Leeds City Council v M and Others
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 14 January 2015 |
| Neutral Citation | [2015] EWFC 3 |
| Date | 14 January 2015 |
| Court | Family Court |
| Docket Number | Case No: LJ13C00295 |
[2015] EWFC 3
IN THE FAMILY COURT
Sitting at LEEDS
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Case No: LJ13C00295
In the matter of B and G (Children) (No 2)
Mr John Hayes QC and Ms Joanne Astbury (instructed by the local authority) for the Applicant (local authority)
Mr John Myers and Ms Lucy Sowden (instructed by Lester Morrill) for the First Respondent (mother)
Mr Nkumbe Ekaney QC and Ms Pamela Warner (instructed by Crocketts) for the Second Respondent (father)
Ms Clare Garnham (instructed by Ramsdens) and Miss Vikki Horspool (of Ramsdens) for the children' guardian
Hearing dates: 20–23, 27–30 October, 3–5, 7 November 2014
This judgment was delivered in open court
Sir James Munby, President of the Family Division:
These are care proceedings in relation to two children, B, a boy, born in July 2010 and G, a girl, born in July 2011 (these are not their real initials). In terms of their ethnic origin, both the father, F, and the mother, M, come from an African country which I shall refer to as country A, though the mother was born and brought up in a Scandinavian country which I shall refer to as country S (again, these are not the real initials). The family are Muslims. The proceedings were commenced in November 2013, triggered by M's seeming abandonment of G in the street. B and G were placed in foster care the same month and have remained with the same foster carer throughout.
I heard the case over twelve days at Leeds in October and November 2014. The local authority, Leeds City Council, was represented by Mr John Hayes QC and Ms Joanne Astbury, M by Mr John Myers and Ms Lucy Sowden, F by Mr Nkumbe Ekaney QC and Ms Pamela Warner, and B and G, through their children's guardian, by Ms Clare Garnham and Miss Vikki Horspool. I am very grateful to all of them for the enormous assistance they provided me in an unusual and complex case.
At the end of the hearing on 7 November 2014 I reserved judgment. On 11 November 2014 I handed down a very short judgment announcing my decision and my conclusions on various issues: Re B and G (Children) [2014] EWFC 43. I said that I would give detailed reasons in due course.
The issue
The most important issue in the proceedings is whether G has been subjected to female genital mutilation (FGM) and, if she has, what the implications of that are in relation to planning for her and her brother's future.
As I announced in my previous judgment ( Re B and G, para 2(i)), I have concluded that the local authority is unable on the evidence to establish that G either has been or is at risk of being subjected to any form of FGM.
This is, I believe, the first time such an issue has been canvassed in the context of care proceedings. Because of the importance of the point, this judgment is confined to the issue in relation to FGM. A separate judgment will deal with all the other issues in the case.
Female genital mutilation (FGM)
Before proceeding further, however, it is necessary to be clear as to what is meant by FGM. I start with Eliminating Female genital mutilation, an interagency statement published by the World Health Organization (WHO) and others in 2008. Annex 2 sets out the following typology, dating from 2007:
" Type I: Partial or total removal of the clitoris and/or the prepuce (clitoridectomy).
When it is important to distinguish between the major variations of Type I mutilation, the following subdivisions are proposed: Type Ia, removal of the clitoral hood or prepuce only; Type Ib, removal of the clitoris with the prepuce.
Type II: Partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora (excision).
When it is important to distinguish between the major variations that have been documented, the following subdivisions are proposed: Type IIa, removal of the labia minora only; Type IIb, partial or total removal of the clitoris and the labia minora; Type IIc, partial or total removal of the clitoris, the labia minora and the labia majora.
Type III: Narrowing of the vaginal orifice with creation of a covering seal by cutting and appositioning the labia minora and/or the labia majora, with or without excision of the clitoris (infibulation).
When it is important to distinguish between variations in infibulations, the following subdivisions are proposed: Type IIIa: removal and apposition of the labia minora; Type IIIb: removal and apposition of the labia majora.
Type IV: Unclassified: All other harmful procedures to the female genitalia for non-medical purposes, for example, pricking, piercing, incising, scraping and cauterization."
