International and European Conventions
The UK has ratified a number of international human rights instruments addressing FGM, including the Universal Declaration of Human Rights (UDHR, signed 1950 and ratified 1951), the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW, ratified 1986), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT, signed 1985 and ratified 1988), the Convention on the Rights of the Child (CRC, signed 1990 and ratified 1991), the European Convention on Human Rights (ECHR, signed 1950 and ratified—except Protocol 1—1951). All of these reinforce the principle of the equality of women (and girls) and demand that state parties take steps to ensure that equality of the sexes is promoted. The UK government has also signed the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention), although it has yet to be ratified.
The first FGM-specific legislation in the UK was the 1985 Prohibition of Female Circumcision Act, the provisions of which were repealed and re-enacted by 2003 Female Genital Mutilation Act. The 2003 law increased the maximum penalty for performing FGM to 14 years’ imprisonment and introduced the concept of extraterritoriality, providing protection for UK nationals or permanent residents anywhere in the world, irrespective of their age. It is worth noting that The Female Genital Mutilation Act 2003 and the Serious Crime Act 2015 currently only applies in England, Northern Ireland and Wales. However, the Prohibition of FGM (Scotland) Act 2005 is closely aligned with the 2003 Act.
Legislation on FGM was further strengthened with the enactment of the 2015 Serious Crime Act (SCA 2015), which amended the 2003 Act to extend extra-territoriality to apply to habitual, as well as permanent, residents and nationals of the UK.
The 2015 Act also introduced four new laws. The first was the new offence of ‘failing to protect a girl from the risk of FGM’ while the second introduced ‘life-long anonymity for victims of FGM’, prohibiting the publication of information that would identify a victim of FGM. Both laws came into force in May 2015. Legislation on FGM protection orders (FGM POs), which can be used by judges to prevent, compel and restrict actions in relation to FGM, came into force in July 2015. Legislation on mandatory reporting for regulated health, social services and education professionals in England and Wales came into force in October 2015, requiring the reporting of all known cases of FGM in girls under 18 to police in the first instance, ideally within 24 hours.
Child protection law
A number of UK laws are applicable to child protection. These include the Children Act (1989 and 2004), the Safeguarding Vulnerable Groups Act (2006), the Protection of Freedoms Act (2012), the Children and Families Act (2014), the Adoption and Children Acts (2002 and 2006), the Keeping Children Safe in Education: Statutory Guidance for Schools and Colleges, the FGM Act (2003) and the Children and Young Person Act (2008). Similar laws apply in Scotland and Northern Ireland. All these acts aim to protect children from any form of harm—physical, sexual and emotional. With regard to FGM, statutory agencies with responsibility for child protection are not only required to work within the parameters of FGM-related legislation but also to adhere to several guidance documents, including the Multi-agency Statutory Guidance on Female Genital Mutilation (2016), Working together to Safeguard Children (2015) and Safeguarding Children: Working together under the Children Act 2004 (2007-Wales).
The International Refugee Rights Initiative reports that a growing number of asylum claims in the UK have been made on grounds of FGM, either by parents on behalf of daughters or by girls and adult women on their own behalf.
In order to be recognised as a refugee under UK Asylum Law, the applicant must:
- be unable to return to their country (unless stateless, this is the country they usually live in) because they fear persecution
- be unable to live safely in any part of their country
- have failed to get protection from authorities in their country
Ordinarily, persecution must be on the basis of race, religion, nationality or political opinion. However, the UK Border Agency (responsible for assessing asylum claims) states that it “accepts that acts of gender-specific nature, other than sexual violence, may also constitute persecution.” Guidelines for immigration officers refer to FGM as a form of gender-based persecution, recognising that this form of harm can occur in the family, community and/or at the hands of the state. As such, members of immigration staff are guided to consider FGM legitimate grounds for asylum, based on an assessment of the relevant country context.
General legislation on professional codes of conduct, secrecy and disclosure applies to reported cases of FGM. The 2004 Children’s Act requires all professionals with statutory responsibilities to safeguard and promote the welfare of children. In the 2015 “Working Together” guidelines, all professionals are required to contribute to whatever actions are needed to safeguard and promote a child’s welfare….’ In addition, the 2015 mandatory reporting requirements detail the sanctions to be imposed on members of regulated professions who fail to report to police a known case of FGM in a girl under 18 years of age.