“The police rely on professionals in the education, health and social care sectors to identify signs that FGM has taken place. Prosecutions will not be possible if we wait for daughters to report their parents to the police, which is unlikely to happen. On that basis, we believe the Government was right to introduce mandatory reporting. If a health professional, social worker or teacher saw someone who had been the victim of another crime, they would be expected to report it. In the same way, they must report FGM, which is equally a crime.” (Home Affairs Select Committee, Female genital mutilation: abuse un-checked (Ninth Report of Session 2016-17, 15 September 2016.)
Mandatory reporting of FGM is not currently a legal requirement in Scotland but some politicians have been pushing ministers to follow the UK Government's lead: mandatory reporting was introduced in England & Wales from 31 October 2015. In March 2016, First Minister Nicola Sturgeon announced £220,000 of funding for “community engagement projects, awareness-raising and training and support services”.
Intended to increase the number of reports of known or seen FGM to the police, mandatory reporting empowers NHS staff and supports them in strengthening their safeguarding response for girls who are at risk, and better protects those living with FGM. It also requires the agencies to work together.
The deputy national policing lead for FGM, forced marriage and honour-based abuse in England & Wales has acknowledged this. Detective Chief Superintendent Gerry Campbell reiterated: “It is critical that regulated professionals discharge their required duties of recording, reporting and safeguarding in a timely way and work together with the police service and affected communities as partners to achieve the sustained prevention of FGM and other harmful traditional practices. The development of trusted coalition partners to prevent and tackle harmful traditional practices is mission critical.”
FGM has been unlawful in Scotland since 1985, by virtue of the Prohibition of Female Circumcision Act 1985. The Prohibition of Female Genital Mutilation (Scotland) Act 2005 re-enacts the offences in the 1985 Act, and extends protection by giving those offences extraterritorial effect in order to protect those being sent abroad to have FGM carried out. The Act also increases the maximum penalty on conviction on indictment from five to 14 years’ imprisonment.
What is FGM?
FGM comprises all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons. FGM is performed by communities who want to ensure that the virginity, chastity, marriageability and fidelity of their women and girls is maintained in their societies, where there is a need to conform to codes of honour and behaviour.
The World Health Organisation (WHO) classifies FGM into four major types, namely:
- Type 1: Often referred to as clitoridectomy, this is the partial or total removal of the clitoris (a small, sensitive and erectile part of the female genitals), and in very rare cases, only the prepuce (the fold of skin surrounding the clitoris).
- Type 2: Often referred to as excision, this is the partial or total removal of the clitoris and the labia minora (the inner folds of the vulva), with or without excision of the labia majora (the outer folds of skin of the vulva).
- Type 3: Often referred to as infibulation, this is the narrowing of the vaginal opening through the creation of a covering seal. The seal is formed by cutting and repositioning the labia minora, or labia majora, sometimes through stitching, with or without removal of the clitoris (clitoridectomy).
- Type 4: This includes all other harmful procedures to the female genitalia for non-medical purposes, e.g. pricking, piercing, incising, scraping and cauterising the genital area.
Deinfibulation refers to the practice of cutting open the sealed vaginal opening in a woman who has been infibulated, which is often necessary for improving health and wellbeing as well as to allow intercourse or to facilitate childbirth.
Prevalence of FGM in Scotland
Recent NHS Scotland communication from Dr Catherine Calderwood, the Chief Medical Officer, and Professor Fiona McQueen, Chief Nursing Officer, with healthcare professionals confirms the paucity of recorded data for FGM: “We are also concerned about the lack of recorded national data about FGM across NHS Scotland and note that this is now available in other UK countries. A short life working group, led by the NHS Scotland Information Services Division, to review the current data collection landscape for Scotland, has concluded that the most appropriate approach would be to strengthen the recording of FGM in existing data systems in Scotland.”
Research conducted on behalf of the Scottish Refugee Council in 2014 shows that there were 23,979 men, women and children born in one of the 29 countries identified by UNICEF (2013) as an “FGM-practising country”, living in Scotland in 2011. The largest community are Nigerians, with 9,458 people resident in Scotland, born in Nigeria. When weighted by the national prevalence rate in their country of birth (which varies dramatically from 27% in Nigeria and Kenya, to 98% in Somalia), Nigerians are still the largest community, followed by people born in Somalia, Egypt, Kenya, Sudan and Eritrea. There are potentially affected communities living in every local authority area in Scotland, with the largest in Glasgow, Aberdeen, Edinburgh and Dundee respectively. The number of children born into potentially affected communities in Scotland has increased significantly, with 363 girls born in Scotland to mothers born in an FGM-practising country in 2012, representing a fivefold increase over the last decade.
