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Female Genital Mutilation (Protection and Guidance) (Scotland) Bill

Overview

Female genital mutilation (FGM) is removing or damaging female genitalia for non-medical reasons.

FGM is illegal in Scotland. It’s been illegal in the UK since 1985.

This Bill amends the Prohibition of Female Genital Mutilation (Scotland) Act 2005. It aims to strengthen the legal protection of those at risk of FGM. 

The Bill allows courts to impose new FGM Protection Orders. These can impose conditions or requirements to:

  • protect others from FGM happening to them
  • safeguard a person from further harm if FGM has already happened
  • otherwise prevent or reduce the likelihood of FGM offences being committed 

It will be a criminal offence to breach an FGM Protection Order.

The Bill requires Scottish Ministers to issue guidance about FGM Protection Orders. It also allows Scottish Ministers to issue guidance on anything else about preventing FGM.

You can find out more in the Scottish Government's Explanatory Notes document that explains the Bill.

Why the Bill was created

FGM is a crime in Scotland, but there have been no criminal prosecutions.

The Scottish Government wants to strengthen the legal protection for women and girls who have been subjected to, or who are at risk of, FGM.

FGM has no health benefits. All forms of female genital mutilation carry serious health consequences, including death.

No religion requires FGM and it's not limited to any religious group.

Global migration means that FGM is found all over the world. It's practised across different continents, countries and communities.

You can find out more in the Scottish Government's Policy Memorandum document that explains the Bill.

Where do laws come from?

The Scottish Parliament can make decisions about many things like:

  • agriculture and fisheries
  • education and training
  • environment
  • health and social services
  • housing
  • justice and policing
  • local government
  • some aspects of tax and social security

These are 'devolved matters'.

Laws that are decided by the Scottish Parliament come from:

Bill stage timeline

The Female Genital Mutilation (Protection and Guidance) (Scotland) Bill became an Act on 24 April 2020

Becomes an Act

The Female Genital Mutilation (Protection and Guidance) (Scotland) Bill passed by a vote of 84 for, 0 against and 0 abstentions. The Bill became law on 24 April 2020.

Introduced

The Scottish Government sends the Bill and related documents to the Parliament.

Stage 1 - General principles

Committees examine the Bill. Then MSPs vote on whether it should continue to Stage 2.

Have your say

The deadline for sharing your views on this Bill has passed. Read the views that were given.

Committees involved in this Bill

Who examined the Bill

Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.

It looks at everything to do with the Bill.

Other committees may look at certain parts of the Bill if it covers subjects they deal with.

Who spoke to the lead committee about the Bill

Video Thumbnail Preview PNG

First meeting transcript

The Convener

Welcome back. Agenda item 3 is oral evidence on the Female Genital Mutilation (Protection and Guidance) (Scotland) Bill. I welcome our first panel. Dr Ima Jackson is senior lecturer in the department of nursing and community health at Glasgow Caledonian University, Andy Sirel is head of the Scottish refugee and migrant centre at JustRight Scotland and Dr Saffron Karlsen is senior lecturer in social research in the school of sociology, politics and international studies at the University of Bristol.

You are all very welcome. Thank you for being with us. I start by asking you about your experience and knowledge of female genital mutilation and asking you to say a few words on whether you support the bill’s aim to strengthen the existing legal protection for women who are at risk of FGM. Who would like to go first? Everyone is looking at you, Dr Jackson.

Dr Ima Jackson (Glasgow Caledonian University)

Thank you for the opportunity to speak this morning.

My experience is working as an academic with communities, looking specifically at the processes of policy engagement and the research that is done on them as opposed to with them. I have come to this evidence session because I undertook a piece of research that ended in February this year with the communities of colour, some of whom are practising communities. The research project was funded by the Scottish Government and the European social innovation fund and it looked at the experience of the communities within the process, of which this is a part, as well as their experiences as community organisations. The Kenyan Women in Scotland Association was the lead organisation in the project and my colleague Julie Wasige and I developed and undertook the research.

The main issue is that the communities have faced challenges with the processes. I am asking the committee to recognise the expectations of communities within our processes, and that there are risks to them because of how they are asked to engage in the processes. There are real risks to the communities, and that came out strongly in the research.

There is a feeling of being co-opted and there are concerns about the bill and the actions, but the communities welcome the Scottish Government not bringing forward legislation on anonymity of victims, the duty to notify police and the failure to protect. They understand, respect and welcome the approach.

Although the women are supportive of the statutory guidance, they are concerned about the reasons why the protection order is needed for FGM over and above existing child protection legislation. I came to that because of how our systems position the experiences of women, particularly those from African diasporic communities, as different from everybody else’s experiences.

That is part of how the research that I do works. It looks at why that perspective is positioned as different. The issue might be different, but why is the perspective seen as different? Why do the solutions that we already have in place, particularly for child protection, require something specific for FGM?

The Convener

Thank you. That is helpful, and we will come back to those points.

