Children Act 1989 (Amendment) (Female Genital Mutilation) Bill [HL] - Second Reading

Part of the debate – in the House of Lords at 11:26 am on 20th July 2018.

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Photo of Lord Berkeley of Knighton Lord Berkeley of Knighton Crossbench 11:26 am, 20th July 2018

My Lords, this Bill seeks to make a one-line amendment to the Children Act 1989, but it would considerably extend protection to young girls at greatest risk of genital mutilation, and I can think only that its current omission is simply an oversight. I will begin and end with one startling fact. If a child is at risk of forced marriage or violence from, say, a habitually drunk father, the family court has all the full protective powers a court can offer, up to and including making an interim care order. But if a child is at serious risk of having her genitals mutilated, it does not. The powers fall far short, and all that can be done is to make an FGM protection order and hope for the best. How can that be right or logical? I will try to explain the difference between the two and will give some background to the genesis of the Bill.

When I joined your Lordships’ House in 2013, I came with music and music education as my main calling cards. But then I attended a debate on FGM, initiated by the late and much missed Ruth Rendell, Baroness Rendell of Babergh, and I was stunned and appalled by what I heard. I simply could not believe that in our country, girls were being subjected to a barbaric procedure that often leads to infertility, sepsis, pain and severe curtailment of sexual pleasure, performed all too often with dirty razor blades and in far from sterile conditions.

This custom has no basis in religion—in the Koran, for example—and as countless distinguished medical experts have told your Lordships’ House in previous debates, it cannot be justified for medical reasons: in fact, quite the reverse. So when Baroness Rendell died in 2015, and on hearing that many thousands of girls were considered at risk in this country—the figure of 60,000 was mentioned in one debate—I decided to take up the gauntlet and have asked Questions and tabled debates ever since, and will continue to do so.

Despite it being illegal since 1985—thanks again to Lady Rendell—there has not been a single successful prosecution of FGM in this country. That is regrettable, because it would certainly send a signal. However, I do not unduly castigate the Government for that—it is an extremely sensitive, delicate, cross-cultural problem—and I have come to agree with them that education is the most important resource in our armoury. We simply have to change the attitude to FGM that has been passed down the generations, largely by grandmother to mother to granddaughter, but in the alleged interests of men, who it is thought will welcome only girls who have not been sexually active. Therefore, FGM is designed to create a physical barrier to normal sexual activity but also a psychological one, in that it is supposed to lessen desire and lustful thoughts. Just imagine the long-term consequences of this and all the physical things I have mentioned for a woman.

Therefore, I welcome the decision that made mandatory the reporting of FGM in the National Health Service. The figures are not reassuring, and at this stage I thank the Library for providing the latest figures, as requested. In 2015-16, there were 9,223 reports, of which 6,080 were newly recorded. Between April 2016 and March 2017, 9,179 reports were recorded, of which 5,391 were newly recorded cases. Between January and March of this year, 2,320 attendances were already reported, of which 1,030 were newly recorded cases affecting women or girls. These shocking figure reveal just why we and the courts desperately need to have every form of protection available.

Having secured attention for this problem in your Lordships’ House, I was contacted by a barrister, Mr David Maddison, who from great experience—18 years of working in family law and with the police in Manchester—wrote to me explaining that a simple change in the law would enormously help the protection of the young girls most at risk of FGM. Based on his notes to me—this is our case—the power to make female genital mutilation protection orders is in Schedule 2 to the Female Genital Mutilation Act 2003. This is in effect a stand-alone statutory code.

Lots of other remedies in the family courts also exist as stand-alone codes—for example, non-molestation orders are made under the Family Law Act 1996. Courts also have the power under the Children Act 1989 to make interim care orders when they are so concerned about a child’s welfare that the court wants a local authority to intervene and share parental responsibility. This is a very useful way for judges to alert local authorities to children who might have slipped beneath their radar. Crucially, however, the Children Act is not a stand-alone code in the sense that it allows a court to make interim care orders in any family proceedings.

