Territorial Extent Commentary on Sections Section 73: Female genital mutilation protection orders
292.Subsection (1) inserts new section 5A into the 2003 Act which introduces new Schedule 2 to the 2003 Act (as provided for in subsection (2)) which makes provision for FGM protection orders in England and Wales (Part 1 of new Schedule 2) and Northern Ireland (Part 2 of new Schedule 2).
293.Paragraph 1(1) of new Schedule 2 to the 2003 Act provides that the High Court or the family court in England and Wales may make an order (an “FGM protection order”) for the purposes of protecting a girl against the commission of a genital mutilation offence (that is, an offence under sections 1 to 3 of the 2003 Act) or protecting a girl against whom such an offence has been committed (sub-paragraph (1)). An order can be made either to protect a girl at risk of FGM or to protect a girl against whom FGM has been committed. In deciding whether to make an order the court must have regard to all the circumstances including the need to secure the health, safety, and well being of the girl to be protected (sub-paragraph (2)). A ‘girl’ is defined in section 6(1) of the 2003 Act to include a woman.
294.An FGM protection order may contain such prohibitions, restrictions or requirements and such other terms as the court considers appropriate to protect the girl in question (sub-paragraph (3)). This would ensure that the power to a make an FGM protection order is broad and flexible and enables the court to include whatever terms it considers necessary to protect the girl. Such terms might include, for example, provisions requiring a person to surrender his or her passport or any other travel document and/or the passport of the girl the order is intended to protect, and prohibiting specified persons from entering into any arrangements, in the UK or abroad, for FGM to be performed on the person to be protected. Such terms may relate to: conduct within and outside England and Wales; to respondents who commit or attempt to commit an FGM offence against a girl; and to others who may become involved in other respects (sub-paragraph (4)). Paragraph 1(5) provides examples of involvement in other respects to include aiding, abetting, counselling, procuring, encouraging or assisting another person to commit, or attempt to commit, a genital mutilation offence or conspiring to commit or attempt to commit such as offence.
295.Paragraph 1(6) provides that an FGM protection order may be made for a specified period or to continue indefinitely until varied or discharged (in accordance with the provisions in paragraph 6). This would help to ensure that long-term protection from mutilation remains in place, for example, where the girl to be protected is very young.
296.Paragraph 2 provides that the court may make an FGM protection order on an application by the person to be protected (the victim), a “relevant third party” (a person, or someone within a class of persons, specified by regulations (subject to the negative resolution procedure by the Lord Chancellor) without needing the leave of the court. The court may also make an FGM protection order on an application by ‘any other person’ with the leave of the court. This paragraph also provides for the court to make an order without an application being made to it, in certain other family proceedings before that court.
297.Paragraph 3 makes provision for a court before which there are criminal proceedings for a genital mutilation offence to make an FGM protection order, without an application being made to it, if a person who would be a respondent to any proceedings for an FGM protection order is a defendant in the criminal proceedings. This would ensure protection for a victim or potential victim of FGM where a defendant is not convicted of the offence but it has emerged that there is a risk of action by the defendant to carry out, procure, abet or assist FGM against the victim (or a person other than the victim); or the defendant is convicted and there is such a risk. An FGM protection order can be made in criminal proceedings to protect a girl at risk, whether or not the girl is the victim of the offence in relation to the criminal proceedings. For example, the younger sister of the victim of a genital mutilation offence could also be protected by the court in criminal proceedings.
298.Paragraph 4 provides that breach of an FGM protection order would be a criminal offence subject to a maximum penalty of five years’ imprisonment on conviction on indictment or a maximum of six months’ imprisonment on summary conviction (rising to 12 months’ imprisonment on commencement of section 154(1) of the Criminal Justice Act 2003 (see the transitional provision in section 86(14)(d)). As an alternative to a prosecution, a breach of an FGM protection order may be dealt with by the civil route as a contempt of court punishable by up to two years’ imprisonment (sub-paragraph (4)).
