigating her took two forms: first, she was questioned by someone considered to be an expert at using drawings with children as a means of getting information from them. The girl was asked to do a drawing of her body in the hope she would recall the FGM because it would have been traumatic, so she might say something about it. This did not happen, however. The expert failed to elicit any verbal or visual evidence that FGM had taken place.

The second step was to examine the girl’s genitals. In order to do that, the programme reports, she had to be willing, so she was interviewed at her school. There is a meeting with 5 or 6 staff from the school. We are not told who was present when the girl’s permission was sought nor what was said to her, but we are told she agrees. The child’s parents are informed it will happen but they are not permitted to be present, nor was their permission sought. The programme gives no information about who conducted this physical examination. We learn later that some kind of equipment (unidentified) was used and that pictures were taken of her genitals. We have to assume the examiner would have opened her labia and closely examined her clitoris for evidence.

The police were at least honest enough to say at some point afterwards that the little girl described the examination as disgusting. This is hardly surprising. In my opinion, the examination constituted a serious violation of her bodily autonomy, of her right to privacy and to be able to withhold her consent. Yet a six-year-old girl could not possibly have understood what the examination would involve, and even if she had, how could she have refused? Adults from her school, the police, all apparently supporting it, her parents absent – all major forms of pressure. Even if she had had FGM in the past, it is highly questionable that this is ethically acceptable.

But that’s not how DCI Pook saw it. Her response to the girl’s reaction is that an investigation must be thorough enough that the victim is not relied upon alone for the evidence (or in this case lack of evidence). The child was in fact examined twice, we learn later, but we were not told how often she was questioned nor what the questioning covered. DCI Pook reports that the first person who examined her found something that might have come from a small cut on the child’s clitoris. A detective reports that the girl had at some point been taken out of the country during school holidays, which he describes as an opportunity for her to have been cut elsewhere. Indeed, or it might have been a holiday or a family visit. No further details are given, and no evidence is offered of this being more than a supposition.

By this point in the programme, however, the lack of evidence is becoming obvious. To counter this, DCI Pook embraces the idea that a “small cut” may have been done without leaving visible damage or scarring – a tiny nick (enough to draw a drop of blood) or a pinprick – and she decries the belief that this should not be prosecuted as FGM, and indeed she seems to conflate it with a severe or mutilating cut. Another officer says a nick or a pinprick of any kind is still painful. Several of the male officers talk about the importance of the police protecting little girls from such abuse. Yet they have protected this little girl from nothing whatsoever.

The facts of this case are, whether she had been subjected to any form of FGM or a pinprick or not, no mark nor scar nor any other evidence from any person was found to indicate that anything had been done to her.

Moreover, it is reported that the photographs of the little girl’s genitals from the first examination were sent to an “FGM expert” to analyse. While this expert says she thinks the photos may indicate an injury, she believes they are “not good enough” as evidence. So she asks to conduct her own physical investigation of the girl as she wants to feel 100% sure there is an injury before she is involved in sending someone to prison. Hence, and the timeline here is totally unclear, it was agreed that a second physical examination of the child would be carried out by this expert, who is again not identified in the programme, and whose credentials are therefore unknown.

One of the male police officers is unhappy about a second examination because the first examination was unpleasant for the child, and this upsets him. Even so, and for reasons best known to themselves, the police decide it is time to arrest the parents, take them into the station and question them separately. Were they not questioned before the child was examined? We don’t know.

More than half a dozen police officers dressed in jeans and t-shirts, not in uniform so as “not to upset the community” set off to the family home. Unfortunately, the parents are not at home so they are asked to attend the police station, which they do and are arrested there. Their home is searched by a police team in their absence.

The father, it is reported, is questioned through an interpreter. This implies his English is limited, which is a critical matter but the programme does not treat it so. Yet in the second FGM trial in London, in 2015, in which another Somali man was accused of asking for his wife to be re-sewn up following delivery of a baby, he needed an interpreter in order to be questioned in court, and he was acquitted in part due to the probability that his English in the delivery room was misunderstood.

In any case, the programme reports that during questioning, the father denies there had been any FGM or any intention of FGM, and he denies ever having had the conversation with the Integrate team member in his taxi. The police officer questioning him says to him that the examination of his daughter had indicated an injury to her genitals and that the expert who had examined the photographs had also seen an injury. Although both these claims are patently false, the programme does not note it. The mother is similarly told that an injury had been identified. She reads out a prepared statement that she is opposed to FGM, and she refuses to answer any questions. Did the parents have any legal advice? We are not told. Had it been my programme, I would certainly have interviewed their legal team.

Meanwhile, in between each of these bits of the programme, there are shots of traffic on Bristol’s roads, sometimes speeded up, and shots of DCI Pook driving her car and talking to the camera… often with tense music playing which is totally out of place.

The search of the family home yields half a dozen plastic bags full of papers, but the only possibly incriminating item found is a phone number on a small bit of paper stuck behind a picture hanging on a wall. The phone number turns out to be the father’s phone number, however, not incriminating at all. How disappointing for the police, who still assert that if you hide something behind a picture frame like that, it is usually incriminating in some way. DCI Pook is not discouraged though. She explains that you rarely get one big piece of evidence in a case, as happens on TV. So they are cracking on.

It is time for the second examination of the girl’s genitals, by the “expert”. This examination found her genitals to be completely intact, with no evidence of any injury or FGM. We learn this indirectly through watching DCI Pook listening to the expert on the phone. The expert appears to apologise for disappointing her, and we hear DCI Pook say (in a very disappointed voice) that it was OK, never mind, the expert was just doing her job.

After she hangs up the phone, DCI Pook doesn’t say: “Isn’t it wonderful that this little girl has no evidence of any injury!” No, she says this news is a disaster for the police, and one of her male officers agrees. It seems they really wanted this little girl to have had FGM. DCI Pook looks straight into the camera and says: “This is a hammer blow to our case… I’m disappointed because I think we won’t get justice for this little girl.”

Oh, it seems that in spite of this phone call she remains convinced that FGM has happened to this child! What did the expert say to make her think so? DCI Pook tells us that the expert’s written report of her examination states that the lack of genital evidence may indicate that any injury may have healed. I would have liked to see the report myself, however, as this beggars belief.

But meanwhile, DCI Pook is good to go again, though she needs to find something to “strengthen the case”. The girl’s mother’s cell phone provides it, as noted earlier. They find a text and a phone number of a man whom the mother says has recently circumcised one of her sons. When she is asked if she has also had her daughter circumcised, she says “No comment”. Of course, if someone says “No comment” instead of yes or no, the assumption is that they are guilty. Does this prove they are? No. The programme does not report whether the son is examined for evidence of recent circumcision, surely an extraordinary omission. Nor does it say whether the alleged circumciser, whose evidence would surely have been key in this case, was found and interviewed. This is even more extraordinary.

At this point in the programme, we learn that “the evidence” has been submitted to the Crown Prosecution Service (CPS) to see if they think it is enough for criminal charges to be brought. After more speeded up footage of Bristol, of boats on the river this time, and to increasingly loud tense music, we learn that the CPS has given permission for a charge of child cruelty against the father to be brought and for “allowing or arranging for [the child] to have FGM”. They give permission for the father to be arrested and charged. If found guilty, we are told, he faces up to 10 years in prison.

