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Circular 12

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Justice Department
Police Division

Identity No: Police Circular No: 12 /2005

Title: Prohibition of Female Genital Mutilation ( Scotland ) Act 2005

Addressed to: Chief Constables

Chief Executives,
Dumfries & Galloway Council
And Fife Council
Clerks to the Joint Police Boards

St. Andrew's House
Regent Road
Edinburgh EH1 3DG

Telephone: 0131 244-3348
Fax: 0131-244 - 2623

Susie.gledhill@Scotland.gsi.gov.uk
http://www.scotland.gov.uk

Our ref: CPA/7/23/6



Issued: 15 September 2005 Topic:Legislation

Implementation: 1 September 2005

Impact: Immediate

Contact(s) for more information: Susie Gledhill (at the above address) on 0131 2443348

Dear Colleague

1 Purpose of the circular: To advise forces of the introduction of the Prohibition of Female Genital Mutilation (Scotland) Act 2005, which came into force on 1 September 2005. This Act changes the law about female genital mutilation in three ways:

· it changes the definition of female genital mutilation which is unlawful

· it makes it an offence for UK nationals or permanent UK residents to carry out or aid and abet female genital mutilation abroad

· it increases the maximum penalty to 14 years imprisonment.

2 Summary of contents: The purpose of this circular is to provide guidance for officers working in Child Protection Units in particular, in areas where there are communities from countries in which female genital mutilation is common. It should be read in conjunction with local guidance on child protection procedures. This circular is for guidance only and should not be regarded as providing legal advice. Similar guidance has been sent to colleagues working in social work, health and education.

3 This circular contains four parts:

  • A summary of the Act
  • Issues relevant to the investigation of female genital mutilation offences
  • Information about female genital mutilation
  • Sources of further information and training

Susie Gledhill
Criminal Justice Division

The Prohibition of Female Genital Mutilation (Scotland) Act 2005

4 Carrying out female genital mutilation (FGM) has been specifically illegal since 1985. The definition of female genital mutilation in section 1 of the Act is "to excise, infibulate or otherwise mutilate the whole or any part of the labia majora, labia minora, prepuce of the clitoris, clitoris or vagina of another person".5 In strict anatomical terms, there is little to distinguish some of the procedures involved in carrying out FGM from those involved in carrying out legitimate surgery. The Act therefore permits surgical operations that are necessary for physical or mental health and operations carried out in connection with childbirth, if carried out in the UK by a registered medical practitioner or registered midwife or a person training to be one, or if carried out outside the UK by their overseas equivalents. In determining whether an operation is necessary for mental health, the Act states that it is immaterial whether any person believes that the operation is required as a matter of custom or ritual. So an FGM operation could not legally occur on the grounds that a girl's mental health would suffer if she did not conform with the prevailing custom of her community.7 Section 3 makes it an offence to aid, abet, counsel, procure or incite female genital mutilation (including self-mutilation), even if the mutilation is carried out overseas. So the person who, for example, arranges by telephone from his home in Scotland for his daughter to have FGM carried out abroad is guilty of an offence. The exception for necessary surgical operations in section 1 also applies.8 Section 4 makes it an offence for a UK national or a permanent UK resident who is overseas to carry out or to aid, abet, counsel, procure or incite female genital mutilation in any country. For example, a permanent UK resident who takes his/her daughter to a doctor's surgery in another country so that FGM can be carried out is guilty of an offence. Again, the exception for necessary surgical operations in section 1 also applies.9 Section 5 of the Act increases the maximum penalty for all of these offences. A person convicted of an offence under the Act is liable, on conviction on indictment, to a maximum of 14 years' imprisonment or a fine or both; and on summary conviction, to a maximum of six months' imprisonment, or a fine not exceeding the statutory maximum, or both. This increase in maximum sentence reflects the serious harm that female genital mutilation causes and the seriousness with which the offence should be regarded.10 Section 7 adds the offences in the Act committed against a child under the age of 17 to the list of offences in Schedule 1 to the Criminal Procedure (Scotland) Act 1995 to which special provisions apply. This provides the additional powers of arrest without warrant specified in section 21 of the 1995 Act: without prejudice to other powers of arrest, a constable may take into custody without warrant: any person who within his view commits any of the offences mentioned in Schedule 1, if the constable does not know and cannot ascertain his name and address; any person who has committed, or whom he has reason to believe to have committed, any of the offences mentioned in that Schedule, if the constable does not know and cannot ascertain his name and address or has reasonable ground for believing that he will abscond.11 It also allows a convicting court to refer the victim and any child living in the same household as the victim, or person convicted of the offence, to the reporter to the children's panel, by virtue of section 48 of the 1995 Act. The reporter has grounds to refer such children to a children's hearing, under section 52(2) of the Children (Scotland) Act 1995. These provisions also give the reporter grounds to refer to a children's hearing any other children who are, or become, or are likely to become members of the same household as either the victim or the offender.12 These provisions will apply only to offences committed on or after 1 September, 2005. The Prohibition of Female Circumcision Act 1985 will apply to offences committed before then.13 The text of the Act is available at:http://www.opsi.gov.uk/legislation/scotland/acts2005/20050008.htmExplanatory Notes which give a more detailed explanation of the Act are available at: http://www.opsi.gov.uk/legislation/scotland/en2005/2005en08.htm