The same classification is reflected in the WHO's Fact Sheet N241, Female genital mutilation, published in February 2014:
"Female genital mutilation is classified into four major types.
1 Clitoridectomy: 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).
2 Excision: partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora (the labia are "the lips" that surround the vagina).
3 Infibulation: narrowing of the vaginal opening through the creation of a covering seal. The seal is formed by cutting and repositioning the inner, or outer, labia, with or without removal of the clitoris.
4 Other: all other harmful procedures to the female genitalia for non-medical purposes, e.g. pricking, piercing, incising, scraping and cauterizing the genital area."
For some purposes unicef uses a different classification. Female Genital Mutilation/Cutting: A statistical overview and exploration of the dynamics of change, published by unicef in 2013, sets out the following typology (page 48):
"types of FGM/C are classified into four main categories: 1) cut, no flesh removed, 2) cut, some flesh removed, 3) sewn closed, and 4) type not determined/not sure/doesn't know. These categories do not fully match the WHO typology. Cut, no flesh removed describes a practice known as nicking or pricking, which currently is categorized as Type IV. Cut, some flesh removed corresponds to Type I (clitoridectomy) and Type II (excision) combined. And sewn closed corresponds to Type III, infibulation."
Next, it is necessary to consider the Female Genital Mutilation Act 2003. It suffices for present purposes to refer to section 1, which is in the following terms:
"(1) A person is guilty of an offence if he excises, infibulates or otherwise mutilates the whole or any part of a girl's labia majora, labia minora or clitoris.
(2) But no offence is committed by an approved person who performs –
(a) a surgical operation on a girl which is necessary for her physical or mental health, or
(b) a surgical operation on a girl who is in any stage of labour, or has just given birth, for purposes connected with the labour or birth.
(3) The following are approved persons –
(a) in relation to an operation falling within subsection (2)(a), a registered medical practitioner,
(b) in relation to an operation falling within subsection (2)(b), a registered medical practitioner, a registered midwife or a person undergoing a course of training with a view to becoming such a practitioner or midwife.
(4) There is also no offence committed by a person who –
(a) performs a surgical operation falling within subsection (2)(a) or (b) outside the United Kingdom, and
(b) in relation to such an operation exercises functions corresponding to those of an approved person.
(5) For the purpose of determining whether an operation is necessary for the mental health of a girl it is immaterial whether she or any other person believes that the operation is required as a matter of custom or ritual."
Section 6(1) provides that "Girl includes woman."
It will be seen that for the purposes of the criminal law what is prohibited is to "excise, infibulate or otherwise mutilate" the "whole or any part" of the "labia majora, labia minora or clitoris." This brings within the ambit of the criminal law all forms of FGM of WHO Types I, II and III (including, it may be noted Type Ia). But WHO Type IV comes within the ambit of the criminal law only if it involves "mutilation".
The word "mutilation" is not further elaborated or defined in the statute, so I turn to the dictionary. The Oxford English Dictionary defines "mutilation" as meaning "the action of mutilating a person or animal; the severing or maiming of a limb or bodily organ", "mutilate" being defined as meaning "To deprive (a person or animal) of the use of a limb or bodily organ, by dismemberment or otherwise; to cut off or destroy (a limb or organ); to wound severely, inflict violent or disfiguring injury on."
The expert evidence
The suspicion that G had been subjected to FGM first arose in November 2012 in country S after blood had been found in her nappy when she was at nursery. She was examined by two doctors who found (I quote the translation) "no sign [she] had any damage to female organs." A further medical report states "outer and inner labia normal and the clitoris is normal. No sign of any circumcision."
The question was raised again in November 2013 when the foster carer reported G's "irregular genitalia." This led to the expert investigations to which I must now turn.
I have had the benefit of reports from three experts: Dr Alison Share, a Consultant Community Paediatrician at St James's University Hospital in Leeds; Dr Comfort Momoh MBE, a Registered Midwife employed by Guy's and St Thomas Hospital NHS Foundation Trust in London (she is not a medical doctor; her doctorate is an...
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