What follows is the text of Dr Karen Ellison’s thesis on legal and medical issues around female genital mutilation in Britain, published in September 2013.
This is a very valuable contribution to developments in the field of UK medical-legal aspects of FGM, and is re-published here with Dr Ellison’s permission.
Karen Ellison can be contacted here.

 Female Genital Mutilation – Can the Law Protect Our Children?

 Karen Ellison MBChB MRCOG

September 2013

 Manchester School of Law, MA Health Care Ethics and Law

Supervisor: Kirsty Keywood

 Acknowledgments Thank you to my employers The Medical Protection Society for their support and for the time they have allowed me to complete my studies. Thanks my children Sophie, Caitlin, Harry and James for their understanding. Finally, thanks to Kirsty Keywood her supervision.

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Introduction

Female Genital Mutilation is an established tradition in many countries world-wide; it is also abuse, discrimination, and a violent act against a female child.

.A Somali poem, The Three Feminine Sorrows, offers a description of how FGM affects a woman’s life:

“It is what my grandmother called the three feminine sorrows. She said the day of circumcision; the wedding night and the birth of a baby are the triple feminine sorrows.” [1]

The number of women worldwide afflicted by female genital mutilation (FGM) has been estimated at approximately 120 million by the WHO. There is no health, hygiene or medical imperatives to perform this procedure yet it remains endemic in over 30 countries. Civilized societies attempting to eradicate this humiliating, disfiguring and painful practice have faced obstruction from those for whom this is the norm. It is a custom which continues because it is expected of them and their daughters as it was of their forbearers.

.Christine McCafferty MP in 2005 said,

.‘FGM is a barbaric attack on women’s sexuality and autonomy. We must all – politicians,  clinicians, community and religious leaders – join together to ensure that FGM is eradicated both in the UK and abroad. FGM is a fundamental human rights issue with adverse health and social implications. FGM violates the rights of girls and women to bodily integrity and results in perpetuating gender inequality.

.It is vital that FGM laws are fully implemented and that governments, agencies, professionals and communities work together for the elimination of this practice.’ [2]

.Human behavior is difficult to change; the traditional practice of FGM has existed for centuries and it is by no means certain that any law will be sufficiently robust to eradicate it. The law plays a limited role in changing ingrained behavior but it can be used as one instrument in an orchestra playing the concerto that is social change. Robust legal systems, along with rigid social policy, provide a framework on which to develop change. Using softer educational tools centered on human rights issues to bring understanding to those for whom this practice is the norm will help enhance behavioral change.

.FGM is supported using a tightly woven web of justifications [3]  premised around notions and values such as family honour, health, custom, and faith. No religion teaches the desirability of FGM [4] [5] but it has been performed by Jews, Muslims, Christians and atheists. It is most prevalent in Muslim nations where many believe circumcision to be a commandment. However there is no imperative in the Koran for females to be circumcised.

.Preserving virginity, FGM is said to preserve family honor [6] and as it reduces sexual pleasure it is said to reduce extramarital relationships. [7] Some suggest it promotes chastity: the female form being  ‘closed’ can be ‘opened’ on the wedding night. Disturbingly this can involve cutting with a knife or razor blade if the orifice proves too small for even forceful penetration to take place. Conversely some have suggested that it allows promiscuity because the girls always have recourse to re-infibulation before their wedding night should they ‘stray’. [8] In many nations family honor and virginity are inextricably linked, FGM being a prerequisite to marriage. [9] One Somali woman admitted candidly ‘the honor of a Somali family lies between the legs of a woman.’ [10] Traditional gender roles are rife in third world countries and FGM is seen as a way of bringing to heel the female, preserving family honor. [11] Here FGM is the norm and the ultimate sign of femininity: ‘[perhaps] the most important rationale for female circumcision is that, because it is such an ancient and commonly practiced tradition, reduced or infundibulate genitals are simply considered normal.’ [12]

.Other reasons given for FGM are:

Cleanliness and Health:

.In practicing communities female genitals are seen as unclean. Some believe genitalia to be dangerous harming the male during intercourse or the baby during delivery. [13] Amnesty International found that language used to describe FGM is synonymous with purification or cleansing (tahara in Egypt, tahur in Sudan, sili-ji in Mali). [14] Some believe the clitoris can grow to touch the floor! [15]

.There are no proven health benefits to FGM. The vaginal orifice can be so tight urination taking up to 15 minutes and menstrual blood can build up leading to pelvic infection and subsequent infertility. Following surgery, the child is at increased risk of haemorrhage, pain, sepsis, shock and death. The instruments used are often unsterile or not of surgical standard, practitioners using kitchen knives, a shard of glass or a sharpened stone to perform the cutting. The legs are bound together afterwards to aid haemostasis, the anatomy healing in a distorted fashion leading to long-term physical pain and emotional turmoil [16]. In rural Somalia, where antibiotics are not readily available up to a third of succumb in the hours following FGM. [17] Long term consequences include urinary infections and stones, excess scar tissue, disfigurement, and dermoid cysts. [18]

Tradition/Tribalism/Custom:

.Tribal cohesion is enhanced by traditional customary rituals and has been cited as a reason for FGM’s perpetuation. [19] Somalis consider body piercing, tattooing and FGM as tribal identifiers. A Somali proverb states that to stop a tradition is to anger God. [20]

Justification for FGM in the USA and Europe:

.Developed countries have performed the procedure in the past, it being used by those caring for the mentally disturbed. Masturbation and female sexual deviancy was seen as mania and clitoridectomy its cure.

.Brown, a London gynaecologist in the 1800’s, suggested that nervous conditions associated with the female genitals are the result of excessive masturbation which he claimed to cure with clitoridectomy. [21] Criticism of the procedure in the British Medical Journal [22] totaled 3 pages of questioning letters. The doctor was vilified and discredited sealing his downfall.[23].

.I will examine historical issues surrounding FGM exploring why it was felt necessary to legislate against it in the UK. I will explore the development of the law resulting in the FGM Act 2003 by analyzing  historical, psychosexual, physical, socio-economic and cultural factors contributing to the continuation of this traditional practice.

.I will explore why the Female Circumcision Act 1985 was unsuccessful at securing prosecutions. I will examine its successor, the Female Genital Mutilation Act 2003, and assess whether this has been more successful.

.I will assess whether existing laws may be utilized to facilitate convictions for performing FGM.

.Chapter 2 will look at domestic violence and child abuse  examining whether there have been any interventions  related to FGM and if not why it could not be a potential avenue that the law could be used to assist. If child abuse is suspected there are stringent safeguards available for social services to act on legitimately so why could these not be used for this child abuse? Child abuse and domestic abuse are closely linked and I will also look at the law around domestic abuse in the UK. I will look at the case law to ascertain whether there have been any convictions as FGM could fit under the umbrella of domestic abuse.

.I turn attention to sex discrimination in Chapter 3. FGM is gender discrimination and I will compare it to male circumcision and cosmetic genital surgery. Male circumcision is still clearly allowable in the UK as is labial cosmetic surgery. Laws around discrimination are strong in the UK but this disparity between the sexes remains unchecked.  Sex discrimination as a human rights issue will be explored.

.Chapter 4 looks at FGM as a human rights issue by analyzing the human rights articles related to bodily integrity, life, liberty and security of person. It could also be said that FGM is a form of torture, prohibited in the UK by the Human Rights Act 1998. However, this chapter will mainly determine to what extent UK law could look to other jurisdictions to determine how and whether the courts elsewhere have been more successful at securing prosecutions. France has been particularly successful in bringing a number of ‘cutters’ to justice and the mechanism by which these people were convicted will be explored to offer insight into where the UK is going wrong.

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Chapter 1:  The UK Law against FGM: history and development: why hasn’t it worked?

The UK campaign against FGM has been fraught with difficulty. It relied on legislation [24] and the commitment of many to see it through: the health care system, the crown prosecution service, department for education, local ethnic minority support groups, non-government organizations as well as a robust political commitment. The practice has become more common in the UK because of immigration.

.The tide turned in 1982 when a Malian child living in France with her family died after being operated on by a ‘professional cutter’ who unfortunately escaped to Mali [25]. This sparked media frenzy, the BBC producing a documentary claiming there were clinics in London offering the procedure privately. This had the desired effect of raising concerns within the Commons as well as the public at large. At last the long path towards the ratification of the Prohibition of Female Circumcision Act began. (Previously maiming or intent to maim was considered under section 18 of the 1861 Offences Against the Person Act, for instance section 47 of the act was used in a case where a Nigerian woman cut her 2 sons facially with a razor blade in a traditional tribal act.) [26]

.In 1983 an officer investigated a case of possible FGM in London but the case closed due to insufficient evidence from both the victim. The doctor who was said to have carried out the procedure in a private clinic could have faced prosecution under the Offences Against the Person Act 1861 [27] since the Female Circumcision Bill was still in its infancy.

.The original 1985 Act started as a private member’s Bill by Lord Kennet. One key area considered whether female genital operations could be used for the mental as well as the physical health of women. It was recognized that there were medical conditions such as vulval cancer necessitating genital surgery but that also if a woman was disturbed by the appearance of her external genitalia then she could, for her mental health, consent to cosmetic surgery to improve their appearance without fear of the clinician being prosecuted under the Act. This amendment to the Bill was discussed in parliament on 10.11.1983 [28] and 23.01.1984 [29] and was strongly backed by the president of the Royal College of Obstetricians and Gynaecologists in his letter to The Times on 8 February 1994. He stated that the original Bill failed to distinguish between ritual practice and plastic surgery for women ‘seeking help for themselves’ and ‘would have interfered with normal medical practice to a degree unknown in this country’. [30] The argument favoured by the Commission on Racial Equality was that it was discriminatory of doctors to pin a state of mind on ritual or custom.

.Despite the fact that the government, the BMA and the RCOG could not easily distinguish between legitimate surgery and FGM, the Act was passed with legal provision for female genital trimming.

.The Prohibition of Female Genital Circumcision Act 1985 made it an offence under UK law to ‘excise, infibulate or otherwise mutilate the whole or any part of the labia majora or minora with the exception of cases when:

.2(1) (a) it is necessary for the physical or mental health of the person on whom it is performed by a registered medical practitioner.

.And:

.2(2) In determining for the purpose of this section whether an action is necessary for the mental health of a person, no account shall be taken of the effect on that person of any belief that the operation is required as a matter of custom or ritual.’ [31]

.The penalties for perpetrating such a crime were:

.a) On conviction or indictment, a fine or imprisonment not exceeding 5 years or to both; or

.b) On summary conviction, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding six months or both.

.The Act still marginalized the minority by allowing the indigenous population to make choices about their genitals whilst suggesting others have a ‘group delusion rather than an individual one- and you do not have the same rights as members of the majority society to alter your body.’ [32] It will be seen why this is relevant in the chapter on discrimination.

.Walley summed up the situation with the regard to the different views: ‘To lump together the diverse forms of the practice into a bundle known as “female genital mutilation”, “female circumcision”, or “female genital operation” obscures the diverse geographical locations, meanings, and politics in which such practices are embedded, and rhetorically constitutes a generic ‘they’ who conduct such practices and a generic ‘we’ who do not. [33]  Derogatory vocabulary surrounds western discussions polarizing those of ‘us’ who abhor the practice against those of ‘them’ that embrace it as a cultural norm. Gunning pointed out for the benefit of Western feminists that their ‘articulations of concern over the contemporary practice of genital surgery in third world nations are often perceived as only thinly disguised expressions of racial and cultural superiority and imperialism’ [34]

.Further help came in the guise of the recognition of FGM as Child Abuse in 1989. Government guidance published by the Department of Health in1999 explained how this would work. [35] ,[36] Although this gave another route to prosecute perpetrators of this crime by charging them with child abuse [37] it was not backed up by robust guidelines from professional medical bodies such as RCGP, RCOG, RCP or the AMRC. It also failed to produce policies and procedures for local authorities to follow. A robust legal system would also need the backing of dedicated awareness raising programs including guidelines leaving healthcare professionals, teachers, social workers and parents in no doubt that FGM was illegal in the UK.

.Unfortunately there were no successful prosecutions under the 1985 Act due to a lack of education at the grass roots level about the Act but also in part due to a loophole in the original law that meant families were able to take their daughters abroad to have the operation performed with no fear of prosecution on their return. [38] It became apparent that many parents, doctors, teachers and social workers were not even aware that the practice was illegal. [39]

.It seemed imperative that closing this loophole by making it illegal to take a British child abroad for FGM, no matter what the law on FGM was in the visiting country, would be of huge benefit in stopping or at least curtailing this practice. An All Party Parliamentary Group on Population, Development and Reproductive Health (APPG) recommended its closure in 2000. [40]

.The real test that the law was inadequate to protect the community was that there were no prosecutions under the legislation. The General Medical Council did successfully erase two doctors from the medical register for agreeing to perform the procedure but no charge was successfully brought by the police in these cases. [41],[42] The first of these cases, in 1993, brought before a Fitness to Practice Panel of the GMC involved a doctor who had performed the procedure despite knowing it was illegal. The case was reported in The British Medical Journal. [43] The second involved a doctor who volunteered to perform the surgery but it did not go ahead. [44] Also there were reported local authority interventions to protect children from abuse of this nature. [45]

.Continued efforts by NGO’s and pressure groups eventually brought FGM into the parliamentary arena again and this was a consequence of a high profile French case in 1999. Twenty seven Malian women were successfully prosecuted for the mutilation of minors. Simultaneously the All Party Parliamentary Group produced an overdue survey into FGM and held parliamentary hearings on the subject culminating in a report setting out 47 definitive recommendations on tackling the problem for consideration by the House of Commons in November 2000. [46]Notably it stated that ‘UK law on FGM is amended to ensure that UK residents who take girls abroad to have them circumcised, can be prosecuted on their return regardless of the legal status of FGM in the country where the circumcision takes place’. [47]

.As a result Ann Clwyd MP brought a Private Members Bill in March 2003. As a consequence of public opinion, NGO’s recommendations and the position of the APPG, the bill was embraced by the Commons and the Lords and passed in October of the same year following an unopposed third reading. The main changes in the new law which repealed and re-enacted the earlier act was to change the name from ‘Circumcision’ to ‘Genital Mutilation’ in the law’s title and to make it an illegal act to take a child abroad for the purpose of subjecting her to FGM even if that practice is legal in that other country (extraterritoriality). It stipulates that it is illegal to re-infibulate a woman after childbirth and made it an offence to help a girl to mutilate herself. Another addition was to add that ‘girl includes woman’. The sentence for those convicted was raised from 5 to 14 years as a further deterrent.

.There was initial and continued criticism from NGOs: although they welcomed the new law, there were inadequate funds to allow for community awareness programs to be set up and they were at pains to point out that the law would be of little use unless backed up by an educational program.  The only concession was that there was a delay in implementation of the Act whilst local communities explained that FGM was to be criminalized (the Act received royal assent on 30/10/2003 and commenced on 03/03/2004) and this was funded by the Home Office via the Agency for Culture and Change Management and Black Women’s Health and Family Support. A letter of guidance from the Department of Education and Skills was sent to local authorities but despite efforts in the right direction, it was apparent from those working at ‘the coal face’ that the practicing community was still unaware of the illegality of FGM. [48]

.So why has the new Act not been successful? It was perceived that there were glaring inadequacies in the legislation.