Investigation of female genital mutilation offences

14 Female genital mutilation is deeply steeped in the culture of the practising communities who may resent what they perceive as the imposition of liberal western values on them. But FGM is not a matter which we can leave to be decided by personal preference or culture and custom. Whilst it is a cultural tradition, like foot-binding and suttee it is not a tradition which is legal or acceptable in Scotland. Officers should not be reluctant to investigate alleged offences of FGM for fear of being considered racist. This is an extremely harmful practice which violates rights set out in a number of international instruments, in particular the UN Convention on the Rights of the Child and the Convention on the Elimination of Discrimination Against Women. Internationally, efforts are being made to eradicate the practice completely. This Act is part of the action being taken in the UK to help achieve this.

15 Offences of FGM should be investigated in accordance with the standard child protection procedures and guidance on child witnesses. It is not acceptable to leave such cases uninvestigated, as this sends the message to the community that the activity is acceptable and will not be punished even though it is against the law. The first step if there is any suspicion that FGM has been or will be carried out would usually to be conduct a joint investigative interview with Social Work Services. It would be helpful if local protocols for the handling of such cases on an inter-agency basis were developed by Child Protection Committees - Annex 1 provides an example of a process developed for this purpose by Sheffield Area Child Protection Committee.

Safeguarding individual girls

16 There are a number of legal measures are available to safeguard girls whilst investigations are being undertaken:
  • a child protection order under the Children (Scotland) Act 1995 section 57(4)(c);
  • emergency powers under the Children (Scotland) Act 1995 section 61(5), allowing an officer to remove a child to place of safety and keep him there if it is not practicable in the circumstances to apply for a child protection order and it is necessary to protect the child from significant harm; or
· an order under the Children (Scotland) Act 1995 section 11(2) to prevent a child from being taken out of Scotland for FGM.Your local guidance on child protection procedures will give further details. Action should be taken in close collaboration with other agencies and should be proportionate and sensitive to the cultural norms and pressures on parents and children.17 Female genital mutilation differs from other forms of child abuse in two important respects:
  • despite the very severe health consequences, parents and others who have this done to their children may genuinely believe that it is in the child's best interest to conform with their prevailing custom. They believe it makes the child socially acceptable and do not intend it as an act of abuse; and
  • there is no element of repetition - it is a one-off act of abuse (although younger female siblings of any child found to have been mutilated may be at risk).
These factors are relevant in investigating suspected cases of FGM and in trying to prevent FGM from being carried out. In some circumstances, it may be appropriate to seek an order under the Children (Scotland) Act 1995 section 11(2) to prevent a child at risk from being taken out of Scotland for FGM rather than to remove the child from an otherwise loving family environment. Local authorities are not able to apply for such an order so the Child Protection Committee should agree which organisation (possibly police or Children's Reporter) should normally apply for an order to protect the child at risk.

Information about female genital mutilation

18 Female genital mutilation (FGM) is a collective term for all procedures involving partial or total removal of the external female genitalia or other injury to the female genital organs, whether for cultural, religious or non-therapeutic reasons. It may also be called female circumcision or female genital cutting. There are several types of female genital mutilation including removal of the clitoris, removal of all or part of the labia and infibulation: removing the clitoris and labia and sewing the remaining skin together over the vagina, leaving a small hole to allow urine and menstrual blood to flow out.

