Strengthening protection from Female Genital Mutilation (FGM): consultation

Part 4: Policy and Legislative Context

The Scottish Government's work in this area is underpinned by a legislative framework and guided by a number of strategic documents:

Equally Safe: Scotland's strategy to prevent and eradicate violence against women and girls

The Scottish Government and COSLA's strategy was first published in 2014, updated in 2016^[7] and is complemented by a Delivery Plan published in 2017^[8]. It has been developed in close collaboration with a number of stakeholders, many of whom have drawn on the voices and experiences of women and children impacted by gender based violence.

The strategy sets out a vision of a strong and flourishing Scotland where all individuals are equally safe and respected, and where women and girls live free from all forms of violence and abuse, as well as the attitudes that perpetuate it. It articulates a shared understanding of the causes, risk factors and scale of the problem. It highlights the need to prioritise prevention, and it sets out how we will develop the performance framework which allows us to know whether we are realising our ambitions. We are committed to working collaboratively with partners and achieve change by making best use of available resources and with a clear governance framework underpinning delivery. A Joint Strategic Board has been established to oversee progress and identify emerging issues, and a Joint Delivery Group is in the process of being established to drive progress and embed collaborative working nationally.

The United Nations' own definition of violence against women and girls^[9] has guided the development of policy in this area for many years; it recognises that this violence is both cause and consequence of gender inequality. Our definition, drawn from the UN definition, states that:

"Gender based violence is a function of gender inequality, and an abuse of male power and privilege. It takes the form of actions that result in physical, sexual and psychological harm or suffering to women and children, or affront to their human dignity, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life. It is men who predominantly carry out such violence, and women who are predominantly the victims of such violence. By referring to violence as 'gender based' this definition highlights the need to understand violence within the context of women's and girl's subordinate status in society. Such violence cannot be understood, therefore, in isolation from the norms, social structure and gender roles within the community, which greatly influence women's vulnerability to violence."

When we talk about violence against women and girls, we refer to a continuum of violence which includes domestic abuse, rape and sexual assault, sexual harassment, commercial sexual exploitation (such as prostitution), and so called 'honour based' violence (such as Female Genital Mutilation and Forced Marriage). Tackling FGM is therefore firmly located within our work to prevent and ultimately eradicate all forms of gender based violence.

Scotland's National Action Plan to prevent and eradicate Female Genital Mutilation

Female Genital Mutilation falls under the broader umbrella of so called 'honour based' violence, and forms part of the continuum of gender based violence. . The Scottish Government recognises FGM to be a fundamental breach of human rights, and is committed to preventing and eradicating it.

The Scottish Government recognises that communities and individuals affected by FGM must be at the heart of work to change the attitudes and practices behind it, and that long-term change requires sustained commitment from all partners. Scotland's National Action Plan to Prevent and Eradicate Female Genital Mutilation (FGM)^[10] was published in February 2016, and it sets out a range of actions to be taken forward by the Scottish Government and its partners to:

• prioritise prevention / protection from FGM
• improve the provision of services and support to those affected by FGM
• strengthen the law to extend protection to those at risk and to sanction perpetrators
• inform those at risk that FGM is illegal in Scotland and a violation of their human rights
• work with communities to understand FGM and its impact
• support communities to change perceptions, attitudes and behaviours related to FGM
• enable the provision of information, guidance and training to the statutory and third sectors

A national implementation group was established to drive progress, and meets on a regular basis. A Year One progress report^[11] was published in 2017, highlighting progress to implement the Plan. The implementation plan contains a commitment to engage with potentially affected communities and other relevant stakeholders to consider the potential for and impact of further legislation in this area. It also contains a commitment to liaise with the UK Government to consider the efficacy of legislation introduced under the Serious Crime Act 2015. And it contains a commitment to consider legislation in relation to the practices of 'elongation' and cosmetic genital piercings.

FGM and the law

European and International

FGM contravenes human and women's rights under various international treaties. It has been recognised as a form of gender-related persecution under the 1951 Refugee Convention on the grounds of political opinion, membership of a particular social group or religious beliefs and may therefore form the basis of a successful asylum claim. FGM violates a number of human rights protected under international law, such as the right to physical and mental integrity; freedom from violence; the highest attainable standard of health; freedom from discrimination on the basis of sex; freedom from torture, cruel, inhuman and degrading treatment; and life, when the procedure results in death. These human rights are protected in the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), Convention Against Torture (CAT), Convention on the Elimination of Discrimination Against Women (CEDAW) and Convention on the Rights of the Child (CRC), as well as regional human rights instruments including the European Convention of Human Rights and the Charter of Fundamental Rights of the European Union.

