The following elements should be established as the core elements in child protection laws and systems to protect against FGM. Elements are discussed in detail further below.
- Legislation should provide for an emergency order for protection remedy for a female in need of protection from undergoing FGM.
- Legislation should authorize the removal of the child from the home if the court determines that a responsible adult has a reasonable fear that a parent or parents or guardian are considering authorizing the performance of FGM.
- Legislation should authorize the placement of a child in danger of infliction of FGM in a shelter, refuge or foster home.
- Legislation should authorize the continuing placement of a child in a shelter or foster home until the child can be reconciled with the family, or, if the parent or parents will not give up their intention to have FGM performed on the minor child, authorization for the child to continue in shelter or foster care and attend school locally, or attend a boarding school to continue her education.
- Legislation should authorize the suspension of travel authority for the child if the court determines that the parents are considering authorizing the performance of FGM or if the court determines that the child or a responsible adult has a reasonable fear that the parents are considering authorizing the performance of FGM.
- Legislation should provide for procedures by which the parents can regain custody of the minor child, including receiving counseling and warnings. Once the minor child has been returned to her parents, legislation should provide for on-going visits to the minor child by social service providers and counselors to ensure the well-being of the minor child. Legislation should provide for counseling of parents to ensure that minor children do not receive pressure to undergo FGM.
- Legislation should provide for periodic physical examinations of a child if a court finds that there are reasonable grounds to suspect a child may be at risk of FGM to ensure that the child is not subjected to FGM.
- Legislation should provide that where court orders are issued for protection against FGM, the order remain in place until the parents have demonstrated at a court hearing that they understand that FGM is illegal and has adverse health consequences, and that they will not subject their daughter to FGM.
- Legislation should provide for child-centered legal services, including representation for petitioning for civil or criminal liability victim compensation.
- Legislation should presume that there is no justification for the practice of FGM and it is in the child’s best interests to not undergo FGM.
Examples of relevant language in child protection legislation:
- Kenya, Children Act of 2001:
14. No person shall subject a child to female circumcision, early marriage or other cultural rites, customs or traditional practices that are likely to negatively affect the child’s life, health, social welfare, dignity or physical or psychological development.
119. (1) For the purposes of this Act, a child is in need of care and protection -
…
(h) who, being a female, is subjected or is likely to be subjected to female circumcision or early marriage or to customs and practices prejudicial to the child’s life, education and health; …
International human rights organization Equality Now reported a 2010 case in Kenya in which both the practitioner and father of a 12 year-old girl who had died from undergoing FGM, were charged with manslaughter and sentenced to ten years imprisonment. The court found that the act violated Section 14 of the Children’s Act of 2001 and the girl’s death qualified as manslaughter under Sections 202 and 205 of the Kenyan Penal Code.(See: Equality Now Commends Kenyan Law Enforcement for Sentencing Circumciser and Father to 10 Years’ Imprisonment After Death of Maasai Girl)
- South Australia’s Children’s Protection Act, Section 26B
Protection of children at risk of genital mutilation
26B. (1) If the Court is satisfied that there are reasonable grounds to suspect that a child may be at risk of female genital mutilation, the Court may make orders for the protection of the child.
Examples — The Court might for example make an order—
(a) preventing a person from taking the child from the State; or
(b) requiring that the child’s passport be held by the Court for a period specified in the order or until further order; or
(c) providing for the periodic examination of the child to ensure that the child is not subjected to female genital mutilation.
(2) An application for an order under this section may be made by a member of the police force or by the Chief Executive.
(3) The Court may make an order on an application under this section without giving a person who is to be bound by the Court’s order notice of the proceedings or an opportunity to be heard in the proceedings.
(4) However, in that case the Court must allow the person against whom the order is made a reasonable opportunity to appear before the Court to show why the order should be varied or revoked.