.Eventually in 2007 the government funded a research project undertaken by FORWARD into FGM to try and address the gaps in our knowledge and to ascertain why two Acts have been passed with little or no evidence to support a need to legislate against it. The report was published in the same year and despite its limitations, it suggested ‘the numbers of women living in England and Wales with FGM are substantial and increasing’. [49]

.Population demographics and resource issues further compounded matters. The massive influx of refugees and asylum seekers meant that these people could no longer be guaranteed to be housed in larger urban communities where FGM was addressed through local support mechanisms where service providers are more aware of the problem. Limited financial aid from the Department of Health meant local communities were left wondering whether to spend that money on educating girls to refuse FGM or to spend it on reversal operations for those already infibulated. [50]

.The UK has failed to address FGM in an integrated way and this may be why the Acts have failed. As Dustin said in 2010:

.‘In the UK, efforts to reduce FGM/C have focused on punitive legislation without at the same time sufficiently empowering women in the communities concerned to engage in debate, change attitudes and create alternative ways of affirming their cultural identity. This has reinforced the perception of a liberal state (reflecting the homogeneous values of the white majority) imposing its demographic values on a (similarly homogeneous) minority culture of immigrants and refugees that need to be dragged kicking and screaming up to ‘our’ level of civilization.’ [51]

.The statutory support available has been woefully inadequate to ensure any convictions thus far and NGOs have started to focus on the child abuse avenue using this as a tool to protect our children. FORWARD commented in the past that until the white minorities recognize that they themselves are oppressed by the need to attain the perfect body by means of cosmetic surgery there will never be any progress in this area. [52]

.It is clear from the lack of convictions that criminalizing the act of performing FGM has failed. My hypothesis is that it will continue to fail unless the laws available to us are used in different ways. The CPS has this year looked at 8 cases of suspected FGM, 4 new cases and 4 review cases. One of the new cases failed because the victim withdrew her evidence, presumably due to family pressure; thought to be common according to the CPS. The other 7 cases are still being investigated. [53]

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Chapter 2: Female Genital Mutilation as a Child Abuse and Domestic Violence Issue: Protection, Consent and Confidentiality.

Parents have a legal duty to care for their dependent prodigy under section 1 (1) of the Children’s and Young Person’s Act 1933. It can be seen that “Female Genital Mutilation…is a form of violence against girls and women that has serious physical and psychological consequences which adversely affect health and is a reflection of discrimination against women and girls.”[54] Parents have a legal duty within the ‘care’ that they provide for their child not to abuse them. The BMA describe FGM as “a form of child abuse, it is illegal, performed on a minor who is unable to resist, medically unnecessary, extremely painful and poses severe health risks.”[55] The procedure is usually performed between the ages of three and ten years of age[56] but sometimes on the newborn or adolescent female.[57]

.It can be extrapolated that International Statutes and UK child abuse legislation could in theory be used to protect females from FGM.

.Cultural attitudes often lay girls at the hands of her nation or tribe. At a more personal level she may be perceived as the property of her parents to do with as they wish. By focusing the debate on the girls who are violated rather than on culture or nationalism we have the opportunity to use child abuse legislation to at least curtail FGM’s prevalence.[58]

.The Convention of on the Rights of the Child, UN General Assembly 1989, states a child should have the right to develop physically in a healthy, normal way in conditions of liberty and dignity with access to adequate health care and absolute protection from all forms of cruelty[59].

.Despite this FGM has continued almost unchecked in the UK noted by the APPG in 2000.[60] Renee Bridel observed ‘One cannot but consider Member States which tolerate these practices as infringing their obligations as assumed under the terms of the Charter [of the UN].’[61]

.By September 1990 the United Nations Convention on the Rights of the Child became part of human rights law on the international stage.  The most crucial Article is 24(3) and states: ‘State Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.’  The article identifies the procedure ‘as both a harmful and traditional practice that compromises a child’s right to the highest attainable standard of health and a form of violence or abuse.’[62] The problem with this Article is that it remained firmly on paper for many states, paying lip service to its importance at grass roots level. The UN failed to translate the provision into implementation programs in vulnerable communities. A way forward would be to add in the phrase ‘including female genital mutilation’ to the article.

.‘A World Fit for Children’, the outcome document of the UN General Assembly Special Session for Children, explicitly called for an end toFGM. The 2001 Resolution of the UN General Assembly on traditional or customary practices affecting the health of women and girls reaffirmed the obligation ‘of all states to promote and protect human rights and calls upon them to collect and disseminate data regarding FGM and other practices, adopt and implement legislation, provide support services for victims, address the training of health workers and other personnel, empower women and strengthen their economic independence, mobilize public opinion, address traditional practices in educational curricula, promote men’s understanding of their role and responsibilities and work with communities to prevent the practice.’[63]

.Article 19 protects the child from ‘all forms of physical or mental violence, injury or abuse.’ Article 37 ensures that no child be subject to ‘torture or other cruel, inhumane or degrading treatment or punishment.’ More specific references can be used to protect girls from this crime by using Article 34: ‘State Parties undertake to protect the child from all forms of ‘sexual exploitation and sexual abuse.’

.At the same time that the UN was developing the Convention, the UK was working to ratify the Children’s Act of 1989 (enacted  October 1991). This was accompanied by a Department of Health document “Working Together-A guide to arrangements for inter-agency cooperation for the protection of children” giving valuable advice on strategies for dealing with child protection situations.[64] Section 6.41 states “female genital mutilation can be said to unambiguously constitute physical injury and an abuse [due to the] clearly indicated serious short-term and long-term health complications associated with mutilation.”[65] It was accepted that FGM is a complex form of child abuse “requiring adequately trained field workers to protect children.”[66] As a consequence there have been seven reported cases of interventions to protect children from suspected FGM since 1989 in the UK.[67] In 1991 a case worker in Ealing identified two girls at risk of FGM.  They were protected under the ‘working together’ framework and put on the child protection register. The officer, using educational tools and persuasion convinced the family that the practice was outdated and unnecessary. After six months hard work the children were able to be removed from the child protection register.[68] Much can learned from the case.

.According to the 1989 Children’s Act part V, section 47, when a local authority has “reasonable cause to suspect that a child who lives, or is found, in [its] area is suffering, or is likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take action to safeguard or promote the child’s welfare.”[69] Local authorities need to be particularly aware of potential problems in areas where there are a large contingent of ethnic minority children or those with diverse cultural differences.

.When a child is identified as a potential victim, authorities can apply to the courts for a “prohibited steps order” under part II, section 8 of the Act which prevents the parents or guardians taking ‘specified actions’ which can include taking the child abroad for any reason except if the courts give consent.[70] Even more stringent steps may be taken by way of a care order where the child is taken into local authority care or a supervision order where the child may remain with the parents, supervised by the local authority.[71] A probation officer may also be allocated.

.These measures are commendable but although there has been some success with this Act, at ground level it remains challenging to act on them effectively. As Boyle and Corl stated: “It is clear that, with the exception of France, anti-FGM laws are more statements of aspirations than frequently deployed tools to eradicate the practices.” [72]

.Some of the stumbling blocks relate to the British view of child abuse. Some would consider examination of a child’s genitals on a regular basis as abuse in its self despite the fact that the medical examination is to check whether abuse is happening. The Multi-Agency Practice Guidelines: Female Genital Mutilation states “Where a medical examination is required of a child suspected of having undergone FGM, the examination should be in accordance with safeguarding children procedures and should normally be carried out by a consultant paediatrician, preferably with experience of dealing with cases of FGM.”[73] Under the terms of the Children’s Act 1989 Part IV Section 38 (6) an Interim order can be put in place for 8 weeks if a child is thought to be at risk of significant harm and the court can request a medical or psychiatric assessment however if the child can make an informed decision they may refuse to participate in any such examination or assessment.[74] Similarly under the terms of an Emergency Protection Order the local authority is given parental responsibility by the court under Part V section 44 of the Children’s Act 1989 and in 44 (b) it gives the authority to order a medical or psychiatric assessment. It states under subsection (7) where any direction given under subsection (6) (b) the child may, if she is of sufficient understanding to make an informed decision, refuse to submit to the examination or other assessment.[75][76]

.Even if the authorities have reason to believe that the child is at risk, how can the law help if the parents exercise their right to refuse consent to medical examination? Here the law is protective: the parents have no right to refuse an examination if it is in the best interests of the child and the court can intervene. What if the parents and the child deny that FGM is planned? Can we then apply to the courts to put a consent order in place simply on hearsay? The answer is again what is in the best interests of the child and if the local authority has significant cause for concern than an Interim Order or an Emergency Care Order can be put in place.

.Before recourse to law, a frank and sensitive discussion with the parents about the law against FGM in this country as well as an explanation of the health risks associated with FGM should occur. After this discussion it is imperative that if the child remains at  risk it must be escalated to the police, local authority social services or the NSPCC.[77] (This issue of confidentiality regarding interagency working is discussed later.)

.Further help to the prospect of curtailing this practice by using recourse to the Children’s Act came in the guise of the 2003 London Child Protection Procedures[78] which replaced the local area Child Protection Procedures. These gave the statutory sector (including the Department of Social Services, the Department of Health, Local government Authorities, the Police and Education services) a water tight framework within which to work to protect children. It also works closely with the Metropolitan Police Service’s ‘Project Azure’ (specific MPS department dealing with FGM).

.The law is protective over the issue of confidentiality where FGM and child protection is concerned. The General Medical Councils publication, ‘Good Medical Practice’,[79] paragraph 49, states information about a child may be divulged to the appropriate authority in order to a) protect a child if at risk of neglect or sexual, physical or emotional abuse or b) to prevent a serious crime (FGM is a serious crime). In paragraph 51 disclosure is also allowed in the best interests of the child and in paragraph 52 it is also permitted if the disclosure is required by law.

.Under section 47 of the child protection rules it is permissible for the local authority to gain information (as per subsection 11) from health care professionals regarding those thought to be at risk unless there are extremely good reasons for refusing to disclose. Failure to impart information, particularly if FGM is thought to be planned, will breach the child’s right to freedom from torture under article 3 of the ECHR because the child will be subject to ‘inhuman and degrading treatment or punishment’.

.Child protection procedures involve a duty to report cases or suspected cases of FGM to child safeguarding teams. The laws around confidentiality (the Data Protection Act 1988, DPA) would normally not allow disclosure of clinical information but as child abuse via FGM is a serious crime then the law allows disclosure to safeguard the child. The DPA and domestic case law together recognized the need for disclosure for the purpose of investigating, prevention or detection of serious crime under section 29 of the DPA. Section 35 of the DPA allows for disclosure if required by any enactment, rule of law or an order of court for purposes of legal advice, establishing, exercising or defending a legal right.

.The document “Working Together to Safeguard Children” states that “personal information held by professionals should not generally be disclosed without the consent of the subject except where there is a need to protect the child’s welfare.”[80]  There are also statutory duties under the Criminal Procedure and Investigations Act 1996 relating to disclosure for the apprehension or prosecution of offenders.

.Reporting cases will undoubtedly alert the practicing population by word of mouth that these practices will not be tolerated and this must be considered another avenue of education.

.There remains some confusion amongst health care professionals as to what data is confidential and also what reporting mechanisms to use. Transfer of legal provisions into practice must involve a robust system of reporting on 100% of cases whether they are cases of children already mutilated or of children at risk. Child protection laws must prevent harm protecting physical and mental wellbeing. Reporting should be followed by investigation and then referral to court should there be enough evidence to support the concern. During the referral/ investigation/court case process a variety of professionals should be involved such as doctors, nurses, health visitors, police, social workers etc.

.The Crown Prosecution Service in 2003 published guidance for the “Investigation and Prosecution of Child Abuse Cases” and in Annex A the legal framework was set out recognizing first the “Professionals can only work together effectively to protect children if there is an exchange of relevant information between them.”[81] The example of Re G (a minor) [1996] 2 AER 65 was quoted as an example of how information sharing was vital. In this case Butler-Sloss said: “The consequences of inter-agency co-operation is that there has to be a free exchange of information between social workers and police officers together engaged in an investigation…The information obtained by social workers in the course of their duties is however confidential and covered by the umbrella of public interest immunity.. It can however be disclosed to fellow members of the child protection team engaged in the investigation of possible abuse of the child concerned.” [82]

.The issue of consent to undergo the procedure is also a legal avenue to pursue as girls that undergo FGM are often far younger than would give them competency to consent under the terms of Gillick.[83] Even if they were to consent, one has to question whether they can adequately give consent to something that cannot be seen to be in their best interests.  In Re R ( A Minor: Wardship Consent to Treatment) [1991] 3 WLR 592 a 15year old girl who was severely psychiatrically unwell with periods of suicidal and violent thoughts, along with periods of lucidity, refused treatment but it was considered that although she was Gillick competent she could not be so and doctors were given leave to treat her.[84] As Ogiamien said:

.“it is clear that women who are competent to consent legally , who choose to be circumcised, are free to do so because they are old enough to make such decisions….the issue is legally different where harmful practices… are performed on children… not qualified to make medical decision for themselves… It is an involuntary and unconsented to surgical operation which renders the victim (child) abused in an area central to her personal dignity.”[85] .he overriding human right for many is autonomy but if one is subject to an act before one is able to give valid consent then it can hardly be said to be self-determined.[86] Compare this to the woman who has full knowledge of a surgical procedure and consents to it: generally in the UK adults may do to their own bodies as they wish as demonstrated in Rex v Brown & Others (1993) 2 All (HL), cited in Giles (1994).[87] Young children are unlikely to have capacity to consent themselves especially to a harmful procedure. If parents allow their daughters to be mutilated then they are as liable to be prosecuted as the perpetrator. To go one step further, even if an adult woman consents to the mutilation it is still unlawful due to the seriousness of the injury, there being no medical imperative for it and several disadvantages (see for example Rex v Donovan 1934[88]).

.The fact that mutilated mothers often go on to mutilate their daughters is further supportive of the notion that FGM is child abuse as it has been proven that the abused often go on to be abusers in an identifiable psychological pattern.[89]

.“It has long been known that the vast majority of child abusers were themselves abused as children… the child who is a victim remembers the intensity of the experience with [her] body but suppresses the memory of the pain in [her] mind. In a vain effort to resolve [her] deep confusion about what happened, [s]he is driven to repeat or “recapitulate” the drama in which a powerful older person abuses a powerless child, only this time [s]he plays the abusers role.”[90]

.Breaking the cycle of abuse can be supported by education as to why this process is wrong. This is backed up by child protection rules leaving local authorities in no doubt that if the message isn’t getting through and FGM is likely then the court can intervene to grant a prohibitive steps order. It is imperative that local authorities are ready to use this avenue because to argue that the tradition of FGM should prevail over the best interests of the physical and mental/emotional health of the child must consistently fail. The importance of child welfare should come before any religious or cultural imperative to perform FGM. If by future translation it were proven that the Koran states that FGM is a religious imperative; the courts should step in to prevent it due the nature and severity of the harm it causes. FGM can cause death and serious complications and the judiciary has stepped in to prevent for instance Jehovah’s Witness parents from denying their children life-saving blood transfusion so it should step in on behalf of the children to prevent FGM. In Re L (A Minor) [1998] 2 FLR 810 a 14 year old Jehovah’s Witness needing blood to survive severe burns was deemed by the court to be naïve as a result of upbringing and therefore not competent to refuse the blood and may question the religion as they aged. [91]

.Child abuse is punishable by imprisonment under criminal law but is there recourse to a lesser sentence for those parents found guilty of intending to practice FGM? Punishment should include education fostering deterrence and prevention. It would be somewhat disheartening to think that the law would need to take away from the child an otherwise fit parent, but that parent would need monitoring such that any other female children are protected and the mother is not re-infibulated after childbirth. Balancing child protection issues with maintenance of the family unit and enforcement of the law would indicate that imprisonment of the parent would not solve the problem. After all, a child who has had the surgery cannot have it again. Because child protection law via civil child abuse or neglect proceedings has a wide range of alternative remedies if the parents are admonished they are less likely to face separation from their child for any length of time. For instance there may be various protective orders, supervision of the parents, an award of temporary custody to foster parents or to the local authority, orders for medical treatment or psychological interventions for the child but termination of parental rights would be extremely unlikely. This would allow the child to disclose information about her family without fear of them being separated from her.