When the court date is set, DCI Pook tells the camera, some of the Somali community have been heard to say they may organise a protest. Who has reported this to her is unstated, but the implication is that someone has been monitoring the Somali community’s response and reporting to the police. DCI Pook expresses concern that her witness, the taxi passenger, may be threatened, and she is shown talking to him on the phone to get reassurance that this has not in fact happened.

he next thing covered by the programme, although far too briefly, is when the Bristol Crown Court hears the evidence. The courtroom is packed. DCI Pook thinks this is mainly journalists, which she thinks indicates the importance of the case. However, the outcome is not at all what she is looking for. After what seems to be a very short space of time, the judge questions inconsistencies in the main witness’s statement and the evidence is described as “beginning to unravel”. The judge concludes that on the basis of the existing evidence, he would direct the jury to acquit the defendant. The programme tells us that the judge found the evidence deeply troubling and “wholly inconclusive at the highest”. She reports that the judge describes the equipment used to examine the little girl the first time as being 15 years out of date (what equipment was this, I want to know!) and that the photographs taken at that time were so blurry as to be of no use clinically or forensically as evidence. The main witness, though honest, the judge believes, had been influenced by his role in the charity Integrate. The CPS accepts the judge’s decision, but they also defend themselves by saying they thought there had been sufficient evidence to prosecute and that it was in the public interest to do so. Thus, the CPS also seems to have learned nothing from two previous failures, the first of which was comparable to this case.

And thus, if we forget the child and her parents for a minute, there is total self-justification all around. Thank heavens for the competence of the judge.

The programme returns to DCI Pook, now sitting by the river, who claims this is all part of the job. She is shown justifying herself to the media, and then says to the camera: “There were some evidential difficulties, we never denied that…”. She remains firm, however, that in spite of the negative impact on the family and the community, the police had a job to do and they did it. She says they have children to protect and that’s what they were doing. But were they, in this case? I don’t think so.

As DCI Pook walks away from the camera, the reporter says the police have had difficulty prosecuting anyone successfully because young victims keep silent – thereby implying that the child in this case had been silenced or was lying. This is frankly outrageous. “Victims” who are old enough to understand what has happened to them are not keeping silent. Yet it seems that no one involved in this criminal investigation or in making this TV programme thinks it is even remotely possible that the child concerned had never had FGM, in spite of the lack of evidence and the judge’s unequivocal assessment of the situation, which the programme corroborates in spite of itself. I’m left speechless. The programme closes with a report that yet another FGM case was due to be heard in London in the third week of March 2018.

And so it was.

This most recent case was heard at the Old Bailey in London, ending on 22 March in an acquittal. Here is how the Mail Online reported it in cringe-making language:

“The 50-year-old man, who cannot be named to protect the identity of the child, was cleared of two charges of FGM, alternative charges of wounding with intent and child cruelty… The defendant had been accused of twice arranging for someone to go to the family’s home in south London to cut the young girl with a razor as she lay on a mat in the hallway. The girl said she cried in pain and begged for it to stop but her father just encouraged the cutter, jurors were told. The child could not recall the identity of the person who allegedly subjected her to the ordeal twice… The prosecution said it did not happen for cultural or family reasons, but as a punishment. The allegations came to light after the girl told a friend, whose mother contacted Childline.”

I was unable to attend this trial and no one has covered it in a TV programme (yet). Here are the only other things I have found about it in the Guardian: During an interview in July last year, the daughter, now aged 16, said she had been subjected to FGM twice between 2009 or 2010 and 2013. On each occasion she claimed she was made to lie on a mat in the hallway of her home, naked from the waist down. Jurors also heard that she could not identify the cutter but said she recalled her father “egging the person on”.

The Guardian said the father was a 50-year-old solicitor and a Catholic. He was accused in court of being violent towards his children as well. His defending counsel said the divorce of the girl’s parents had led the mother to turn the children against him, and that they had rewritten their own histories as a result. Oddly, the Guardian reported: “The court heard the girl had been cut as a form of punishment after stealing money from the family home.”

As part of her defence of the father, Kate Bex QC, suggested that FGM was “predominantly perpetrated by female cutters on women” for reasons including “purification, honour and social acceptance”. But it is not true that only women do the cutting; it is also known to be done by men. The QC also apparently claimed the father could not have been responsible for the FGM because he was a Catholic, yet that is irrelevant. FGM is a traditional cultural practice and while some people claim it is an Islamic practice, those who have studied religious texts and history have shown it is not. Moreover, while FGM is found in some predominantly Muslim countries, it is not found in others, while it is found in certain predominantly Christian countries, in the Middle East and North Africa and also in sub-Saharan Africa and parts of Asia. Yet these two claims by the QC were reported by the Guardian to be (among) the reasons why the father was acquitted.

Evidence appears to have been submitted to the court that examination of this girl showed she had actually had her genitals cut in some way. But as the father denied arranging it and the girl had no memory of who had done it to her on either occasion, and no news report mentions further evidence, the father was acquitted. The Guardian says the jury deliberated for more than six hours before finding him not guilty of two counts of FGM, two alternative counts of wounding with intent and three counts of cruelty to a child. It seems that even though FGM was done, and perhaps more abuse, who had actually done it was not known. Why the father was not found guilty of anything is unclear, though it seems it was his word against his daughter’s. Without having heard the trial, however, it is impossible to know, and speculation is useless.

Conclusions

The four cases have one thing in common. There was insufficient or no evidence presented, and there was an absence of credible witnesses or corroborating statements. In three of the four cases, no genital evidence of FGM was found either. Hence, it can be concluded that these four cases were all doomed to fail.

Moreover, limited knowledge of English among those put on trial was recognised in interrogations of them through the use of interpreters, but this was not properly taken into account as a complicating factor in two of the four cases. Perhaps most importantly, in three of the four cases one onlooker reported someone they thought was suspicious to the police. I believe that the way the police and some anti-FGM activists are presenting this situation, as illustrated in the Channel 4 programme, it sounds like a witch hunt and the consequences for the communities affected and the children concerned are being swept aside in the fervour of wanting to find someone to hold responsible.

Lastly, although no one has yet publicly questioned whether the examination of the genitals of babies and small children for FGM is a violation of those children’s rights to privacy and bodily integrity, I am absolutely convinced it is. I am aware that this is also an issue with accusations of sexual abuse and rape of children, which I cannot comment on, but it would appear that the people who have carried out FGM examinations seem to be anything but experts.

The Guardian article ends with a quote from Leethen Bartholomew, the head of the National FGM Centre, which includes this statement: “The effects of FGM have a lifelong impact on survivors, both physically and psychologically, so it is vital support is in place for her for as long as she needs it.” This makes it seem that women who have had FGM are incapable of living their lives on their own two feet. It is the sort of statement that fuels extremist responses.

Criminalising FGM has stigmatised whole communities in the UK, such as the Somalian community. FGM has been falsely identified as an Islamic practice, thereby contributing to the stigmatisation of the religion and those who practise it as barbaric, alongside the link to terrorism. People who believe some form of FGM is necessary in order to remain part of their community are seen as monsters. Even the use of a pinprick to replace actual genital cutting, a positive sign that the practice is being transformed into something symbolic but not damaging, is still condemned as horrific and an abuse. When mothers argue that it is the only way their daughters will be accepted as marriageable, in a community where marriage is critical to belonging, this should not be seen as violence for its own sake but as a patriarchal demand that must be challenged among both men and women. Meaning that the way to try to prevent it should not be the use of criminal law.

There have been exaggerated claims of FGM prevalence in the UK, without any distinction between those adults who may have been cut in their home countries as children before coming here, and the completely unknown prevalence in children today who were born here. Health professionals are required to act like the police and to question women patients with girl children, on the assumption that their nationality/background is enough to indicate their children are at risk. Although no one has yet been identified as having done even one cut on one little girl in this country, there is an assumption put about that it is not only happening, but happening widely. All this is indicative that the practice has been demonised in many people’s minds.