299.Paragraph 5 provides for ex-parte orders so to allow for the making of an FGM protection order without notice of the proceedings having been given to the respondent, where the court considers it just and convenient to do so. Such an order without notice may be appropriate where there is reason to believe that a respondent may seek to harm a potential victim or remove her from the jurisdiction if given notice of such a hearing or before an on notice hearing could be listed. If an order is made without notice, the respondent must be given an opportunity as soon as just and convenient, to make representations about the order at a return hearing on notice.
300.Paragraph 6 makes provision for the variation and discharge of FGM protection orders. An order may be varied or discharged on an application by any party to the order; the girl being protected by the order; or any other person affected by the order. The court may also vary or discharge an order on its own initiative.
301.Paragraph 7 makes provisions for arrest under warrant. It provides for an interested party to apply to the relevant judge (as defined in paragraph 17(1)) for the issue of a warrant for the arrest of the person if the interested party considers that the person has failed to comply with an FGM protection order; or is otherwise in contempt of court in relation to such an order. This paragraph defines an interested party as the girl being protected by the order; the person who applied for the order or any other person (with leave).
302.Paragraph 8 makes provision about remand of someone arrested as described in paragraph 7. Paragraph 9 makes provision about medical examination and report under remand of such a person. Paragraphs 10 to 14 make further provision for remand.
303.Paragraph 15 provides that the powers of the court in relation to contempt of court arising out of a person’s failure to comply with an FGM protection order, or otherwise in connection with such an order, may be exercised by the relevant judge (defined in paragraph 17(1)).
304.Paragraph 16 makes it clear that nothing in Part 1 of new Schedule 2 to the 2003 Act affects any other protection or assistance available to a girl who is or may become a victim of an FGM offence. For example, there will be occasions where it is appropriate to have prohibited steps orders, non-molestation orders or other protective orders in relation to children in place, alongside FGM protection orders.
305.Paragraph 17 deals with interpretation of the terms in relation to FGM protection orders.
306.Part 2 of new Schedule 2 to the 2003 Act makes equivalent provision, with appropriate modifications, for FGM protection orders in Northern Ireland. In Northern Ireland, the relevant court for making FGM protection orders is either the High Court or a county court (paragraph 24(1)). This is subject to any provision made by virtue of sub-paragraphs (4) or (5) of paragraph 24. Those sub-paragraphs apply, with modifications, the provisions of Article 34(3) to (10) of the Family Homes and Domestic Violence (Northern Ireland) Order 1998 (SI 1998/1071) which enable the Department of Justice in Northern Ireland, after consultation with the Lord Chief Justice, to specify, by order (subject to the negative resolution procedure), proceedings which may only be commenced in a specified level of court, a court which falls within a specified class of court, or a particular court determined in accordance with, or specified in, the order. This order-making power would therefore enable the Department of Justice to ensure that proceedings in relation to FGM protection orders are heard in the most appropriate court.
307.Paragraph 25(1) confers a power on the Department of Justice in Northern Ireland, after consultation with the Lord Chief Justice, to enable courts of summary jurisdiction to hear proceedings in respect of FGM protection orders. An order made under paragraph 25(1) may, in particular, make provision in relation to courts of summary jurisdiction corresponding to that made in the Family Homes and Domestic Violence (Northern Ireland) Order 1998, where courts of summary jurisdiction are relevant courts for the purposes of proceedings under that Order (see paragraph 25(2)). Paragraph 25(3) of new Schedule 2 enables an order to make necessary modifications to Part 2 of new Schedule 2 or any other enactment as a consequence of conferring jurisdiction on courts of summary jurisdiction. The order-making power is subject to the affirmative procedure (see paragraph 29(3)).
308.Paragraph 27 makes provision for appeals from the county courts to the High Court. Paragraph 28 confers an order-making power (subject to the negative procedure) on the Department of Justice, after consultation with the Lord Chief Justice, to specify the circumstances in which appeals may be made against decisions to transfer, or propose to transfer, proceedings as a result of an order made under Article 34(5) of the Family Homes and Domestic Violence (Northern Ireland) Order 1998, as applied by paragraph 24(4) and (5) of new Schedule 2 to the 2003 Act.