(5) In proceedings under this section the Court must assume that it is in the child’s best interest to resist pressure of racial, ethnic, religious, cultural or family origin that might lead to genital mutilation of the child.
- Ghana Children’s Act of 1998, section 5:
“No person shall deny a child the right to live with his parents and family and grow up in a caring and peaceful environment unless it is proved in court that living with his parents would—
(a) lead to significant harm to the child; or
(b) subject the child to serious abuse; or
(c) not be in the best interest of the child.
CASE STUDY: United Kingdom, Children Act of 1989:
FGM has been a criminal offence in the United Kingdom since the Prohibition of Female Circumcision Act 1985, which entered into force on July 16, 1985. In 2003, the Act was replaced with the Female Genital Mutilation Act 2003, which, in addition, makes it a criminal offence for permanent residents or nationals of the UK to carry out or to aid in the carrying out of FGM abroad.
In addition to criminalizing the practice of FGM, the United Kingdom has integrated the prevention of FGM into the child protection system. FGM is considered a form of physical abuse and, as a result, is a basis for government intervention to protect the child if there is reasonable suspicion of child abuse. The Children Act of 1989 sets forth a framework for local state authorities to follow for the care and protection of a child. In practice, however, these protections may still be limited.
Pursuant to Section 47 of the Act, local authorities must safeguard and promote the welfare of children and investigate cases in which children are subjected to or likely to suffer “significant harm”. Section 47 has been deemed applicable to cases in which there is reason to believe that a girl has been or will likely be subjected to FGM. (See: Working Together to Safeguard Children (2006), Department for Education (Formerly Department for Children, Schools, and Families; and Protecting Girls from Female Genital Mutilation and Harmful Practices: Challenges and Opportunities for Legal Intervention in Africa, Report of a Regional Workshop, Nairobi, 24-28 July 2006)
Local authorities can apply for several protection orders to protect the child from FGM. As a preliminary measure, if the parents do not agree to an informal assessment, a “child assessment order” can be issued under Section 43 of the Children Act. The order provides limited protection for the child and is only valid for seven days from the date specified. Section 8, Article 1 of the Act also identifies the following types of orders, some of which may be useful to protect children from FGM:
- “a contact order” means an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other;
- “a prohibited steps order” means an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court;
- “a residence order” means an order settling the arrangements to be made as to the person with whom a child is to live; and
- “a specific issue order” means an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.
In cases where the court deems further action necessary, it can issue a “prohibited steps order”. This order prohibits the parent from carrying out a specified action, in this case FGM, without the consent of the court and may be valid until the child reaches 16 years. In addition, pursuant to a “prohibited steps order”, authorities may prevent a girl from being removed from the country if there is evidence that the girl will likely be subjected to FGM if she leaves.
As a last resort, government authorities may remove a girl from her family if there is reason to believe that she will be subjected to FGM. Pursuant to Section 31, a “supervision order” can also be issued by the court placing the child in the care of a “designated local authority; or putting him under the supervision of a designated local authority or of a probation officer.” To issue a care or supervision order, a court must find that:
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to—
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
(ii) the child’s being beyond parental control.
A supervision order initially lasts for a year but can be extended to a maximum of three years. In the most urgent cases, an emergency protection order can be applied for under Section 44, authorizing the removal of the child from her place of residence. This order is valid for eight days with a possible extension for a further seven days. In emergency situations, Section 46 also allows police to place a child under police protection for up to 72 hours. (See: Salford Safeguarding Children Board Manual (2009) Appendix 1 – The Legal Framework of 4.1.13 Female Genital Mutilation)
The United Kingdom also provides for criminal injuries compensation in all cases of FGM under the Criminal Injuries Compensation Act 1995. For children in the care of local authorities, mechanisms are in place for this claim to be pursued by those in the care system until the child can seek her own independent advisor. (See: Salford Safeguarding Children Board Manual (2009) Appendix 1 – The Legal Framework of 4.1.13 Female Genital Mutilation)