.It would also be possible under the law for the child to bring an action in assault (grievous bodily harm) against her parents under the Offences Against the Person Act 1861 section 18.[92] This would be highly unlikely as the child would risk alienation from her cultural group and family unit. More  westernized Somalis are now aware that the practice is not necessary, illegal and a human rights issue and as cultural attitudes change across the world we may see some actions in battery being brought against the perpetrators of this crime. A few high profile victims have come forward to help the campaign against its eradication but bringing a claim in child abuse in the courts would, for most, be a step too far.[93]

.If a child presents with injuries and the parents are thought to be the perpetrators of the crime both parents may be prosecuted and a care order imposed even if it is not clear who has caused the injury. In Lancashire CC v B (A child) (Care Orders: Significant Harm)[94] a child was found to have serious head injury. It was not clear whether the mother or child-minder had caused the injury. The child was made the subject of a care order which was upheld under appeal ([2000] 2 W.L.R. 346). The parents had contended that the Children’s Act s.31 (2) threshold conditions had not been met and that the order breached Human Rights by violating the right to a family life. Because the care order was necessary for the future protection of the child the court held that s.31 (2) was satisfied and that it fell within the Human Rights legislation exceptions. This is important because if parents are not forthcoming in divulging who had performed  FGM,  then a care order could be imposed even if there was no concrete evidence as to the identity of the perpetrator.

.In conclusion, acting in the best interests of the child is a primary consideration in these cases. The Children’s Act is protective but the UK needs to take more notice of this imperative than worrying about upsetting the immigrant population. The single most helpful action may be the  proactive  physical examination of those thought to be at risk of FGM as identified by teachers, health care workers, other relatives and friends especially on leaving and entering the UK for ‘special holidays’. Local Safeguarding Children’s Boards serve a purpose and that is to protect our children with the law as its framework. The Crown via the courts protects its subjects as parens patraie and is obligated to care for those unable to protect themselves, those described in the 16^th century as “All infants, as well as idiots and lunatics.”

Domestic Violence

.As well as being a child protection issue, FGM is defined as a form of domestic abuse. [95] It is a form of violence against girls. Domestic abuse encourages the separation of the sexes by means of violence and FGM reinforces the inequalities suffered by women in those geographical areas in which it is practiced. Personal accounts of women who have undergone FGM recount the dread before the event, terror at being seized and held down, difficulty with first sexual intercourse including the fear of needing to be cut again, difficulty with childbirth and the lack of sexual pleasure throughout life.

.Abuse breeds abuse and the fact that the woman has been infibulated and is subservient supports this way of life. Libido is low due to pain or lack of sexual pleasure and this can lead to further domestic abuse by a dissatisfied husband. Domestic violence directly affects whether any children within that household are also abused. A vicious circle of abuse develops. 50% of sub-Saharan African women have been shown to be victims of intimate partner violence.[96] Intimate partner violence is the sociocultural norm in many African countries.[97]

.Because genitally mutilated women have a high social value in the communities in which it is common place, those who are not infibulated may be ostracized: another form of domestic abuse. This gender based violence  is a social means of controlling women’s sexuality.

.If a female consults a doctor with injuries suggestive of domestic abuse, then disclosure of this information to protect children within the household is justified taking into account the best interests of the child and professional advice given in Good Medical Practice (GMC 2013).[98] There is a professional obligation to over-ride parental autonomy in these circumstances such that if a woman is seen with either recent domestic violence or former abuse by way of FGM the doctor would be justified to disclose this information to the police or child safeguarding boards. In Re C (a minor) (care proceedings: disclosure)[99] the court of appeal held that disclosure of sensitive information about abuse was in the best interest of the child and so despite the sensitivity of information about FGM disclosure to the courts from medical personnel is usually justified.

.In O-S (Children: Care Order) , Re Court of Appeal Civil Division 17/12/01 three children were put on the child protection register, an application made for a care order and they were fostered . Their parents had an abusive relationship and it was found that the mother continued to engage with the father. The judges (Thorpe, Laws and Morland) dismissed the appeal in view of the fact that the parental relationship persisted and as such the children continued to be at risk. The best interests of the children were paramount.[100] This case illustrates how the law could protect children thought to be in abusive relationships where FGM is a marker of the males poor regard to the female. Waris Dirie, Somalian supermodel, explained how abusive family life is for Somali women. FGM is the start of a life- long persecution by Somalian men which is the norm for these women. She explained:

.“Women are the backbone of Africa; they do all the work. Yet women are powerless to make decisions. They have no say, sometimes even in who they will marry.”[101]

.In R (Care: Rehabilitation in context of Domestic Violence), Re Court of Appeal (Civil Division), [102] children were taken into care but the judge ordered a reintegration plan for the family. The local authority appealed as there was significant domestic violence and copious alcohol consumption fuelling a toxic relationship. The court upheld the appeal and the children continued in protection. As previously mentioned, domestic violence is common in sub-Saharan African families and using child protection rules at an early stage may protect the child from ever having to go through with FGM if they are protected early enough and continued long enough for the risk of FGM to have subsided.

.Removal of a child from a household on the pretext that FGM is likely to occur will be allowed under the Domestic Violence, Crime and Victims Act 2004[103] (as well as under the Children’s Act). This is an avenue that the judiciary could go down in order to secure preventative strategies and is something the government APPG is actively investigating.

.A doctor’s dilemma in his duty to disclose or not should he suspect domestic violence, abuse or FGM is often difficult but the law is protective. The local authority will often not divulge who the informant was to the parents because it serves no purpose. This is illustrated in D v National Society for the Prevention of Cruelty to Children [1978] where the appellant requested disclosure of the informant and was refused. The children rights are of foremost concern and communications between health care professionals and the local authority attract some judicial privilege.[104] In extremely sensitive cases the court has the ability to refuse disclosure of parental statements to the police and this only happens after consideration on a case by case basis.[105]

.Often the police and the courts are reluctant to get involved in domestic disputes but violence often follows disputes. Where the courts do get involved they must be sensitive to the cultures and customs of victims of FGM. In VK v Bulgaria[106] the appellant claimed the court had breached the Committee articles because it refused to issue a permanent protection order to a female victim. The refusal was based on social stereotyping and a narrow view of what constituted domestic violence. The committee said:

.“traditional attitudes, which regard women as subordinate to men contributed to violence against women. The state had an obligation to take appropriate measures to modify or abolish laws, regulations, customs and practices that discriminated against women, together with a duty to take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations. Stereotyping affected a woman’s right to a fair trial and the judiciary should be careful not to base decisions on preconceived ideas of what domestic and gender based violence was.”[107]

.The Commission on the Status of Women in March of 2013 considered the elimination and prevention of all forms of violence against women and girls saying:

.“The commission emphasizes that ending violence against women and girls is imperative.”[108]

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Chapter 3: FGM as a discrimination issue: Can the law help?

FGM has been cited as a gender and a race discrimination issue as well as gender specific child abuse clearly threatening sex equality on the international human rights stage. It is gender discrimination because it is specific to the female and it is racially discriminatory because it is performed on a particular social group, that being (mainly) girls from Somalia and other African countries. Many jurisdictions and governments have concluded that the realization of equal rights for women is an important step in eradicating FGM. This chapter will look at FGM as a sex discrimination issue and how addressing this can empower women to refuse to undergo it, to subject their daughters to it, and to speak out against it.

.Other inequality issues explored in this chapter include why is labial cosmetic surgery legal compared with FGM and why is male circumcision still usual practice in the Jewish community whereas FGM is not? Both of these questions could appear to be framing the FGM Act as a form of discrimination based on race and gender.

.In Adan v Denmark[109]  a Somali national living in Denmark complained about a newspaper article written by a member of parliament concerning FGM. The letter contained material that the appellant alleged breached her rights under the International Convention on the Elimination of Racial Discrimination 1965 (United Nations) art.2 (1) (d), art.4 and art.6. The article contained amongst other comments the following:

.“…why should the Danish Somali Association have any influence on legislation concerning a crime mainly committed by Somalis?…this corresponds to asking the association of paedophiles whether they have any objection to a prohibition against child sex or asking rapists whether they have any objections to an increase in the sentence for rape..”

.In a radio broadcast another MP said in support of the letter:

.“Why should we then ask the Somalis about what they think about [female genital mutilation] when the majority of Somalis do it as something quite natural?”

.The appellant complained to the police under the Danish Criminal Code 1930 s.266 (b) which prohibits public statements that are threatening, insulting, or degrading to those by reason of their race, colour, national or ethnic origin, religion or sexual preference. The UN Committee held that the Danish courts had failed to investigate the complaint and had breached art.4 and art. 6. Not only had they been discriminatory by questioning the logic of asking the ethnic minority about its thoughts on FGM in the public arena (assuming perhaps erroneously, that they would not complain about it because it was part and parcel of everyday life to them) but also by virtue of the fact that they discriminated against the complainant by not investigating appropriately because of her race.

.This case protected discrimination rights but it did nothing to stop FGM actually happening however it did demonstrate that an empowered female does have the ability to bring the government to task over issues surrounding FGM. At the fourth World Congress on Women in Beijing 1995 the Secretary- General of the UN stated “The movement for gender equality the world over has been one of the defining developments of our time ….. much more remains to be done.”[110]

.The World Health Organisation declared FGM as a Human Rights violation in its factsheet in 2000[111] and was identified as an issue by the 2002 WHO special rapporteur into violence against women, its causes and consequences: ‘Cultural practices in the family that are violent towards women’[112] where FGM is addressed as a discrimination issue.

.Has labelling FGM as a violent sex discrimination issue helped its eradication? To answer this question one has to look to the functions of international treaties committees. Amongst other functions the committees receive individual communications alleging violation of articles under human rights law by a particular country and the committee considers each case on its merit[113]

.The International Convention on the Elimination of Racial Discrimination 1965 was the first treaty to concentrate entirely on forms of racial discrimination and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was the first to rule against sex discrimination. The definition within CEDAW states: “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on the basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”[114]

.Importantly CEDAW states that discrimination should be outlawed in private as well as in public. This is a crucial since in the UK police have been reluctant to intervene in domestic disputes even those involving violence, viewing it as a private affair between man and wife. The Women’s Committee has stipulated that States must act responsibly with ‘due diligence to prevent violation of rights, or to investigate and punish acts of violence, and to provide compensation’ including both public and private acts[115]. This adds weight to FGM being held as a discrimination issue.

.My research of the national reports submitted in furtherance of legal obligations under these international instruments reveals that no complaints have been made, or communications raised, in connection with FGM.[116]

.Also of importance is the fact that articles 2(f) and 5(a) strongly encourage member states to address cultural and traditional practices  allowing  discrimination against women and girls. This clearly allows FGM to be encompassed within this framework for change. Article 5 (a) states that:

.“State parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.”.

.The Women’s Committee issued General Recommendation in 1992 stating that discrimination as in Article 1 of the CEDAW includes: “Gender-based violence, that is, violence that is directed against a woman because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental, or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty.”[117] And “Gender-based violence, which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general international law or under human rights conventions, is discrimination within the meaning of article 1 of the Convention.”[118]

.What is comforting is that CEDAW recognized discrimination and gender-based violence are inseparable, curtailing a woman’s ability to embrace the full range of human rights.

.The Committee’s General Recommendation went on to link traditional practices such as family violence and abuse, arranged/forced marriages, dowry deaths, acid attacks and FGM with the general subordination of women. It made the valid point that these attitudes contributed significantly to perpetuating low self- esteem, low education, and low levels of enjoyment of human rights.

.The Convention for the Eradication of Racial Discrimination, CERD, has prohibited all racially-motivated violence acknowledging that some racial discrimination is purely directed at women because they are women.

.In 2004 the Committee on Economic, Social and Cultural Rights said in its General comments:

.“Gender-based violence is a form of discrimination that inhibits the ability to enjoy rights and freedoms, including economic, social and cultural rights, on a basis of equality. State parties must take appropriate measures to eliminate violence against men and women and act with due diligence to prevent, investigate, mediate, punish and redress acts of violence against them by private actors.”[119]

.The Human Rights Committee recognizes violence against women denies them their rights under ICCPR but it does not categorically state that FGM could be considered as sex discrimination.[120]  The International Convention on Civil and Political Rights clearly makes discrimination on grounds of sex an offence under article 26. A complete prohibition of violence against women world-wide is needed but the question is whether treating violence as a sex discrimination issue is enough of a step forward.

.Have these Convention’s made any difference for those at risk of FGM and/or have any of them at least made special mention of FGM in their ‘manifesto’?

.The Women’s Committee (consisting of ‘23 members of high moral standing and competence in the field covered by the convention’) of the CEDAW (whose roll under Part V Article 17 is to ‘consider the progress made in the implementation of the convention’) has referred to FGM, criticizing it as an unnecessary and barbaric traditional act.[121] In A.T. v Hungary the Committee underlined the relationship of sex discrimination and domestic violence. It ordered that the state had violated the rights of its citizen in breach of article 2(a), (b) and (e) because it had failed to protect A.T. from violence and threats of violence. The Committee stated that ‘traditional attitudes by which women are regarded as subordinate to men continue to contribute to violence against women.’[122] They recognise that violence to women puts their health and lives at risk referring to traditional practices including FGM.[123] In contrast, the 1990 Recommendation puts FGM firmly as a threat to health rather than a form of violence.[124]

.Turning now to CESCR where FGM is viewed as of international concern in terms of violence against women. This movement deals with gender based violence under Article 10 and Article 3.[125] It mentions FGM explicitly in Article 12 (in combination with Article 3) giving certain health guarantees where it states that FGM has a bearing on women’s health but also on a person’s right to control over one’s own body as well as sexual and reproductive freedom. It also stipulates that ‘a gender perspective be integrated into all policies and programs relating to health, including special attention to women’s issues such as domestic violence, maternal mortality, and harmful traditional practices that deny full reproductive rights.[126] It expands on this by referring to FGM as a traditional practice affecting the health of girls..By comparison, the HRC has usually addressed violence and sex discrimination via other channels such as the Right to Life and Bodily Integrity as well as the Prohibition of all forms of Torture. In commenting on member state reports it has mentionedFGM.[127] Article 7 is considered to cover domestic violence, rape, forced abortion, forced sterilization, and genital mutilation.[128]

.Sex discrimination and violence are recognized by the main treaty bodies as inextricably linked and could in legal theory be used in cases of FGM. Has this recognition helped women in their plight for equality and justice?

