My Submission To The UK Home Affairs Parliamentary Select Committee Inquiry On Female Genital Mutilation
The UK Parliament Home Affairs Select Committee is currently conducting an inquiry into the existing legislative framework on female genital mutilation, and the barriers to achieving a successful prosecution. The Chair, Keith Vaz MP, has invited commentary on any aspect of this issue, such as the respective roles of the police, health, education and social care professionals, and the third sector, and ways in which effective action to stop FGM could be achieved. What follows is my personal submission to the Committee.
10 February 2014
Hilary Burrage BSc (Soc)(Hons), MSc, PGCE, FRSA is a consultant sociologist currently writing a book, Eradicating Female Genital Mutilation: a UK perspective. This submission represents solely her own observations and opinions.
1. Focus of this submission
This submission focuses on potential obstacles, uncertainties and issues for further research around the operation of current UK legislation on FGM, which to date – and despite many thousands of British girls and women having been harmed – has never secured a prosecution. In so doing I will consider human agency and the perceptions which various professionals and others may have which block progress. I will also suggest some of the possible ways in which UK legislation on FGM might be more effectively enforced.
2. Potential obstacles to securing FGM prosecutions
I. Estimates suggest that many thousands of girls (even babies) and women in the UK undergo FGM every year. Yet to date – some three decades after the introduction of specific legislation – not a single conviction relating to FGM has been achieved in the UK. It is therefore self-evident that there are problems either with the legislation itself, and / or with the way it has (not) been implemented.
II. In my view (but as a non-lawyer)
a. The legislation as it stands covers most, but not all, the matters to hand;
b. The most pressing omission from current legislation is relates to instances where non-nationals are taken abroad to be mutilated; and
c. Older legislation, for instance on grievous bodily harm and on conspiracy to conduct a crime, would cover a significant proportion of the aspects not attended to in  above.
III. Nonetheless, none of the legislation has so far been tested in court. This is probably more because of human agency issues, rather than because the law itself does not make successful prosecution possible.
IV. The law as it stands does (with some small limitations which require attention) provide for criminal action, but the way the legislation has been perceived has resulted in a very serious failure to uphold that law. It is these failures of human agency to secure convictions and thereby the effective rule of law which I address in this submission.
V. The following aspects of law enforcement to prevent and prosecute female genital mutilation will be considered:
• Failures to investigate
• Pathways for reporting
• Mandatory reporting
• Inspection of children
• Professional reputational concerns
• Concerns about confidentiality
• Concerns about ‘culture’
• Concerns for children at risk
• Efficacy of legal sanctions
Specifics of obstacles to upholding the law on FGM
3. FAILURES TO INVESTIGATE FGM
I. FGM is a covert activity in the UK. It has throughout the ages been surrounded in mystery wherever it occurs, and to that has in contemporary times been added the necessity, if it is to be performed, of secrecy to avoid the law.
II. This is however not a situation unique to FGM. Very few criminal activities are conducted overtly, but that has not prevented their being detected, if the will is there.
III. We need to understand why the police and prosecutors have not until now given resources and adequate thought to the detection of FGM, and – in some ways even more crucially – to the prevention of this very serious crime.
IV. Amongst those reasons may be the lack of police decision makers with personal experience of communities away from the mainstream (the majority of police officers, especially in the higher ranks, continue to be white men). For most police officers issues concerning female genitalia may be uncomfortable; and they may also lack awareness of, or any insights into, the ‘signals’ which exist in minority communities that FGM is about to occur.
V. It has been convenient to maintain that no-one reports FGM to the authorities; but there again almost no-one reports many other crimes for which detection is necessary. The passive inertia of law enforcement agents has left FGM ‘cutters’ to conduct their work unimpeded by its illegality.