At the 2014 Girl Summit, Prime Minister David Cameron also announced the Government’s intention to introduce a mandatory reporting duty for FGM. A consultation on how to introduce the duty ran from 5 December 2014 to 12 January 2015, and the Government’s response was published on 12 February. The mandatory reporting duty for FGM has been introduced through s 74 of the Serious Crime Act 2015, which inserts a new s 5B in the Female Genital Mutilation Act 2003.
This places a single personal mandatory reporting duty on persons who work in a “regulated profession” in England & Wales. Healthcare professionals, teachers and social care workers are required to notify the police within one month, when, in the course of their work, they discover that an act of FGM appears to have been carried out on a girl who is under 18. The term “discover” includes where the victim discloses to the professional that she has been subject to FGM, or where the professional observes the physical signs of FGM. The duty does not apply to girls or women who might be at risk of FGM, or cases where professionals discover a woman who is 18 is the victim of FGM.
Confining the personal mandatory reporting duty to under-18s does not prohibit appropriate referral of cases involving adults and, in particular, vulnerable adults. Updated Statutory Multi-agency Guidance on FGM published in April 2016 provides safeguarding guidance to the agencies involved.
The mandatory reporting duty applies to “regulated” professionals, namely teachers, social care workers and healthcare professionals working in England & Wales. The personal mandatory reporting duty, for example, would not extend to dinner ladies, cleaners or caretakers working within the various environments.
Some confusion has emerged for example with the duty to collect data. General practitioners, mental health trusts and acute trusts (mandatory since 1 July 2015), sexual health and GUM (genito-urinary medicine) clinics in England are required to have regard to the FGM enhanced dataset standard from October 2015. Those services where patients do not have to provide their personal information, are out of scope.
The data collected are sent to the Health & Social Care Information Centre (HSCIC), where they are anonymised, analysed and published in aggregate form. Personal information is only collected as part of the FGM enhanced dataset for internal data quality assurance and to avoid duplicate counting. A woman or child’s personal details will never be published in the national aggregate reports and will never be passed to anyone outside HSCIC. This work specifically will not pass any personal details to the police or social services – the collection of these data will not trigger individual criminal investigation.
Professionals have had to be reminded that complying with the FGM enhanced dataset does not mean that a professional will have met their professional requirements as set out in the new mandatory reporting duty.
The absence of training of health, social care and education professionals prior to the introduction of mandatory reporting is evident, as regulated professionals falling within the new legislation are nervous and worried about the fit of this duty with their existing responsibilities. The personal mandatory reporting duty is a personal duty attached to the regulated professional involved. It does not apply to the organisation they work within or the department. Where a disclosure of FGM is made, or the professional observes the physical signs of FGM, it is their duty to report this to the police through the agreed national process.
The recent Home Affairs Select Committee on FGM reporting on 15 September 2016 has highlighted the concern of healthcare professionals: “Since 31 October 2015 healthcare professionals, social care workers and teachers in England & Wales have been required to report cases of FGM in under-18s to the police. Some clinicians have raised concerns that mandatory reporting breaches fundamental principles of patient confidentiality which might result in women being less likely to speak with doctors openly. We heard that some healthcare professionals just did not accept that mandatory reporting should be their responsibility. Janet Fyle, Professional Policy Advisor at the Royal College of Midwives, said that mandatory reporting 'had not worked' because some healthcare professionals believed they did not have to do it and had 'franchised it out to some community groups'.”
The legislation requires healthcare professionals, teachers and social care workers to report the matter to the police where the victim (under the age of 18) tells the professional during the course of their work that she has been subject to FGM, or where the professional observes the physical signs of FGM. The position in relation to “suspected” and “at risk” cases of FGM remains the same. Professionals are still expected to refer cases appropriately, as set out in the multi-agency guidelines on FGM and using the existing safeguarding framework and procedures. Mandatory reporting does not replace general safeguarding responsibilities: professionals must still undertake any safeguarding actions as required, usually beginning with a discussion with their local safeguarding lead to identify an appropriate course of action. Organisations are reminded of the Department of Health’s guidance Female Genital Mutilation Risk and Safeguarding: Guidance for professionals (2015).
The updated statutory multi-agency guidelines, published in April 2016, have been the subject of recent Government consultation and explicitly capture good safeguarding practice for such practitioners.
The legislation requires reports to be made to the police within one month of initial disclosure/identification. The report should be made in accordance with the nationally agreed reporting mechanism to the police. Professionals have been advised that a longer timeframe may only be appropriate in exceptional cases where a professional is concerned that a report to the police may result in an immediate safeguarding risk to the child and considers that consultation with colleagues or other agencies is necessary prior to the report being made. The regulated professional should note the reasons for the delay in reporting and ensure that this is drawn to the attention of their manager. Information including the name of the complainant and name, address, date of birth and the nature of the discovery should be reported to the police.