.It has been argued that domestic violence for instance has not held the same weight in the courts as violence committed by an unknown assailant giving an imbalance in criminal justice against women i.e. discriminatory.[129] Similarly, rape within marriage has been treated differently to rape by a stranger. So called ‘honor killings’ of females disgracing their families honor have not attracted the same legal criticism as murder of a male by a male. [130]

Asylum law, FGM and discrimination

.In the UK, female asylum seekers have used gender based violence or risk of FGM as reasons to be granted asylum but in the past this has been deemed a private rather than a political issue. For instance in the House of Lords discussion in Shah and Islam Lord Hoffman although recognizing the threat of violence said that this was a personal affair between the parties involved and only when the fact that the threat of violence become gender based was the state free to intervene in a protective way. The combination of these two factors made the otherwise private violence fall within the meaning of the Convention relating to the status of the Refugees 1951 (amended 1967).[131] This need to establish violence as gender based in order to invoke legal recourse is not helpful to women and girls at risk of FGM and is unacceptable. It can be seen in this example that there remains a judicial ‘gap’ between the violence (FGM) and its cause (sex discrimination). Human Rights Laws attempt to close this gap by linking the cause to the prohibition.

.In Kaba v Canada in 2010 the appellant claimed refugee status on the grounds that if she and her daughter were to be returned to Guinea by Canadian authorities, there would be a significant risk of the daughter being subjected to FGM and forced marriage, both examples of sex discrimination under International Human Rights Laws. Canada disallowed the case on the grounds that the evidence was lacking but the UN Human Rights Committee upheld the complaint on two counts. Firstly that the risk of FGM occurring on return to Guinea was beyond reasonable doubt and therefore satisfied the issues raised in articles 7 and 24 (1). Secondly that ‘State parties were under an obligation not to expose individuals to a real risk of being subjected to cruel, inhumane or degrading treatment or punishment upon entering another country by way of their extradition, expulsion or refoulement.’[132]

.In Fornah v Secretary of State for the Home Department[133] a 15 year old girl from Sierra Leone fled the country because of fear of having to undergo FGM, and claimed asylum on the grounds of fear of persecution  “for fears of … membership of a particular social group”. The social group that she based her appeal on was that of “intact women in Sierra Leone”.  It was held that this group was a particular group for the purposes of Art. 1A (2). Women in this area were clearly held in a position of inferiority compared to men i.e. sex discrimination was at play. Auld, L.J. was held to be incorrect when he stated that FGM was not “in the circumstances in which it is practiced in Sierra Leone, discriminatory in such a way as to set those who undergo it apart from society” and it was stated that F’s case was covered by the rule applied in Islam v Secretary of State for the Home Department [134] in that the social group existed independently of the persecution. In the case analysis it was stated that “Female Genital Mutilation was an extreme expression of the discrimination to which all women in Sierra Leone were subject.”[135]

.Although not mentioning FGM per se, in K v Secretary of State for the Home Department an Iranian woman and her 7 year old son sought asylum on the same grounds as above i.e. being a member of a particular social group (that group being her husband’s family). She was found to have a well demonstrated fear of being subjected to violence from this group. Again this could have used discrimination in the appeal but what was actually relied upon was art 1A (2) of the Refugee Convention 1967 Protocol.[136]

.Leaving the international conventions  I turn to other forms of discrimination involving FGM.

A comparison of male circumcision with female genital mutilation

.Disparity exists between the parents of the male child who are afforded the right to circumcise their prodigy compared to the parents of the female child who are not allowed to mutilate their daughters. Is this a sex discrimination issue? Male circumcision is lawful provided that it is performed correctly, there is valid consent and it is in the best interest of the child.[137] If the male child has capacity and refuses to consent then the wishes of the parents are ignored, bearing in mind that parents can and do exert great pressure on their children to comply with their wishes. Fox and Thomson make the point that:

.“routine infant male circumcision is typically characterized in opposition to female genital mutilation for rhetorical and political reasons. The result is that, while female circumcision is construed as morally and legally unacceptable within civilized society, male circumcision is characterized as a standard and benign medical practice.”[138]

.In Re J (A Minor) (Prohibited Steps Order: Circumcision), [139] a Muslim father appealed against an order refusing circumcision of his 5 year old Muslim son because the boy’s mother refused the operation on the grounds that she was English and the boy had been brought up in a secular environment. The judge refused to allow the operation and the father appealed. At appeal the decision centered round the fact that circumcision was a ritual, was irreversible, was not medically necessary and not in the best interest of the child in terms of the Children’s Act 1989 s. 2(7). As such consent of both parents was necessary for the procedure to go ahead. The court effectively dodged the issue of the legality of the procedure by recourse to the suggestion that both parents consent is ideal. Brazier concurred with this view regarding as a ‘decision for the infant’s parents.’[140]

.A contemporary medico-legal debate proposed by Bridges in 2002 explores the legality of male circumcision but explains that “legal freedom stops short at the seriously invasive procedure on young girls.”[141]  She simplifies the difference between male and female circumcision describing them as ‘self-evidently different’ and as such negates male circumcision as an issue when really it should actually be viewed as a discrimination against the males. [142]

.Given the breadth of academic thought on the subject, viewing the procedure as relatively harmless fails to challenge cultural norms for the male infant whilst safeguarding the female by recourse in law under the FGM Act.

.It is strange that this practice is still allowed as, unless there is phymosis, it is not easy to see how this operation could ever be in the best interest of the child. Benatar and Benatar conclude that none of the evidence to support male circumcision as a prophylactic procedure ‘is anywhere near conclusive.’[143] Given that it is supposedly a cleanliness issue and a religious necessity and that its health effects bear little resemblance to FGM, it would seem more appropriate for the child, at the age of Gillick competency[144], to make their own decision as to whether they wished to undergo the operation. This may be something for future discussion on the Human Rights agenda. Note that in Spanish and Austrian jurisdictions the laws on genital mutilation do not add in the prefix ‘female’ which seems to imply that the law could be used against male circumcision. Article 149 of the Spanish Penal Code reads:

.“Any person performing whatever form of genital mutilation shall be punished with a sentence of imprisonment of between 6 and 12 years.”[145]

.Adopting this stance may encourage a lessening of discrimination against females in the UK.

A comparison of female genital cosmetic surgery with female genital mutilation.

.How do we justify female genital cosmetic surgery but condemn the traditional practice of FGM? The common reason given to gynaecologists for requesting genital surgery is to improve appearance for the physical and mental health of the patient. This is thought, in part, to be related to the widespread availability of pornography and the erroneous idea that this perpetuates what the beautiful female form should look like. In the Female Circumcision Act 1985 and the FGM Act 2003 there was heated debate as to what form of words should be used to allow female genital cosmetic surgery i.e. it was well established that to some degree discrimination was at play. Essen and Johnsdotter commented on Scandinavian legislation on FGM highlighting the ‘double morality inherent in current public discussions’[146] as well as the international legislation related to female cosmetic surgery.[147],[148]  Allotey et al. who said the ‘general acceptance of cosmetic labio-plasty for nonmedical reasons, while society rejects the possibility of re-infibulation after delivery, is a sign of institutionalized racism in Australian society.’[149]

.A review of FGCS in The Obstetrician and Gynaecologist [150]observed that as FGCS increases in popularity, it becomes imperative for consultants to be aware of normal variations, robustly reassuring patients of their anatomical normality. Like FGM the short and long term health consequences cannot be guaranteed. It warns gynaecologists to think carefully before offering the surgery if it is not clinically indicated.

.Berer in 2010 made the valid point quoting the 2003 Act:

.‘A person is guilty of an offence if he excises, infibulation or otherwise mutilates the whole or, any part of a girl’s labia majora, minora or clitoris.’

.And: .A person is guilty of an offence if he aids, abets, counsels or procures a girl to excise, infibulate or otherwise mutilate the whole or any part of her own labia majora, labia minora or clitoris.’

.The assumption is therefore that FGCS must be illegal under British law.[151]

.Of course the rider in the Act that allows FGCS, is that it is not illegal if done for the physical or mental health of the woman/girl[152]. Physical health includes such conditions as vulval carcinoma for which surgery is necessary. Mental health has been taken as leave to perform cosmetic surgery on the genitals for the perception of abnormality. The question is what is normal and what is not? There is no case law in UK that has tested this stipulation and it will be left ‘to the courts to determine on the facts of the case if a prosecution is brought.’[153]

.FGM has been shown to be discriminatory against well women requesting labial surgery above and Liao’s literature review in 2010[154] bears out this point but unfortunately short of making FGM legal or banning FGCS it will be difficult to see how to move to a legal principle of equality. The empowerment of women by increasing awareness of feminist legal recourse via Human Rights Laws and Sex discrimination legislation will help but it has to be said that women need to take control of their own destinies by a commitment to their health and wellbeing without resorting to FGCS. This only puts their own body dysmorphia ‘cure’ into the hands of the doctor ‘because a solution involving experts with minimal personal responsibility is more appealing than a personal commitment to problem solving.’[155]

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Chapter 4: FGM on the world stage: can the UK learn from other jurisdictions?

The Human Rights issue has been discussed particularly with relation to sex discrimination and violence against women. As well as the HRC, I am interested in how law around the world has dealt with FGM and how the UK can draw on the successes, especially of the French.

.I illustrate my points referring to case law around the world and include some personal communication I have had the privilege of sharing with the French advocate that has brought many perpetrators and family members to court in France, Ms. Linda Weil-Curiel.

.Viewing FGM as a practice that violates human rights is tantamount to indicating that allowing it is ‘an infringement by governments and societies upon the moral and political claims of women and children.’[156]

.Human rights issues are covered in UK law by the Human Rights Act 1998 giving domestic effect to the European Convention on Human Rights. The right to life and bodily integrity (Article 2) include broadly speaking, the right to freedom from torture (Article 3), right to dignity of person, right to liberty and security of person (Article 5) and the right to privacy (Article 8).[157]

.In rare but significant cases FGM has led to death by hemorrhage or sepsis and it can easily be seen that this violates the right to life under Article 2. The operation is performed on the premise that the woman’s body is in some way flawed and needs correction to be normal and in this way a woman’s dignity is stripped from her.  Right to physical integrity assumes a right to acceptance of bodily appearances as nature intended not as man decreed. This has been discussed in the last chapter also in relation to how FCGS panders to the views of the male perception of what beauty/normality in a female is and often bears little resemblance to the broad range of what is actually ‘normal’.

.The use of human rights laws to pin FGM as an act of violence has also been discussed. Importantly there does not need to be any intent to harm in the Declaration on the Elimination of Violence against Women. The parents of children subjected to the procedure do not intend harm, nor do they consider that what they do can be classed as torture.

.The Convention against torture and other cruel, inhuman or degrading treatment or punishment (United Nations convention against torture) defines torture as ‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person’. Is it possible then to use torture as a possible recourse to help in the eradication of FGM? Well, although the perpetrators probably do not intend to inflict pain: they aim to perform the procedure to ensure the child is accepted into society but in performing a cruel, inhumane and degrading act are they captured under the torture convention? It would be very difficult to prove otherwise even given the intent was not to cause such issues as a consideration.

.International laws are difficult to police in individual jurisdictions and it is each governments duty to exercise “due diligence” in its efforts to prevent, investigate and punish if appropriate those who violate human rights.[158] By ensuring (under the human rights umbrella) that governments can and will be held accountable if they fail their women, we will hopefully see individual parliaments encouraged to act proactively through legal initiatives as well as heeding advice from various NGOs active in support of eradication of FGM. There is a need to ensure that ‘national standards are consistent with global norms,’[159] and ‘as part of a worldwide attempt to move into a new millennium marked by equality and justice for all.’[160] The Act requires that common law is interpreted ‘in a way which is compatible with ECHR’[161] and makes it ‘unlawful for a public authority to act in way which is incompatible with a Convention right.’ [162]

.Taking Human Rights Laws in general, it has been difficult to enforce the illegality of FGM because of cultural relativism (violation of one cultures’ rights can be viewed as morally just in another).[163]

.I want to finish with a look at the success around the world in the elimination of FGM particularly in France. The French legal system is very different to that in the UK and it has proved impossible to find citations of the cases brought to the Cour d’Assises, the highest court in Paris that deals with cases of FGM. It was only recently that a judge had any obligation to disclose the particulars of a case or the terms of sentencing. Case analyses are impossible to get hold of. Linda Weil-Curiel, French advocate, has worked tirelessly to bring to justice perpetrators of FGM and the parents involved in the arrangements for mutilation of their daughters. In 1988 after the death of a 2 year old child from bleeding following FGM, Hawa Greou, a Malian ‘midwife’ was tried and found guilty of performing the FGM. During the course of the investigation her electronic address book was seized containing innumerable client contact details. She served her sentence and was released becoming active in educating the practicing community aiming to prevent FGM. Accused and accuser became colleagues in the fight against FGM. Weil-Curiel said:

.“The number of prosecutions is only one outcome of the law enforcement process and is not the sole indicator of the legal response to FGM by a country. The implementation of legislation constitutes the totality of actions that are undertaken de facto, to give effect to the legal provisions at distinct levels of interaction by a number of different agents, who make use of multiple strategies. While the referral procedures describe an ideal scenario to be followed, the reality of implementation is informed by the actions of the different stakeholders involved.”[164] The French lawyer is responsible for bringing over 100 cases to trial. She was responsible for the conviction of a mother employing the services of a traditional cutter to mutilate her 1 week old daughter. The mother was given a 3 year jail sentence in 1989 which was suspended whilst the operator was given a 5 year sentence later in 1991 under Article 312-3 of the French Penal Code. Jordan reported in 1994 the case of two other immigrant excisers, one who caused the death of three babies and one who mutilated her own daughters.[165]

.Weil-Curiel explained the French approach to suspected cases of FGM in a series of emails between us:

.She explains the difficulty in getting information out of the French courts. They are very private affairs and little or no information is available to the general population or the legal community. She states that once a case has been to court the judge has only recently had to state the reasons for the sentence after the trial.

.She explains that information is given by the doctors or the hospitals to the police that a child has been mutilated. It is their duty to report ‘ill treatments inflicted on a minor’. The parents are then summoned to the police station with all their daughters. Whilst the parents are interrogated, the children are brought into a special unit in the hospital for examination. The results serve as proof (evidence) of either the mutilation or the absence of mutilation. If they are mutilated then the case will follow its course and there will be a trial. The minors will be granted a special tutor (‘administrator ad hoc’) who will in turn choose a lawyer to represent them in court. In most cases, parents refuse to disclose the identity of the perpetrator.

.The parents are condemned as abettors of the crime, usually to serve a prison term, eventually suspended, and have to pay financial compensation to the victims (a sum they will receive at 18). In the original case this sum was 13,000 Euro but it can now be as high as 25,000 Euro.

.In France if an asylum case is brought, the courts judge that the minors be granted ‘protection subsidiaire’ and the illegal immigrant parents are thus benefitted. The caveat is that they have to prove periodically that the girls remain intact. Linda Weil-Curiel obtained the first decision that women were ‘a category at risk of being mutilated’ and could claim asylum.[166]

.Her view is very much that the UK needs to adopt the France stance of zero tolerance against FGM and stop getting caught up in cultural sensitivities. To her it is obvious that the rights of the child come before the worry over upsetting the minorities view point. Since that first case in 1988 she has brought 33 cases to trial involving 120 children and  99 parents. The parents and perpetrators have been prosecuted and the victims financially compensated.

.French authorities are aided by several legal initiatives that support the eradication of FGM. The guidance given to health care professionals is known as the ‘Conduit a tenir face a l’excision des petites filles’[167] which is issued by the ‘Protection Materenelle Infantile (PMI).[168] Breach of confidentiality between health care professional and parents of girls who have been mutilated is protected in law. Female children are examined as a matter of routine until their 6^th birthday when they enter the school system when it becomes more difficult. The state of their genitalia is recorded in a ‘Carnet de Sante’. [169]

.She points out that the British find the zero tolerance view too extreme and that the Dutch model which is more respectful to ethnic minorities where routine examination of children is rejected is more acceptable to the British.

