Female Genital Mutilation the Law, the Lessons and the Unintended Consequences

QEB Hollis Whiteman QEB Hollis Whiteman

Female Genital Mutilation The Law, The Lessons and The Unintended Consequences

Sean Larkin QC Zoe Johnson QC

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Female Genital Mutilation The Law, The Lessons and The Unintended Consequences Sean Larkin QC and Zoe Johnson QC, QEB Hollis Whiteman Chambers

here is no need to rehearse the many reasons for criminalising fe- cover areas of treatment not ordinarily consid- male genital mutilation (FGM). It ered FGM. The clearest example is labiaplasty has been a criminal offence in this which we discuss below. country for 30 years. It is one of The criminal law by way of FGM Act 2003 ap- the few crimes that can be pros- Tecuted here for offences carried out abroad. It is ‘A person is guilty of an offence if he excises, condemned nationally and internationally. Various government departments have put resources into any part of a girl’s labia majora, labia minora or education, reporting and investigation. Notwith- clitoris’. Examination of Hansard does not allow standing the number of incidents there has only one to conclude that the 2003 Act mirrors the been one prosecution and that was unsuccessful. It is against that background we explore the No mental element is required other than that detail of the criminal prosecution and the rami- required to perform the act. On a natural inter- - pretation, it includes labiaplasty (removal of all or fessionals to notify the police of FGM. part of labia) or vaginal piercings (if amounting to FGM is a very current issue. The Govern- - ment has committed to work towards ending der to protect professionals, the FGM Act provides FGM within a generation. The police and Crown Prosecution Service are keen to secure convic- to disprove as opposed for the defence to prove) tions. The FGM Act has been amended to intro- that no offence is committed by an approved duce new criminal offences. The Family Court person who performs a surgical operation on a has considered when it would be appropriate to girl which is necessary for her physical or mental have care proceedings against a child suspected health, or a surgical operation on a girl who is in of having received FGM. 1 There have been cas- any stage of labour, or has just given birth, for es before the General Medical Council involving purposes connected with the labour or birth. Ap- a GP who removed a woman’s labia, introducing proved persons include health practitioners. a woman to an FGM practitioner and the Gen- - eral Dental Council where a dentist was struck essary’, ‘physical health’ or ‘mental health’. The off for offering to provide FGM to a woman’s FGM Act excludes custom and ritual as making children. surgery necessary.

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Female Genital Mutilation The World Health Organisation Type II: with creation of a covering seal by Partial or total removal of the cli- cutting and appositioning the labia that intentionally alter or cause toris and the labia minora, with or minora and/or the labia majora, injury to the female genital organs without excision of the labia majora with or without excision of the clito- (excision). The categorisation is further When it is important to distin- When it is important to distin- divided. guish between the major varia- - “Type I: tions that have been documented, lations, the following subdivisions Partial or total removal of the the following subdivisions are Type IIIa clitoris and/or the prepuce (clitori- Type IIa , removal of and apposition of the labia minora; dectomy). the labia minora only; Type IIb Type IIIb- When it is important to distin- , partial or total removal of the tion of the labia majora. guish between the major variations clitoris and the labia minora; Type Type IV: of Type I mutilation, the following IIc , partial or total removal of the Type clitoris, the labia minora and the procedures to the female genitalia Ia , removal of the clitoral hood or labia majora. for non-medical purposes, for ex- prepuce only; Type Ib, removal of Type III: ample, pricking, piercing, incising, the clitoris with the prepuce.

Duty to Notify they identify through the delivery of health- - care services that a woman or girl has had Percentage tic and international efforts to end FGM, the FGM. of girls and Prime Minister announced the introduction of women aged 15 to a duty to notify which placed an obligation on the police. The new ‘duty to notify’ is to notify 49 years relevant professionals to notify the police. The the Chief of Police. It is not yet in force. In who have existing duties to report arise from general and essence, a healthcare professional or teach- undergone FGM/C, by safe-guarding guidance published by the Gener- er or social worker in Wales must notify the country al Medical Council (GMC) but there is no mandatory duty to report to the police. For example, professionals “must tell an appropriate agency, such as your local authority children’s services, the NSPCC or the police, promptly if you are concerned that a child or young person is at risk of, or is suffering, abuse or neglect unless it is not in their best interests to do so. You do not need to be certain that the child or young 2 Such safeguards are part of the duty to report instances of child abuse (under-18s). Such a report is usually to the local Children’s Services or the Multi-Agency Safeguarding Hub and the information shared with the GP and health visitor. There is also an existing duty to record. Fol- lowing publication of the Data Standard on 2nd , it is mandatory to record (write down) FGM in a patient’s healthcare record if

