FGM Protection Orders
An FGM Protection Order (FGMPO) may contain such prohibitions, restrictions or requirements and such other terms as the court considers appropriate to protect the girl in question. A number of individuals and organisations could apply for an FGMPO, namely the person who has had or is at risk of FGM; a local authority; or any other person with the permission of the court (for example, the police, a teacher, or a family member). Persons under 18 would be able to apply; and they could do so without a formal need for assistance Applications would be made to the Sheriff Court and the Scottish Government would develop guidance to support those wishing to apply. There would be no court fee in relation to applying. Each FGMPO would be specific to the individual case. The conditions within the orders could vary, but might include the following. i.e. the person causing the risk does not take the protected person abroad, the person causing the risk surrenders their travel documents, etc.
An application to vary, extend or discharge (end) a FGMPO at a later time could also be made. Legal aid would be available for applicants for FGMPOs, subject to the usual criteria. If the conditions in the FGMPO are not followed this would constitute a breach and would be a criminal offence. The maximum penalty for breaching an FGMPO would be set with in legislation and likely to mirror the penalty for breaching forced marriage protection orders (which is in the case of convictions without a jury, up to 12 months in prison, a fine of up to £5000, or both; and in the case of a conviction with a jury, up to 5 years in prison, an unlimited fine, or both.
Question 4. Do you think that the Scottish Government should introduce Female Genital Mutilation Protection Orders? What do you think the penalty should be for breach of a FGMPO?
If yes, please outline these arguments.
Question 5. What do you think the penalty should be for breach of a FGMPO?
There was widespread support among the respondents for the introduction of FGMPOs, which were viewed as having numerous benefits. There was less consensus about the penalties for breaching a FGMPO, but the common responses referred to the Forced Marriage Protection Osrders or the penalties for grievous bodily harm.
Arguments for the Introduction of FGMPOs:
- FGMPOs could be fast and responsive.
- FGMPOs did not necessarily involve criminalisation. This could be particularly important for those concerned about criminalising family members.
- The use of protection orders in relation to forced marriages was viewed as a positive development that could be replicated with FGMPOs.
- FGMPOs increased the protection available to those at risk of FGM.
- FGMPOs would provide women and girls with agency in that they would be able to apply for their own protection orders.
- It would also allow any adult to apply for a protection order, as well as relevant agencies. This would include, as was pointed out, the ability for parents to raise orders to keep their children safe.
- This would ensure that women and girls in Scotland had access to the same protections as they had in England and Wales.
- The lower burden of proof would mean that FGMPOs may be possible where criminal prosecution would not be.
While there was limited objection to introducing FGMPOs, these were largely founded on the fact that Child Protection Orders were already in existence. A lack of knowledge about the number of children whom this would benefit/extent of FGM in Scotland was noted by a few respondents.
There were also a number of important concerns raised by respondents about measures that could potentially improve the performance of FGMPOs. One respondent emphasised the need to ensure that awareness was raised about FGMPOs within communities and that legal advice and services were available free of charge. The need for training for practitioners and those responsible for orders was also noted.
There was concern to make sure that there was a consistent process for making FGMPOs. There were also requests for guidance to ensure a consistent process for applying for FGMPOs and the enforcement of their breach. Another respondent noted that, on the assumption that various professionals would be in a position to apply for orders, training would be necessary.
The question of how to accurately assess risk, both in terms of what would trigger a protection order and how risk is to be identified, was raised by a number of respondents. Another point was raised that orders might benefit from independent risk assessment in the event that individuals applied for their release under duress. The question of how long these orders would last and the contexts in which they would cease was also raised.
Another respondent mentioned the risk that a failure to obtain a protection order might be taken as mitigation for a perpetrator in the event of taking a child abroad for the purposes of FGM.
What Should the Penalty be for a Breach of a FGMPO?
There were a range of views on penalties. Many respondents did not feel qualified to comment on this. Several others offered generic responses, i.e. the penalty should be a fine or a prison sentence. Many suggested that penalties were similar to those for Forced Marriage Protection Orders. However, several others emphasised that given the nature of FGM, the penalty should be more in line with those for grievous bodily harm, or akin to the penalties for an offence of FGM.