.The biggest help for the Dutch has come in the way of travel documentation stating that if a child is mutilated whilst away on holiday then the parents will be prosecuted on their return. This is known as extraterritoriality and throughout Europe there are varying degrees of what is legal regarding the removal of a child to another country to have the procedure performed. Some European legal agencies believe that they cannot have a say on what happens in another country if the child is infibulated where it is not illegal.[170] Weil-Curiel’s view is that many families who want FGM move to the UK because it is widely held that although the law is in force it is not enforced and FGM is available for those willing to pay.

.Scottish family lawyer Nicola Loughran[171] explained that despite Scotland rushing through laws against FGM[172] there still remains a hiatus in prosecutions. Scotland Yard have 82 reported incidents on their records but no prosecutions and Loughran puts this down to a large part, to do with examinations of female children being interpreted as child abuse. However Brown in 2013 in response to Lloyd-Roberts report (see below) stated of Scottish GP’s ‘we do not think routine examination of female children is an abuse of their human rights, we consider it part of our General Medical Services contract.’[173]

.Compare this to France where recently the police were tipped off that a family had arranged for its two daughters to travel by Eurostar to London to have FGM but they were intercepted in the railway station and taken for immediate examination under child protection regulations. [174] In the UK this sort of action is never seen, because of fear of upsetting those with a different culture to our own. In France respect for other cultures and traditions does not figure as a reason to turn a blind eye to FGM. Every French citizen, no matter where that citizens origins lie, are afforded protection under the law, and so all children are given the right to protection from abuse including FGM. Weil-Curiel goes further stating that if these children were not protected then the French would be guilty of discriminating against them on the grounds that only African children are subjected to the practice.[175]

.A study in 2007 looked at European laws on FGM and their implementation.[176] Although there has been progress, despite specific criminal laws being introduced almost across the board, these laws have been no more successful than general criminal laws. It concluded that the number of cases being brought to court is low because of ‘issues around conditions of extraterritoriality, the secrecy of the communities, the reluctance of girls to formally implicate parents and the reluctance of professionals to follow through on all complaints and concerns.’[177] In European Member States FGM is illegal under general criminal law including Finland, France, Germany, Greece, Southern Ireland, Luxemburg, Portugal, and the Netherlands. In other states specific criminal law provisions to account for FGM are in force and these are Austria, Belgium, Italy, Spain, Sweden and the UK.

.Across the Atlantic, President Clinton introduced the Female Genital Mutilation Act in 1996.[178] Before it was embraced by the US, several states had legislated against it but this brought its own problems of movement between states to have the procedure carried out. The USA has chosen to use a two pronged attack on the eradication of FGM. The first outlaws the procedure in the USA and the second involves the USA representatives of the World Bank with- holding loan funds to countries still condoning the practice who will not agree to educational measures within its community to show why this practice should be outlawed. This necessity for education is crucial. Sussman (J.D; Cornell Law School, 1998) in 1998 stated:

.“The Female Genital Mutilation Act of 1996 represents an innovative approach in the international campaign against female circumcision. The hybrid nature of the Act mandates education within a legal framework.”[179]

.Canada’s stance against FGM is contained within the Criminal Code and it is explicitly criminalized there under Government of Canada, Criminal Code, s.268.3, s. 268.4. The law carries a maximum 14 year sentence for parents and excisers. The only case to have been brought to the ‘charge’ stage involved a Sudanese girl who claimed she had been mutilated by an unknown exicer in Canada at age 11. Her parents countered that she had been operated on 10 years earlier in the Sudan. The case was dropped due to lack of evidence supporting either side’s claims but it broke the family apart due to the insensitive way it was handled by the courts and the media.[180] What was a little surprising was that it was not denied by the parents that the child had had the procedure.

.There is legislation in place in many African countries banning the practice including Burkina Fasu, the Central African Republic Djibouti, Egypt, Ghana, Guinea and Sudan. As the center of Islamic tradition, Egypt was sensible enough to uphold the law against FGM in 1997 when Islamic activists sought to class the procedure as ‘religious’ and not of interest to governments.[181]The court had the foresight to counter with “[c]ircumcision of girls is not an individual right under Sharia [Islamic religious law]…There is nothing in the Koran that authorizes it.”[182] The disappointing flip side is that FGM is still the cultural norm and unquestioned in 21 other African states. [183]

.In conclusion, it can be seen that other countries throughout the world have legislated against FGM to a greater or lesser degree but the fact is that it is difficult to get perpetrators of the crime into the court, charges often being dropped due to lack of evidence  to a large degree because of the secrecy of the procedure within practicing communities.

~ ~ ~

Chapter 5: Conclusion

“If every man in this courtroom had had his penis removed, what then? Would they understand better that that condition is similar to that of all women in this room?”[184]

.In researching this essay it has become apparent that not only is it the west and its record on human rights issues that are swaying public opinion on the eradication of FGM but that the African nations are also driving the sea of change forward to ensure the outdating of this ritual form of child abuse. African NGO’s are activists in this are speaking out to promote its eradication.[185] This is heartening as previously it is a human rights banner that has been held aloft by western feminists thus underlining the difference that exists between those that do it and those of us who do not.[186] Those who understand the culture, ritual, and tradition are recognizing that it is wrong. It is clear that FGM is now thought of as torture, as child abuse, as inhumane and as degrading.[187]

.I conclude that the law in the UK including its signatory to the many human rights declarations, has the ability to protect children but is failing our children. This is to a large extent due to the lack of cohesion between law and what happens on the ground. The education of the populous is paramount but I feel that the practiced will be eradicated. Compare it to Chinese foot-binding and Indian Sati or widow burning. Both of these were deeply entrenched customs that through education backed up by national and international statues were eliminated within a generation.[188] [189]

.The FGM act holds within its grasp the ability to curtail the practice but it needs to be backed up by other measures.

.Education will be the tool by which public opinion amongst the immigrant population will change. Utilization of the media will ensure the educational element reaches those of importance. This may be by using public debate, television interviews, radio broadcasts, pamphlets, political speeches and by using high profile African personalities such as Waris Dirie[190] to promote the eradication of FGM, accepting  existing laws.

.The immigrant population is less likely to heed our laws if they feel they are being  marginalized and forced to abandon their cultural practices. Engaging with Africans within the practicing community is of utmost importance achieved by appealing to local people and by utilizing the members of this population in favour of the Act to be active locally in support of it. As Macklin said ‘The theoretical conundrum is clear: negotiating intragroup power relations within marginalized communities through resort to an apparatus of the state may help redress inequalities, but may simultaneously push the group as a whole further to the margins.’[191]

.Educationalists must seek help from the immigrant population tailoring  programs to their way of thinking.  Sussman details how education by ‘leadership of insiders’ is essential because ‘their personal understanding of the indigenous culture, members of the affected communities can most effectively frame the campaign within its cultural context.’[192]

.Involving prominent, respected community leaders in the educational program will help. If these leaders speak out against the practice then the media will report this activity so reinforcing the message that the local leaders condemn the practice. Any statements from political leaders or local leaders should be published and disseminated locally.

.Education cannot of itself change cultural patterns for eternity and the aim of education should be developed with the future in mind as well as the current, urgent need for the eradication of FGM: culture can win through after many years in abeyance. If public opinion is changed then hopefully the FGM Act will become effective. Education, change in attitude and legislation together can lead to eradication.

.Finally the success of the Act and all other legal recourses that have been discussed will only make FGM a procedure of the past in longevity if the commitment to its eradication is sustained. Once it comes off the agenda on the human rights stage it will possibly blossom again.

.Tackling ingrained culture with legislation and education can protect our children but requires sustained effort. Wais Darie believes that African women will stand up for themselves in the near future and the practice will die in antiquity[193]and ‘by taking affirmative steps, local courts, international courts, governments and women’s rights groups can assist in bringing Ms Dirie’s beliefs to fruition.’[194]

.August 2013 saw the General Dental Council suspend Mr. Addow for misconduct. His crime: to offer to mutilate 2 children. An undercover  investigator recorded the consultation which was said to bring the profession into disrepute. If no appeal is registered within 28 days he will be erased from the register and the hope is that having had enough evidence to suspend him then the police will have enough to bring a prosecution against him. This is just the sort of breakthrough the CPS needs.[195]

.Finally I quote from Possessing the Secret of Joy [196]where the sentiment likens a child to a living tree, her parent to an axe and FGM to felling:

.“The trees were not afraid of the axe, because they saw the handle as wood, meaning it used to be a tree. The trees did not believe that one of their own would hurt them.”          

~ ~ ~

Bibliography

Books

• Brazier, Margaret and Cave, Emma. Medicine, Patients and the Law (4^th edn penguin, London 2007)
• Bridge, C. (2002) Religion, Culture and the Body of the Child. In: A. Bainham et al; (eds.) Body Lore and Laws, (OUP, Oxford, 2002)
• Dorkenoo, Efua and Elworthy, Scilla. (1994) Female Genital Mutilation.In: Miranda Davies (ed.) Women and Violence: Realities and Responses Worldwide.(Zed Books, London)
• Drucker, Alison.The Influence of Western Women on the Anti-Footbinding Movement 1840-1911.In: Women in China: Current Directions in Historical Scholarship 179.(Guisse & Johanneson eds; 1981)
• Erin, Charles A, and Ost, Suzanne. Criminal Justice System (1^st edn OUP, Oxford 2007)
• Fitzpatrick, Joan. The Use of International Human Rights Norms to Combat Violence against Women. In:RJ Cook, Human Rights & Women- National and International Perspectives, (Philidelphia: University of Pennsylvania Press, 1994)
• Harris, Phil.  An Introduction to Law (7^th edn CUP, Cambridge 2007)
• Herring, Jonathon. Medical Law and Ethics (2^nd edn OUP, Oxford 2008)
• Horner, H. and Clark, J.R. The Law of Domestic Relations in the United States.(2^nd ed. 1988)
• Macklin,Audrey. The Double Edged Sword: Using the Criminal Law Against FGM in Canada. In: Female Genital Mutilation: Multicultural Perspectives. (Abusharaf, ed; University of Pennsylvania Press, 2006)
• Mason, JK and Laurie, GT. Law and Medical Ethics (8^th edn OUP, Oxford 2011)
• Merry, A and McCall Smith, A.  Errors, Medicine and the Law (1^st edn CUP, Cambridge 2001)
• Momoh, Comfort. Female Genital Mutilation, (3^rd edn Radcliffes, Oxford 2009)
• Montgomery ,J. Health Care Law (2^nd edn OUP, Oxford 2003)
• Rahman Anika and Toubia, Noubia. Female Genital Mutilation, a Guide to Laws and Policies Worldwide, (2^nd edn, Zed Books, London 2001)
• Sheldon, S. and Thomson, M. Feminist Perspectives on Health Care Law, (Ed Sheldon and Thomson, Cavendish Publishing, London 1998)
• Walker,Alice. Possessing the Secret of Joy. (Cape, London 1992)