I believe it is past due time to give serious reconsideration to how FGM is dealt with and perceived in the UK, and to finding ways of addressing it completely differently. The communities concerned need to have the leadership in this – for example, community-led educational information, based on the understanding of women who have experienced FGM and their families as to why they should not make their daughters and grand-daughters go through it too. Moreover, communities where FGM is/was practised should not be described individually or collectively as uncivilised, abusers or criminals by anti-FGM activists. That is racist.

In a paper I published in 2015, I called for the health consequences of FGM to be addressed because these are what women with FGM have asked for help with. A study among midwives in Belgium, published in Midwifery in 2014, found that the most common complications midwives said women sought help for were: psychological problems (63.1%), chronic pain (32.3%), sexual problems (30.8%), recurrent urinary tract infections or incontinence (24.6%), fistula formation (13.8%) and bleeding (9.2%). Complications in pregnancy and childbirth have been described in the UK as well. Practical help with these sorts of problems are a much more supportive way to address this issue with affected women. Health professionals need training to do so.

The police and the criminal justice system are not the answer.

 See my previous writing on this issue which covers the first two cases that took place in the UK:

Reflections on the recent arrest in London of two people for female genital mutilation (FGM). Berer Blog, 14 April 2014.

Acquittals in the FGM case in London: justice was done and was seen to be done, but what now? Berer Blog, 10 February 2015.

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? Reproductive Health Matters 2015;23:145-157. https://www.tandfonline.com/doi/full/10.1016/j.rhm.2015.10.001

 

 

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?

24/12/2015 Comments Off on 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?

This article was published online in Reproductive Health Matters 2015;23(46):145-57. DOI: http://dx.doi.org/10.1016/j.rhm.2015.10.001. Here is the abstract in English, French and Spanish:

Abstract

The history of campaigns against female genital mutilation (FGM) began in the 1920s. From the beginning, it was recognised that FGM was considered an important rite of passage between childhood and adulthood for girls, based on the importance of controlling female sexuality to maintain chastity and family honour, and to make girls marriageable. How to separate the “cut” from these deeply held norms is a question not yet adequately answered, yet I believe the answer is key to stopping the practice. Since the 1994 ICPD, national and international action against FGM has grown and resolutions have been passed in global forums which define FGM as a form of violence and a violation of children’s human rights. These resolutions have contributed to building consensus against FGM and developing national legislation criminalising FGM. Prosecutions or arrests involving FGM have been reported in several African countries and Great Britain, but apart from France, there have been very few. This paper summarises this history and how FGM has been criminalised. It argues that criminalisation may not be the best means of stopping FGM, but can have serious harmful effects itself. It calls for community-led educational information and more support for dialogue within FGM-practising communities, and argues that what is important is addressing the sexual and reproductive health consequences of FGM and gaining the understanding of women who have experienced it and their families as to why they should not make their daughters and grand-daughters go through it too.

Résumé

Les campagnes contre les mutilations sexuelles féminines (MSF) ont commencé dans les années 20. Dès le début, il a été admis que les MSF représentaient pour les filles un important rite de passage entre l’enfance et l’âge adulte, fondé sur l’importance du contrôle de la sexualité féminine afin de préserver la chasteté et l’honneur familial, et de permettre aux filles de se marier. Comment séparer la mutilation de ces normes profondément ancrées est une question encore sans réponse ; ce serait pourtant, à mon sens, une démarche essentielle pour mettre un terme à cette pratique. Depuis la CIPD, en 1994, l’action nationale et internationale contre les MSF s’est étendue et des forums internationaux ont adopté des résolutions qui définissent les MSF comme une forme de violence et une violation des droits fondamentaux de l’enfant. Ces résolutions ont contribué à dégager un consensus contre les MSF et à élaborer des législations nationales qui répriment cette pratique. Des poursuites ou des arrestations liées aux MSF ont été signalées dans plusieurs pays d’Afrique et en Grande-Bretagne, mais, à part en France, elles ont été très rares. L’article résume cette histoire et montre comment les MSF ont été sanctionnées par la loi. Il avance que cette pénalisation n’est peut-être pas le meilleur moyen de faire cesser les MSF et qu’elle peut avoir elle-même de graves conséquences. Il préconise une information éducative collective et davantage de soutien au dialogue au sein des communautés qui pratiquent les MSF. Il fait valoir qu’il est important de traiter les conséquences des MSF pour la santé sexuelle et génésique et de faire comprendre aux femmes qui les ont subies et à leur famille les raisons pour lesquelles elles ne devraient pas obliger leur fille ou leur petite-fille à en passer aussi par là.

Resumen

La historia de las campañas contra la mutilación genital femenina (MGF) comenzó en la década de 1920. Desde el principio, se reconoció que la MGF era considerada un importante rito de paso entre la niñez y la adultez para las niñas, basado en la importancia de controlar la sexualidad femenina para mantener castidad y el honor de la familia, y para preparar a las niñas para el matrimonio. Cómo separar el “corte” de estas normas tan arraigadas es una interrogante que aún no ha sido contestada adecuadamente; sin embargo, creo que la respuesta es clave para eliminar la práctica. Desde la CIPD de 1994, la acción nacional e internacional contra la MGF ha incrementado y se han aprobado resoluciones en foros mundiales que definen la MGF como una forma de violencia y una violación de los derechos humanos de las niñas. Estas resoluciones han contribuido a fomentar consenso contra la MGF y a formular leyes nacionales que penalizan la MGF. En varios países africanos y en Gran Bretaña se han reportado enjuiciamientos o arrestos relacionados con la MGF, pero aparte de Francia, ha habido muy pocos. En este artículo se resume esta historia y cómo la MGF ha sido penalizada. Se argumenta que la penalización quizás no sea el mejor medio para eliminar la MGF, ya que puede tener graves efectos dañinos. Se hace un llamado a la información educativa dirigida por la comunidad y a brindar más apoyo para el diálogo con las comunidades que practican la MGF. Se argumenta que lo importante es tratar las consecuencias de la MGF en la salud sexual y reproductiva y lograr que las mujeres que han pasado por esta experiencia y sus familias entiendan por qué no deben obligar a sus hijas y a sus nietas a hacer lo mismo.

Another FGM case in Britain that found no harm

05/09/2015 Comments Off on Another FGM case in Britain that found no harm

Another FGM case, which did not involve the criminal law but family law, and that took place in November 2014 in Leeds, two months before the first criminal trial in London,[1] involved an attempt to take two small children into care: a girl G aged ±3 and a boy B aged ±4, whose parents were of African origin. The children had temporarily been placed with foster parents as the mother was having mental health problems. The judge’s write-up of the case,[2] on which this blog is based, said:

“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 reported G’s ‘irregular genitalia’.”27

Three people, invited to examine the girl and give evidence because all were considered to be experts and presented themselves as such, gave testimony in court. According to the judge’s report, Expert 1 was an expert in child sexual abuse and 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, which she has published and spoken on extensively, both in Britain and abroad. When she gave oral evidence, however, it became clear she had almost no experience of FGM in babies. Expert 3 had established a specialist clinic in 1999 for women with health consequences of FGM, and had a great deal of experience of them; moreover, her clinic was the only specialist paediatric FGM clinic in the country.

Experts 1 and 2 both examined G and both said in written and oral evidence that they thought they had seen evidence of FGM. However, their descriptions of the mutilation differed from each other’s. Expert 1 later changed her evidence and admitted to having made a mistake. Expert 2’s evidence was described by the judge as: “confused, contradictory and wholly unreliable”. Expert 3 did not examine G in person but saw the reports of the other two and watched the DVD of their examination of G. She said she saw no evidence of FGM. Both parents also denied that G had been subjected to FGM. The judge dismissed the FGM charge.