Dr Saffron Karlsen (University of Bristol)

Thank you for inviting me to join the panel. I have spent the past 20 years doing different sorts of academic research trying to better understand ethnic and religious inequalities in a range of different social phenomena such as health and socioeconomic status and other sorts of experience. I have looked at outcomes in people’s lives and their lived experiences, as well as the impact on their sense of groupness—their group identity—and the interrelationships between those.

The research that brings me to the panel is the work that I did as part of a team at the University of Bristol and Cardiff University last summer, looking at the experiences of ethnic Somalis living in Bristol with FGM safeguarding services within the city. The project was led by academics but motivated by a call from local Somali groups to talk about what they felt to be negative experiences of services, which they did not feel were being voiced in the conversations that were going on among the policy makers and practitioners.

It was an independent, ethical, university-led study, but it was very much driven by the calls of the local community, although the research did not engage only with the groups that had called for it—we aim to take a much broader position. I will come on to talk—over the next few minutes and as we come to questions—about what we found in that research.

My feeling about the bill, which seconds a lot of what Ima Jackson said, is that it is appropriate that measures are taken to protect those who are at risk of genital or indeed any other form of mutilation, particularly without or when they are not able to give their consent, but our and other research suggests that there is a range of ways to provide that protection and there is far greater potential than is generally realised for the involvement of FGM-affected groups in the development of those policies. That is for a range of reasons, which, again, I will come on to, but the important point is that policies around the issues can be much more effective if we approach them in a more collaborative way.

Our and other research suggests that some policy responses to FGM that are already in practice in the UK and elsewhere have led to the stigmatisation and criminalisation of many innocent families. That is problematic in and of itself, but our research suggests—this is why I mentioned the work that I have done around ethnic identities—that it has directly undermined not only relationships in those families and communities, but people’s sense of Britishness and inclusion in British society. The things that we are talking about today have far bigger implications than we might realise and—this is important—than are necessarily reflected in the bill.

None of us wants a more divided society. You have a really valuable opportunity not only to develop approaches to the management of FGM risk that can be more effective in achieving our longer-term aims of ending the practice of FGM in the United Kingdom and elsewhere, but to do that while minimising the negative impacts that current approaches are having on people from FGM-affected groups.

Our research suggests that people from FGM-affected groups are very keen to collaborate. They really want to be involved, and they have tried to be involved. A lot of the frustration that was noted in the study was due to people feeling that there was a collaborative approach that had somehow lost its way.

There is real potential in Bristol, and most likely in Scotland as well, as Ima Jackson said, to have more conversations about effective approaches to these issues.

Andy Sirel (JustRight Scotland)

Thank you for the opportunity to be here. I will provide evidence from a legal perspective, drawing on my and my colleagues’ long-standing practical experience and expertise in providing legal information, advice and representation to women and girls who are seeking international protection and who have survived gender-based violence.

We work with women and girls across a range of issues in UK and Scots law, including immigration and asylum, child protection, and human trafficking and exploitation, and we sit on the Scottish Government’s implementation group on FGM. We are also the legal providers for the Government-funded Scottish women’s rights centre, through which we have extensive experience of advising on and obtaining protective orders for women who are affected by gender-based violence, including forced marriage protection orders.

For the avoidance of doubt, I echo what my colleagues have said about the use of the law as a tool in preventing and combating FGM. The law should be handled with care, I think. Our view is that we require a broader focus on creating broader change and the law is only one tool in that process. That said, I am a lawyer and I am here to speak about the law, and we believe that the proposals in the bill will improve effectiveness in the fight to combat FGM and safeguard those who are at risk.

FGM has been a criminal offence for 34 years in the UK. Although that has sent a clear message of intolerance, it is not controversial to say that our criminal response will not, by itself, eliminate FGM. We all know that no successful prosecutions have been brought in Scotland and the first one brought in England was only a few months ago.

We agree that FGM protection orders would be a useful and important tool. I have mentioned that our primary experience is working with women and girls who have survived or are at risk of FGM through their interaction with the asylum process. I am happy to answer questions on that today. Our view is that the existence of FGM protection orders would play a positive role on whether a woman or girl receives international protection.

We also work with women and girls at risk of other forms of so-called honour-based violence, such as forced marriage. To some extent, many of the same cultural and social factors are at play. Through the Scottish women’s rights centre, our solicitors have first-hand knowledge of forced marriage protection orders and the importance of that type of remedy. Because of that experience, we believe that protection orders would add value to the current approach, and we are happy to expand on our reasons.

Our experience highlights that a particular gap or barrier might exist for the protection of girls who are 16 and 17 years old. We acknowledge that younger children are predominately at risk of FGM, but the risk persists for teenage girls.

The definition of child varies in different legal contexts. Our experience tells us that 16 and 17-year-olds are often caught in between the legal protections available for children under 16 and those for vulnerable adults. Sometimes, 16 and 17-year-olds operate in the middle. That makes the existence of specific protection orders, whether that be forced marriage protection orders or FGM protection orders, all the more critical as a tool for local authorities, for example, to keep all girls in their care safe. It is vital that local authorities understand when such orders can or must be used, and we look forward to seeing the statutory guidance that will help local authorities understand what their role could be. I am happy to answer any questions.