Section 8(4) defines what is meant by family proceedings by listing various statutes. The effect of this section is that it allows a judge to reach across from one seemingly stand-alone code and use the powers of the Children Act 1989 to protect children by granting an interim care order. FGM is not listed as a family proceeding. However, the Family Law Act 1996, for example, is listed, so if a person were to apply for a non-molestation order under that Act, it would be open to a judge also to make an interim care order if the relevant test was satisfied. Section 8(4) is what allows the Children Act to open its protective umbrella, if you like, and offer shelter to many other children who might seek help under the Family Law Act or any of the other statutes listed in it. So one might well ask: could a non-molestation order cover FGM? In theory, yes, but it would involve hammering an oval peg through a round hole. It is not as workable and effective as including FGM as a family proceeding would be.

FGM protection orders and forced marriage protection orders were developed because it was realised that the courts were being forced to strain the limits of their available powers to provide appropriate protection. As a consequence, it was recognised that the courts needed better, bespoke tools for these problems. One particular difference between a non-molestation order and an FGM protection order is that a non-molestation order is applied for by the person seeking protection, and they can obtain protection only against “associated persons”. That has a lengthy definition but for these purposes is best understood as a very broad but not limitless pool of people whom that person may need protection from.

In contrast, FGM protection orders and forced marriage protection orders can be brought by the child or a relevant third party. That can include local authorities and police forces. This is important, because children might not voice their concerns or they might want it to look as though the decision has been taken out of their hands so that there are no reprisals from their family. Neither a local authority nor a police force can apply for a non-molestation order on behalf of someone. So, yes, you could use a non-molestation order to protect a child but it would generally involve the parent applying for it for their own and the child’s benefit. Where this tool is wanting, then, is in the ability of local authorities and police forces to act on their information and take protection steps. As I said, the Female Genital Mutilation Act 2003 is not included in the list of statutes at Section 8(4), so does not constitute family proceedings, and thus it is not open to a judge to make an interim care order if they think it appropriate. This is surely denying judges a very useful and important tool to protect children—hence the amendment that we seek to make to the Children Act.

The test for an interim care order is that there are reasonable grounds to believe that the child has suffered or is at risk of suffering significant harm. If a child is considered to be at risk of genital mutilation, it is not very likely that there will be reasonable grounds to believe that they are at risk of suffering significant harm? Can anyone argue with that? Therefore, we suspect that the Female Genital Mutilation Act is not listed in Section 8(4) more by oversight than by deliberate omission. It is very difficult to see an argument against including it. It will not lead to a flood of care orders. It is rare for judges to make interim care orders using their powers under Section 8(4)—Mr Maddison says that he has probably seen them less than a dozen times in his 18-year career—but judges should, and must, still have this tool at their disposal. As FGM becomes more and more visible and people become more and more active in doing something about it, so the change we seek will be more and more necessary.

I am most grateful to all noble Lords who are speaking today, particularly my noble and learned friend Lord Brown of Eaton-under-Heywood and the noble Baroness, Lady Massey, on the Labour Benches, who will speak with great legal knowledge. I am also very grateful to the Minister, the noble Baroness, Lady Vere, who arranged for me to meet her and her officials earlier this week. Even though this is a one-line amendment, it inevitably involves complicated legal issues, which others in your Lordships’ House are much better qualified than me to deal with.

One of the great privileges of being a Member of this House is that just sometimes one can hope to make a real difference to people’s lives and, to that end, can also consult truly eminent experts in the field. I have done so, and by them and, as it happens, by leading politicians at the highest level, I have been much encouraged to pursue this Bill.

I end as I began by referring the House quite simply to one fact: the absolute illogicality of the family court being able to effectively protect a child at risk of forced marriage or domestic abuse but not protect one at risk of having her genitals mutilated. I beg to move.