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IN THE FAMILY COURT

Sitting at LEEDS



Mr John Hayes QC and Ms Joanne Astbury (instructed by the local authority) for the Applicant (local authority) Mr John Myers and Ms Lucy Sowden (instructed by Lester Morrill) for the First Respondent (mother) Mr Nkumbe Ekaney QC and Ms Pamela Warner (instructed by Crocketts) for the Second Respondent (father) Ms Clare Garnham (instructed by Ramsdens) and Miss Vikki Horspool (of Ramsdens) for the children' guardian Hearing dates: 20-23, 27-30 October, 3-5, 7 November 2014 ____________________

Sir James Munby, President of the Family Division :

The issue

Female genital mutilation (FGM)

"Type I: Partial or total removal of the clitoris and/or the prepuce (clitoridectomy).

When it is important to distinguish between the major variations of Type I mutilation, the following subdivisions are proposed: Type Ia, removal of the clitoral hood or prepuce only; Type Ib, removal of the clitoris with the prepuce.

Type II: Partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora (excision).

When it is important to distinguish between the major variations that have been documented, the following subdivisions are proposed: Type IIa, removal of the labia minora only; Type IIb, partial or total removal of the clitoris and the labia minora; Type IIc, partial or total removal of the clitoris, the labia minora and the labia majora.

Type III: Narrowing of the vaginal orifice with creation of a covering seal by cutting and appositioning the labia minora and/or the labia majora, with or without excision of the clitoris (infibulation).

When it is important to distinguish between variations in infibulations, the following subdivisions are proposed: Type IIIa: removal and apposition of the labia minora; Type IIIb: removal and apposition of the labia majora.

Type IV: Unclassified: All other harmful procedures to the female genitalia for non-medical purposes, for example, pricking, piercing, incising, scraping and cauterization."

"Female genital mutilation is classified into four major types.

1 Clitoridectomy: partial or total removal of the clitoris (a small, sensitive and erectile part of the female genitals) and, in very rare cases, only the prepuce (the fold of skin surrounding the clitoris).

2 Excision: partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora (the labia are "the lips" that surround the vagina).

3 Infibulation: narrowing of the vaginal opening through the creation of a covering seal. The seal is formed by cutting and repositioning the inner, or outer, labia, with or without removal of the clitoris.

4 Other: all other harmful procedures to the female genitalia for non-medical purposes, e.g. pricking, piercing, incising, scraping and cauterizing the genital area."

"types of FGM/C are classified into four main categories: 1) cut, no flesh removed, 2) cut, some flesh removed, 3) sewn closed, and 4) type not determined/not sure/doesn't know. These categories do not fully match the WHO typology. Cut, no flesh removed describes a practice known as nicking or pricking, which currently is categorized as Type IV. Cut, some flesh removed corresponds to Type I (clitoridectomy) and Type II (excision) combined. And sewn closed corresponds to Type III, infibulation."

"(1) A person is guilty of an offence if he excises, infibulates or otherwise mutilates the whole or any part of a girl's labia majora, labia minora or clitoris.

(2) But no offence is committed by an approved person who performs 

(a) a surgical operation on a girl which is necessary for her physical or mental health, or

(b) a surgical operation on a girl who is in any stage of labour, or has just given birth, for purposes connected with the labour or birth.

(3) The following are approved persons 

(a) in relation to an operation falling within subsection (2)(a), a registered medical practitioner,

(b) in relation to an operation falling within subsection (2)(b), a registered medical practitioner, a registered midwife or a person undergoing a course of training with a view to becoming such a practitioner or midwife.

(4) There is also no offence committed by a person who 

(a) performs a surgical operation falling within subsection (2)(a) or (b) outside the United Kingdom, and

(b) in relation to such an operation exercises functions corresponding to those of an approved person.

(5) For the purpose of determining whether an operation is necessary for the mental health of a girl it is immaterial whether she or any other person believes that the operation is required as a matter of custom or ritual."

Section 6(1) provides that "Girl includes woman."

The expert evidence

"I am a consultant gynaecologist with a major interest in paediatric and adolescent gynaecology, reconstructive genital surgery and Female Genital Mutilation (FGM). In 1999 I established the African Women's Clinic at University College London Hospital for women with health consequences of FGM. I am a founder member and past Chair of the FGM National Clinical Group. I have advised on FGM at a strategic level to the Department of Health, Home Office, Director of Public Prosecutions and NHS London and NHS England. I am currently involved in revising the Royal College of Obstetricians and Gynaecologists (RCOG) Greentop Guidelines on the management of FGM. I lecture and teach on FGM widely. I have published on FGM in the medical literature. I am a member of the newly formed RCOG FGM task force. I am a member of the RCOG Ethics Committee. I am a founder member and past Chair of the British Society for Paediatric and Adolescent Gynaecology."