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2012, 266 labial reduction operations were per- reasons for these operations are also unknown. As at the time of this article, private clinics are of the labia for reasons of choice. The British Association of Aesthetic Plastic Surgeons have found that the most common reason for women to request the operation is because the labia are perceived to be too large and aesthetically un-pleasing. In an undercover operation for the magazine Guernica, Kirsten O’ Regan reported Dr. Red Alinsod, a urogynecologist in Laguna Beach, California, claiming that his most requested sur- Katie J.M. Chief of Police within a month of discovering that Baker blog an act of FGM appears to have been committed excises the entire labia minora resulting in a at Jezebel. com on a girl under 18. The discovery will have to have occurred in the course of his work. It arises when either the girl reports FGM or physical says. “But I kept getting patients who wanted signs have been observed and the person has no almost all of it off. They would come in and say, I want a ‘Barbie.’ So I developed a procedure to the offence, ie necessary for physical or men- that would give them this comfortable, athletic, tal health etc (full text of section below). Its purpose is plain. It is to make the profes- It was a botched labiaplasty that led to the sional’s responsibilities clear and to support an GMC action against a doctor. Although the pri- increase in the number of perpetrators investi- vate clinic of California or Harley Street may gated and prosecuted. If all actual or suspect- seem a world away from the principal FGM ar- ed cases are reported the police will be able to - choose which to investigate which should lead tion is whether or not the police or CPS will use to more and successful prosecution. The issue is their discretion to investigate and prosecute. If what treatments will fall to be reported. they did, could the surgeon successfully raise the issue that it was ‘necessary for the mental Labiaplasty or physical health’? Labiaplasty, sometimes referred to as the ‘de- signer vagina’, appears to fall squarely within 2015 were clear in their view of labiaplasty and - duce the size of the labia minora. This will in- Despite the Government’s assurances that volve excision of the labia minora which is the there is no ambiguity in the law relating to offence. The NHS website further says that most female genital cosmetic surgery, our evi- labiaplasty operations are done as cosmetic sur- dence demonstrates that the police, mid- gery and ‘occasionally, there may be a medical wives and campaigners would all like to see need for the operation (for example, because the greater clarity on this point. We cannot tell tissue is affected by disease)’. Between 2008 and communities in Sierra Leone and Somalia to

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stop a practice which is freely permitted in Harley Street. We recommend that the Gov- ernment amend the Female Genital Mutila- tion Act 2003 in order to make it very clear that female genital cosmetic surgery would be a criminal offence. (Paragraph 14).

That offer has not yet been taken up. In the recent case of Dr Dharmasena, it was directed the jury that it was an ordinary English there is almost always a range of medical opinion as to what is necessary and that has to be if it would be recognised as such by a responsi- ble body of medical opinion in the relevant spe- ciality. Factors such as the circumstances of an emergency or time pressure will be taken into account. If one looks for assistance in the FGM Act, one - under 18 has had a labiaplasty should they re- tions necessary for physical health are likely to port the matter to the police? Are any monies re- be rare but could, for example, include the received for the labiaplasty the proceeds of crime moval of relevant cancerous areas. Operations and fall within money laundering guidance? necessary for mental health could include, for example, cosmetic surgery resulting from the Mental and physical health distress [our emphasis] caused by a perception What then is ‘mental health’.3 The FGM Act of abnormality or gender reassignment surgery. If one looked at the medical body, one would in many acts of parliament, including Mental - sition Paper of October 2013, the Royal College The criminal justice system looks at person’s of Obstetricians and Gynaecologists considered mental ill-health and mental capacity. If one that the phrase ‘distress caused by a perception looks at case law, the best area to look is the of abnormality’ is open to interpretation, giving law on abortion. To commit the offence of pro- rise to some ambiguity around the legal status of curing a miscarriage/abortion, the defendant some Female Genital Cosmetic Surgery (FGCS) must act unlawfully. In the celebrated case of R procedures. They further suggested that RCOG, v Bourne [1939], Bourne self-reported his ter- BAAPS and the Department of Health, advised by appropriate lawyers, should provide guidance victim, apparently to test the law. In evidence, concerning the potential overlap between FGCS and FGM. No such guidance has been forthcom- have become a ‘wreck’. The judge directed the ing but we understand that the RCOG are pre- jury that it would not be unlawful if acted to paring a new paper. prevent the girl lawful becoming ‘a physical or