The Convener

Dr Jackson, you said that the existing legislative framework for protecting children and adults is sufficient to protect women and girls. You also spoke about risks to the community because of how they were involved in the engagement process. Will you expand on that a little?

Dr Jackson

My expertise is on the process. Although I undertook a research project related to FGM—and there are specific reasons for my undertaking that research—my expertise is on the policy-making and research processes in Scotland. I am particularly interested in issues to do with the racialisation and marginalisation of people whose voices we should be hearing.

My understanding is that we would be adding to the existing child protection framework in a specific way. I do not know the details of that, but I understand that the existing child protection legislation is the strongest legal framework within which measures on FGM would sit. If that is the case, I am interested in why a bill on FGM has been introduced.

I want to explain that our research was to support the existing work of the women who took part and to allow them to look at the processes of how they participate in what becomes a consultation and a framework. The consultation call came during the lifetime of the research and gave the women an opportunity to respond collectively because of the project that we were developing at the time.

09:15  



There were issues about how the women’s voices could be heard in the process, because it was complex for them to articulate their experiences in that timeframe. It came out clearly that all of us—the women, policy makers, researchers, academics and politicians—are learning about how to engage with this issue, particularly in Scotland. That is related to whose knowledge is viewed as expert in the process. I did the research project with the communities because the intimacy of the unique issue and the demographic change in Scotland highlighted many issues about processes in Scotland. We are not used to engaging with those issues, so the research was developed with the communities to help us all to understand how we experience engagement with our processes.

I want to talk about the pressures that the communities felt when they were asked to participate. One woman who took part in the research said:

“In my head I said I cannot do this on my own.”

She wanted to open it up so that she was part of a group. She said:

“You want to be with other sisters”.

She also knew that it was a really important decision-making process.

“They’re going to put it as a law. You don’t have to take that single decision by yourself ... I said to myself ... how can we three of us sit here ... and make a decision?”

What was important was the speed, the timing, the thinking required and the support needed for the women to be able to speak about the issue.

The research was intergenerational; the schoolgirls were from Notre Dame high school in Glasgow and older women worked with them to support one another in the processes that we created. Some were from communities that were practising or potentially practising, and some had come to live in Scotland. The older generation of women understood and had experience of how to manage and fight against FGM in their communities.

How to speak about it with families, friends—your best friend—and schools is complicated. When we ask for something to happen, our processes have to recognise that it is really complicated.

Dr Karlsen

You have asked us to comment on the potential equalities and human rights issues in the bill. Some participants in our research on the policy felt strongly that there was evidence of racial profiling in the provision of safeguarding protection, which follows on from what Dr Jackson has said. There is not much consideration of those concerns in the current bill, although there has been reflection on gender discrimination and the need to protect women.

The committee will have to be mindful of the need to mitigate racial profiling, which includes consideration of and careful reflection on how the bill will add to current protection for different forms of child abuse. People in our study felt that they were being identified because they were Muslim and African, regardless of any established level of risk to their children. Why do we need additional attention and surveillance over and above those horrific things that people are experiencing? That is a serious question.

There may still be a clear purpose for a specialist bill, but if that decision is made, clarity about why would be useful, to show how the bill provides additional coverage that is needed over and above current legislation.

You also asked us about prevalence. Figures from Africa and Asia are generally used, but from our research on FGM prevalence in the UK, particularly among the under-18 resident population, we know that most cases are genital piercing and there are rising rates of cosmetic labiaplasty; those are all considered to be part of the World Health Organization FGM types but they are absent from the bill. That raises the question why the bill focuses only on practices that are considered to originate in Africa and Asia, particularly given that some forms of pricking or scraping could be considered much less mutilating than genital piercing and other things that are absent.

I do not know the legislation particularly well, but there are suggestions that the Prohibition of Female Genital Mutilation (Scotland) Act 2005 does not include some forms of intervention that might be considered to be less severe.

The Convener

I will bring in questions from committee members now.

Alex Cole-Hamilton

I thank the panel—this is incredibly illuminating. I have a couple of questions about your evidence. Dr Jackson referenced—and the convener followed it up—that child protection provisions might be enough to deal with the issues that we are talking about. However, a bill team briefing suggested that FGM is not limited to children and that, sometimes, a woman might be mutilated again, particularly after childbirth. Is that assumption wrong? Is the issue solely to do with children?

Dr Jackson

I am not able to answer that question. I understand it, but I am not sure of all the legal aspects.

Alex Cole-Hamilton

I will expand the question slightly. The bill is about preventing FGM for everyone. We need to be confident that everybody is protected by the laws of this land, and nobody over the age of 18 is protected by child protection legislation. That is what I am trying to ask about.

Dr Jackson

I am uncertain of that reach. The challenge in using the bill as a tool is its effect on other work that is going on to engage and develop. A decision about that has to be taken.

Alex Cole-Hamilton

You have inferred that the bill would single out cultural communities and that the protection order seems quite unique in that. However, there are examples of such orders that Parliament uses quite readily, such as risk of sexual harm orders that prevent young people and vulnerable adults from being groomed sexually online. That is an example of another group being singled out, but the order is a necessary tool of protection that we, as lawmakers, try to extend to vulnerable groups. Do you accept that point?

