I. International and European law
Ireland has ratified a number of international conventions on FGM, including the Universal Declaration of Human Rights (UDHR), the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the Convention on the Rights of the Child (CRC), the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the Charter of Fundamental Rights of the European Union (2010/C 83/02). On 5 November 2015, Ireland became the 39th country to sign the Convention on preventing and combating violence against women and domestic violence (Istanbul Convention), which it has yet to ratify.
II. Criminal law
Since April 2012, there has been a specific criminal law concerning FGM, namely the Criminal Justice (Female Genital Mutilation) Act 2012. This states that neither a reference to custom/ritual nor a girl’s consent can constitute a defence for a person accused of FGM, the penalty for which is a prison term of up to 14 years and/or a fine of EUR 10,000. The principle of extraterritoriality is applicable, making FGM punishable even if it is committed outside the country. The offences of aiding, abetting, counselling or procuring for the commission of FGM are provided for in Irish general criminal law.
III. Child protection law
Apart from the Criminal Justice (Female Genital Mutilation) Act, general child protection provisions could also be applied in cases of FGM. The Child Care Act (amended in 1991) is primarily intended to allow for the removal of children by the Health Service Executive (HSE) in cases of abuse or mistreatment. The Children First Bill 2012 (National Guidance for the Protection and Welfare of Children) intends to put child protection on a legal basis. Under Section 3 of the 1991 Child Care Act, the Child and Family Agency (Tusla) has the responsibility to promote the welfare of children who are not receiving adequate care and protection. On 1 January 2014, Tusla became an independent legal entity, comprising the HSE’s Children and Family Services, the Family Support Agency and the National Educational Welfare Board, as well as incorporating some psychological services and a range of services responding to domestic, sexual and gender-based violence. The Agency operates under the Child and Family Agency Act 2013 and is required to support and promote the development, welfare and protection of children, and to support the best interests and views of the child. The Children and Family Relationships Act 2015, which came into force on 18 January 2016, for the first time details the factors a court can take into account in defining a child’s best interests for the purposes of the Guardianship of Infants Act 1964, such as meaningful relationships and the physical, psychological and emotional needs of the child, as well as issues such as family violence.
IV. Asylum law
FGM asylum claims can fall under the Refugee Act 1996 (amended), which includes ‘belonging to the female or male sex’ in its interpretation of the protection of ‘a particular social group’. The introduction of gender guidelines in the Immigration, Residence and Protection (IRP) Bill 2012 has also been proposed, to provide for more gender-equal and gender-sensitive asylum and protection processes in Ireland.
V. Professional secrecy law
General law with regard to professional secrecy and disclosure may be applied to the reporting of cases of actual or planned FGM. The Children First Act 2015 clearly defines the statutory responsibility of those working with children to report and act on suspicions, where a child’s safety or welfare may be at risk. The Act makes it a criminal offence to withhold information in relation to serious specified offences committed against a child or vulnerable person, including sexual offences and offences such as assault causing harm, abduction, manslaughter or murder. Although enacted, the Act has not been fully commenced (Sections 1-5 and 28 commenced on 11 December 2015; Sections 18 and 20-26 commenced on 1 May 2016).
The Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012, and the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 are key additional pieces of complementary legislation designed to improve child safety and protection.