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NHS The meaning of the phrases: labiaplasties 1999-2013 The FGM Act provides three different forms of action. In the recent Dharmasena trial, the defence argued that referred to the “narrowing - ering seal by cutting and appositioning the labia minora/majora with or without the excision of As part of the argument, the defence re- searched the etymology of the . They argued that the historic literal interpretation was mental wreck’. The jury acquitted, which means for a seal. Separately, the purposive interpre- the test, was never appealed. The test is a high tation led to the same conclusion and regard one but has been followed up until the introduction of the Abortion Act. However, as the criminal case, AB had been the subject of FGM Abortion Act is not in force in Northern Ireland, the Bourne principle has been developed in a by procedure in UK. AB fell pregnant and in the course of labour, Dr D made an incision of the as ‘serious long-term harm to physical or mental health’5. This is obviously a high threshold 8 stitch to stop the bleeding. A midwife raised and it is unlikely that cosmetic surgery would concerns and a consultant dealt that the edge of count. the incision could have been stitched separately. The Abortion Act introduced a different and low- The prosecution case was the suture amount- er test. It permitted an abortion if two registered medical practitioners are of the opinion, formed short of FGM failed at every stage and the mat- in good faith that (amongst other reasons we will ter was left to the jury. ignore) the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental “I have no hesitation in rejecting the construc- health. The use of the word risk is a lower thresh- tion argued for. It is inconsistent with the word- old than necessary. Authorities in this area sug- ing of the section itself which makes it clear that gest that it is a matter of medicine not law and the views of doctor will carry great weight. However, the whole or any part of a girl’s labia minora and/ or labia majora. It is thus plain that to amount In the parliamentary debates there was reference - - tion namely ‘a state of complete physical, mental Equally it makes no difference in law whether and social well- being and not merely the absence If correct, and it is the only judicial guidance restate this test as being appropriate when con- available, mere fastening is potentially unlawful sidering abortion internationally. However, this is then number of procedures become prima facie a test yet to be considered in the criminal courts. liable e.g repair of labial tears and removal of

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“5B.— Duty to notify police of female genital mutilation

(1) A person who works in a reg- act of female genital mutilation “act of female genital muti- ulated profession in England and appears to have been carried out lation” means an act of a kind on the girl; mentioned in section 1(1); under this section (an “FGM no- (d) may be made orally or in “healthcare professional” means writing. a person registered with any of or her work in the profession, the (6) The duty of a person work- the regulatory bodies mentioned person discovers that an act of ing in a particular regulated pro- in section 25(3) of the National female genital mutilation appears - Health Service Reform and Health to have been carried out on a girl tion does not apply if the person Care Professions Act 2002 (bodies who is aged under 18. has reason to believe that another within remit of the Professional (2) For the purposes of this person working in that profes- Standards Authority for Health section— sion has previously made an FGM and Social Care); (a) a person works in a “regu- “registered”, in relation to a reg- lated profession” if the person is— same act of female genital muti- ulatory body, means registered in (i) a healthcare professional, lation. a register that the body maintains (ii) a teacher, or For this purpose, all persons by virtue of any enactment; (iii) a social care worker in falling within subsection (2)(a) “social care worker” means a Wales; (i) are to be treated as working in person registered in a register the same regulated profession. maintained by the Care Council an act of female genital mutilation (7) A disclosure made in an FGM for Wales under section 56 of the appears to have been carried out Care Standards Act 2000; on a girl in either of the following “teacher” means— two cases. owed by the person making the (a) in relation to England, a disclosure, or girl informs the person that an act (b) any other restriction on the the Education Act 2002 (persons of female genital mutilation (how- disclosure of information. employed or engaged to carry ever described) has been carried (8) The Secretary of State may out teaching work at schools and out on her. by regulations amend this section other institutions in England); for the purpose of adding, re- (b) in relation to Wales, a per- (a) the person observes physi- moving or otherwise altering the son who falls within a category cal signs on the girl appearing to descriptions of persons regarded listed in the table in paragraph show that an act of female genital as working in a “regulated pro- 1 of Schedule 2 to the Education mutilation has been carried out on - her, and section. gories of registration for purposes (b) the person has no reason to (9) The power to make regula- of Part 2 of that Act) or any other believe that the act was, or was tions under this section— person employed or engaged as part of, a surgical operation within (a) is exercisable by statutory a teacher at a school (within the section 1(2)(a) or (b). instrument; meaning of the Education Act (b) includes power to make con- 1996) in Wales. (a) is to be made to the chief sequential, transitional, transitory (12) For the purposes of the or saving provision. “healthcare profes- which the girl resides; (10) A statutory instrument sional”, the following provisions of (b) must identify the girl and containing regulations under this section 25 of the National Health section is not to be made unless Service Reform and Health Care made; a draft of the instrument has Professions Act 2002 are to be (c) must be made before the been laid before, and approved ignored— end of one month from the time by a resolution of, each House of (a) paragraph (g) of subsection when the person making the Parliament. (3); (11) In this section—