Dr Jackson

I accept the point, but my research comes from the perspective of how the system can create an experience of marginalisation and racialisation. It may not intend that to happen, but that comes from its approach to specific issues, however it is intended to function. Because of those issues, we have to be extremely careful about what we do in this area.

For me, one of the issues is the documentation that comes with the bill. I have read many documents, but I have not always seen graphic examples in them. Although they are helpful, is it usual practice to have such diagrams and explanations in the submissions to committees? I am not sure. Maybe it is usual practice to explain the issue in that way.

Alex Cole-Hamilton

I am grateful for that contribution, which will inform the tone with which the committee will proceed. We recognise that, in this area, we have to proceed with a heightened level of sensitivity.

I have one final question, which is for Dr Karlsen. You opened up an interesting point about the fact that the vast majority of female genital mutilation in this country, whether it is piercings or labiaplasty, is consensual and is sought out by the individual. Is the issue—the difference here—about consent and the question of whether it is a conscious decision by someone who has attained maturity? Is there a disaggregation of two kinds of FGM, and do we need to reflect that in the bill?

Dr Karlsen

That was going to be my exact response in following up your question to Ima Jackson. We were talking about whether child protection legislation is enough, and that goes back to my point about why cosmetic labiaplasty and genital piercing might not be included. There is a written submission that questions whether we should have laws about the age at which people can have genital piercing.

Those points are all about whom we perceive as being in a position to provide consent. Generally, we assume that we are talking about those aged under 18, although the evidence around the prevalence of FGM is problematic—I will talk about that in a minute. The evidence suggests that the prevalence is concentrated in under-15s and under-18s. Therefore, allowing for what you say about further reconstructions—or whatever you might want to call them—as far as we can tell, a first incident tends to happen during childhood.

There is then the question of when we perceive that people are informed and responsible enough to provide consent. If we do not include clinical or cosmetic labiaplasty and genital piercing in the bill, because we assume that people who have those procedures are providing consent, it is difficult to understand why we do not consider women who make other decisions about what they do with their bodies—when they are older or after having children—in the same way. People from affected communities and people who are conducting the research are asking those questions.

Also, some of the concerns come from misunderstandings about the current prevalence. You asked for information about the prevalence of FGM in Scotland. You also acknowledged that there is not a lot of evidence and that the evidence is problematic. I have not looked at that data in particular, but we have just finished a study that looks at the available data in England and Wales. I am also aware of other research that has been done in the UK and in Europe. All the evidence suggests that the level of FGM risk is much lower than we generally assume. We have figures showing that 98 per cent of Somali women and girls are at risk; but, although we should protect those who are at risk, we should also recognise that all the research suggests that the majority of UK-resident people, including those from FGM-affected groups, do not support FGM and are committed to working to end it.

The policy memorandum says that there is a lack of evidence, but then it relies on prevalence rates from different parts of Africa and Asia and extrapolates directly from that information to establish a risk: it takes the number of women from those countries who are living in Scotland and the number of children those women—who may or may not have had FGM—have had, and it uses those figures to make an assessment of risk. It assumes that the risk in Somalia transfers to Somali mothers in Scotland and the UK, and then on to their children. However, the research suggests that that approach is not appropriate. Using those figures to establish the level of risk in the UK is not efficient. That does not mean that we should not protect those at risk, but it does shift the balance between the number of people who will be protected by the legislation and the really serious impacts that it will have on innocent families that get caught up in the legislation—as our research shows.

09:30  



Research suggests that people who migrate to and live in the UK and other low-prevalence countries, such as Sweden, Australia and other countries in Europe, have much more negative attitudes towards FGM than people who live in the countries from which they migrated. The cultures are changing. It may be that the people who move have much more negative attitudes towards FGM before they move, or it may be that their attitude changes once they have moved into this environment, where the attitudes towards FGM are very different—in the UK, people are stigmatised for having FGM in a way that they are not stigmatised elsewhere. Reflecting on the issue in that way gives us a very different sense of the scale of the problem. One case is too many, but we are talking about far fewer people than was first thought.

The Convener

I am conscious that we are coming into the last half hour, and I want all committee members to get a chance to speak.

Angela Constance (Almond Valley) (SNP)

I have three questions, which I hope to direct to the appropriate witnesses. For the committee to carry out our role, we need to focus and distil the issues.

Dr Jackson, you pointed out that, as practitioners, policy makers and politicians, we are learning the best ways to engage with the issue. Do you think that practitioners—health professionals, social workers, teachers and so on—have a residual anxiety about beginning to engage with the issue? Are we still nervous about, and resistant to, talking about it and raising issues because people feel disempowered and do not know the best way to go about it? If so, how would guidance help?

Dr Jackson

Yes. The eradication of FGM will happen only if it is inspired by the communities who are involved—they know that. The communities that I have been working with have been working really hard to engage, although they have little resource or infrastructure to support themselves to do that.