4. PATHWAYS TO REPORTING
I. There is no clear reporting mechanism for FGM which applies across the board.
II. Child safeguarding pathways in Britain currently vary, depending on who (from which profession) reports them. They are also contingent on effective mechanisms at the local, even micro, levels. Many different telephone numbers and individual professionals may be involved even at the local level, and these may change over time. We need nationally co-ordinated, unified pathways, between all agencies and the public – not ‘just’ Childline, the NSPCC FGM line, the local social services line, the 999 number, the GP’s surgery number (or on-call?) and whatever else….
III. Under the current system, many thousands of practitioners in a range of agencies would need to be trained to a high level of operational competence to deal well with safeguarding children, whether because of the risk of FGM or any other type of child abuse such as general cruelty, or for instance sexual violation.
IV. This ‘system’ compares very poorly with other countries such as France, where all concerns about risk of FGM and evidence of harm, must be reported to specially trained investigators, and where also a child at risk is allocated her own safeguarding professional (rather like a guardian ad litem) whose role is to decide on the child’s behalf, apart from that of anyone else, what actions are in the best interests of the child and her safety.
V. A single, national central system (and telephone number, like, or as part of, the 999 one) is required for rapid and effective safeguarding, with decisions and referrals cascaded down to trained and named local practitioners. Ideally there would be a national central reporting point for everyone who is concerned about child abuse, predators, FGM specifically, grooming, child ‘marriage’ etc (24/7 with fully trained operators) and this would feed down for immediate action (if required) through the Local Safeguarding Children Boards, which are required to liaise with police, schools, health, social services etc.
VI. This system would also enable a national picture of likely abuse to be created – a system which might have helped to identify much sooner for instance the ‘grooming’ of girls in various cities. This would also offer a degree of joined-up protection to girls at risk of FGM, who may live in families where frequent moves are likely and a localised protection system is not adequate to ensure their safety.
5. MANDATORY REPORTING
I. The case for mandatory reporting by professionals of FGM and suspected risk of FGM is very strong.
II. It is obvious the current requirement that suspected abuse be reported is widely ignored and has failed many thousands of girls (and, in other examples such as school abuse, boys as well).
III. Appended below are statements by Government Ministers and the relevant Royal Colleges that concerns about girls at risk of FGM are reported. The disparity between estimated numbers of girls at risk / harmed (thousands annually), and the numbers of reports (tens per annum) offers overwhelming evidence that these claims are generally hollow.
IV. Not only however would formal, legally mandated reporting provide more protection for children, it would also help professionals themselves.
V. A nationally established ‘traffic lights’ system is necessary for all FGM (and other child abuse) reporting, such as that used in eg some NHS organisations, where assessment of risk and subsequent actions is determined by fully trained, named practitioners. This would remove the onus on teachers, nurses and others themselves to decide whether the level of evidence warranted further action – thereby making the process of reporting less daunting and uncertain for those who report and more secure and effective for those thought to be at risk.
VI. It is important in respect of mandatory reporting to be clear that recording the observed incidence of FGM in hospital settings as will now be required (hospitals only; not elsewhere…..) is very different from reporting concerns about risk to girls who have not as yet undergone mutilation. The former is very important for future policy and action; the latter is critical to individual children’s safety.
6. INSPECTION OF CHILDREN
I. Routine full medical inspection of all small children, whatever their background, boys and girls alike, would serve several important roles. Inspection of ‘only’ certain groups of children would be unacceptable.
II. If parents refuse permission for their children to be inspected, this should be noted.
III. Inspection would help to ensure the provision of any necessary care in the case of children who are found to have any medical condition, whether genital or otherwise.
IV. It would provide a baseline to establish that a child has normal anatomical / genital features.
V. It would serve to remind parents that any non-clinical bodily intervention or harm, genital or otherwise, is illegal.
VI. It would provide an excellent opportunity to ensure that parents or guardians understand the seriousness and probable legal / social outcomes of any attempt to harm a child by FGM or other violent act.