Journal Articles

• A woman of courage in Somalia, (Anon) ‘Three Feminine Sorrows’ In: C. Momoh (ed), Female
• Akers S. (1994) Female Genital Mutilation: cultural o criminal? Journal of Child Law 6 (1), 27-31.
• Alio AP, Daley EM, Nana PN, Duan J, Salihu HM, Intimate partner violence and contraception use among women in Sub-Saharan Africa. Int J Gynaecol. Obstet. 2009; 373:318
• Allotey P, Manderson l, Grover S. The politics of female genital surgery in displaced communities. Crit Public Health 2001; 11: 189-201
• Amnesty International, Section nine: Female Genital Mutilation in Africa: Information by country. Available at http://www.amnesty.org/ailib/intcam/femgen/fgm9.html
• Amnesty International, Section Nine: Female Genital Mutilation in Africa: Information by Country. http://www.amnesty.org/ailib/intcam/femgen/fgm9.html
• Amnesty International, Section One:’ What is Female Genital Mutilation?’ at 5. http://www.amnesty.org/ailib/intcam/femgen/fgm
• Annas, Catherine. Irreversible Error: the Power and Prejudice of Female Genital Mutilation.12 J.Contem. Health L.& Policy 325 1995-1996
• Bashir, L M. Female Genital Mutilation in the United States: An Examination of Criminal and Asylum Law, 4 AM. U. J. Gender and L., p 415, 420 (1996)
• Benatar, M. and Benatar, D, (2003) ‘Between Prophylaxis and Child Abuse: The Ethics of Neonatal Male Circumcision.’ American Journal of Bioethics 3, (2) pp.35-4
• Berer, Marge. Labia reduction for non-therapeautic reasons vs. female genital mutilation: contradictions in law and practice in Britain. Reproductive health Matters. Volume 18, issue 25, May 2010 pp 106-110
• Boyle, Elizabeth Heger & Corl, Amelia Cotton. Law and Culture in a Global Context: Interventions to Eradicate Female Genital Cutting. Annu. Rev. Law. Soc. Sci. 2010, 6: 195-215 p200.
• Bridel, Renee. L’enfant mutile  (delegate of the FIFCJ to the UN, Geneva, 1978
• Brown, Iain. BMJ 2013; 346:29 Letter
• Brown, Isaac Baker The Curability of certain forms of Insanity, Epilepsy, Catalepsy, and Hysteria in Females, (ed Robert Hardwicke, London 1866)
• Coomaraswamy, Radhika ‘Cultural  practices in the family hat are violent towards women’, UN Doc. E/CN.4/2002/83, 31 Jan. 2002, pp.9-10
• Crossette, Barbara. Court Back’s Egypt’s Ban On Mutilation, N.Y. Times, Dec 29, 1997, at A3.
• De Lucas, J; Anon, R.M.J; Bedoya, M.H; Fernandez, I.M; Flores Gimenez, F; Galiana, S.A;& Garcia, A. (cordinator) et el. (2004) Evaluating the impact of existing legislation in Europe with regard to FGM. Spanish national report. Centre of citizenship, Migration and Minorities/Grupo de Estudios sobre Ciudadania, Inmigracion, Valencia: Universitat of Valencia
• Dorkenoo, Efua and Elworthy, Scilla .Minority Rights Group International: Proposals for Change 11 (1192).p37
• Drucker, Alison. The Influence of Western women on the Anti-Footbinding Movement 1840-1911, In: Women in China: Current Directions in Historical Scholarship 179 (Richard W. Guisso & Stanley Johannesen eds; 1981)
• Dustin, Moira ‘Female Genital mutilation in the UK: Challenging the Inconsistencies’ European Journal of Women’s Studies 2010 17:7 p19
• Dyer, O. (1993) ‘Gynaecologist Struck off over Female Circumcision’, British Medical Journal 307(6917): 1441-1442.
• Ewing, AP. ‘Establishing State Responsibility for Private Acts of Violence against Women under the American Convention on Human Rights’, (1995) 26 Colum.Human. L. Rev.  751, 780.
• Essen, Birgitta, and Johnsdotter, Sara. ‘ Female genital mutilationin the west: traditional circumcision versus genital cosmetic surgery. Acta Obstet Gynecol Scand 2004: 83: 611-613
• Feroze, Rustam. (8.2.94) The Times, Letters
• Finnerty, Amy. Questions for Waris Dirie: The Body Politic: The United Nations special ambassador on female genital mutilation talks about her childhood in Somalia, her life as a fashion model and her very personal crusade, N.Y. Times Mag; May 9, 1999, at 22
• Fleming; J.B. Clitoridectomy-The Disastrous Downfall of Isaac Baker Brown, FRCS (1867), Journal of Obstetrics and Gynaecology, pp1017-1034
• Fox, M. and Thomson, M. (2005) ‘A covenant with the status quo? Male Circumcision and the new BMA guidance to doctors.’ J Med Ethics 31.
• Fox, Marie and Thomson, Michael. Short changed? The law and Ethics of Male Circumcision. The int’l J of Children’s Right’s, 13:161-181, 2005
• Gomez, AM, Speizer IS. Community-level intimate partner violence and the circumstances of first sex among young women from five African countries. Reproductive Health 2010; 7
• Gunning, Isabel R. (1992) ‘Arrogant Perceptions, World Travelling and Multicultural feminism: The Case of Female Genital Surgeries’, Columbian Human Rights Law Review 23(2) 213.
• Hedley R and Shaw E (1991) Child Protection and Female Genital Mutilation. Foundation for Women’s Health Research and Development, London
• Hedley, Rodney & Dorkenoo, Efua. Foundation for women’s health research and development (FORWARD), Child protection and female genital mutilation: advice for health, education, and social work professionals 5 (1992).pp12-13
• Jordan J.A. (1994) Female genital mutilation (female circumcision). Britsih Journal of Obstet 101, 94-95
• Engle K. (1992) Female subjects of public international law: human rights and the exotic other female. New England Law Review 26 , 1509-1515
• Lane; Sandra D. & Rubinstein ; Robert A.  Judging the other: responding to traditional female genital surgeries, Hastings Center Rep; May-June 1996, p 33.
• Leye, E et al. An analysis of the implementation of laws with regard to female genital mutilation. Crime Law Soc change (2007) 47:1-31
• Leye, E; Deblonde, J; Garcia-Anon, J; Johnsdotter, S; Kwateng-Kluvitse; Weil-Curiel, L; Temmerman, M. (2007) An analysis of the implementation of laws with regard to female genital mutilation in Europe. Crime Law Soc Change (2007) 47:1-31
• Liao L, Michala l, Creighton S. Labial surgery for well women: a review of the literature. BJOG 2010;117(1):20-25. In: BJOG release: Study raises concerns about cosmetic labial surgery. At: http://www.rcog.org.uk/news/bjog-release-study-raises-concerns-about-cosmetic-labial-
• Lightfoot-Klein; H. Pharaonic Circumcision of Females in the Sudan, 2 Med. & L. (1983)
• Lloyd J et al. Female Genital Appearance: ‘normality’ unfolds. BJOG: an International Journal of Obstetrics and Gynaecology. May 2005, Vol. 112, pp. 643-646
• Lui; Joanne L. When Law and Culture Clash: Female Genital Mutilation, a Traditional Practice Gaining Recognition as a Global Concern, 11 N.Y.INT’L L. REV. 71, 77 (1998).
• Mackay R.D. (1983) Is Female Circumcision Unlawful? The Criminal Law Review 717-722
• Mason C. Exorcising exicision: Medico-legal issues arising from male and female genital surgery in Australia. J Law Med 2001: 9: 58-67
• Melissa A. Morgan, Female Genital Mutilation: An Issue on the Doorstep of the American Medical Community, 18 J.Legal Med, 93,94 (1997)
• Mustafa, Asim Z.  Female Circumcision and Infibulation in the Sudan,73 J.Obstetrics Gynaeclogy Brit Cwlth.302, 303 (1966).
• Nahid; Toubia, Female Genital Mutilation; a Call for Global Action 9(1993)
• Ogiamien, T.B.E. Assistant Lecturer, Faculty of Law, University of Benin, Nigeria, Does Female Circumcision Constitute Child Abuse?, Report on the first national conference on female genital mutilation: Unsettled issues for health and social workers in the UK. 11 (Feb. 1, 1989)
• Protection Maternelle et Infantile, Direction de l’Action Sociale de l’Enfance et de la Sante, Sous-Direction de la Petite Enfance, Departement de Paris. Note a l’attention des medicins d’arrondissement de PMI, des sages-femmes, des puericultrices-coordinatrices de creches, des puericultrices de secteur, des medecins vacataires, des directrices de consultations, <<Conduite a tenir face a l’excision des petites filles>>. 
• Purna, Sen,  Humphreys, Cathy and Kelly, Liz with Womankind Worldwide (2004) Violence against Women in the UK; CEDAW Thematic Shadow Report 2003.London: Womankind Worldwide.
• Senator Al Gore, Earth in the Balance: Ecology and the Human Spirit 12 (1993)
• Sheldon S, Wilkinson S. Female Genital Mutilation and Cosmetic Surgery: Regulating non-therapeutic body modification. Bioethics 1998; 12: 263-85
• Slack; Alison T. Female Circumcision: A Critical Appraisal, 10 HUM. RTS Q. 437 (1998) p 445
• Sleator, Alex (2003) The Female Genital Mutilation Bill: Bill 21 of 2002-2003. Research Paper 03/24. London: House of Commons Library
• Sone K. (1992). Abuse and Sexuality Culture. Community Care 11 (919), 16-17.
• Sussman. Erika. Contending with Culture: An Analysis of the Female Genital Mutilation Act of 1996 31Cornell Int’l L.J. 193 (1998) p 248
• Tarpley, Joan R.  Bad Witches: a Cut on the Clitoris with the Instruments of Institutional Power and Politics, 100 W. Va. L. Rev. 297, 316 (1997).
• The Waris Dirie Story in: The Female Genital Cutting Education and Networking Project.
• Walley, Christine J. (1997) ‘Searching for “voices”: Feminism, Anthropology, and The Global Debate over Female Genital Operations’, Cultural Anthropology 12(3) ; 429
• Weil-Curiel , L. (2003). Weibliche Genitalverstummelung aus Sicht einer franzosischen Rechtsanwalting und Aktivistin.In Terre des Femmes (Ed). Schnitt in die Seele. Weibliche Genital verstummelung-eine fundamentale Menschenrechtsverletzung. Frankfurt am Main: Mabuse-Verlag
• WLUML (2004) UK: Female Genital Mutilation Act 2003. Wluml.org/English/newsfulltxt.shtml
• Wood, Alexi Nicole A Cultural Right of Passage or a Form of Torture: Female genital Mutilation from an International Law Perspective.12 Hastings Women’s L.J. 348 2001. P 386

Reports and Publications

• World Health Organisation: .Regional Plan of Action to Accelerate the Elimination of FGM in Africa. Brazzaville: WHO, 1997
• WHO, Factsheet No. 241 (June 2000), available at: http://www.who.int/mediacentre/factsheets/fs241/en/.
• UN General Assembly Resolution A/RES/56/128, 7 December 2001.
• Statement of Boutros Boutros-Ghali, on the concluding day of the 4^th World Conference on Women, Beijing, 15.09.95, ‘Introduction’ to Platform for Action and the Beijing Declaration, UN Dept. of Public Information, 1996, 2
• Rendall of Babergh, Baroness: Female Genital Mutilation Act : Prosecutions, HL Deb 03 March 2005, Hansard, vol. 670 cc347-50).
• Lloyd-Roberts, Sue.http://www.bbc.co.uk/news/world-18976217. Last accessed 13.8.13
• ICESR, General Comment No.16 (2004), Article 3: The Equal Right of Men and Women to the Enjoyment of all Economic, Social and Cultural Rights, UN Doc. E/C. 12/2005?3, para. 27.
• Sati Regulation XVII, A.D. 1829 of the Bengal Code, December 4, 1829
• ICESCR, general Comment No. 16 (2004), Article 3: The Equal Right of Men and Women to the Enjoyment of all Economic, Social and Cultural Rights, UN Doc. E/C.12/2005/3, para. 27. HRC, General Comment No. 28 (2000), Equality of Rights Between Men and Women (Article 3).UN, Doc. CCPR/C/21?Rev.1?Add.10, para. 2.
• ICESCR, General Comment No. 14 (2000), The right to the highest attainable standard of health, Un Doc. HRI/GEN/1/Add.6, paras. 129b0, 20 &21.
• HRC, General Comment No. 28 (2000), Equality of rights between men and women (Article 3).UN, Doc. CCPR/C/21/Rev.1/Add.10, para. 2.
• HRC, General Comment No. 28 (2000), Equality of the rights between men and women (Article 3). UN Doc. CCPR/C/21/Rev.1/Add.10, para. 11
• HRC (Optional Protocol to the ICCPR, GA res. 2200 A (XXI), 16 Dec. 1966; entered into force 23 Mar. 1976)); CERD (Art. 14, ICERD); Women’s Committee (Optional Protocol to the CEDAW, GA res. A/54/4, 6 Oct. 1999; entered into force 22 Dec. 2000)
• GMC: Confidentiality: Protecting and Providing Information (2009) para 53-56
• FORWARD (Foundation for Women’s Health Research and Development) (2007) A Statistical Study to Estimate the Prevalence of Female Genital mutilation in England and Wales. London: FORWARD
• HRC, Concluding observations on Kenya, UN Doc. CCPR/CO/83/KEN (2005) (arts. 3&7), para. 12; Benin UN Doc. CCPR/CO/82/BEN (Arts. 3 & 23), para 11; Mali, Un Doc. CCPR/CO/77/MLI (2003) (arts. 3 & 7), para 11.
• HM Government Multi-Agency Practice Guidelines: Female Genital Mutilation. London: HM Government, 2011, p11.
• Hosken, Fran. The Hosken Report: Genital and Sexual Mutilation of Females 32 (4^th ed. 1993)
• All Party Parliamentary Group on Population, Development and Reproductive Health (APPG) (2000) Parliamentary Hearing on Female Genital Mutilation. APPG, England
• CEDAW, Concluding observations on Ethiopia, Un Doc A/51/38 (Part 1) (1996), para 155; Nigeria, UN Doc. A/59/38 (2004), para. 276; Benin, UN Doc. A/51/38 (2005), para. 132.
• CEDAW, General Recommendation No. 14 (1990), Female Circumcision, UN Doc. HRI/GEN/1/Rev. 7.
• CEDAW, General Recommendation No. 19 (1992), Violence against Women, UN Doc. HRI/GEN/1/Rev.7,para. 6
• CEDAW, Concluding observations on Ethiopia, Un Doc A/51/38 (Part 1) (1996), para 155; Nigeria, UN Doc. A/59/38 (2004), para. 276; Benin, UN Doc. A/51/38 (2005), para. 132
• CEDAW, General Recommendation No. 19 (1992), Violence against Women, UN Doc. HRI/GEN/1/Rev. 7, para.9
• CEDAW, General Recommendation No.19 (1992), Violence against Women, UN Doc. HRI/GEN/1/Rev.7, para. 20
• BMA: Female Genital Mutilation: Caring for patients and safeguarding children. Guidance for Doctors. British Medical Association. July 2011
• HRC, Concluding observations on Kenya, UN Doc. CCPR/CO/83/KEN (2005) (arts. 3&7), para. 12; Benin UN Doc. CCPR/CO/82/BEN (Arts. 3 & 23), para 11; Mali, Un Doc. CCPR/CO/77?MLI (2003) (arts. 3 & 7), para 11
• Department of Health (2005) Responding to Domestic Abuse: A handbook for health professionals. London: Department of Health. Section 2.2 p10
• Department of Health, home Office and Department for Education and Employment (1999) Working Together to Safeguard Children. London: The Stationery Office; at: http://www.dh.gov.uk/en/Publicationsandstatistics/Publications?
• CERD, General Recommendation No. XXV (2000), Gender related dimensions of racial discrimination, UN Doc. HRI/GEN/1/Rev. 7, para. 2
• Commission on the Status of Women, Fifty-seventh session, 4-15 March 2013 The elimination and prevention of all forms of violence against women and girls. Agreed conclusions. (Advance Unedited Version).
• British Medical Association ‘The law and ethics of male circumcision: guidance for doctors J Med Ethics 2004; 30 : 259-263

Websites

• http://cps.gov.uk/news/latest_news/cps_decision_on_female_genital_mutilation_case/  Last accessed 01/09/2013
• http://fgmnetwork.org/articles/waris.phs
• http://unicef-irc.org/publications/pdf/fgm. Last accessed 01/09/2013
• http://www.gmc-uk.org/guidance/ethical_guidance Last accessed 19.08.2013
• http://www.londonscb.gov.uk/fgm  Last accessed 10/08/2013
• http://www.loughransolicitors.com/nicola-loughran.php. Last accessed 15.08.13
• http://www.rcog.org.uk/news/female-genital-cosmetic-surgery-increases-popularity-cl

Cases

.Sheikh Mohamed Addow, Omar v Professional Conduct Committee, General Dental Council. 27 August 2013.

.Gillick v West Norfolk and Wisbech Area Health Authority [1996] 3 All ER 402

.Re J (Specific Issues Orders: Child’s Religious Upbringing and Circumcision) [2000] 1 FLR 571

.Re J (A Minor) (Specific Issue Orders: Muslim Upbringing and Circumcision) [2000] 1 FLR 571; [2000] 1 FCR 307; [2000] 52 BMLR 82.

.Fornah v Secretary of State for the Home Department [2005] EWCA Civ 680

.Islam v Secretary of State for the Home Department (1999) 2 WLR 1015

.R. v. Immigration Appeal Tribunal and another, ex. Parte Shah

.Islam and others v. Secretary of State for the Home Department, UK House of Lords [1999] 2 AC 629, [1999] 2 All ER 545

.Kaba v Canada (1465/2006) UN Human Rights Committee 25/03/10 28 B.H.R.C. 783

.A v Australia (1429/2005); UN HRC

.Khan v Canada (1302/2004); UN HRC

.A.T.v Hungary, CEDAW No. 2/2003, para 9.4.

.Goekce v Austria, CEWAD No. 5/2005, para 12.1.4

.Yildrum v Austria, CEDAW No. 6/2005

.Adan v Denmark (43/2008) UN Committee on the Elimination of Racial Discrimination

.W v Westminster City Council and Others[2005] 1 FCR 39.    

.Re H (Children) [2009] EWCA Civ 704

.VK v Bulgaria (20/2008) UN Committee on the Elimination of Discrimination Against Women 25/07/11

.R (A Child), Re CoA Civ Div 15/11/06 [2006] EWCA Civ 1638; [2007] 1 F.L.R.1830

.O-S (Children: Care Order), Re Court of Appeal (Civil Division) 17/12/01 [2001] EWCA Civ 2039; [2002] 2 F.C.R,689

.Re C (a minor)(care proceedings:disclosure)[1997] Fam 76.

