My Lords, I am grateful to noble Lords who have spoken in this debate—in particular to the noble Baroness, Lady Smith, for setting out just what we mean by female genital mutilation and asking, as a supplementary, whether the current definition of FGM includes wider elements such as reinfibulation. I will deal with that point first. I confirm that the Government’s view is that reinfibulation is an offence under the 2003 Act. That is on the basis that if it is an offence to infibulate in the first place, it must equally be an offence to reinfibulate. The multiagency practice guidelines on FGM have long made clear that resuturing or reinfibulation is illegal in the UK. Current guidance issued by both the BMA and the Royal College of Nursing supports that view.
As we heard in Committee, the whole House shares an abhorrence of the practice of FGM and we can all agree that more needs to be done to stop such violence against women and girls. There are nuances on how best to tackle such abuse, but we all agree on the principle: FGM must end, and this Government are committed to ending it.
I will comment on the right reverend Prelate’s point about the cultural aspect, which adds strength to the argument. I totally share his view. At the Girl Summit in July this year, the Prime Minister and Home Secretary announced an unprecedented package of measures to tackle FGM in this country. This included a number of commitments to strengthen the law. To that end, this group of amendments includes a number of government amendments designed to ensure that our legislative response is as strong as possible. In particular, they will provide for lifelong anonymity for the victims of FGM, introduce a new civil order to help protect those at risk of mutilation, and create a new offence of failure to prevent FGM. I propose to say a little more about each of these new provisions.
On the subject of victim anonymity, the noble Lord, Lord Rosser, moved an amendment in Committee to extend to victims of female genital mutilation the same anonymity that already applies to victims of many sexual offences. This followed a recommendation by the Director of Public Prosecutions, and I was then able to indicate in response to that debate that the Government were giving sympathetic consideration to the proposal. As many in this House will have seen at the Girl Summit on 22 July, the Home Secretary
announced that the Government would bring forward legislation to this end. Amendments 46A and 46B deliver on that commitment. These amendments will give victims of female genital mutilation the benefit of anonymity, as already applies to the alleged victims of many sexual offences under the provisions of the Sexual Offences (Amendment) Act 1992. Any publication of material that could lead members of the public to identify a person as the alleged victim of an offence will be prohibited. Anonymity should not end where the online world begins; publication would include traditional print media, broadcasting and social media.
Female genital mutilation is an offence of a particularly personal and sensitive nature. Without the prospect of anonymity, victims may be discouraged from reporting such an intimate offence to the police. Granting lifelong anonymity, therefore, will reassure victims that their identity will be protected and will go far to encourage the reporting of this offence. This protection needs to be automatic rather than discretionary; it must apply from the outset, when an allegation is first made, rather than from the point of charge; and it must last for the duration of that person’s lifetime. That is exactly what these amendments will bring about.
My noble friend Lady Hamwee has a couple of amendments to government Amendment 46B. They are far from being the minnows that she described. Amendment 46C seeks to amend paragraph 1(5) of new Schedule 1, which sets out the first condition that must be met in order to lift the restriction on anonymity. This allows a court to remove the anonymity that attaches to an alleged victim of an FGM offence where the anonymity results in the defendant’s case being “substantially prejudiced”. This wording is directly comparable to the provisions in the Sexual Offences (Amendment) Act 1992. We do not think that making a distinction between the two provisions would be helpful when both seek to achieve the same outcome.
Amendment 46D would lower the test for disapplying the reporting restrictions. We do not believe that this change provides sufficient protection for the alleged victim’s anonymity. Again, we have applied the two-pronged test that applies under the 1992 Act. By changing the test in this instance, the courts could well be more ready to lift the reporting restrictions as they apply to an FGM victim, thereby undermining the protection we are seeking to afford such victims.
Government Amendment 46G provides for FGM protection orders. It has been tabled in response to concerns that currently there is no specific civil remedy for the purpose of protecting potential or actual victims of FGM. The noble Lord, Lord Lester of Herne Hill, made that point. The majority of responses to a recent consultation on a proposal to introduce a civil protection order for FGM supported the proposal for such an order, so as to protect potential victims and victims of FGM. The Government strongly believe that there should be a specific civil remedy to strengthen protection for potential victims of FGM and to help to prevent FGM from occurring in the first place. Amendment 46G aims to achieve this.
The provisions on FGM protection orders follow closely the model of forced marriage protection orders provided for in Part 4A of the Family Law Act 1996,
with some modification to reflect the different nature of FGM offences. The new Schedule 2 to the 2003 Act contains a number of detailed provisions. I do not intend to go through each one but will focus on the key features.
As with forced marriage protection orders, an FGM protection order may contain such prohibitions, restrictions or other requirements as the court considers appropriate for the purposes of that order: that is, for the purposes of protecting a girl against commission of an FGM offence or a girl against whom any such offence has been committed. This could include, for example, provisions to surrender a person’s passport or any other travel document and not to enter into any arrangements, in the UK or abroad, for FGM to be performed on the person to be protected.