The local authority who brought the case argued that if G had been subjected to FGM it was reason enough to initiate adoption proceedings. Sir James Munby, President of the Family Division, who heard the case, said there were three issues to consider: Had FGM occurred? Did it amount to significant harm, and if so, what were the implications. Having heard the evidence, 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”.

This case illustrates that even experts cannot always tell or agree whether a child has had FGM. The implication, as I see it, is that allowing uncalculated numbers of children to be examined for FGM by people who are likely to have even less expertise than the witnesses in this trial, is a recipe for disaster.

References

[1] See Berer M. Acquittals in the FGM case in London, justidce was done and was seen to be done, but what now? 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/.

[2] Sir JamesMunby, President of the Family Division. In the matter of B and G (Children) (No 2). Neutral Citation Number: [2015] EWFC 3. Case No: LJ13C00295. 14 January 2015. https://www.judiciary.gov.uk/wp-content/uploads/2015/01/BandG_2_.pdf.

Is the NHS collection of patient identifiable data of women with FGM unethical and a breach of confidentiality?

16/08/2015 Comments Off on Is the NHS collection of patient identifiable data of women with FGM unethical and a breach of confidentiality?

Female genital mutilation (FGM) has been illegal in the UK since 1985, and taking a child abroad to undergo FGM, as legislated in the 2003 Female Genital Mutilation Act and 2015 Serious Crime Act is also illegal and is recognised as a form of child abuse. Until 2014, however, no one had been prosecuted  for FGM and to date, no one has been convicted of this crime.

In response to calls for ‘something to be done’ to address this failing, the UK government has taken a number of steps. They include encouraging the Crown Prosecution Service to scour the landscape for possible perpetrators, sending the Police to airports to hand out leaflets to suspicious travellers and tell them that FGM is illegal, and encouraging Border Agency staff to be on the lookout for victims who might have undergone the procedure abroad, particularly during the so-called ‘cutting season’ (summer holidays).

New regulations and guidance have also been issued to professionals. Among them has been a requirement to gather data on the prevalence of FGM among girls and women living in the UK. Contrary to long-established practice in epidemiological study, however, the data include a long list of identifying information on the women, including their names and NHS numbers, and the governmental Health and Social Care Information Centre are being sent this data, quarterly, since April 2015.

Epidemiology, according to a BMJ handbook, is “the study of how often diseases occur in different groups of people and why. Epidemiological information is used to plan and evaluate strategies to prevent illness and as a guide to the management of patients in whom disease has already developed.” Epidemiological study requires the identification of the population at risk. Not everyone with a disease or who is at risk is studied, however; rather, a representative, sample population is identified for study. Individuals being studied remain anonymous because the aim is not to study or treat individuals, but to study them as a population group, through random selection among those at risk. There is almost never an attempt to find everyone who may be at risk or affected, but only a representative sample. On the basis of this information, health professionals can be trained in addressing the disease concerned and services directed at those who need them.

FGM is not a disease, of course, but a harmful traditional practice, However, FGM is not a new condition nor one about which little is known. For women with problems arising from FGM, a number of NHS specialist centres have existed in Britain for many years and provide care for women with these problems. They are staffed by specialist clinicians, mainly midwives and doctors.

Still, the study of FGM epidemiologically is valid in that the findings can be used to ensure that the services women may need can be planned and made accessible to them. It has long been recognised that some of the women who migrated to the UK from FGM-practising countries had experienced FGM as children in their country of origin. Bindel estimated that the numbers could be as high as 170,000. A provisional estimate of FGM prevalence in England and Wales, published by City University and Equality Now in 2014, however, suggested this figure was 137,000 women and girls. This is a not inconsiderable difference. (Note: Neither the Bindel nor the City University data were accessible on the web at this writing.)

In the latter estimate, prevalence data were “derived from reports of household interview surveys in 2011 in the countries in which FGM is practised and extrapolated to the number of women living here who came from those countries of origin. Thus, the figure is based on two sets of estimates. Yet another study published by the UN Refugee Agency looked at the number of initial applications for asylum from women from FGM-practising countries, to Europe, covering the UK between 2009 and 2011. It found that an average of 2,350 females per year had applied for asylum in the UK. This does not mean all of them were granted asylum or had entered the country, nor that they even had FGM. So the value of these numbers is dubious.

What is certain is that none of these estimates were derived from a bona fide epidemiological study and should never have been accepted and treated by officials, the media or campaigners as if they were. But they were, and they continue to be cited by those pressurising the government to ‘do something’. In reality, there are no accurate data on the number of women in this country who have undergone FGM. Nor is there evidence that FGM is being carried out in the UK on children. Although it is presumed that some British families take their girl children back to where their relatives came from or elsewhere for FGM, the numbers involved are also unknown. These are all good reasons for why accurate epidemiological data should be collected. So, how is the government addressing this need?

Starting in 2014, the Department of Health (DH) mandated that the Health & Social Care Information Centre (HSCIC) collect monthly prevalence data from NHS health professionals working in acute hospital settings, of women who had previously been identified and were being treated for FGM-related or non-FGM-related conditions, as well as newly identified women. This continued to March 2015.

Then in April 2015, prevalence data collection was replaced by an FGM enhanced dataset. Clinicians in England, working in Acute Trusts, Mental Health Trusts and GP Practices now have to record demographic and other data (including patient identifiable data) when a patient with FGM is identified during a consultation for health care of any kind, including the type of FGM she has undergone. The data has to be entered every time the woman or girl seeks care or gives birth to a baby girl (because the baby may be at risk of being subjected to FGM), and every time FGM is identified (by a clinician or self-reported), not just the first time. The data must be sent quarterly to the HSCIC. But this is not the way to do an epidemiological prevalence study. How is it different?

First, its goal is to record data on every woman and girl found to have had FGM. This is neither necessary or cost-effective since the point of epidemiological studies is to obtain representative data on the “group”, not the individuals.

The sort of ‘blanket’ data collection demanded by the DH was not even carried out to identify people living with HIV, for example, even after the extent of the epidemic became clear. Although it was certainly proposed, it caused a great deal of debate and controversy ‒ and was rejected. People living with HIV fought against named data collection as a violation of privacy and medical confidentiality, and as a human rights issue ‒ not only because of the stigma related to being identified as having HIV or AIDS, but also because, in those early days, there was no benefit for patients as no treatment had been developed.

Are not the rights of patients with FGM also being violated when they are identified and recorded as having had FGM? Some activists who have undergone FGM have expressed feelings of being stigmatised and fear of speaking out about it. But unlike with HIV, this fear is because their families are also implicated and might be exposed. Perhaps they do not want themselves and their families to be investigated by the justice system? Or they may be afraid of the racism and condemnation resulting from such exposure?

Secondly, the HSCIC regulations now require that a host of information be recorded, with or without the patient’s permission. The mandatory and required (i.e. if appropriate) non-pregnancy-related data that must be collected include: the woman’s full name, birth date, post code, NHS number, country of birth, country of origin, GP practice, care contact date, details of referring organisation, details of treatment site, existence and type of FGM, details of de-infibulation, pregnancy status indicator, FGM family history, number of daughters under 18, that the woman was advised on the health implications of FGM and on the illegalities of FGM, daughter/s born at this attendance, woman’s age at FGM and country. Optional information includes age and country of origin of the father of any the woman’s daughters aged under 18.

Ironically, despite all of the claims in these regulations that the main purposes of interviewing women who have had FGM is to record information that will be used to help them, there are no questions on the form asking health professionals to confirm that they have given women information on where to find clinical, psychological or social support for FGM if it is needed.