Your question was about practitioners and policy makers who are relatively new to the issue, but there is anxiety about how to talk about FGM within the communities. That anxiety was really clear in the research that we carried out with the young girls. Their task was to go home and try to speak to their mother, father and a friend about the issue of FGM. It was a huge process for them to learn how to speak about it. The anxiety is not just on the part of the service planners.

Angela Constance

Yes. I heard that loud and clear in your earlier evidence on the needs of communities and on how we need to be better tapped in, to really listen to them. However, my question was specifically about whether professionals worry that they might be accused of being racist or culturally clumsy and whether we should help to address that.

Dr Jackson

We need to address that. The point that I was trying to make is that the knowledge and expertise that exists in the communities will help us. We need mechanisms and levers to ensure that the perspective on how to speak about FGM, what to speak about and who controls the decisions made around it is theirs.

I know that the Scottish Government is trying that approach in other areas—I see it with the children’s hearings and poverty action, for example—and we desperately need it here, in order that policy makers and service planners become confident. With support, the women are confident about what they are deciding. When the national action plan committee was set up, there were three community members among the—I think—16 people who were on it. In the research, the women spoke specifically about how that balance already offset whatever they produced.

Angela Constance

If I can paraphrase you, Dr Jackson—correct me if I am wrong—you are saying that we need to really listen to the community and ensure that its lived experience is baked into our policy and legislative responses from the start.

Dr Jackson

Yes. We have to trust them and trust that they know.

Angela Constance

Okay, thank you.

As Mr Sirel is a lawyer, I will pick up with him some of the issues relating to our children’s hearings system. The FGM protection orders are for children and women of all ages. I would like to hear Mr Sirel’s view on the question of whether children’s hearings should be able to grant an FGM protection order. We know that the courts can refer back to the children’s hearings system, and I personally am a bit concerned about folk bouncing around between two systems. I know that there are already a range of civil orders. However, is there an argument for the children’s hearings system having an FGM protection order as a potential disposal?

Andy Sirel

My position is that, if properly applied, the existing tools in the children’s hearings system—such as compulsory supervision orders—are already sufficient to do the job here. That is an important point, which relates to what Dr Jackson said about our needing to not racialise the issue. For younger children who are before the children’s hearings system, existing procedures may well be sufficient if they are properly applied. The problem is that the children’s hearings system only goes up to 16 years old.

Angela Constance

Forgive me—I heard your evidence about 16 and 17-year-olds loud and clear. I and my committee colleagues will certainly come back to that point.

Are you saying that, if a legal route is being pursued for children who are under the age of 16—and ideally for 16 and 17-year-olds—the first place of reference should be the children’s hearings system as opposed to an FGM order?

Andy Sirel

The children’s hearings system is a specialised and child-friendly legal process. It was designed for the specific purpose of keeping children outside extremely adversarial sheriff courts and whatnot. On the basis that that is a strength of the system, we should keep it within the realms of the mechanisms that are already in existence.

Angela Constance

I have one final question, convener. I am very conscious of the time. Dr Karlsen, could you summarise what we should learn from the Serious Crime Act 2015? There are a few years of learning, based on the experience of England and Wales, that we can benefit from. On the basis of the experience south of the border, what should we definitely do and what should we definitely not consider doing in relation to the proposed legislation?

Dr Karlsen

As that is not my area of expertise, I do not feel that I am in a position to respond in relation to the 2015 act. However, in response to the questions that you directed towards Dr Jackson, I will say something about the professionals that relates to some of the more specific things that we can think about.

Some professionals are concerned about being seen to be racist or Islamophobic. Going back to what I said about the prevalence of FGM, we found that the participants in our study felt very strongly that professionals are far more concerned about missing children and not protecting children in their care. Sometimes, that leads to a tendency for professionals to jump to conclusions out of a genuine desire to protect children, but that means that many more innocent families are brought into the system than is necessary.

It is important that the bill is clear about the guidelines for professionals and that its implementation is straightforward. Families should not be referred without there being a reasonable level of concern, which should be established through communication with the family regarding the individual case and the individual risks. For example, the fact that someone comes from a family that has a heritage from, or that goes on prolonged holidays to, FGM-affected countries or communities is not an adequate factor in establishing risk in relation to the policies that are being developed by policy makers, particularly those in Bristol.

Other potential risk factors are much more ambiguous. We should bear in mind the fact that conversations about a girl becoming a woman might involve conversations about menstruation. We all have secrets in our families—it might be about surprise birthday parties or presents—and we all have conversations about becoming a woman. It is important to recognise that some factors are not suspicious and might not be related to criminal activity.

Angela Constance

I am conscious that some of my colleagues might want to explore the risk assessment that professionals undertake. You have raised an important issue.

Dr Karlsen

That is as much as I wanted to say on the matter.

Angela Constance

I turn to Mr Sirel and Dr Jackson. What are the top three lessons that we have learned from implementation of the 2005 act south of the border about what we should be doing and what we should definitely not be doing?

Andy Sirel

Is your question about implementation of the 2005 act?

Angela Constance

I am sorry—I meant the Serious Crime Act 2015, which contained FGM provisions and applied only to England and Wales. There have been a few years for the provisions to be implemented and put in practice. Are there any lessons to learn from that?

