Strengthening protection from Female Genital Mutilation (FGM): consultation analysis

An Offence of Failure to Protect from FGM

In the rest of the United Kingdom, if an offence of FGM is committed against a girl under the age of 16, then each person who is responsible for the girl at the time FGM occurred may be liable to conviction. The maximum penalty for this offence is seven years' imprisonment or a fine or both. To be "responsible" for a girl, the person either has parental responsibility (such as mothers, fathers married to the mothers at the time of birth and guardians) and have frequent contact with her, or where the person is aged 18 or over they will have assumed responsibility for caring for the girl "in the manner of a parent" for example family members to whom parents might send their child during the summer holidays. 

The requirement for "frequent contact" was 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 liable. Similarly, the requirement that the person should be caring for the girl "in the manner of a parent" is intended to ensure that a person who is looking after a girl for a very short period – such as a baby sitter – would not be liable. It is a defence for an accused to show that at the relevant time, they did not think that there was a significant risk of FGM being committed, and could not reasonably have been expected to be aware that there was any such risk; or they took such steps as he or she could reasonably have been expected to take to protect the girl from being the victim of FGM. If evidence is led which raises this defence then the onus is on the prosecution to prove the contrary beyond reasonable doubt.

Question 3. Do you think that Scotland should introduce an offence so that individuals can be prosecuted if they fail to protect a person they have caring responsibilities for being subjected to FGM? 

Yes ☐
No ☐

If yes, please outline these arguments.

The responses were mixed on this point. In essence, while many respondents emphasised the responsibility of those caring for individuals to prevent FGM and their moral culpability for failing to do so, a number of contextual factors were seen to complicate the situation and many respondents were wary of attaching criminal liability to those who may have limited control over the situation due to an unequal distribution of power within relationships and communities. 

Arguments For the Introduction of the Offence of Failure to Protect: 

• Those caring for someone subjected to FGM were responsible for the people within their care, and therefore prosecution of this offence would be justified. 
• This offence would convey how seriously FGM is taken and may encourage a cultural shift.
• It would act as a deterrent to collusion with FGM.
• It would harmonise the laws with those in England and Wales. 
• This offence was regarded by some respondents as essential to enforcing the law.
• It would be consistent with the international safeguarding principle. 

It should be noted that there were a number of qualifications among those who supported such a provision. Several respondents were clear that there would need to be mitigating circumstances, with a key concern around the question of whether the person in question was able to effectively exercise agency in relation to the decision making. The need to take individual circumstances into account and consider matters on a case by case basis was made clear by a number of respondents, as a range of contextual factors were perceived to be important. 

A key point of contention was the current legal situation in relation to child protection. It was understood by several respondents that child protection law currently involved an offence of failure to protect and that this would align FGM with current laws, while affording the same defences to women who were otherwise unable to exercise agency in this context. 

Arguments Against the Introduction of the Offence of Failure to Protect: 

• The offence would risk alienating communities in a context where there has been a commitment to work collaboratively with them
• It risks criminalising those with limited power and/or say in the outcomes for children, with the result that those coerced into not reporting this are prosecuted. 
• It may risk diverting people from reporting the offence or communicating with agencies if they are concerned that they may be prosecuted. 
• It may negatively impact efforts to foster trust within communities. 
• There may be difficulty in gathering sufficient evidence to prove a failure to protect. 
• It is not clear that this has led to prosecutions in England and Wales. 

For those who didn’t know, much of the uncertainty related to the fact that the carer might not be fully aware of the crime or have limited power to prevent or influence it. 

Furthermore, while it is observed that it might be possible that fear of failing in a duty to care might encourage people to come forward more readily, it was also observed that it might also make reporting less likely if there is fear of prosecution. There was also a risk that immediate family might be criminalised, but that this might not include those more directly responsible. One respondent noted that an individual failing to protect someone in their care may reflect a context of ‘honour-based violence’ more broadly. It was also observed that the mothers may themselves have been victims of FGM.

Another point raised in the responses was that accessing information about laws and rights in a new country might be a challenge for those with limited knowledge of English, which doesn’t excuse behaviour but should potentially be taken into account and speaks to the importance of awareness raising. 

Respondents also sought clarification on whether local authorities or social workers would be liable for such an offence. Another respondent argued that, before such an offence could be introduced, it would be necessary for there to be clarity on how such an offence could operate.