Application for an FGM protection order may be made by the person to be protected, the victim or a relevant third party, without leave of the court or any person with the leave of the court. This would clearly allow a wide category of persons to apply for an FGM protection order, which I believe is desirable. In particular, allowing a third party to apply for a protection order on behalf of a victim may be helpful in situations where the victim is unable to do so, for example because she is too young—it is clear that most victims of FGM are girls typically between the ages of five and eight—or because she is too scared to take such an action herself. It will also be open to a criminal court to make an FGM protection order on its own initiative, for example when sentencing a person for an offence under the 2003 Act.
Breach of an order would be a criminal offence with a maximum penalty of five years’ imprisonment, but with provision, as an alternative, for a breach to be dealt with in the civil court as contempt punishable by up to two years’ imprisonment.
The noble Baroness, Lady Smith, questioned whether putting FGM protection order provisions in the FGM Act 2003 undermines the court’s powers, compared to putting them in the Family Law Act 1996. We do not think that that is so. The proceedings would be in the family court, with the full range of powers of the court, and expressly without prejudice to any other protective powers that the court may have. The location of the provisions does not affect this. Indeed, it would be helpful to practitioners to have all FGM-related provisions in one statute. The noble and learned Baroness, Lady Butler-Sloss, made that point. She also stressed the point about the proceedings going to the family court. I point noble Lords to paragraph 17(1) of new Schedule 2, which makes it clear that the proceedings are in the family court.
The noble Baroness, Lady Smith, also asked whether there would be a bespoke FGM unit, akin to the Forced Marriage Unit. I can confirm that the Government will set up a specialist FGM unit to drive a step change in this very important outreach service, with partners.
The right reverend Prelate the Bishop of Rochester made a point about the provision in the Opposition’s proposed new Section 63T that it is immaterial whether any person believes that the operation is required as a matter of custom or ritual. The provision in question
is already set out in Section 1(5) of the Female Genital Mutilation Act 2003 and is applied by paragraph 17(1) of new Schedule 2 in the government amendment.
These government amendments, which provide for victim anonymity and FGM protection orders, have substantially the same effect as Amendments 44 and 44A put forward by the noble Baroness, Lady Smith. I trust, therefore, that she will be ready to support them in lieu of her own.
Amendment 46E provides for the last of the three new government measures. It will create a new offence of failing to protect a girl from the risk of genital mutilation. Again, this new offence gives effect to a recommendation by the Director of Public Prosecutions for the law to place a positive duty on parents or carers to prevent their children being mutilated. English criminal law does not generally criminalise a failure to prevent an offence. This new offence is unusual but, I think, entirely necessary.
In the context of FGM this approach is justified given the difficulties that have been experienced in bringing prosecutions under the existing law. Even if those who allow their daughters to undergo FGM believe that it is in the girl’s best interests to conform to the prevailing custom of their community, there can be no excuse for such a gross violation of their human rights. It is wholly unacceptable to allow a practice that can have such devastating consequences for the health of a young girl. The physical and psychological effects can last throughout her life.
The amendment provides that if an FGM offence—that is, one of the offences set out in Sections 1 to 3 of the 2003 Act—is committed against a girl under the age of 16, each person who is responsible for the girl at the relevant time will be guilty of an offence. My noble friend Lady Hamwee queried why this offence applies only to girls under the age of 16 whereas the existing FGM offences apply to girls and women of any age. We recognise that parental responsibility can be exercised in relation to a girl under the age of 18. However, in the context of FGM where, as I have said, victims are typically aged between five and eight, and given the diminishing control that a parent would have over a 16 or 17 year-old, let alone an older woman, we believe that the offence should apply where FGM has been committed on a girl under the age of 16.
The maximum penalty for the new offence will be seven years’ imprisonment or a fine or both. We believe that this is proportionate when it is considered against the maximum penalties for offences of violence, and bearing in mind that this is an offence of failure to protect rather than of directly perpetrating violence. My noble friend Lady Hamwee also raised a couple of points on the new offence. The offence has been carefully drawn to avoid criminalising people unnecessarily or unjustifiably, so the requirement for frequent contact is intended to ensure that a person who in law has parental responsibility for a girl but who in practice has little or no contact with her would not be caught under this provision. The courts have held that what constitutes frequent contact is a simple question of fact which does not require further elucidation or definition.
On the question of how the new offence applies to children in care, the Children Act 1989 refers to people who have care of the child. This seems to us to be too
broad a category to make liable for the new offence. Instead, new Section 3A(4) makes liable, in addition to those who have parental responsibility and frequent contact, the more specific category of those “aged 18 or over”, who have current responsibility for,
“caring for the girl in the manner of a parent”.
The new offence is not a panacea for the long-standing difficulties in prosecuting FGM, but it will help to overcome some of the barriers to prosecution, in particular by reducing if not avoiding the need for a girl to give evidence or to identify who actually performed FGM on her. In so doing, it will enable the Crown Prosecution Service to bring prosecutions in cases where they could not have been brought before. At the request of the Northern Ireland Minister of Justice, David Ford, this new offence, and indeed the other two new provisions, will extend to Northern Ireland as well as to England and Wales. The other government amendments in this group are consequential on the three substantive new provisions.
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