As she explained in her oral evidence, her clinic at University College Hospital is the only specialist paediatric FGM clinic in the country.

"On genital examination, [G] had evidence of a scar extending adjacent to her clitoral hood on the left side. There was also some distortion and adhesions around her clitoral hood, but underneath this there was evidence of a clitoral body. The labium minus on the left side appeared to be adhering to the inner aspect of her left labium majus. The labium minus on the right side appeared small but no there was no obvious scar tissue or adhesions. There were no disruptions to her urethra. Her hymen was visualised using separation and traction. I feel there was a bump on the hymen at the 5 o'clock position. This is a normal variant. Her hymen was otherwise smooth and there were no obvious disruptions. Her anus was not examined.

In summary, I feel that there is evidence to support that there has been removal of part of the clitoris and clitoral hood with scarring present to her clitoral area. I am unclear as to the cause of her labial adhesion on the left side, this may be due to chronic vulvovaginitis, but it may also be due to removal of part of the labium and healing has allowed this labium to adhere to the labium majus. I think it is appropriate that a second opinion is sought so the findings can be confirmed, but in my opinion [G] has been a victim of female genital mutilation type 1 and possibly type 2."

"Evidence of scarring around the left side of her clitoral hood. This is indicative of female genital mutilation type I."

Part C (which is returned to the social worker) was completed in typescript and contains on page 10:

"She has had a medical examination for female genital mutilation and it appears that she has type 1 and possibly type 2."

In her oral evidence (Transcript page 41) Dr Share explained that she had written Part B "as she went along" with her examination and before G left. She explained the discrepancy between the reference in Part B to "type 1" and the reference in Part C to "type 1 and possibly type 2" on the basis (Transcript page 42) that Part C was prepared a little later, after "going back to my office, looking at the DVD and reviewing what I am seeing."

"From assessment and state of [G]'s vulva ? it appears that [G] has been subjected to some form of FGM. (Vulva does not appear normal)"

Beneath, written by Dr Share "in retrospect" at 5pm, the notes record "description as above  appears to be a victim of FGM." When I put it to her that her concern had always been the left labia, whereas Dr Momoh's notes referred to the right, Dr Share had to concede (Transcript page 43) that she had missed the fact that Dr Momoh had referred to the right one.

"The hood of [G]'s clitoris appeared to be deficient with the possibility of scarring on the left side. Her right labia minora was very small and her left labia minora was partly stuck to the inside of her labia majora. The hymen was smooth and non-disruptive. Both Dr Momah and I felt that [G] had been the victim of female genital mutilation."

"Hood of clitoris present, clitoris not visible, left labia minora adhered to the left side of labia majora. Both labia majora present. It appears that [G] has been subjected to some form of FGM as her vulva does not appear normal In conclusion and in my opinion, it appears that [G] has been subjected to some form of FGM as her vulva does not appear normal as mentioned above."

In her oral evidence Dr Momoh explained (Transcript page 3) that she did not categorise the type of FGM "because I wasn't sure what type of FGM initially."

" Labia Majora

Both labia majora are present, symmetrical and of a normal size.

 Labia Minora

Both labia minora are present. The left labia minora is slightly larger than the right. Slight asymmetry is a common finding and is part of normal variation.

The left labia minora is adherent to the left labia majora. This can occur with chronic inflammation such as vulvovaginitis.

The contour of the left labia minora is smooth and the line of pigmentation uninterrupted. This means the left labia is intact and has not been partially removed.

 Clitoris

The clitoris is present and the clitoral hood is visible. The clitoral hood looks slightly irregular and is less prominent on the right hand side of the clitoris but this can occur as part of normal variation.

 Scarring

Dr Share refers to a scar lateral to the left side of the clitoris. The DVD does show a faint paler area on some views which may be the scar described by Dr Share. However there is physiological white discharge on both sides of the clitoris obscuring the area. The discharge extends into the skin creases on either side of the clitoris making it impossible to distinguish between a skin crease and a scar. It may have been possible to wipe the discharge away with a cotton tipped swab to expose the scar but this was not done. No measurements are given for the length of the scar. The light reflection by the camera also interferes with the image in some of the views. It is not possible from the DVD images to confirm the present of the scar.

 Other features

[G]'s genitalia were clean and healthy. There was a small amount of white physiological discharge. There were no features suggestive vulvovaginitis at this time.

Conclusion

[G]'s clitoris, labia minora, labia majora and vagina are within normal limits.

There is no evidence of removal of any genital tissue.

There is no evidence of WHO FGM Types 1, 2 or 3.

