International and European agreements
International Covenant on Civil and Political Rights (accession on 04/11/1980) and its optional protocol (accession on 17/02/1984)
- International Covenant on Economic, Social and Cultural Rights (accession on 4/11/1980) and its optional protocol (ratified on 18/03/2015)
- Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW—ratified on 14/12/1983) and its optional protocol (ratified on 09/06/2000)
- International Convention on the Rights of the Child (ratified on 07/08/1990)
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (ratified on 18/02/1986) and its optional protocol (ratified on 11/11/2008)
- European Convention on Human Rights (ratified on 03/05/1974)
- The Council of Europe Convention on combating violence against women and domestic violence (Istanbul Convention—ratified on 2014)
- European Convention on the Exercise of Children’s Rights (ratified on 19/09/2007)
FGM is not specifically classified as a crime or offence under French law. However, according to general provisions related to violence leading to mutilation, FGM is a crime punishable by a 10-year prison sentence and a 150,000-euro fine (Article 222-9 of the Penal Code). This sentence can be extended to 20 years if the act is committed on a minor under the age of 15 or by a relative or any other person with authority over the victim (Article 222-10). In cases where violence leads to unintentional death, the applicable sentence is 15 years’ imprisonment (Article 222-7), extended to 20 years if committed on a minor under the age of 15 and 30 years when committed by a relative or any other person with authority over the minor (Article 222-8).
The period of limitation for prosecution of this crime is 20 years after the under-age victim reaches the age of majority (18 years of age)—i.e. 38 years of age (Article 7 of the Criminal Procedure Code).
The offender can be prosecuted even if the crime is committed abroad, if the victim is of French nationality or resident on French territory (Article 222-16-2 of the Penal Code). The parents of the victim can be prosecuted as accomplices (Article 113-5 of the Penal code, relating to complicity in any crimes or offences).
Two specific offences were added to the Penal Code in 2013 to strengthen the protection of minors (under Law n°2013-711 of 5 August 2013). These are encouraging a minor to be subject to genital mutilation, for example, by giving gifts (Article 227-24-1 par.1 of the Penal Code), and encouraging other people to commit genital mutilation (Article 227-24-1 par.2).
The Criminal Procedure Code also permits civil action to be brought by associations working to combat sexual violence and attacks on physical integrity (Article 2-2) and associations defending or helping children in danger or the victims of abuse (Article 2-3)
Any competent authority, public officer or public employee who becomes aware of a crime or offence in the course of their duties must immediately notify the Public Prosecutor (Article 40 of the Code of Criminal Procedure). In addition, it is a criminal offence not to help a person in danger (Article 223-6 of the Penal Code).
Law relating to child protection
Child protection is a collective responsibility. It is a criminal offence not to inform the authorities of abuse inflicted on a minor or the danger of such an offence occurring (Article 434-2 of the Penal Code).
The 2007 law on protection of children in danger provides for two types of protection: administrative protection, which is the responsibility of the Departmental Council and is governed by the Social Work and Family Code, and legal protection, which is the responsibility of the children’s courts, governed by the Civil Code.
The chairperson of the Departmental Council is in charge of collecting, processing and evaluating information relating to dangers or risks of danger to the health, safety or morality of minors and of compromise or risk of compromise to their education or development, and of ensuring their protection (Article L226-3 of the Social Work and Family Code). The Departmental unit for collecting and evaluating information of concern (CRIP) receives data from children’s social assistance services, maternal and child protection services and social work services, which can also carry out preventive and protective action in the interests of minors (Articles L221-1 and L226-1), through measures of educational and family support, in the home or via competent structures (Articles L222-3 and L222-4-2).
When a minor is in a dangerous situation and an emergency arises (for example, a confirmed risk of FGM or imminent departure for an FGM-practising country of origin), the Departmental unit and professional involved can report their concerns in writing to the Public Prosecutor associated with the juvenile prosecution service in the minor’s place of residence (Article L226-4).
The Prosecutor applies to the Brigade for the Protection of Minors and, according to the result of an enquiry conducted in collaboration with the Forensic Medical Units1)All cases of excision reported to the Public Prosecutor’s Office for children and adolescents are the subject of a police investigation by the Brigade for the protection of minors in Paris (or equivalent local services), the children’s court judge, who can order an educational assistance measure (Article 375 of the Civil Code) and, if required, the temporary placement of the child in the care of the other parent, a member of the family, a trustworthy third person or a competent service (Articles 375-1 to 3), as well as prohibiting the child from being taken out of the country, requiring her inclusion on the missing persons’ list (Article 375-7, introduced in 2010) or requiring that she be presented for medical examination on her return to France.