I can understand that recording a woman’s NHS number might be considered necessary to avoid the possibility that, with totally anonymised data, a woman with FGM who attends for health care in more than one place might well be counted more than once. This is a valid concern, considering the flaws in the initial regulations. However, in my opinion, there are serious new concerns here no matter which way one looks at it. The value and purpose of the extent of the information health professionals are now required to record is, epidemiologically speaking, highly questionable, despite HSCIC reassurance that no patient identifiable data (PID) will ever be published. This is because the woman’s personal data may be handed over to the police, social care authorities or the courts if she has girl children who are deemed, during the course of data collection or afterwards, to be at risk of FGM.

This is because FGM is not just a health condition, it is a crime. Consequently, only one of the purposes of data collection by the HSCIC is to determine prevalence and to make information and treatment available to women and girls as victims. Another is to share the information with other governmental authorities, so that they can investigate whether these same women’s daughters are at risk of becoming the next generation’s victims, thereby turning the adult victim into a potential perpetrator or accessory to the same crime she herself was the victim of.

On top of this, even if she does not give her consent to do so, the victim is required to provide health professionals information about herself. On page 48 (of 53 pages), the regulations say: “It is not intended that patient-identifiable data will be shared with other parties. Such activity would require explicit patient consent…. It is intended, however, that the FGM information collected and disseminated using the Clinical Audit Platform will support the publication of patient-anonymised Official Statistics.”

Yet the next paragraph on the same page says: “As the FGM Enhanced Dataset will be underpinned as a result of Department of Health directions, this will require no explicit patient consent to be sought in order to collect this information and subsequently share this with HSCIC. However, each patient where FGM information has been identified by a healthcare organisation, must inform each woman or girl as to how and what will happen to the information being recorded, and further to this, where an objection to this is made each organisation must ensure it understands the fair processing procedures outlining where a woman can contact to make an objection to this information being recorded and sent to the HSCIC.” A long set of instructions on how to handle this follows.

Moreover, it also says that the woman can only register a complaint after the fact, that is, after the data have been recorded, but her complaint will not stop her data being retained and used by the HSCIC. It seems that the Health and Social Care Act 2012 allows health professionals to violate women’s informed consent in this way. This is certainly a violation of privacy and confidentiality that must be challenged.

Pregnant women generally come under a lot of scrutiny. Pregnant women with FGM come under particular scrutiny. The HSCIC requirements say that all existing maternity discharge information sent to GPs and health visitors MUST [their emphasis] also include all relevant FGM information, where appropriate, when FGM or family history of FGM have been identified prior to, during or after the birth of a baby. This is another instance in which personal data will be shared.

The pregnancy-related FGM information to be specifically recorded includes: FGM type, confirmation that a de-infibulation procedure took place to facilitate the delivery of a birth, where applicable, and confirmation that no external female genitalia abnormalities were found in girl babies at birth following existing neonatal examinations, confirmation if an interpreter was required during the episode of care, and confirmation that the newborn baby’s healthcare record has been updated to reflect that FGM had been identified in the mother. Additionally, as part of the initial antenatal assessment, every woman MUST [their emphasis] be asked if they have undergone FGM. Where a Health Visitor identifies that there are sisters of a girl with FGM, it is the responsibility of the Health Visitor to inform the GP (pages 12-13). And this is not even the half of it.

The regulations say three times, (pages 8, 11 and 21), that clinical examinations of the woman’s genitalia need only be undertaken “as part of a usual, routine or requested provision of care – there is no intention for every clinician to automatically undertake a clinical examination in order to record the type of FGM”. Thus, there is a presumption that women not requiring examination of their genitalia will “self-report” when asked if they have had FGM. But will all clinicians note this caveat or will we begin to hear stories of women’s genitals being examined no matter what they have attended for?

From the point of view of the woman sitting in front of the doctor or midwife, one might easily imagine that any need for help she may feel would be compromised by the fear ‒ especially if she is pregnant, has girl children under age 18 or has just delivered a girl child ‒ of being investigated, prosecuted and criminalised by the criminal justice system, along with other family members. Will she give all the information asked of her? Will she come back for another appointment?

And what about the health professionals who have to ask women these questions and record their answers in the relevant database? There is an ethical requirement on health professionals not to allow the violation of patient privacy and not to break medical confidentiality, particularly if it is against the woman’s expressed wishes. Yet the HSCIC requirements require just that from health professionals, who must submit the data quarterly and in annual reports.

What if clinicians refuse to collect some or all of the data? The regulations do not say what will happen if they fail to return this information fully and in the required detail, except that “the submission will be rejected”. Will they be required to get the woman back in to obtain more details? Will they be disciplined, as they would if they do not report a suspicion or actual case of FGM in an under-18-year-old? Clinicians already worry about the consequences of not identifying ‒ or mis-managing ‒ women with FGM, and now they also fear prosecution, after what one of their colleagues suffered, in spite of being acquitted.

This is not the first time the Government has attempted to ‘share’ identifiable information from clinical records without patients’ permission. In 2013, they announced they were going to extract ‘identifiable data’ from GP records to be used ‘routinely’ for research by the health service and private entities (which might have included pharmaceutical companies), unless patients asked to opt out. In this instance, there was a public furore and after 700,000 people had opted out, the scheme was ‘indefinitely delayed’. This year, they attempted to do so again on the grounds that they needed to intervene in regard to the care of ‘high cost individuals’.

This time, however, women with FGM are not being given any choices in the matter. It is highly unlikely that they will refuse to provide their personal data in large numbers, as people with HIV did previously, as they do not have the social or political clout, or the public support, to challenge the Government or their health care providers.

Health professionals, on the other hand, do have that power, and just as GPs supported the 700,000 patients’ refusal to allow their data to be shared for unspecified research, so health professionals should stand up in this instance, and refuse to populate the HSCIC database with identifying details about the women involved.

At the end of February 2015, the government reported that 2,603 women and girls who had attended the NHS in the previous six months for health care of some kind had been recorded as having had FGM. Of these, only 44 were under the age of 18. Is it possible to extrapolate from these figures what the estimated prevalence might actually be? Probably it will take a much longer time to accomplish that, depending on how long it takes before the whole population of women and girls with FGM has attended for health care of some kind. Will prosecutions arise from the analysis of those data? Meanwhile, no proper epidemiological study has yet been considered, let alone launched.

Conclusion

I continue to believe, as I did at the FGM trial in January 2015, that this issue is being used politically by people in power, to gain credibility as champions of women only because they can present them as victims of their own culture. Furthermore, when, in reporting the government’s figures, the Guardian quotes Equality Now as saying “this is only the tip of the iceberg”, we can be pretty certain that it is the shock-horror value of FGM that is holding sway here, not concern for the women who have experienced it.

Although the situation is complicated by the criminal aspects of the issues involved, the government clearly needs a rethink ‒ epidemiological data, data for the provision of health care, and information leading to criminal investigation and prosecution should not be conflated in this way.

This blog was written for and appears also on Shifting Sands.

Acquittals in the FGM case in London: justice was done and was seen to be done, but what now?

10/02/2015 Comments Off on Acquittals in the FGM case in London: justice was done and was seen to be done, but what now?

Marge Berer – Editor, Reproductive Health Matters

10th February 2015

This was a case that should never have been allowed to happen. While female genital mutilation (FGM) is a harmful practice and needs to stop, the UK government, politicians from David Cameron on down, and especially the Crown Prosecution Service (CPS), the Director of Public Prosecutions Alison Saunders, the police and the General Medical Council all need to take a giant step backwards and reconsider their position.