19 The practice is extremely painful and has serious health consequences, both at the time when the mutilation is carried out, and in later life. It can also be psychologically damaging. The procedure is typically performed on girls aged between 4 and 13, but in some cases FGM is performed on new born infants or on young women prior to marriage or pregnancy. Many of the victims are therefore young and vulnerable. A number of girls die as a direct result of the procedure, from blood loss or infection. In the longer term, women who have undergone FGM are twice as likely to die in childbirth, and four times more likely to give birth to a stillborn child.20 Female genital mutilation is a deeply rooted, traditional cultural practice. Reasons cited for it include: maintaining virginity, chastity or fidelity; custom, tradition and social acceptance (especially for marriage); hygiene and aesthetic reasons (the external female genitalia may be considered dirty and unsightly); and the myth that it enhances fertility. Some may believe that it is a religious obligation but no religion requires FGM. Neither the Bible nor the Koran endorses FGM and the leaders of all major religions have condemned it.21 FGM is much more common than most people realise, both worldwide and in the UK. The table below shows how prevalent FGM is in Africa. There are also some reports of FGM in Indonesia, Yemen, Oman, Malaysia, India, Sri Lanka and Pakistan.

More than 90%

50% - 90%

Less than 50%

Djibouti

Egypt

Eritrea

Ethiopia

Mali

Sierra Leone

Somalia

Sudan

Benin

Burkina Faso

Central African Republic

Chad

Cote d'Ivorie

Gambia

Guinea

Guinea-Bissau

Kenya

Liberia

Nigeria

Cameroon

Democratic Republic of Congo

Ghana

Mauritania

Níger

Senegal

Tanzania

Togo

Uganda

Zaire

22 FGM is increasingly found in immigrant and refugee communities in developed countries. In the UK an estimated 74,000 women have had FGM and about 7,000 girls under 16 are thought to be at risk. In Scotland, the most prominent community is the Somali community in Glasgow, some of whom have been actively campaigning against FGM. However FGM is not necessarily confined to this community; there will be a risk of FGM in any community from the countries in which FGM is practised. Previously families may have evaded the law by taking their daughters overseas for FGM; this Act makes doing so an offence.

Sources of further information, guidance and training

23 The following organisations can offer expertise in community education and in training officers who may deal with suspected cases of FGM or work with women and girls who have been mutilated:

Foundation for Women's Health, Research and Development (FORWARD)

Unit 4, 765-7 Harrow Road,
London.
NW10 5NY

0208 960 4000

www.forwarduk.org.uk

Agency for Culture and Change Management (ACCM)
1 - 11 Arundel Gate,
Sheffield.
S2 1PN

0114 2750 193

www.accmsheffield.org

Black Women's Health and Family Support (BWHAFS)
1st floor, 82 Russia Lane,
London.
E2 9LU

0208 980 3503

www.bwhafs.co.uk

24 Glasgow City Council Social Work Services and the Scottish Refugee Council are undertaking community education in North Glasgow, in conjunction with community groups. Officers seeking more information about the community work taking place to raise awareness about the Act and to dissuade communities from practicing FGM should contact:

Elaine Connelly, Community Development Worker

Scottish Refugee Council

5 Cadogan Square
170 Blythswood Court
Glasgow
G2 7PH

0141 248 9799

www.scottishrefugeecouncil.org.uk

Annex 1

SHEFFIELD AREA CHILD PROTECTION COMMITTEE GUIDANCE

Signs that FGM may be about to take place

The family comes from a community that is known to practice FGM, especially if there are elderly women present in the extended family.

A conversation with a child may refer to FGM e.g. a child may request help to prevent it happening, may express anxiety about a special procedure which may include discussion of a holiday to their country of origin.

Midwives and obstetricians who note that a pregnant woman has had FGM should trigger concern for any female children.

Signs that FGM may have taken place

A prolonged absence from school with noticeable behaviour change on return.

A child may spend long periods of time away from class during the day, possibly with bladder or menstrual problems.

The organisations listed in paragraph 23 can give more detailed information