In emergency situations, the Prosecutor can order the temporary placement of the child and subsequently apply to the children’s judge (Article 375-5 of the Civil Code).
Law on asylum
The right to asylum is governed by the Code of Entry and Residence of Aliens and the Right to Asylum (CESEDA), reformed in 2015 under Law n°2015-925.
A request for asylum and recognition of refugee status should be made via the Prefecture one-stop registration service, within four months of the day of arrival. Confirmation of an application for asylum allows the applicant to remain in France while the request is being processed by the Office for the Protection of Refugees and Stateless Persons (OFPRA). A completed and registered application is processed in six to 18 months, and a decision can be appealed at the National Court of Asylum (CNDA) within 30 days.
Since the reform of 2015, the management and initial guidance of asylum-seekers is undertaken by a reception ‘platform’, coordinated by the Office for Immigration and Integration (OFII). Platform operators include activist associations, which provide applicants with social and administrative support. Applicants are also offered accommodation in the Centre for Asylum Seekers (CADA) or similar institutions.
Under French case law, “in a population where female genital mutilation is commonly practised, to the point where it is a social norm, non-mutilated children and adolescents make up a social group within the meaning of the Geneva Convention” (CE, 21 Dec 2012 n° 332491, Darbo-Fofana). As such, and as result of the risk of mutilation they are deemed to face in their country of nationality (assessed in light of “circumstantial elements, notably family, geographical, sociological”), such individuals should be attributed refugee status. This gives them the right to obtain a renewable 10-year resident’s card, authorising them to live and work regularly in France during this period (in accordance with Articles L311-5-1 and 314-1 and CESEDA).
If the parents of such individuals are at risk of persecution or abuse because of their opposition to FGM, they may also claim refugee status. If this is not possible, parents can be granted subsidiary protection where conventional grounds for asylum cannot be established but where there is a risk of “inhuman or degrading treatment” on return to their country of origin (Article L712-1 of CESEDA>). This entails the right to obtain a renewable one-year residence permit for a period of two years, for as long as the danger exists in the country of origin, authorising the holder to live and work regularly in France for the same period (Article L311-5-2 of CESEDA). If no protection is granted, OFPRA must invite the parents to present to the Prefecture of their place of residence the decision to grant refugee status to their daughter, and apply, in their own right, for a resident’s card (Article L314-11 8°d of CESEDA).
The 2015 reform of France’s asylum law makes special provision for FGM as a serious form of psychological, physical or sexual violence which must be identified during evaluations of the vulnerability of applicants, and taken into account in implementing their rights, including the period during which their application is processed, in order to determine specific needs in terms of accommodation (Article L744-6). However, the needs of women or girls who have been or are at risk of being mutilated are not necessarily related to the material conditions of their accommodation. In addition, when protection on the grounds of asylum is granted to a minor claiming a risk of genital mutilation, OFPRA will require the girl to undergo a medical examination to confirm the absence of mutilation. No observation of genital mutilation can lead to termination of the protection granted to the minor on the grounds of asylum. A minimum time-frame of three years between examinations must be complied with, except if there is suspicion of FGM or of the risk of its being practised (Article L752-3).
Two additional legal provisions are of particular interest in cases of FGM. First, the applicant has the right to attend an interview with OFPRA accompanied by a lawyer or a representative from an association defending human rights or the rights of aliens, asylum-seekers, women or children, or an association working against gender-based persecution (Article L723-6. Al 6). However, it should be noted that authorised associations are not necessarily expert in issues related to FGM. Second, the applicant has the right to a closed hearing with the National Court of Asylum (CNDA) (Article L733-1-1).
According to the French Penal Code, professional secrecy does not apply in cases of FGM (Article 226-14). According to the Public Health Code, health professionals (doctors, midwives, nurses, etc.) are obliged to report to the competent authorities any knowledge of the abuse of a minor or a woman unable to protect herself, because of her age or physical/psychological condition.
Relevant articles regarding compulsory reporting and offences are Article 40 of the Code of Criminal Procedure and Articles 434-2 and 223-6 of the Penal Code (cf. supra § 3.2 Criminal law and § 3.3 on child protection).