Andy Sirel

The 2015 act has multiple provisions on which the Scottish Parliament consulted, but which it opted not to go for in the end: those relating to anonymity, the offence of failure to protect and so on. The reason why we came down against a specific anonymity provision for people who are at risk of FGM, against the offence of failure to protect and against the duty to notify is that, with respect to the last two measures, we did not see any evidence from England and Wales that they were effective.

There has been a pretty high number of FGM protection orders in England and Wales. The numbers are quite interesting. Between July and September 2018, 36 applications and 40 FGM protection orders were made in England and Wales. Since FGM protection orders were introduced in July 2015, 296 FGM protection orders have been granted. We can compare that with, for example, the number of forced marriage protection orders in Scotland: between November 2011 and January 2017, 12 such orders were granted. There is clearly a difference in the numbers of those types of applications being made. I appreciate that the issues are separate, but there are some commonalities and there may be lessons to learn from the approach that has been taken in England and Wales—from good practice and bad practice—in order to ensure that the tool is effective. If it is not effective, we should not have it.

Recent research in England is covered in the 2018 report, “Perception and barriers: reporting female genital mutilation”. The report goes through a list of barriers and gaps, as described in interviews with 14 survivors. I refer members to that report.

I cannot really say more beyond that.

09:45  



Oliver Mundell (Dumfriesshire) (Con)

I have listened carefully to Dr Jackson. The bill has been published. A lot of work has been done on it and you are here to talk about it with the committee. How do we capture points that you have raised?

Dr Jackson

I was going to ask you about what can be done now. I do not know what capacity there is within the development of the statutory guidance to implement what we have been talking about. What opportunities are there within existing processes to do that? I do not really know what the processes are. I want to know how we can use the processes for creating statutory guidance to enable communities to affect what will become the statutory guidance.

Oliver Mundell

That is really helpful. You are saying that we really need to hear the voices of lived experience in development of the statutory guidance.

Dr Jackson

Yes—those voices need to take the lead. I do not know how creative and imaginative the process can be, but decisions are being made about what will constitute whatever this thing is that we are all talking about, so it is important to include those voices. Traditionally, the people—the voices—that all this work is trying to bring in are not there when decisions are made. That must not happen in this case.

Oliver Mundell

That is helpful. I have a broader question for all three panel members. Why have there been so few prosecutions under the existing legislation? Connected to that, in the context of England and Wales, why have we seen people coming forward for protection orders, but we have not necessarily seen the prosecutions to go with those? What is the difference?

Andy Sirel

That question is difficult to answer. To be honest, I do not know why there has never been a successful prosecution in Scotland or why there has only recently been one in England. I suspect that the answer is rooted in interactions between the police, local authorities and communities—barriers to reporting, lack of trust and so on. However, I am not an expert in those issues, so I defer to my colleagues on this and the next panel.

Oliver Mundell

Does anyone else have comments on why we do not see prosecutions?

Dr Karlsen

It is important to say that the one successful prosecution was not about a family that had a heritage in an FGM-affected country, which links back to the problems with the risk factors that I mentioned.

The participants in our study say that the lack of prosecutions is testament to the fact that FGM does not happen very much and that all the investment is to address what is essentially a small problem. It is a significant problem for the people it happens to—I am by no means diminishing the impact of FGM on individual lives and the lives of families and communities—but that is the reason for the lack of prosecutions that is given by our participants.

The other problem with assuming that the lack of prosecutions is due to a lack of police attention or enthusiasm or anything else, which has been the traditional assumption, is that it encourages the feeling that there is a criminal underbelly of people who are committing FGM, or who would be trying to commit FGM if only they were given the opportunity. That really impacts on how the affected communities are responded to by various authorities and by society in general. That has impacted on their sense of inclusion. It reinforces their distrust in all sorts—education, healthcare, police, legal services and social services. Again, delicacy is imperative.

Oliver Mundell

I am trying to ascertain why hundreds of people look for protection orders—although many are sought by police and local authorities—if FGM is not prevalent.

Dr Karlsen

I am not in a position to comment on that in an informed way, but protection orders not leading to prosecutions or not being granted might suggest something about the evidence, to a layperson.

Andy Sirel

I will add a point in support of what Dr Karlsen has said.

The vast majority of women and girls with whom we have worked, who have survived or been at risk of FGM, are seeking international protection, because if they are sent back to their country, there is a risk that FGM might occur. They are seeking protection from something that happens in their home country; they are not necessarily seeking protection from something that will happen here. When we talk about stigmatising communities, that is an important point to bear in mind. The women and girls with whom we have worked do not want FGM to happen. Their community is being accused of the very thing from which they are seeking protection. That is a common issue across immigration and asylum, more generally.

Oliver Mundell

That is helpful. Thank you.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

The panel members have been very informative. As Dr Jackson said earlier, the evidence is helping to shape my journey towards understanding the issue.

Dr Karlsen mentioned the risk being low. How confident are you in that assertion? During the committee’s pre-engagement process, I spoke to a group of people who were involved in the issue, which was an informative visit. Some of the men whom I spoke to were 30 or 40 years of age and had lived in their community all their lives but had not realised that FGM was going on until they spoke to other people. They then became involved in supporting people in communities in Glasgow, Edinburgh and other parts of Scotland. If it is difficult for people who are living in those communities to get an understanding of the issue, how can we have faith in any risk assessment?