Where known cases or suspicions of FGM are identified, the regulated professional has two duties which will run alongside each other. The first is the personal mandatory reporting duty; the second is safeguarding. NHS medical professionals in England also have a third duty – the duty to record.
Reporting to the police
The requirement under this personal duty is for mandatory reporting within one month orally or in writing to the police force where the girl resides, although the guidance recommends that this should be undertaken as soon as practicable. Breaches of the duty will be dealt with by the relevant regulatory body through their disciplinary process. They will take into account all factors. Recording the reasons for not reporting FGM is therefore critical.
Once a matter has been reported to the police, the personal mandatory reporting duty has been complied with. The responsibility for investigation will rest with the police.
When a report is made, the police will then work with the relevant agencies to determine the most appropriate response. The primary focus of the duty is on safeguarding girls and women. The police will investigate the matter, and where it is suspected that a criminal offence has been committed, the regulated professional who reported the matter may be required to make a statement to the police to assess whether any criminal charges should follow. Where an offender is subsequently charged with a criminal offence and does not accept their guilt, a trial is likely to take place. The regulated professional may be required to attend court and give evidence.
The personal mandatory reporting duty falls to the individual professional. Any breaches of the duty will be dealt with by the individual’s regulatory body. The duty does not extend to organisations or bodies. In its response to a previous Home Affairs Select Committee report, the Government rejected the recommendation that sanctions should range from “compulsory training to a criminal offence for intentional or repeated failures”, and said that failure to comply with the mandatory reporting duty would be dealt with in accordance with existing disciplinary procedures.
The 2016 report has however reiterated: “Existing disciplinary procedures for professionals who ignore the duty on mandatory reporting are insufficient and ineffective and it is unacceptable that some clinicians appear to refuse to accept it as their responsibility. The duty to report must not be seen as optional. A decision not to report puts children’s lives at risk and is complicit in a crime being committed. We repeat our predecessor committee’s recommendation that the Government introduce stronger sanctions for failure to meet the mandatory reporting responsibility, beyond the relevant professions’ own general disciplinary procedures.”
Mandatory reporting data
Data presented to the committee by Detective Chief Superintendent Gerry Campbell (Deputy National Lead for FGM, Forced Marriage and Honour-Based Abuse) confirmed that since 31 October 2015 there had been in excess of 152 referrals from regulated professionals, notably from health, education and from children’s social care. However, those figures were not comprehensive as some forces had not yet returned data. He noted that one police force in particular (not named) had received a significant number of reports from professionals, which could offer lessons for other force areas in maximising reporting.
Data collection following mandatory reporting remains an issue, and the Select Committee has recommended that a centralised system for pooling reports of FGM would also be a positive step and would aid data analysis from which examples of best practice could be drawn. The Home Affairs Select Committee has recommended that the FGM Unit publish quarterly reports showing high-level results, progress in police investigations and examples of best practice that should then be disseminated to all professionals with a mandatory duty to report FGM. Ideally those reports should incorporate the data collated by the Health & Social Care Information Centre, to encourage the standard of those data also to be improved.
Any introduction of mandatory reporting in Scotland must take into account the learning from the remainder of the UK. Training and awareness raising for regulated professionals subject to the duty in advance of the mandatory reporting duty is key, as is a need to collect accurate information detailing the outcome of mandatory reports. This information is critical in highlighting whether girls are being safeguarded and protected. Sustained prevention underpinned by a systemic and consistent approach is key.
In this issue
- Legal protection of adults – an international comparison
- The UPC post-Brexit: unified, “emmental-ed”, or dead?
- Proof of purpose: IHT and APR
- Bankruptcy consolidated: what do I need to know?
- Dividends – compliant but challengeable?
- FGM mandatory reporting: an example to follow?
- Reading for pleasure
- Opinion: Neil Hay
- Book reviews
- President's column
- Next pieces of the jigsaw
- People on the move
- Beginner's guide
- As simple as that?
- Excellence in action
- "That is not how we do it here"
- Rebranding in the digital age
- Brexit: Brussels in a holding pattern
- Common areas: keep Pandora's box shut
- Police: qualified experts?
- Is that overprovision policy watertight?
- Impact assessments still important
- The vital paper trail
- Scottish Solicitors' Discipline Tribunal
- Controlling interests: problem questions
- Law under orders
- Prisoner correspondence: a reminder
- Law reform roundup
- Society, Parliament revamp law student competition
- Foundation for aspiration
- Payment fraud: take five
- Ask Ash
- Better together?
- Paralegal pointers