The CPS were desperate to find a case with enough evidence that could end in a conviction; the political pressure on them was enormous. By their own admission, however, they spent several years having great difficulty finding a suitable case with enough evidence. They found a case, all right. But on 4 February 2015 at Southwark Crown Court, they had mud on their faces, because the case they had chosen hadn’t got a chance of succeeding, even if they won’t admit it.

It is hard to imagine how women with FGM, in whose name this case was pursued, were in the least helped by it. I sat in the courtroom listening to what was said for over two weeks. I believe it is crucial to share the details with those who weren’t there, to ensure that no one walks away from this thinking ‒ even for a second ‒ that a conviction would have been justified. Everything I report here was given in evidence in court.

The history: an emergency delivery
An exemplary registrar (Dr D) was called into the labour ward of the Whittington Hospital on 24 November 2012, a busy Saturday morning, to deal with an unbooked emergency delivery. It was the woman’s first baby (the court called her AB). She was 9 cm dilated upon arrival, the umbilical cord was wrapped around the baby’s neck and his heartbeat was falling rapidly. An emergency, instrumental delivery was required. The midwife called for a doctor, and Dr D and a junior doctor came in. AB had to be catheterised to empty her bladder. Neither the junior doctor not Dr D were able to access her urethra. AB had had female genital mutilation (FGM) aged 6 in her home country. She had come to the UK as a refugee and been granted asylum. She married in 2010. However, she had difficulty having sex because of the FGM, as the opening to her vagina was too small to penetrate. She went to her GP for help, and was referred to a specialist FGM surgeon, who deinfibulated her in 2011. She healed without problems, and was then able to have sex without difficulty, and got pregnant not long afterwards. However, it seems that during the healing process, she must have developed some scar tissue on her labia that became a problem during her delivery.

With the baby’s head coming down, Dr D and the junior doctor examined AB and discovered that she had previously had FGM. It was later agreed in court with expert witnesses that scar tissue from the deinfibulation was covering her urethra. To open it, Dr D made an incision of 1.5-2cm, which exposed the urethra, and he successfully emptied her bladder. Because of the size of the baby’s head, an episiotomy was also done. Dr D tried forceps first, which didn’t succeed, and then used a suction cap. The baby was born safe and sound. Everyone agreed that Dr D had saved his life. The episiotomy was bleeding quite a lot and was stitched by the junior doctor under Dr D’s supervision. It was her first perineal repair and took about 20 minutes. She was informed she was needed elsewhere and left. As the scar tissue was also bleeding, even though not very much, he did one figure-8 stitch at the apex of the incision, and the bleeding stopped. He then left to do an emergency c-section.

That one stitch − clinically justified, according to several senior physicians’ expert testimony − became a central focus of the case: Dr D was accused of reinfibulating AB, which is illegal.

Dr D had never seen the genitals of a woman with FGM before. He had never received any training or information on how to deal with FGM at a delivery, let alone an emergency delivery. He had only been at the hospital for about a month. He had come to the UK as a child from a country in which FGM is not practised. Although AB comes from a culture that widely practises FGM, she wanted her labia to be opened surgically in 2011 ‒ to have intercourse and children. Why would she want to be closed up again a year later? There was no evidence that she did. She resumed sexual relations after she healed from the first delivery and had a second baby in 2013 ‒ with no incisions and only a small perineal tear.

While Dr D was doing the c-section, he thought about the stitch he had made in AB. He had no doubts it was clinically necessary, but he wasn’t sure it had been the best stitch to use in the circumstances. After completing the c-section, he sought out his consultant and asked for her views. She confirmed that a stitch was necessary to stop the bleeding, but that she would personally have used a different stitch to ensure that the scar tissue would not reseal. However, she decided that it would be humiliating for AB to be approached by her on the post-natal ward to be examined, and she advised Dr D to let it be. Expert witnesses confirmed that Dr D behaved properly in talking to her after the fact, rather than delaying completing his care of AB to seek advice.

Midwife J did not see AB antenatally nor during the delivery. She was sent to AB’s home six days after AB had left the hospital, to examine the alleged reinfibulation. She gave evidence that she examined AB on her bed (a soft surface and without the aid of the sort of bright lamp that would normally be used to examine a woman with FGM), and she thought AB’s labia were almost completely closed. In contrast, AB described her own genitals at the time as swollen and sore, but not closed. Midwife J did not mention seeing any swelling herself, but because the notes in AB’s green book had been “lost” (torn out, in fact), she was working from memory. Who should be believed if not the “victim”, however? Surely, having her labia stitched together again would have been the last thing AB wanted − she had been “opened” in 2011 by her own choice and considers herself still open today.

The prosecution’s case
Having no idea of what was to come, Dr D was promoted by the hospital in April 2013 to senior registrar. Yet someone must have reported the “incident” to the Trust, because Dr D was unexpectedly subjected to an investigation − and then someone brought the police in. Who? We weren’t told. However, it was public knowledge that the Crown Prosecution Service was looking for cases, and the issue of FGM was all over the news by 2013. The police investigation led to charges in 2014, which led to the trial − two years and two months after the delivery of AB’s first baby.

In the interim, by order of the General Medical Council, who seem to work from the assumption that you are guilty until proven innocent, and then may subject you to their own brand of investigation even if you are proven innocent in court, Dr D was not able to complete his training or work as a doctor for two years. He has, however, thanks to the support of senior hospital staff, participated in research on urogynaecological problems in older women, and he received glowing professional and personal character references from senior medical experts who were witnesses for the defence in court. These witnesses confirmed in court that even though Dr D had had no experience of FGM, he behaved properly in talking to the consultant after the fact, rather than delaying completing his care of AB to seek advice. The prosecution, on the other hand, tried to make it look as if Dr D had behaved wrongly, irresponsibly, ignorantly ‒ for not knowing about FGM, for not having read the hospital’s policy and guidance on the subject, for not knowing which stitch was best to make, and for not interrupting his care of AB to find the consultant and ask for advice before he acted to stop the bleeding.

The prosecution’s case rested on evidence from several midwives and the junior doctor, which was inconsistent and full of gaps due to their witnesses not being able to remember a lot of what happened. With the absence of the green book notes, the lack of memory of details on the midwives’ parts was understandable; after all, they see hundreds of pregnant women every year and can’t possibly keep all the details in their heads. But that made the prosecution’s case incredibly weak.

Creating case law and a legal precedent
The defence requested more than once that the judge dismiss the case without the jury having to deliberate. Alison Saunders, the DPP, was quoted in the Guardian (6 February 2015) as implying that his decision not to do so meant there had been a strong case to answer. I disagree. The judge did decline, but the closing arguments and his instruction to the jury of the legal questions they had to answer to reach a verdict, based on the evidence, made it clear beyond any doubt how weak the evidence was. I believe he recognised, wisely, that had he dismissed the charges without going to the very end, the verdict and the legal precedent set would have been far less powerful in regard to future cases.

Given that it was the first criminal trial on FGM in the UK, he had to be sure that justice was done ‒ and seen to be done. And it was.

One of the most complicated aspects of this trial was that the law against FGM itself was being tested for the first time. In my opinion, the law was found sorely wanting, and more needs to be done to prevent weak cases from being brought against innocent people again, and particularly innocent medical professionals. A courtroom is not the best place to debate the rights and wrongs of complex clinical treatment. As it happened, both defence barristers and the judge dealt with the evidence brilliantly, so it should have been no surprise that the jury took less than half an hour to reach a “not guilty” verdict.

But what would have happened if Dr D had been found guilty? In deciding to bring this particular case, as opposed to bringing a case against someone who had actually done an infibulation, particularly on a child, I have to ask whether DPP Alison Saunders lost sight of the fact that the criminal law against FGM expressly mentions the importance of not creating barriers that would prevent necessary surgery, including during labour and delivery, which are specifically mentioned in the law in this regard. Yet the creation of barriers was likely to have been one of the main consequences of this trial had Dr D been found guilty.

