Prosecution of female genital mutilation in the United Kingdom: Injustice at the intersection of good public health intentions and the criminal law

Introduction

Female genital mutilation (FGM) 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 United Kingdom 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 implemented as well, and some education in schools is provided. FGM was first criminalised in the United Kingdom in 1985. Since then, there has been a persistent, hegemonic belief that many parents in the United Kingdom 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 United Kingdom are thought to be at risk, which in turn is based on the number of women living in the United Kingdom who have reported having FGM as children in other countries. These estimates are not supported by evidence. ¹ This article is about the injustice that has arisen from the pursuit of prosecutions for FGM in the United Kingdom, 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 FGM 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 FGM 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 number of girls being taken into care, and people stopped from travelling with girl children 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 (FGM) – 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 living in the UK since they were children have said that FGM was never much practised in the United Kingdom and has disappeared in many communities here because it has been recognised as harmful. ⁵ The article concludes that the United Kingdom 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 United Kingdom

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 girl children travelling with family members) in case they were being taken abroad to be cut, particularly during the school holidays. ⁶

In 2014–2015, 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.

Furthermore, dubious efforts to estimate FGM prevalence in the United Kingdom between 2009 and 2014 have 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 United Kingdom 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 the 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 experts 1 and 2 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, then 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 United Kingdom: 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 United Kingdom. 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 vulva 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-min deliberation by the jury, having spent 2 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, which for 2 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 among 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 but only this scant information is 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 2 weeks after the Bristol case ended, was entitled ‘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 (FGM) 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 suspect 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 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, and 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 whether she could have a biscuit. They went into the kitchen where he got her a biscuit from a bowl sitting on top of 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 1 cm 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

A critique of how the court proceeded

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.

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.

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 retrial, 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 lastly, 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 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 article 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 United Kingdom, 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 United Kingdom. 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 United Kingdom 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 United Kingdom. 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. Sara 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 United Kingdom, 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 2015 amendments.

These concerns are part of a wider examination of the role of the criminal law with 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 versus 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 among 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

The criminal cases in the United Kingdom 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 CPS, members of the judiciary and legal profession, the police and the NHS 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.