However I am unable from the DVD to confirm the scar to the left lateral aspect [G]'s clitoris described by Dr Share.

A small scar of this nature if present could be consistent with Type 4 FGM."

i) There was no evidence of the removal of all or part of the clitoris or clitoral hood.

ii) No-one suggested that any part of the right labia had been removed. Professor Creighton was clear that the left labia had not been removed. No-one suggested that it had been.

iii) All the experts agreed the presence of adhesions at the site of the left labia. Dr Share and Professor Creighton thought that on the balance of probabilities the most likely cause of the adhesions was chronic vulvovaginitis (ie, not FGM). Dr Momoh identified the most likely cause as "possible chronic vulvovaginitis and/or FGM."

iv) All the experts agreed that if G had been subjected to FGM (and on this there was a division of opinion), it took the form of a scar adjacent to the left clitoral hood. Asked to elaborate the statement in her report dated 23 April 2014 that "[G] has been subjected to some form of FGM as her vulva does not appear normal", Dr Momoh is recorded as saying that this "was due to the scarring and adhesions observed during her examination."

v) All the experts agreed that if G had been subjected to FGM, it was therefore WHO Type IV.

vi) In relation to the crucial question of whether or not a scar was present there was a difference of opinion. Dr Share and Dr Momoh confirmed its presence. Dr Share said:

"I believe to the best of ability that [G] has been a victim of type 4 FGM. I recognise that there is a history of previous episodes of vulvovaginitis that may have led to the appearance of adhesions of her left labium minus. I have done child protection assessments for almost 11 years and have not seen this presentation before and this would increase the concern that the scarring around the clitoral hood is due to FGM."

Professor Creighton said:

"I cannot confirm the presence of a scar. I have viewed both DVDs but have not examined [G] myself. There is a small pale area lateral to the skin crease. On the DVD it appears as an ill defined patch rather than a line. I cannot be confident that it is a scar from the DVD appearance." She also said "If it is a scar it is very small."

"Q two or three children within the last twelve months, examined by you, have been diagnosed by you with FGM?

A That's correct.

Q What category of FGM did you diagnose these children with?

A As far as I can remember, I guess it was type 2 and 1.

Q Have you ever had a case where you have examined a child who you have believed to have type 4 FGM?

A No.

Q So your diagnosis of [G] in this case is the first time in your career that you will have diagnosed type 4, is that correct?

A I can Yes, that's correct."

"Q scarring was something that you and Dr Share discussed before the examination started 

A Yes.

Q And you were aware that scarring was something which Dr Share had in mind as being present.

A Correct.

Q And you are telling us that on your examination in April, you saw scarring.

A I did.

Q The very thing that Dr Share and you had discussed.

A That's correct.

Q Yes. Now, the question is a very simple one: why do we have no reference at all to scarring, either in the notes you wrote out in your own handwriting ten or 15 minutes after the examination, nor later in your written report? What is the explanation?

A Like I said earlier, I don't have an explanation for that, unfortunately, because I must have missed that, but as far as I can remember, that was discussed.

Q How could you have missed it? It was the point you had discussed with Dr Share 

A Yes.

Q  it was the basis of Dr Share's diagnosis, how could you have missed it? That is what I do not understand.

A I know. I don't have an answer for that, unfortunately."

Mr Ekaney in his closing submissions characterised the position as being "extraordinary". I can only agree.

The issues

Issue (1): Was G subjected to FGM as alleged?

i) Dr Share began off thinking that what she had seen was the removal of tissue, that is, FGM WHO Type I and possibly Type II; she ended up thinking that what she had seen was a scar, FGM WHO Type IV.

ii) Dr Momoh recorded missing tissue; she also ended up thinking that what she had seen was a scar.

Issue (2): If G was subjected to FGM as alleged, did this amount to significant harm?

In Fornah v Secretary of State for the Home Department [2005] EWCA Civ 680, [2005] 2 FLR 1085, Auld LJ (para 1) described it as "an evil practice internationally condemned and in clear violation of Art 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950." In the same case, Arden LJ (para 58) described it as "a repulsive practice ... deleterious to women's health." I entirely agree.

"[3] Forced marriages ... are utterly unacceptable. I repeat what I said in Re K, A Local Authority v N [2005] EWHC 2956, (Fam) [20071 1 FLR 399, at para [85]:

'Forced marriage is a gross abuse of human rights. It is a form of domestic violence that dehumanises people by denying them their right to choose how to live their lives. It is an appalling practice. [I then quoted what I had said in Singh before continuing] No social or cultural imperative can extenuate and no pretended recourse to religious belief can possibly justify forced marriage.'