Why was it these two men who were on trial?
In my opinion, it is not an accident that the first two people in the UK to be tried for FGM were people of colour and immigrants from Asia and Africa, albeit the doctor was educated, middle class and a health professional.

It is mainly African and to a lesser extent Asian women in the UK who have had FGM themselves. As activists in the cause of stopping FGM, they and others have been campaigning with passion, commitment, integrity and the best of intentions to have FGM recognised as a harmful practice ‒ here, as elsewhere. Nonetheless, I believe this issue has been used politically by people in power, particularly senior Tories, who are seeking to gain credibility as champions of women but only because they can present them as victims of their own cultures.

I am concerned that anti-immigrant politics is their motivation, and is why FGM is in the headlines 40 years after campaigns against the practice first began. Bona fide doctors and their patients, and their patients’ partners and families − most from Africa or Asia − are being demonised, investigated and prosecuted not only for the “crime” of FGM but also the “crime” of sex selective abortion. The connection is visible in the Serious Crime bill currently before Parliament, where all these “crimes” are clustered together to be further criminalised. Pick up any newspaper, any report from Parliament, any statement by a vote-seeking politician or the Director of Public Prosecutions, to see words such as “evil”, “abhorrent” and “barbaric” applied to the practices of people of colour, who are implicated for having brought them to these shores as immigrants.

The responsibility of the hospital
No one suggested putting the hospital on trial, though it may yet come to that. It might easily be said that Dr D was a scapegoat for the hospital’s many failings in this case, and Dr D’s barrister and the judge were articulate about this point on the last day of the trial. AB had had three antenatal visits and had acknowledged having had FGM as a child at the first visit (where she also said clearly that she had been “opened”). Yet AB was not referred to a specialist FGM midwife, as she should have been, which would have avoided everything that happened subsequently. No one ensured that she had an interpreter at any of her antenatal or post-natal visits, and there was no time to find an interpreter during the delivery. Nor did she have a birthing plan. She arrived at the hospital at the last minute, an ambulance having refused to take her there when called several hours earlier. So it was convenient to focus only on Dr D.

However, it would be as much of a mistake now to lay blame on the hospital and the midwives as it was to lay blame on Dr D. Clinicians make mistakes, things are missed out in their training. In an NHS starved of cash by a government trying to bring the whole system to its knees (and also trying to close this particular hospital), they would have little spare time to find and digest the endless policy and guidance documents that now exist in the middle of seeing patients, let alone while handling emergencies, as happened in this case.

Turning a clinical judgement call into a criminal act: the consequences for medical professionals
Maternal deaths are rare in Britain, and one of the most important reasons why has been the historic role of confidential enquiries into every maternal death. The purpose of those enquiries is neither to punish nor to identify who did something wrong, but to identify, analyse and learn from what happened, including any mistakes made and how they could have been avoided or addressed differently. Because Dr D and almost all the witnesses in this trial were medical people, something akin to such an enquiry took place − in the Crown Court. But it was not confidential, it was not anonymous, and it was wholly intended to blame and to punish. In my opinion, this is the crux of the injustice of this case, and I believe it would be a serious error on the part of the medical profession to sit back and allow what happened there to happen again.

I hope it is clear that the legal issues in this case as regards Dr D were in fact clinical ones, and I hope from my description of the evidence that it is clear the law had not been broken. The law against FGM says that FGM, including infibulation (or reinfibulation), is illegal unless it is done on the grounds of the woman’s health and/or in relation to labour and birth. The case against Dr D rose and fell on the question of whether the single suture he did was necessary for AB’s health and was done in relation to labour and birth ‒ or whether it was clinically unnecessary and intended to reinfibulate her.

The violation of AB’s privacy and bodily integrity
I believe this prosecution was a gross violation of the privacy of a woman who had had FGM as a child, which was done in the name of protecting her. Not stating her name and not bringing her into court to give evidence were to protect her privacy. Her privacy was actually violated, however, because her most “private parts” were the main subject of attention throughout the trial, where she was talked about as if she were a piece of meat being dissected, with an unrelenting focus on the most minute aspects of her genitalia. In the end, although this might have been necessary, it almost felt like voyeurism.

Now what?
The intended outcome of this trial was to open a door to further prosecutions, and indeed a new one was announced on 6 February. The CPS and the police are apparently not stopping to reconsider their position, nor apparently are FGM activists. I hope against hope that the medical profession does. The conviction of Dr D would have threatened the entire medical community, who are increasingly being subjected to criticism, opprobrium ‒ and the threat of criminal sanctions − by demagogic politicians, aided by sting operations against doctors carried out by media such as the Daily Telegraph. Several years ago, the Telegraph succeeded in demonising three South Asian doctors over their alleged willingness to authorise fictitious abortions on the grounds of sex selection. None of the doctors was criminally prosecuted by the DPP, who decided it was not in the public interest, but abortion providers have felt threatened, which was in fact always the intention.

I believe an analysis of the wording of the 2003 law against FGM is needed and would reveal major flaws. I believe this case raises questions about whether there should be a criminal law against FGM at all, and if so, what it should be covering. So if someone should be criminalised, who should it be? Do we really want to put grandparents and mothers and aunties in jail? Do we really want small children to be picked up by the police at the airport and taken into care? And little girls’ genitals examined in school? Should everyone getting into an airplane be treated as a suspected FGM criminal, in addition to being seen as a potential terrorist? The conclusion of most of the experts on this issue internationally has been that criminalisation is not the answer. These are questions I plan to take up next.

Lastly, and I think it cannot be said often enough, serious consideration is needed on the part of Parliamentarians, the Ministry of Justice, the police and the legal profession, as well as the medical profession and medical bodies like the Royal College of Obstetric and Gynaecology and especially the General Medical Council, of the negative and destructive consequences of criminalising medical care to do with women’s bodies and sexuality ‒ especially when it is linked to ethnic and racial profiling ‒ which is the bottom line of the many the ethical issues involved in this case.

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Read RHM journal papers on FGM here.

Read our previous blogs on FGM here and here

Reflections on the recent arrest in London of two people for female genital mutilation (FGM)

14/04/2014 Comments Off on Reflections on the recent arrest in London of two people for female genital mutilation (FGM)

Marge Berer, RHM Editor

Last month an obstetrician-gynaecologist and the husband of a patient at the Whittington Hospital in London were charged with the crime of female genital mutilation (FGM) because of a procedure carried out on a woman, following childbirth, who had previously experienced FGM.

This is the first prosecution for FGM in the UK since it was criminalised in 1985 and the law further amended in 2003. This fact may suggest that the Crown Prosecution Service (CPS) have been too circumspect before now in bringing a prosecution. On the other hand, do they think the current case is watertight, given that the woman will have needed some kind of repair following delivery of her baby? Part of the problem is that the lack of previous prosecutions and recent highly emotional and effective campaigning by a new generation of anti-FGM activists may have put pressure on them to bring the only case they felt had a chance of success, even one which may not stand up to legal or clinical scrutiny further down the line.

The decision to make the arrests was celebrated by veteran anti-FGM campaigner Efua Dorkenoo, who was reported on the website of the International Federation of Gynecologists and Obstetricians to have “welcomed news of the first prosecution relating to the procedure in the UK”. At the same time, an article by Sarah Ditum in the New Statesman on 24 March, asked why the first prosecution took 30 years since the law was first passed. Neither woman addressed the details of the actual case, which were unknown, nor whether it was the right place to start.