.Lancashire CC v B (A Child) (Care Orders: Significant Harm) Also known as :BW (Care Orders), Re Lancashire CC v A (AChild) Lancashire CC v W (A Child) (Care Orders: Significant Harm), B and W (Children) (Threshold Criteria), Re House of Lords 16.03.00

.Re L (A Minor) [1998] 2 FLR 810

.Re R (A Minor: Wardship Consent to Treatment) [1991] 3 WLR 592

.Rex v Donovan (1934) 2 KB 498 at 507, All ER 1057

.Re G (a minor) [1996] 2 AER 65

.South Glamorgan CC v B [1993] 1 FLR 574

.Re K,W and H [1993] 1 FLR 854

.Ahmed v General Medical Council 66 BMLR 52 [2001] UKPC 49

Table of UK Statutes

.Children Act 1989

.Data Protection Act 1998

.Domestic Violence, Crime and Victims Act 2004

.Female Genital Mutilation Act 2003

.Human Rights Act 1998

.Offences Against the Person Act 1861

.Police and Criminal Evidence Act 1984

.Public Interest Disclosure Act 1998

Abbreviations

.APPG               All Party Parliamentary Group

.BBC                 British Broadcasting Corporation

.BMA                British Medical Association

.CEDAW           Convention for the Elimination of All Forms of Discrimination Against Women

.CERD             Convention for the Eradication of Racial Discrimination

.CESCR           Convention on Economic, Social and Cultural Rights

.DVCVA         Domestic Violence, Crimes and Victim’s Act

.FGCS             Female Genital Cosmetic Surgery

.FGM                Female Genital Mutilation

.FORWARD     Foundation for Women’s Health Research and Development

.GMC                General Medical Council

.ICCPR            International Convention on Cultural and Political Rights

.ICESR            International Convention on Economic and Social Rights

.NGO                Non-Government Organisation

.RCOG              Royal College Obstetricians and Gynaecologists

.UK                  United Kingdom

.UN                   United Nations

 

References

.[1] A woman of courage in Somalia, (Anon) ‘Three Feminine Sorrows’ In: C. Momoh (ed.), Female Genital Mutilation, (Radcliffe, Oxon 2009).

.[2]McCafferty, C. MP, Chair, UK All Party Parliamentary Group on Population, Development and Reproductive Health.  In: Female Genital Mutilation. Comfort Momoh. (Ed Momoh, C). (Radcliffe Publishing, Oxford 2009). .[3]Alison T. Slack, ‘Female Circumcision: A Critical Appraisal’, 10 HUM. RTS Q. 437 (1998) p 445.

.[4]See Slack Ibid, p 446. Some Muslim leaders support FGM, however there is no Qu’ranic scripture that requires the procedure.

.[5]Joanne A. Lui, ‘When Law and Culture Clash: Female Genital Mutilation, a Traditional Practice Gaining Recognition as a Global Concern’, 11 N.Y.INT’L L. REV. 71, 77 (1998). Some Christian Leaders claim the Bible supports FGM because the book of genesis suggests all male children should be circumcised. However, note that the reference is to the males and at no point is the female child mentioned. The Christian faith does not require its females to be circumcised.

.[6] Slack, supra note 3, pp 445-446.

.[7]Amnesty International, Section One: ‘What is Female Genital Mutilation?’ at 5. http://www.amnesty.org/ailib/intcam/femgen/fgm

.[8] McLean, S.; and  Graham, S.E. (eds.)‘Minority rights group: female circumcision, excision and Infibulation: The Facts and Proposals for Change’, 5 p 7 (Minority Rights Group LTD (MRG),London, 1985).

.[9]Bashir, L M. ‘Female Genital Mutilation in the United States: An Examination of Criminal and Asylum Law’, 4 ‘p 415, 420 (1996)

.[10]Ibid p427

.[11] Melissa A. Morgan, ‘Female Genital Mutilation: An Issue on the Doorstep of the American Medical Community’, 18, J Legal Med, 93,94 (1997)

.[12] Sandra D. Lane & Robert A. Rubinstein, ‘Judging the other: responding to traditional female genital surgeries’, Hastings Center Rep; May-June 1996, p 33.

.[13]Supra note 12 p95

.[14]Supra note 8 p5

.[15]Supra note 12 p95

.[16]Supra note 3 p454

.[17]Hanny Lightfoot-Klein, ‘Pharaonic Circumcision of Females in the Sudan’, 2 Med. & L. (1983)

.[18]Nahid Toubia, ‘Female Genital Mutilation; a Call for Global Action’ p.9(Women Ink. New York, USA,1993)

.[19] Supra Note 3 p 448

.[20] Supra Note 10 p 426

.[21]Isacc Baker Brown, The Curability of certain forms of Insanity, Epilepsy, Catalepsy, and Hysteria in Females, (ed Robert Hardwicke, London, 1866)

.[22]BMJ Letters (1866, 1, 438)

.[23]For an  in depth historical review of his downfall see J.B.Fleming, ‘Clitoridectomy-The Disastrous Downfall ofIsaac Baker Brown’, FRCS (1867), Journal of Obstetrics and Gynaecology, pp1017-1034

.[24] Offences Against the Person Act 1861 was originally used for cases of FGM the crime being maiming.

.[25] Fran P. Hosken, The Hosken Report 25 (3d ed. 1982). P260. The child was brought to hospital 3 days after the procedure but bled to death. The father was arrested and  charged with criminal negligence.

.[26] Mackay R.D. (1983) ‘Is Female Circumcision Unlawful?’ Criminal Law Review 717-722.l

.[27] Akers S. (1994) Female Genital Mutilation: cultural o criminal? Journal of Child Law 6 (1), 27-31.

.[28]Prohibition of Female Circumcision Bill [H.L.] (Hansard, 10 November 1983 Vol 444 cc990-1003)

.[29] Prohibition of Female Circumcision Bill [H.L.] (Hansard, 23 January 1984 Vol 447 cc72-91)

.[30]Feroze, Rustam. (8.2.94) The Times, Letters

.[31]Prohibition of Female Circumcision Act 1985; at: www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1985/cukpga_19850038_en_1

.[32] Dustin, Moira. ‘Female Genital Mutilation/Cutting in the UK: Challenging the Inconsistencies’. European Journal of Women’s Studies 2010 17:7 p16

.[33] Walley, Christine J. (1997) ‘Searching for “voices”: Feminism, Anthropology, and The Global Debate over Female Genital Operations’, Cultural Anthropology 12(3) ; 429

.[34]Gunning, Isabel R. (1992) ‘Arrogant Perceptions, World Travelling and Multicultural feminism: The Case of Female Genital Surgeries’, Columbian Human Rights Law Review 23(2) 213.

.[35]Department of Health, Home Office and Department for Education and Employment (1999) Working Together to Safeguard Children. London: The Stationery Office; at: http://www.dh.gov.uk/en/Publicationsandstatistics/Publications?

.[36]Hedley R and Shaw E (1991) ‘Child Protection and Female Genital Mutilation’. Foundation for Women’s Health Research and Development, London

.[37] They can be charged under Section1 of the Children’s and Young Person’s Act 1933 (any person over the age of 16 years who causes a child injury to health or mental derangement shall be guilty of a misdemeanor) with a maximum penalty of 10 years. Assault under section 20 or section 47 of the offences Against the Person Act 1861 can also be used and carries a maximum sentence of 5 years. www.cps.gov.uk/legal/p_to_r/prosecution

.[38]WLUML (2004) UK: Female Genital Mutilation Act 2003. Wluml.org/English/newsfulltxt.shtml

.[39]Sleator, alex (2003) The Female Genital Mutilation Bill: Bill 21 of 2002-2003. Research Paper 03/24. (London: House of Commons Library).

.[40]All Party Parliamentary Group on Population, Development and Reproductive Health (APPG) (2000) Parliamentary Hearing on Female Genital Mutilation. APPG, England.

.[41]Dyer, O. (1993) ‘Gynaecologist Struck off over Female Circumcision’, British Medical Journal 307(6917): 1441-1442.

.[42] Mackay R.D.(1983) ‘Is Female Circumcision Unlawful?’ The Criminal Law Review 717-722.

.[43] Supra note 38

.[44]Ahmed v General Medical Council 66 BMLR 52 [2001] UKPC 49

.[45]Dorkenoo, Efua and Scilla Elworthy (1994) ‘Female Genital Mutilation’, pp137-148 in Miranda Davies (ed.) Women and Violence: Realities and Responses Worldwide. (London: Zed books.)

.[46] Supra note 32

.[47] Supra note 32

.[48]‘In research by the Development Support Agency, 505 of those interviewed didn’t know that FGM was illegal and 31% said they did not care whether it was or it wasn’t as they still intended to do it’ (Parliamentary questions by Baroness Rendall of Babergh: Female Genital Mutilation Act : Prosecutions, HL Deb 03 March 2005, Hansard, vol. 670 cc347-50).

.[49]FORWARD (Foundation for Women’s Health Research and Development) (2007) A Statistical Study to Estimate the Prevalence of Female Genital mutilation in England and Wales. (London: FORWARD 2007).

.[50]Sen, Purna, Cathy Humphreys and Liz Kelly with Womankind Worldwide (2004) ‘Violence against Women in the UK; CEDAW Thematic Shadow Report 2003’ .(London: Womankind Worldwide., 2004)

.[51]Moira Dustin ‘Female Genital mutilation in the UK: Challenging the Inconsistencies’ European Journal of Women’s Studies 2010 17:7 p19

.[52]In an interview on 04.11.04  Efua Dorkenoo for FORWARD said ‘ we don’t have time to wait until the white women are conscious of their own oppression [in relation to cosmetic surgery] ‘.

.[53] http://cps.gov.uk/news/latest_news/cps_decision_on_female_genital_mutilation_case/  last accessed 01/09/2013

.[54] World Health Organisation.’Regional Plan of Action to Accelerate the Elimination of FGM in Africa’. Brazzaville:WHO, 1997

.[55] ‘Female Genital Mutilation: Caring for patients and safeguarding children’. Guidance for Doctors. British medical association. July 2011

.[56] Asim Z. Mustafa, ‘Female Circumcision and Infibulation in the Sudan’,73 J.Obstetrics Gynaeclogy Brit Cwlth.302, 303 (1966).

.[57] Fran Hosken, ‘The Hosken Report: Genital and Sexual Mutilation of Females ‘32 (4^th ed. 1993)

.[58] Catherine Annas, ‘Irreversible Error: the Power and Prejudice of Female Genital Mutilation’.12 J.Contem. Health L.       & Policy 325 1995-1996

.[59]The UK signed the Convention on 19.04.1990, ratified it on 16.12.1991 and it came into force 15.01.1992

.[60] Supra note 37

.[61]L’enfant mutile by Renee Bridel, delegate of the FIFCJ to the UN, Geneva, 1978.

.[62] http://unicef-irc.org/publications/pdf/fgm. Last accessed 01/09/2013

.[63] UN General Assembly Resolution A/RES/56/128, 7 December 2001.

.[64] Efua Dorkenoo and Scilla Elworthy, ‘Minority Rights Group International: Proposals for Change 11’ (1992).p37

.[65]Rodney Hedley & Efua Dorkenoo, Foundation for women’s health research and development (FORWARD), ‘Child protection and female genital mutilation: advice for health, education, and social work professionals’ 5 (1992).pp12-13

.[66] Supra note 62 p38

.[67] Ibid p38

.[68] Sone K. (1992). Abuse and Sexuality Culture. Community Care 11 (919), 16-17.

.[69]Children Act, 1989, part V, sect. 47.

.[70] Children’s Act, 1989, partII, sect. 8.

.[71]Childrens Act, 1989, part IV, sect. 31.

.[72]Elizabeth Heger Boyle & Amelia Cotton Corl, ‘Law and Culture in a Global Context: Interventions to Eradicate Female Genital Cutting’. Annu. Rev. Law. Soc. Sci. 2010, 6: 195-215 p200.

.[73]HM Government ‘Multi-Agency Practice Guidelines: Female Genital Mutilation’. London: HM Government, 2011, p11.

.[74] The Children’s Act 1989 Part IV Section 38 (6)

.[75] The Children’s Act 1989 Part V Section 44 (6) and (7).

.[76] However in South Glamorgan CC v B [1993] 1 FLR 574 Douglas Brown said of a child that was Gillick competent and refused removal from her home for assessment in her best interest “ I am not prepared to find that she is Gillick incompetent… but the court’s inherent jurisdiction is much broader than the Children’s Act.” This is bourne out in Re K,W and H [1993] 1 FLR 854 too.

.[77] ‘Female Genital Mutilation: caring for Patients and Safeguarding Children’. Guidance from the British Medical Association July 2011

.[78] http://www.londonscb.gov.uk/fgm  last accessed 10/08/2013

.[79] http://www.gmc-uk.org/guidance/ethical_guidance  last accessed 19.08.2013

.[80]Leye, E et al. ‘An analysis of the implementation of laws with regard to female genital mutilation’. Crime Law Soc  (2007) 47:1-31

.[81] http://www.cps.gov.uk/publications/agencies/protocolletter.html

.[82] Re G (a minor) [1996] 2 AER 65

.[83] Gillick v West Norfolk & Wisbech Area Health Authority & DHSS [1985] 3 All ER 402

.[84] Re R (A Minor: Wardship Consent to Treatment) [1991] 3 WLR 592

.[85]T.B.E. Ogiamien, Assistant Lecturer, Faculty of Law, University of Benin, Nigeria, ‘Does Female Circumcision Constitute Child Abuse?’, Report on the first national conference on female genital mutilation: Unsettled issues for health and social workers in the UK. 11 (Feb. 1, 1989) (organised by Foundation for Women’s Health Research and Development (FORWARD). Ogiamien also raises the issue that the 1959 United Nations Declaration of the Rights of the Child guarantees that children be given the opportunity to develop “physically, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity.” He also suggests the female genital mutilation violates a child’s right to the “necessary medical assistance and health care” guaranteed by the Draft Convention on the Rights of the Child, adopted by the United Nations Open-ended Working Group on the Question of a Convention on the Rights of the Child 1979-1988.

.[86] Mason J.K. & McCall Smith R.A. (1998) Law and Medical Ethics 5^th edn. Butterworths, London.

.[87] Giles M. (1994) R v Brown : consensual harm and the public interest. Modern Law Review 57, 101-111.

.[88] Rex v Donovan (1934) 2 KB 498 at 507, All ER 1057.

.[89]Homer H. Clark, JR., The Law of Domestic Relations in the United States, Ch. 9, section 9.4 p346 (2^nd ed 1988)

.[90]Senator Al Gore, Earth in the Balance: Ecology and the Human Spirit 12 (1993)

.[91] Re L (A Mionr) [1998] 2 FLR 810

.[92]Offences Against the Person Act 1861

.[93]The Somali model Miss Waris Dirie

.[94]Lancashire CC v B (A Child) (Care Orders: Significant Harm) Also known as :BW (Care Orders), Re Lancashire CC v A (AChild) Lancashire CC v W (A Child) (Care Orders: Significant Harm), B and W (Children) (Threshold Criteria), Re House of Lords 16.03.00

.[95]Department of Health (2005) Responding to Domestic Abuse: A handbook for health professionals. London: Department of Health. Section 2.2 p10

.[96] Alio AP, Daley EM, Nana PN, Duan J, Salihu HM, ‘Intimate partner violence and contraception use among women in Sub-Saharan Africa’. Int J Gynaecol. Obstet. 2009; 373:318-24

.[97]Gomez AM, Speizer IS. ‘Community-level intimate partner violence and the circumstances of first sex among young women from five African countries’. Reproductive Health 2010; 7

.[98] GMC: Confidentiality: Protecting and Providing Information (2009) para 53-56

.[99] Re C (a minor)(care proceedings:disclosure)[1997] Fam 76.

.[100] O-S (Children: Care Order), Re Court of Appeal (Civil Division) 17/12/01 [2001] EWCA Civ 2039; [2002] 2 F.C.R,689

.[101]The Waris Dirie Story in The Female Genital Cutting Education and Networking Project. http://fgmnetwork.org/articles/waris.php Last accessed  27/07/13

.[102]R (A Child), Re CoA Civ Div 15/11/06 [2006] EWCA Civ 1638; [2007] 1 F.L.R.1830

.[103] Section 5 of the Domestic Violence, Crime and Victim’s Act 2004 as amended by DVCVA 2012 which creates an offence of causing or allowing a child or vulnerable adult to die or suffer serious physical harm.