Dr Karlsen

The data that we use to make the risk assessments is a long way from being what we want. We will make recommendations on how we can generate more effective risk assessments based on the research that we have just been doing.

At the moment, I cannot say categorically that there are or were so many cases, what types they were or where they happened, because the data that is collected as part of Government statistics does not enable us to say that.

However, we have research studies that have been done with groups from FGM-affected communities, who have talked about their attitudes to FGCM. Surveys have been done around the world to engage on changing attitudes to FGCM. People talk about it as something that happened in the past—it is something from their history that they do not consider to be relevant to their lives or their children’s lives. Part of the frustration in the on-going engagement on protection is the fact that those people are just British people who are living British lives and who want to go on holiday and visit their families. They are being prevented from doing that by a system that does not reflect how their culture has changed, as all cultures change all the time.

Fulton MacGregor

I will move that point on a wee bit. Do you and other panel members think that if we do—

The Convener

I am sorry—but I will just cut in for a second. Did you use the term “FGCM”?

Dr Karlsen

“Female genital mutilation” is the term that is traditionally used in statutory services, but it is quite a loaded and problematic term. Other people use “female genital circumcision” or “female genital cutting”. We would prefer to use FGC, but FGCM is for completeness.

Fulton MacGregor

Based on what has been said by the panellists on discussions that we have had, and following my previous question, if we do not get the bill right with regard to bringing the community on board, is there a risk that understanding of the matter could be pushed even further out of reach?

Dr Jackson

My work as an academic all focuses on communities’ experiences. If something is so serious that it warrants the committee’s work and legislation, I have to look at what has been put in behind that work. My research project with communities worked really hard to engage them, develop trust and support their work has ended. Where has that expertise gone? The issue is so important that there is a bill about it, but many community groups and many people like me—a black academic in Scotland who is working really hard to bring that voice through—are in project-bid land. We need to grow the knowledge and expertise.

I do not know whether the statutory guidance can develop and recognise our knowledge base in Scotland, but I hope that it can, so that we can become more knowledgeable about how to manage such intimate issues in our lives. We need to increase confidence in our mechanisms, such that policy and processes are able to make everybody feel confident about them.

Consideration of how we fund such work is really important. Our demographics have changed forever, so we really need to think about that deeply within our processes, in order for us to get the knowledge. We are learning how to do that, but there are risks in what we do and how we process that. If we build the resources, five years from now we will not be saying the same things.

Dr Karlsen

That risk was raised by our participants, who were anti-FGM campaigners and also regular members of the community who were interested in, and keen to see the end of, FGM. People who were referred from schools were people who had handed in their holiday forms to say that they were taking extended leave—they were ticking the boxes and filling in the forms, as they had been asked to. The concern is that if we start to criminalise those innocent families, the people who want to do FGM will go underground.

However, the issue is bigger. We have had Somali-led anti-FGM campaigners in Bristol for decades, who have had a massive impact on education on FGM. I do not have the statistics on the impact on prevalence, but it has been significant. Those campaigners feel that FGM safeguarding procedures have caused cleavages in the community and have undermined the work that has been done. Communities feel stigmatised and unfairly criminalised, which has undermined their sense of Britishness, encouraged their sense that they are living in a hostile environment and undermined their trust in services, as I have explained. The issue is not only about FGM, but the impact that the bill could have far beyond the specific legislation, by the ways in which it could reinforce many other things that are happening in society.

The Convener

Thank you, Dr Karlsen. We have all heard your point loud and clear.

10:00  



Annie Wells (Glasgow) (Con)

Thank you all for coming along. I have listened with great interest to everything that you have said.

Do you know of any countries that have made successful interventions that have not involved legislation?

Dr Jackson

That is a good question. No, I am not aware of any, but it is not my area of expertise.

Dr Karlsen

Education initiatives are far more effective than punitive ones. We want to catch criminals and protect children who are at risk, obviously, but long-term solutions are about community-led and community-engaged collaborative education. The bill needs to be part of an armoury, but it is difficult to see now how the bill will fit with your wider services for FGM protection. In general, moving away from punitive measures and towards educational measures is the way to go.

Annie Wells

Do you know of any countries where they take a different route with their FGM interventions?

Dr Karlsen

Generally, interventions are pretty heavy handed and are not very positive.

Andy Sirel

I do not have much to add. In Europe, the most well-known country in the issue is France, which pursues ruthless criminalisation of FGM and has the highest number of convictions for FGM in Europe. The panel might agree that that is not a particularly effective method. That is just an observation from our research.

Mary Fee

I thank all the panel members for their evidence. Many of the questions that I would have asked have been covered already, so I will be brief.

I would like to start with Mr Sirel. Should legal advice be free and freely available to anyone with a query on FGM protection orders?

Andy Sirel

Yes.

Mary Fee

That is very helpful.