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vulval tissue for vulval and vaginal cancer, albeit the medical exception would probably apply in these examples. Mutilate - In B v G6- ered whether a care order should be made in a case of suspected of FGM. He side-stepped the issue of why female circumcision might lead to care proceedings but male circumcision (which would fall within Type IV FGM) should not. He felt that the question of when ‘mutilation’ exist- ed was ‘a matter properly for determination by a criminal court as and when the point arises for decision in a particular case’ He turned to the - person or animal; the severing or maiming of a as meaning “To deprive (a person or animal) of the use of a limb or bodily organ, by dismem- berment or otherwise; to cut off or destroy (a Excision – this is a more common word meaning removal by cutting and will little litigation. The duty to notify coupled with the scope of - sues to be considered in the near future.

Endnotes

1. G v B [2015] EWFC 3 2. Examples of obligations are sections 10 and 11 Children; GMC (2012) Protecting children and young people’, Safeguarding children and young people (3rd ed). 3. section 59 Offences Against Person Act 1861 5.FPA Northern Ireland and The Minister For NICA 39 6. [2015] EWFC 3

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“Sean Larkin QC “Sean Larkin QC is “Sean Larkin QC is praised for his ‘always provides ‘absolutely superb’ meticulous and proactive approach high-quality advice and is ‘absolutely me- - with a clear strate- ticulous in all he does.’ - He is further praised impressive advocacy. He defends and lent advocate who for his advocacy and prosecutes professionals in front of impresses solicitors his ability to strike up and clients alike’.” a rapport with clients.” Chambers UK Chambers UK Professional Discipline Fraud: Criminal Chambers UK Professional Discipline

Sean Larkin provides specialist als (particularly professionals) and counsel on behalf of the GMC at advice and advocacy at all stages companies. He has been involved in the MPTS for a complaint of FGM - many cases where sensitive disclo- against Dr Pandya which concluded cation proceedings, with particular sure and cross-jurisdictional issues emphasis on fraud, terrorism and have arisen. regulatory breaches by individu- Sean Larkin QC was presenting [email protected]

Zoe Johnson QC

“The ‘just fabulous’ “Zoe Johnson QC is Zoe Johnson QC is ‘absolutely brilliant. tactician.” “She controlled the very personable and and tough but fair’.” got the panel focused on the very to the point’.” Chambers UK medical issues.” Chambers UK Professional Discipline Chambers UK Professional Discipline Professional Discipline

Zoe Johnson has immense ex- cases pre charge and is highly ex- councils in particular the General perience in all aspects of the most perienced in managing strategy and Medical Council. serious and demanding crime. She leading teams in large cases. She prosecutes complex homicide and ter- regularly advises the Attorney Gen- Dharmasena who was acquitted this rorist cases and has acted in a large eral and appears for him in the Court of Appeal. She has a special interest brought under the FGM Act 2003. and sudden infant death cases. She in regulatory work. She appears in almost all the medical regulatory [email protected]

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