VII. In the fairly recent past medical inspection was a duty of school nurses and doctors anyway. The prudery which underlies current claims that ‘parents will never agree to this’ is part of the generic problem. It might be thought there is not a massive difference in perceptions (though of course there is an infinite one in respect of action) between such claims, which sexualise children’s bodies by default, and the belief that little girls ‘need’ to be desexualised by FGM – even before adulthood – to stay ‘pure’.
7. PROFESSIONAL REPUTATIONAL CONCERNS
I. A frequent concern of professionals, such as teachers, who have non-medical responsibility for children’s safety, is that any reference by them to little girls’ bodies will be misinterpreted as salacious. It is important to counter this apprehension, so that all suspected risk can be reported immediately and as accurately as possible.
II. Mandatory reporting and standardised, confidential routines for sharing concerns will help enormously in this respect. If a trained person away from the immediate environment takes responsibility for actions which follow any report, teachers and others will feel less worried that they may be mistaken (and unfair to parents / families) or misinterpreted in their suspicions.
8. CONCERNS ABOUT CONFIDENTIALITY
I. Whilst clarity about the parameters of medical confidentiality can be expected amongst senior members of the clinical professions, it seems likely that this is not always the case amongst those who work directly at the client / patient interface.
II. To give one example, midwives may believe, often correctly in the case of patients in marginalised communities, that they are the only professionals in whom their clients have confidence. Reporting actual FGM or suspicions that children (already born, or soon to be born) may be at risk may feel like a gross breach of trust in such circumstances. The direct patient-client relationship is the focus in such circumstances, and other considerations may be put aside: My client depends on me as her advocate. Surely my caring patient wouldn’t harm her child?
III. Once more, mandatory reporting will largely overcome this superficially understandable, but legally impermissible, position – especially if that reporting is underpinned by serious and thorough law enforcement to ensure that FGM does not thereafter go ‘underground’, which is another repeated concern of midwives and similar clinicians.
9. CONCERNS ABOUT ‘CULTURE’
I. It is said that teachers and others fail to report their concerns about a risk of FGM because of inappropriate concerns about ‘culture’; they are said to be fearful that they will be labelled racist if they report, and they want to appear to ‘respect’ the communities which they serve.
II. Whilst this concern may have had (also impermissible) traction at one time, a more likely current concern is that reporting will encourage racism in others, at a time when the general populace seems to be increasingly engaged in worries about ‘foreigners’. It is important therefore that the focus of the law remains unremittingly on the welfare of children, not on their community beliefs or the colour of their skin.
III. All politicians and community leaders have a role to play in ensuring that inappropriate commentary on ‘cultural relativism’ and ‘racism’ is put aside in the interests of children’s safety.
10. CONCERNS ABOUT CHILDREN AT RISK
I. Many professionals have a concern that reporting FGM or a suspected risk that it may occur will break up families ; by default they may believe that children are more at risk if their parents or guardians are intercepted and perhaps punished, than they are from FGM and its consequences.
II. This misplaced concern is best addressed directly: if children (girls themselves, big brothers and sisters, cousins) and / or other relatives report FGM and thereby stop it happening, they will also have prevented parent/s from committing a very serious crime. And the same applies to professionals with such concerns.
III. A similar concern is expressed by some campaigners themselves from minority ethnic communities. They point to the contradictions when other similar campaigners demand action now, but still want to ‘protect’ their own parents, who inflicted this harm on them in earlier years.
IV. Again, a proper reporting system with an independent, trained official to decide how to ensure the safety of girls (whether they are suspected or real victims) is the best way to ensure that those with on-the-ground knowledge will share it confidently and promptly.
V. Ultimately however, whatever the situation, everyone must understand that FGM is never to be tolerated. It ruins, and sometimes costs, lives.
11. EFFICACY OF LEGAL SANCTIONS
I. FGM is not an opportunistic crime. It always requires preparation and planning; inevitably it involves several people and probably quite a lot of money.
II. It is reasonable therefore to suppose that legal interventions to stop FGM, accompanied (where appropriate to the specific case) by full media coverage of such intervention, will have a significant impact on the likelihood of it occurring.