[4] Forced marriage is intolerable. It is an abomination. And, as I also said in Re K, at paras [87]-[88], the court must bend all its powers to preventing it happening. The court must not hesitate to use every weapon in its protective arsenal if faced with what is, or appears to be, a case of forced marriage."

In my judgment, every word that I there used in relation to forced marriage applies with equal force to FGM.

"The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed."

Yet the curiosity remains. The explanation, it must be, is simply that in 2015 the law generally, and family law in particular, is still prepared to tolerate non-therapeutic male circumcision performed for religious or even for purely cultural or conventional reasons, while no longer being willing to tolerate FGM in any of its forms: cf the analysis in Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233, [2013] 1 FLR 677, paras 39-41. Certainly current judicial thinking seems to be that there is no equivalence between the two: see K v Secretary of State for the Home Department, Fornah v Secretary of State for the Home Department [2006] UKHL 46, [2007] 1 AC 412, paras 31, 93, and SS (Malaysia) v Secretary of State for the Home Department [2013] EWCA Civ 888, [2014] Imm AR 170, paras 13-15.

"A court may only make a care order or supervision order if it is satisfied 

(a) that the child concerned is suffering, or is likely to suffer, significant harm; and

(b) that the harm, or likelihood of harm, is attributable to 

(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii) the child's being beyond parental control."

I can ignore section 31(2)(b)(ii). So before the State can intervene, the local authority has to prove two things: "significant harm" attributable to parental care which is not what it would be "reasonable to expect" of a parent.

Mr Hayes submits, by reference in particular to what Baroness Hale of Richmond said in Re B (Care Proceedings: Appeal) [2013] UKSC 33, [2013] 2 FLR 1075, para 185, that any form of FGM, including FGM WHO Type IV, amounts to "significant harm". To use Lady Hale's language, no form of FGM can, he says, be characterised as trivial or unimportant, having regard not merely to its purely physical characteristics but also to its associated trauma and potential emotional or psychological consequences. Mr Hayes also makes an exceedingly important practical point. Unless FGM in all its forms is treated as constituting significant harm, local authorities and other agencies, and indeed family courts, may be very significantly hampered in their ability to protect vulnerable children, given that "significant harm" is the jurisdictional hurdle that has to be overcome not merely under section 31(2) but also under section 100(4)(b) of the Children Act 1989.

Mr Hayes points to the recognition, both by Wall J, as he then was, and by the Court of Appeal in Re J (Specific Issue Orders: Muslim Upbringing and Circumcision) [1999] 2 FLR 678, 693, on appeal Re J (Specific Issue Orders: Child's Religious Upbringing and Circumcision) [2000] 1 FLR 571, 573, 576, that male circumcision does involve harm, or the risk of harm. Given the comparison between what is involved in male circumcision and FGM WHO Type IV, to dispute that the more invasive procedure involves the significant harm involved in the less invasive procedure would seem almost irrational. In my judgment, if FGM Type IV amounts to significant harm, as in my judgment it does, then the same must be so of male circumcision.

Issue (3): Implications

For the future

i) There is a dearth of medical experts in this area, particularly in relation to FGM in young children. Specific training and education is highly desirable. As Professor Creighton explained (Transcript pages 23, 27-28), there is an awareness problem and a need for more education and training of medical professionals, including paediatricians. In answer to my question, "presumably we need more paediatric expertise than we have at present?" (Transcript page 29), she said "Yes, definitely". She told me (Transcript pages 28-29) that there are at present only 12 specialist FGM clinics throughout the country, of which six are in London, and that her clinic at University College Hospital is the only specialist paediatric FGM clinic in the country.

ii) Knowledge and understanding of the classification and categorisation of the various types of FGM is vital. The WHO classification is the one widely used. For forensic purposes, the WHO classification, as recommended by Professor Creighton (Transcript page 2), is the one that should be used.

iii) Careful planning of the process of examination is required to ensure that an expert with the appropriate level of relevant expertise is instructed at the earliest opportunity. Wherever feasible, referrals should be made as early as possible to one of the specialist FGM clinics referred to by Professor Creighton. If that is not possible, consideration should be given to arranging for a suitably qualified safeguarding consultant paediatrician to carry out an examination recorded with the use of a colposcope so that the images can be reviewed subsequently by an appropriate expert.

iv) Whoever is conducting the examination, the colposcope should be used wherever possible.

v) Whoever is conducting the examination, it is vital that clear and detailed notes are made, recording (with the use of appropriate drawings or diagrams) exactly what is observed. If an opinion is expressed in relation to FGM, it is vital that (a) the opinion is expressed by reference to the precise type of FGM that has been diagnosed, which must be identified clearly and precisely and (b) that the diagnosis is explained, clearly and precisely, by reference to what is recorded as having been observed.