Bar Council blog: FGM - Making the law work
Barrister and Bar Human Rights Committee (BHRC) member, Zimran Samuel of Doughty Street Chambers, guest blogs on the strides made by the BHRC in addressing and protecting against the practice of Female Genital Mutilation (FGM).
This short blog reflects on the recent work of the Bar Human Rights Committee (BHRC) to bring an end to the practice of female genital mutilation (FGM). BHRC has sought to influence and impact on the human rights discourse relating to FGM across a range of disciplines, both internationally and domestically.
In 2014, Parliamentary concern on the state of the law relating to FGM was heightened as a result of growing awareness that arose from the international Violence Against Women and Girls (VAWG) campaign. Despite the fact that a specific domestic criminal law has existed against the practice of FGM since 1985 (and more generally by virtue of the Offences Against the Person Act 1861), there has never been a successful prosecution. At that time, there had also been an almost wholesale failure of the family jurisdiction to tackle the issue.
Accordingly, BHRC took the initiative and set up an FGM Working Group, bringing together a team of cross-discipline expert practitioners. The Working Group undertook a detailed review of the UK's international obligations and put forward several recommendations for legal reform. Their findings and evidence were set out in a detailed report to the Home Affairs Committee during its Inquiry into FGM that same year. The BHRC's proposals were discussed in detail at the Prime Minister's Girls Summit in 2014, hosted by David Cameron. Subsequently, members of the Working Group were invited to give evidence to the Ministry of Justice. In providing that evidence, BHRC contended that the UK was failing to afford due protection to victims of FGM and was in breach of its international commitments. Several key recommendations were made:
1) BHRC urged the Government to consider the introduction of civil orders to protect vulnerable girls. Civil protection would offer more flexibility and would allow victims to seek protection without feeling that those closest to them may face the full force of the criminal law if they did so. Similar orders in the context of forced marriages were introduced through the Forced Marriage (Civil Protection) Act 2007.
2) BHRC recommended that Government addressed and closed a loophole, which allowed children without secure immigration status in the UK to be taken overseas and subjected to FGM. The UK's international human rights obligations apply to all children within its jurisdiction. Further, we contended that any person in the UK who was facilitating the removal of children for FGM should be guilty of a criminal offence. We submitted that the gap in the law was indefensible and failed to reflect the highly mobile nature of affected communities.
3) BHRC urged Home Affairs Committee to adopt a more co-ordinated approach to FGM. We considered that a central unit was required to offer assistance to victims in the UK and to those who have undergone FGM abroad.
Our recommendations also included the introduction of education on FGM into the National Curriculum and training for frontline child protection experts, as well as schoolteachers. There was an obvious pressing need to create sensitive, properly resourced community engagement projects to change attitudes about FGM.
The BHRC's evidence was adopted by the Family Law Bar Association (FLBA).
within their own evidence to the Ministry of Justice.
BHRC members were subsequently invited to Parliament to advise on the drafting of specific provisions of the new legislation in both the House of Lords and the House of Commons and were acknowledged for their assistance in both chambers of Parliament.
Several of the recommendations were eventually passed within section 70 - 75 of the Serious Crime Act 2015.
The new provisions were launched at Doughty Street Chambers by BHRC Chairwoman Kirsty Brimelow QC alongside Seema Malhotra MP (at that time the Shadow Home Office Minister for Preventing Violence Against Women and Girls) on the eve of the commencement of FGM Protection Orders (an original BHRC proposal) on 16th July 2015.
Jumping ahead to today, the new law in this area has developed quickly and already has given rise to a notable body of jurisprudence. There are now several reported cases and greater clarity about the courts' ability to protect those at risk of FGM. This has been accompanied by better training and education across front-line services. The legal developments have opened new debates on FGM domestically, such as on the scope of Type 4 FGM and the medicalisation of FGM. The UK experience has now also influenced the first FGM cases in several foreign jurisdictions including Australia and the United States.
Led by Kirsty Brimelow QC and Dexter Dias QC, BHRC has initiated, developed and offered a sustainable way forward against the scourge of FGM. BHRC's work in this area shows the international human rights arm of the Bar Council gathering together its leading expertise to apply and advance human rights law in areas where it is most needed. We are proud of our work in this, and many other areas of need, and we invite you to join us.
At the end of 2017, BHRC elected a formidable new Executive (for a 2 year term) which brings together a range of talent from across the Bar. In the current climate when human rights defenders face serious intimidation, harassment and imprisonment around the world, the work and scope of BHRC seems more crucial than ever.