However, a letter from a group of distinguished, senior obstetrician-gynaecologists, published in the Guardian soon after the arrests, said that for pregnant women whose external genitals had been cut and stitched together, leaving only a small hole for urination and menstruation, defibulation (that is, opening the stitching), is required for them to give birth, and then after the birth, some form of repair is also required. The Crown Prosecution Service are well aware of this, and that the law exempts such repair from prosecution. Indeed, its website with legal guidance on FGM states:

“No offence is committed by a registered medical practitioner who performs a surgical operation necessary for a girl’s physical or mental health… but only if the operation is on a girl who is in any stage of labour, or has just given birth, and is for purposes connected with the labour or birth.”

While it is also “an offence under the Act for any medical professional (or anyone, for that matter) to reinfibulate or close a woman after she has been defibulated during labour for childbirth” this is diffferent from needing to repair the tissue itself. According to this, obstetricians and midwives should have nothing to fear from providing necessary treatment to a woman who has been deinfibulated before or during labour and needs some kind of suturing afterwards. The signatories to the Guardian letter believe that this prosecution, which may be about this very kind of repair, will create a climate of fear for obstetricians and tie their hands when it comes to providing necessary (and sometimes life-saving) care to women who have had FGM in the past.

This case may hinge on whether the procedure carried out was in fact necessary clinical care or actually went further, in particular, by reinfibulating the woman (i.e. sewing her labia together again, effectively reinstating the FGM, which is against the law). This uncertainty suggests that the guidelines (or their interpretation by the CPS) may not sufficiently distinguish between suturing intended to result in reinfibulation, and suturing to prevent bleeding and accelerate healing for a woman whose infibulated vulva has been cut open to make childbirth possible.

The last thing we need in the UK is to obstruct the very medical professionals who have the skills to help pregnant women with the more severe forms of FGM to have their babies safely without resorting to a caesarean section.

For answers, we must await further details of the case. In the meantime, the conflicting reactions of people who are in fact united in their concern for women’s health and their opposition to FGM itself, serve to demonstrate what a blunt instrument the law may be when dealing with a practice such as FGM.

Action against FGM has been taking place in almost every country where it is practised for up to 20-30 years now. According to a comprehensive review by UNICEF, published in 2013, signs of change – reduced prevalence, more local opposition, especially among younger people, less damaging forms of FGM being used, including symbolic pricks and nicks in the clitoris − are finally appearing in a growing number of countries. But change has been slow because girls and women who do not have FGM have simply not been marriageable. Prosecution has rarely been tried in spite of laws against FGM in many places, both in Africa and Europe, because it is believed by many that far from stopping the practice, this would only push it underground. A recent RHM article from Tanzania (1) corroborates this, reporting on the claim by several ethnic groups that FGM has had to be continued in spite of the law to prevent a new form of genital infection, not for its own sake.

Prosecution or doing nothing are not the only two options. Calling for mandatory information in sex education classes is a bit difficult when sex education itself is not mandatory, thanks to government fears of conservative criticism. How to educate ourselves more needs to be debated and discussed, and needs to reflect the knowledge and expertise of those within the communities where FGM is practised. For example, the call from activists from those communities to designate FGM as “child abuse” instead of a cultural practice was extremely powerful.

Those activists believe that prosecution is a necessary part of the package of actions to stop FGM. However, it is important that prosecutions do not push the practice further underground or inadvertently have a negative impact on those health professionals whose practice supports women with FGM to come through childbirth safely, or to restore genital health and sexual pleasure in spite of the previous mutilation (2).

Post Script (16th April 2014)

This case was heard at Westminster Magistrate’s Court on 15th April 2014 and was referred to Southwark Crown Court to be heard on the 2nd May.

(1) Ali C, Strømb A. ‘It is important to know that before, there was no lawalawa.’ Working to stop female genital mutilation in Tanzania. Reproductive Health Matters 2012; 20 (40):69-75 Doi: 10.1016/S0968-8080(12)40664-4).1.

(2) Foldès P, Cuzin B, Andro A. Reconstructive surgery after female genital mutilation: a prospective cohort study. Lancet. 2012 Jul 14;380(9837):134-41. doi: 10.1016/S0140-6736(12)60400-0. Epub 2012 Jun 12.

A selection of RHM articles on FGM, labial surgery and cosmetic surgery:

The limited effectiveness of legislation against female genital mutilation and the role of community beliefs in Upper East Region, Ghana

Female genital mutilation/cutting and issues of sexuality in Egypt

Views of women and men in Bobo-Dioulasso, Burkina Faso, on three forms of female genital modification

Labia reduction for non-therapeutic reasons vs. female genital mutilation: contradictions in law and practice in Britain

Genitals and ethnicity: the politics of genital modifications

Cosmetic surgery, body image and sexuality

These topics have been covered extensively in RHM. All RHM papers older than one year are now free to download from RHM-Elsevier.

FGM: condemn globally, act locally

21/12/2012 Comments Off on FGM: condemn globally, act locally

Lisa Hallgarten, Reproductive Health Matters

We should all celebrate the news that on Thursday 20th December 2012, the United Nation’s General Assembly unanimously passed a resolution banning the practice of Female Genital Mutilation (FGM). Resolutions to eliminate FGM are important. When they are passed in a global forum, they may pre-empt the claims of cultural relativism which try to prevent us talking critically across nations and cultures about FGM and other dangerous or unethical practices.

However, the process of eliminating FGM can only happen when initiatives are developed at local level and informed by the specific beliefs, practices, unmet needs and politics of the areas where it is prevalent. This is perfectly illustrated by an article in the new Reproductive Health Matters (1)  which reports on beliefs in some ethnic groups in Tanzania in which FGM is still practised, over 40 years after it was made illegal.

The article reports on findings from nine years of work combatting FGM in 45 villages  in Tanzania. FGM has, historically, been widely practiced in 12 ethnic groups living in seven of Tanzania’s 24 regions: the Gogo, the Rangi and the Sandawi of Dodoma, the Nyaturu of Singida, the Chagga of Kilimanjaro, the Waarusha of Arusha, the Luguru of Morogoro, the Maasai, the Iraqw, the Barbaig and the Hazabe of Manyara, and the Kurya of Mara region.

Until the late 1960s FGM was carried out on girls between eight and twelve years old. It was an essential part of community rituals and celebrated openly. In 1968 FGM was criminalised, but far from ending the practice, criminalisation led to FGM going underground. Most significantly it led to the development of a narrative that explains and promotes the practice and gives it a new legitimacy. The new narrative identifies FGM as both a preventive against, and cure for urinary tract and genital infections known locally as lawalawa.

Lawalawa affects young infants and children – resulting mainly from lack of clean water and poor hygiene practices – so by the 1970s it was being said that ‘circumcising babies was necessary in order to cure a mystic spell (lawalawa) placed on them by the ancestors.’  In this way FGM became increasingly removed from the public space and detached from the original ritual purpose and meaning of the practice. “It seems that (they) invented lawalawa to legitimate FGM, even though the performance had to lose some of its meaning.” The authors conclude that steps must be taken to educate people about and address the real causes of lawalawa, and also effectively to disseminate information about medical care that is available to treat infections.

This may be a very particular cultural context, but the paper has a universal message. All ritual and cultural practices are perceived by the community in which they take place as serving a purpose. Wherever it happens in the world FGM is justified in different and specific terms. This paper illustrates that fundamentally changing attitudes across the community and from within the community is the only way to move towards the elimination of FGM.

I’m all for global condemnation and local engagement.

(1) Ali C, Strømb A. ‘It is important to know that before, there was  no lawalawa.’ Working to stop female genital mutilation in Tanzania. Reproductive Health Matters 2012; 20 (40):69-75

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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