III. Further, whilst generically (misplaced) claims might be made that FGM is an ‘act of love’, this is not always so. It may be inflicted to punish or control the behaviour of ‘difficult’ girls – quite possibly in the context of modern Britain, especially those who wish to lead modern, independent lives with full autonomy for their decisions and futures? Perhaps there is a spectrum of behaviour here which also includes ‘honour’ killings. Enforcing girls’ human rights is critical.
IV. Rationales and apologies for FGM are however immaterial. It is a violent and cruel, sometimes lethal, crime and must unerringly be seen as such.
1. Legal action alone will not eradicate female genital mutilation in the UK or anywhere else. Education and genuine prospects of bright futures for the girls whose lives it might otherwise ruin are also absolutely essential, if FGM is to become a thing of the past.
2. This does not in any way however remove the imperative to bring the full force of the law into play to stop this appalling crime.
The exploration above of contributory factors in failing to uphold the law on FGM is set within the context of the Guardian article 10 reasons why our FGM law has failed – and 10 ways to improve it (7 February 2014) by Dexter Dias, Felicity Gerry and myself, Hilary Burrage; and is connected also with the evidence I submitted to the CPS Inquiry of October 2012: The Crown Prosecution Service Finally Responds To The Horrors Of Female Genital Mutilation In The UK
APPENDIX ON REPORTING FGM
1. Female Genital Mutilation Question Asked by Lord Taylor of Warwick Daily Hansard 29 Jan 2014 : Column WA229
To ask Her Majesty s Government what plans they have to deal with hospitals which are failing to report female genital mutilation.[HL4765] The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con):
It is the responsibility of National Health Service trusts to ensure that their staff follow correct safeguarding procedures. NHS staff have a legal obligation to safeguard children, so whenever they identify a child who may be at risk of *female genital mutilation* (FGM) or who has already been subjected to FGM, they must always respond by involving the appropriate authorities as set out in the in the Female Genital Mutilation Multi-Agency Practice Guidelines (2011) **. http://www.publications.parliament.uk/pa/ld201314/ldhansrd/text/140129w0001.htm
2. Female genital mutilation: multi-agency practice guidelines
4.1.2 The Need To Safeguard Girls And Young Women At Risk Of FGM:
Under section 47 of the Children Act 1989, anyone who has information that a child is potentially or actually at risk of significant harm is required to inform social care or the police. Initially, the professional will refer the potential victim as a child in need and social services will assess the risk. This definition of harm has been extended in the Adoption and Children Act 2002, which includes where someone sees or hears of the ill treatment of another. Specifically, this relates to situations where there may not be direct disclosure of FGM being performed.
3. The RCM Intercollegiate position:
2.6.2 Girls who have undergone FGM
In cases where girls are identified as having undergone FGM, a referral to children’s services and the police must be made. All health, education and social care professionals have a statutory duty to report any suspected case of child maltreatment, including FGM.
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Hilary Burrage BSc (Soc)(Hons), MSc, PGCE, FRSA is a consultant sociologist currently writing a book, Eradicating Female Genital Mutilation: a UK perspective. She has been a Senior Lecturer in Health and Social Care, a Research Associate in Social Medicine (teenage pregnancy), and is author of the Chapter on Health Education in Dufour, B. (ed.) The New Social Curriculum: A Guide to Cross-curricular Issues, Cambridge University Press (1989). Hilary is a qualified teacher, has been a Non-Executive Director of an NHS Trust, and has worked as a social worker and as a consultant for Youth Service and Sure Start programmes. More recently, she has been advising The Guardian on their 2014 campaign to #EndFGM and she is an advisory board member of the REPLACE2 European programme to stop FGM. Hilary has a professional website, at http://www.hilaryburrage.com.
UPDATE 25 March 2014: All written evidence to the Home Affairs FGM Inquiry is now available here.