The UK has signed but not yet ratified the Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention). The Preventing and Combating Violence Against Women and Domestic Violence (Ratification of Convention) Act 2017 obliges the UK Government to report to Parliament annually on steps it is taking to move towards ratification. Article 38 of the Convention obliges states to criminalise FGM, and there are a number of other relevant Articles that FGM would form as part of general consideration in relation to implementation of the Convention.

UK

The Prohibition of Female Circumcision Act was introduced in 1985 providing specific legislation to make FGM unlawful across the UK.

The Serious Crime Act 2015^[12] contains six FGM-relatedlegislative provisions for other parts of the United Kingdom apart from Scotland as set out earlier in this consultation document. The Scottish Parliament granted legislative consent for Section 70 of that Act to apply to Scotland, which means that extra-territorial offences in the Prohibition of Female Genital Mutilation (Scotland) Act 2005 now apply to habitual (as well as permanent) UK residents.

Scotland

The Prohibition of Female Genital Mutilation (Scotland) Act (2005) ("the 2005 Act") makes it unlawful for a person to carry out specified FGM procedures on another person. The legislation also makes it an offence for a person to aid, abet, counsel, procure or incite:

• Another person to commit an offence of FGM;
• Another person to carry out FGM on herself; or
• Another person who is not a UK national or UK resident to carry out FGM outside of the UK (e.g. to arrange by telephone from Scotland for their daughter to have an FGM operation carried out abroad by a non UK national or UK resident)

The provisions of the Act extend to cover acts carried out outside of the UK by a UK national or UK resident. It therefore means that a UK national or UK resident would be committing an offence under Scots law were they to travel to another country and carry out FGM – even if FGM was not illegal in that country. Similarly it would be an offence for a UK national or UK resident to travel outwith the UK and aid, abet, counsel, procure or incite another person to carry out FGM in that country – again even if FGM was not illegal in that country. The penalty on conviction on indictment is up to 14 years' imprisonment.

The 2005 Act does allow an approved person to carry out a surgical operation on someone, if necessary for the latter's physical or mental health, or on a person in labour or who has just given birth, for reasons connected with the birth.

Since the 1985 Act was introduced and subsequently then replaced and updated through the 2005 Act, no FGM criminal offence charges have been brought in Scotland.

Part 4 of the National Child Protection Guidance^[13] provides for child protection in specific circumstances, and sets out the required response for a professional if they come across FGM, and notes that FGM should always trigger child protection concerns that local guidelines should be in place to ensure a co-ordinated response from all agencies and highlight the issue for all staff that may have contact with children who are at risk from female genital mutilation. As with other forms of child protection work this should be done as far as possible in partnership with parents/carers unless they themselves are the source of the risk.

Where a child has been a victim of FGM or is at risk of becoming a victim of FGM (e.g. they live in the same household as a victim of FGM or as a person who has previously committed an offence involving FGM), then that child may be referred to the Reporter to a Children's Hearing. The referral can be made by the police, the local authority, health services, schools or by any other person or agency who has concerns about the child. The court has a specific power to refer affected children where a person has been convicted by that court of an offence which involves FGM. Local authorities are subject to a particular responsibility under section 60 of the Children's Hearings (Scotland) Act 2011^[14] in that if they think it likely that (i) a child requires protection, guidance, treatment or control, and (ii) that it might be necessary for a compulsory supervision order to be made for the child, then they must make all necessary inquiries into the child's circumstances. If, following those investigations, the local authority thinks that (i) and (ii) apply then they must make a referral to the Reporter. The Police are subject to a similar duty under section 61 of the 2011 Act.

Between 1 April 2013 to September 2016, there were 52 referrals or child welfare concerns made to the police from partner agencies about FGM, which initiated an Inter-Agency Referral Discussion (IRD). In all 52 cases, the referrals related to concerns that girls were at risk of having FGM performed on them. These concerns were fully investigated and no criminality found. Cutting had not taken place in any of the cases referred