.[104]W v Westminster City Council and Others[2005] 1 FCR 39.

.[105]See Re H (Children) [2009] EWCA Civ 704

.[106] VK v Bulgaria (20/2008) UN Committee on the Elimination of Discrimination Against Women 25/07/11

.[107] Ibid

.[108]Commission on the Status of Women, Fifty-seventh session, 4-15 March 2013 The elimination and prevention of all forms of violence against women and girls. Agreed conclusions. (Advance Unedited Version).

.[109]Adan v Denmark (43/2008) UN Committee on the Elimination of Racial Discrimination

.[110]Statement of Boutros Boutros-Ghali, on the concluding day of the 4^th World Congress on Women, Beijing, 15.09.95, ‘Introduction’ to Platform for Action and the Beijing Declaration, UN Dept. of Public Information, 1996, 2.

.[111]WHO, Factsheet No. 241 (June 2000), available at: http://www.who.int/mediacentre/factsheets/fs241/en/.

.[112]Coomaraswamy, Radhika ‘Cultural  practices in the family hat are violent towards women’, UN Doc. E/CN.4/2002/83, 31 Jan. 2002, pp.9-10

.[113]HRC (Optional Protocol to the ICCPR, GA res. 2200 A (XXI), 16 Dec. 1966; entered into force 23 Mar. 1976)); CERD (Art. 14, ICERD); Women’s Committee (Optional Protocol to the CEDAW, GA res. A/54/4, 6 Oct. 1999; entered into force 22 Dec. 2000)

.[114]Art. 1 (1) , CEDAW

.[115] CEDAW, General Recommendation No. 19 (1992), Violence against Women, UN Doc. HRI/GEN/1/Rev. 7, para.9.

.[116] Austria was brought to task by the women’s Committee in 2005 where a woman was shot by her husband after several years of domestic abuse which the police had knowledge of. The final call for help was not treated as an emergency and the shooting followed. The Austrian police was held accountable for not exercising due diligence to protect the appellant by reason that she was a woman (Goekce v Austria, CEWAD No. 5/2005, para, 12.1.4.) In Yildrum v Austria the Women’s Committee considered that the woman had not been afforded the protection of the state and was stabbed to death by her violent husband following years of abuse. They considered that the state had not used due diligence obligations to detain the husband in order to protect the appellant and that this was discrimination (Yildrum v Austria, CEDAW No. 6/2005

.[117]CEDAW, General Recommendation No. 19 (1992), Violence Against Women, UN Doc. HRI/GEN/1/Rev.7, para. 6.

.[118]Ibid para. 7

.[119]ICESR, General Comment No.16 (2004), Article 3: The Equal Right of Men and Women to the Enjoyment of all Economic, Social and Cultural Rights, UN Doc. E/C. 12/2005?3, para. 27.

.[120]HRC, General Comment No. 28 (2000), Equality of Rights Between Men and Women (Article 3).UN, Doc. CCPR/C/21?Rev.1?Add.10, para. 2.

.[121]See, e.g., CEDAW, Concluding observations on Ethiopia, UN Doc A/51/38 (Part 1) (1996), para 155; Nigeria, UN Doc. A/59/38 (2004), para. 276; Benin, UN Doc. A/51/38 (2005), para. 132.

.[122]A.T.v Hungary, CEDAW No. 2/2003, para 9.4.

.[123]CEDAW, General Recommendation No.19 (1992), Violence against Women, UN Doc. HRI/GEN/1/Rev.7, para. 20 CEDAW, General Recommendation No. 14 (1990), Female Circumcision, UN Doc. HRI/GEN/1/Rev. 7.

.[125]ICESCR, general Comment No. 16 (2004), Article 3: The Equal Right of Men and Women to the Enjoyment of all Economic, Social and Cultural Rights, UN Doc. E/C.12/2005/3, para. 27.

.[126]ICESCR, General Comment No. 14 (2000), The right to the highest attainable standard of health, Un Doc. HRI/GEN/1/Add.6, paras. 129b0, 20 &21.

.[127]See e.g; HRC, Concluding observations on Kenya, UN Doc. CCPR/CO/83/KEN (2005) (arts. 3&7), para. 12; Benin UN Doc. CCPR/CO/82/BEN (Arts. 3 & 23), para 11; Mali, Un Doc. CCPR/CO/77?MLI (2003) (arts. 3 & 7), para 11.

.[128]HRC, General Comment No. 28 (2000), Equality of the rights between men and women (art 3), UN Doc. CCPR/C/21/Rev.1/Add.10, para. 11.

.[129]Joan Fitzpatrick, ‘The use of International Human Rights Norms to Combat Violence Against Women’, in R.J. Cook (ed.), Human Rights of Women: National and International Perspectives (University Pennsylvania Press, Philadelphia, 1994) 532,538.

.[130]A.P.Ewing, ‘Establishing State Responsibility for Private Acts of Violence against Women under the American Convention on Human Rights’, (1995) 26 Colum.Human. L. Rev.  751, 780.

.[131]R. v. Immigration Appeal Tribunal and another, ex. Parte Shah; Islam and others v. Secretary of State for the Home Department, UK House of Lords [1999] 2 AC 629, [1999] 2 All ER 545, per Lord Hoffman.

.[132]Kaba v Canada (1465/2006) UN Human Rights Committee 25/03/10 28 B.H.R.C. 783 available at http://login.westlaw.co.uk/maf/wluk/app/delivery?&summary=true&status=true&doc last accessed 28/07/13. See also A v Australia (1429/2005); UN HRC and Khan v Canada (1302/2004); UN HRC [133]Fornah v Secretary of State for the Home Department [2005] EWCA Civ 680

.[134]Islam v Secretary of State for the Home Department (1999) 2 WLR 1015

.[135]Case analysis available: http://login.westlaw.co.uk/maf/wluk/app/delivery?&links=true&altview=&status=true last accessed 27/07/2013

.[136] K v Secretary of State for the Home Department [2007] 4 LRC 401. http://www.lexisnexis.com/uk/legal/results/enhdocview.do?docNo=10&backKey=20_ last accessed 25/07/2013

.[137] British Medical Association ‘The law and ethics of male circumcision: guidance for doctors J Med Ethics 2004; 30: 259-263.

.[138] Marie Fox and Michael Thomson: ‘Short Changed? The Law and Ethics of Male Circumcision.’ The int’l J of Children’s Right’s, 13:161-181, 2005

.[139]Also known as Re  J (Specific Issues Orders: Child’s Religious Upbringing and Circumcision),  and Re J (A Minor) (Specific Issue Orders: Muslim Upbringing and Circumcision) [2000] 1 FLR 571; [2000] 1 FCR 307; [2000] 52 BMLR 82.

.[140] Brazier, M (2003) Medicine Patients and the Law (3^nd edn; London, Penguin)

.[141]Bridge, C. (2002) ‘Religion, culture and the Body of the Child’ in A. Bainham et al; (eds.) Body Lore and Laws, Oxford, Hart. P279

.[142] Fox, M. and Thomson, M. (2005) ‘A covenant with the status quo? Male Circumcision and the new BMA guidance to doctors.’J Med Ethics 31.

.[143] Benatar, M. and Benatar, D, (2003) ‘Between Prophylaxis and Child Abuse: The Ethics of Neonatal Male Circumcision.’ American Journal of Bioethics 3, (2) pp.35-48

.[144]Gillick v West Norfolk and Wisbech Area Health Authority [1996] 3 All ER 402.

.[145] De Lucas, J; Anon, R.M.J; Bedoya, M.H; Fernandez, I.M; Flores Gimenez, F; Galiana, S.A;& Garcia, A. (coordinador) et el. (2004) Evaluating the impact of existing legislation in Europe with regard to FGM. Spanish national report. Centre of citizenship, Migration and Minorities/Grupo de Estudios sobre Ciudadania, Inmigracion, Valencia: Universitat of Valencia.

.[146]Birgitta Essen and Sara Johnsdotter ‘ Female genital mutilation the west: traditional circumcision versus genital cosmetic surgery. Acta Obstet Gynecol Scand 2004: 83: 611-613

.[147]Sheldon S, Wilkinson S. ‘Female Genital Mutilation and Cosmetic Surgery: Regulating non-therapeutic body modification’. Bioethics 1998; 12: 263-85

.[148]Mason C.’ Exorcising excision: Medico-legal issues arising from male and female genital surgery in Australia’. J Law Med 2001: 9: 58-67

.[149]Allotey P, Manderson l, Grover S. ‘The politics of female genital surgery in displaced communities’. Crit Public Health 2001; 11: 189-201.

.[150] http://www.rcog.org.uk/news/female-genital-cosmetic-surgery-increases-popularity-cl… Last accessed 21/05/2013

.[151]Marge Berer. ‘Labia reduction for non-therapeautic reasons vs. female genital mutilation: contradictions in law and practice in Britain’. Reproductive health Matters. Volume 18, issue 25, may 2010 pp 106-110

.[152] Female Genital Mutilation Act 1985 2(1) (a)

.[153]Female Genital Mutilation (Scotland) Act 2005. http://www.opsi.gov.uk/legislation/scotland/acts2005/20050008.htm>. Last accessed 10/06/13

.[154]Liao L, Michala l, Creighton S. ‘Labial surgery for well women: a review of the literature’. BJOG 2010;117(1):20-25. In: BJOG release: Study raises concerns about cosmetic labial surgery. At: http://www.rcog.org.uk/news/bjog-release-study-raises-concerns-about-cosmetic-labial-surgery. Accessed: 12/08/2013

.[155]Lloyd J et al. ‘Female Genital Appearance: ‘normality’ unfolds’. BJOG: an International Journal of Obstetrics and Gynaecology. May 2005, Vol. 112, pp. 643-646

.[156]Anila Rahman and Nahid Toubia. Female Genital Mutilation: a Guide to Laws and Policies Worldwide. (Zed Books, London 2^nd ed.) 2001. Ch 2  p 15

.[157] Human Rights Act 1998

.[158]J. Fitzpatrick, “The Use of International Human Rights Norms to Combat Violence Against Women,” in R. Cook (ed.) Human Rights and Women- National and International Perspectives, Philadelphia: University of Pennsylvania Press, 1994, pp. 532-541

.[159]Supra note 130. P89

.[160] Ibidp.90

.[161] HRA 1998, s 3

.[162] HRA 1998, ss 6-8

.[163] Engle K. (1992) ‘Female subjects of public international law: human rights and the exotic other female’. New England Law Review 26 , 1509-1515

.[164]Ibid p13

.[165] Jordan, J.A. (1994) ‘Female Genital Mutilation(female circumcision)’. British Journal of Obstetrics 101, 94-95

.[166] Linda Weil-Curiel,  personal communication between 2.8.13 and 14.8.13 by email

.[167] Guideline regarding excision of girls.

.[168] Mother and  Child Health Care service, a public service provided in each of the French departments.

.[169] Protection Maternelle et Infantile, Direction de l’Action Sociale de l’Enfance et de la Sante, Sous-Direction de la Petite Enfance, Departement de Paris. Note a l’attention des medicins d’arrondissement de PMI, des sages-femmes, des puericultrices-coordinatrices de creches, des puericultrices de secteur, des medecins vacataires, des directrices de consultations, <<Conduite a tenir face a l’excision des petites filles>>.

.[170] [171]http://www.loughransolicitors.com/nicola-loughran.php. Last accessed 15.08.13

.[172] Prohibition of Female Genital Mutilation (Scotland) Act 2005 (Royal assent 30/10/2003, commenced 03/03/2004

.[173] Iain Brown BMJ 2013; 346:f29 Letter.

.[174] http://www.bbc.co.uk/news/world-18976217 Report by Sue Lloyd-Roberts. Last accessed 13.8.13

.[175]Weil-Curiel , L. (2003). Weibliche Genitalverstummelung aus Sicht einer franzosischen Rechtsanwalting und Aktivistin.In Terre des Femmes (Ed). Schnitt in die Seele. Weibliche Genital verstummelung-eine fundamentale Menschenrechtsverletzung. Frankfurt am Main: Mabuse-Verlag.

.[176]Leye, E; Deblonde, J; Garcia-Anon, J; Johnsdotter, S; Kwateng-Kluvitse; Weil-Curiel, L; Temmerman, M. (2007) ‘An analysis of the implementation of laws with regard to female genital mutilation inEurope’. Crime Law Soc Change (2007) 47:1-31

.[177]Ibid p28

.[178]The Act is now codified in two parts in the US Code: 18 U.S.C. s 116 (West Supp. 1998) and 22 U.S.C. s 262K-2 (West Supp. 1998)

.[179]Erika Sussman. ‘Contending with Culture: An Analysis of the Female Genital Mutilation Act of 1996’. 31 Cornell Int’l L.J. 193 (1998) p 248

.[180]Audrey Macklin. ‘The Double Edged Sword: Using the Criminal Law Against Female Genital Mutilation in Canada’. In: Female Genital Mutilation: Multicultural Perspectives, pp 207-223, R. Abusharaf, ed; University of Pennsylvania Press, 2006

.[181] See Barbara Crossette, ‘Court Back’s Egypt’s Ban On Mutilation’, N.Y. Times, Dec 29, 1997, at A3.

.[182] Ibid

.[183] See Amnesty International, Section Nine: Female Genital Mutilation in Africa: Information by Country. http://www.amnesty.org/ailib/intcam/femgen/fgm9.html Last accessed 24/08/13

.[184]Alice Walker, Possessing the Secret of Joy. Jonathan Cape, London 1992.

.[185]See Amnesty International, Section nine: Female Genital Mutilation in Africa: Information by country. Available at http://www.amnesty.org/ailib/intcam/femgen/fgm9.html> Last accessed 24/08/13

.[186] Stychin, CF, ‘Body Talk: Rethinking Autonomy, Commodification and the Embodied Legal Self’ in Sally Sheldon & Michael Thomson (eds.), Feminist Perspectives on Health Care Law ( London ; Cavendish, 1998), 231-236.

.[187]Joan R. Tarpley, ‘Bad Witches: a Cut on the Clitoris with the Instruments of Institutional Power and Politics’100 W. Va. L. Rev. 297, 316 (1997).

.[188]See Alison Drucker, The Influence of Western women on the Anti-Footbinding Movement 1840-1911, in Women in China: Current Directions in Historical Scholarship 179 (Richard W. Guisso & Stanley Johannesen eds; 1981)

.[189]See Sati Regulation XVII, A.D. 1829 of the Bengal Code, December 4, 1829

.[190]See Amy Finnerty, Questions for Waris Dirie: The Body Politic: The United Nations special ambassador on female genital mutilation talks about her childhood in Somalia, her life as a fashion model and her very personal crusade, N.Y. Times Mag; May 9, 1999, at 22.

.[191] See Supra note 157

.[192]Erika Sussman, ‘Contending with culture: An Analysis of the Female Genital Mutilation Act of 1996’. 31 Cornell Int’l L.J. 193 1998 p 249

.[193]See Supra note 166

.[194]Alexi Nicole Wood. ‘A Cultural Right of Passage or a Form of Torture: Female genital Mutilation from an International Law Perspective’.12 Hastings Women’s L.J. 348 2001. P 386

.[195]Sheikh Mohamed Addow, Omar v Professional Conduct Committee, General Dental Council. 27 August 2013.

.[196]See supra note 157

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For further information on Linda Weil-Curiel please see here and here (includes contact details).