Andy Sirel

Not only should they get that, but—perhaps guidance could help with this—there should be comprehensive access to legal and non-legal support, including local authority support, and referral pathways to access free legal information and advice. It is not just about free access to a lawyer, but broader access to legal information.

Mary Fee

So, there should be wraparound support that does everything that is required.

Before I ask the other panel members the same question, I ask you, given your background, how much weight is placed on the risk of FGM in the asylum process?

Andy Sirel

That is an interesting question. We can learn from England and Wales on that, because the High Court in England and Wales ruled on it in 2017. The High Court said that, in the context of an asylum claim, when the Home Office is assessing risk on return to the home country, it is not bound by the existence of an FGM protection order, but must take that into account. The Home Office has published guidance on that that states that an order can provide strong evidence in the context of a claim for asylum.

Our strongly-held view is that, in that context, if we are trying to demonstrate a past risk, a risk in the UK and, most important, a risk on return to the home country if there is a forced marriage, an FGM protection order being in place would be helpful, because it might have elicited further evidence and will have produced a result on a higher burden of proof.

Mary Fee

Do other panel members have a view on legal advice? I would be grateful for answers that are as short as possible, so that I can ask my second question before we run out of time.

Dr Jackson

It is not my area of expertise, but I completely support there being a broad umbrella of legal support.

Dr Karlsen

I very much support free legal advice, and legal aid more generally, but something else that came from our research is the need to be really clear about the guidelines. For example, there is the issue of how people access the advice. There is also the issue of pathways. We had a number of people who have been involved in FGM protection orders, who said, “I didn’t know what evidence they had”, “I didn’t know what was happening”, or “I didn’t know how long they were going to hold my passport for.” The lack of knowledge was really frustrating and problematic for families.

Mary Fee

The second thing that I want to ask about is guidance, which is a word that has come up frequently in the past hour. I have a bit of a bee in my bonnet about guidance, because it can either be incredibly useful or it can be a complete and utter waste of time. Multi-agency guidance about FGM already exists. I am keen to hear the panel’s views on what guidance should come with the bill. Should it be statutory? I get what Dr Jackson said about consultation of the community. Whether or not the guidance that comes with the bill is statutory, it seems to be really important that the community be heavily involved in developing it.

I would also be keen to hear the panel’s views on whether, in addition to the guidance, something should be built in to the bill to say that there should be on-going community engagement and education, and that provision should not just be about acting when there is perceived to be a risk, or doing a bit of work in schools or with community groups and then nothing else.

Dr Jackson

The question about guidance is helpful. I do not understand all the ramifications and potential of statutory guidance, but I know that the issue is creating ways of engaging in policy that require us to think differently. From working with the women, I understand how deep their knowledge is of how to engage with the issue. Instead of just being consulted, they should have authority and be decision makers. We have to rethink our processes about who makes guidance and whose voice is allowed to influence what it becomes. That is where we can make real change in Scotland. As I said, I have seen attempts to do that in committees on other matters, but I have not often seen it happen around people of colour or around migrants. They are so far from that process. That engagement is allowed to happen in other areas, so I am saying that this is an area where there is a real opportunity to do something.

Mary Fee

That is very helpful.

Dr Karlsen

I completely agree. The populations who are affected by the issues that are under discussion need to be involved in the framing and identification of the problem and in identification of the solutions. I do not know whether you would call it evaluation, but there needs to be on-going, long-term co-production. This is partly about undoing some of the problems that have arisen as a result of less communicative approaches. It would be very valuable if authorities could be very proactive in being seen to be communicating.

Andy Sirel

We are in favour of statutory guidance. Robust and clear guidance would complement the measures that are already in the bill. Such guidance could provide clarity around the risk assessments that should be undertaken in this area, and when legal orders to protect children must be applied for. In the past 18 months, our experience in respect of forced marriage has shown us that there are times when authorities have not acted and the consequences of that have been severe. Guidance would help local authorities to make decisions.

The last thing I will say is that I agree with what my colleagues have said about community engagement on developing the guidance. It is not possible to talk about risk factors on a subject that is so closely connected to cultural, social and familial issues without involving the community.

The Convener

Thank you all very much for your evidence this morning. It was really helpful.

10:09 Meeting suspended.  



10:16 On resuming—  



The Convener

I welcome our second panel to the committee: Jan MacLeod, manager, Women’s Support Project; Angela Voulgari, gender-based violence services manager, Sacro; Anne Spiers, deputy chief executive officer, Multi-Cultural Family Base; and Hassan Darasi, project manager, Community InfoSource. Good morning, everyone. Some of you were here for the first panel. We have a lot to get through and I will try to be disciplined with my questions, as will other members, so that we can hear all that we need to hear from you.

Can you give us a brief comment on the work that you do in relation to FGM and your views on the bill? I will start with Angela Voulgari.

Angela Voulgari (Sacro)

Good morning. I am here today because I work for Sacro, the lead partner for the bright choices project, which was a partnership between Multi-Cultural Family Base, Sacro and the Edinburgh and Lothians Regional Equality Council. The project was funded by the National Lottery Community Fund between 2015 and 2019 to provide support to individuals, families and communities affected by any form of honour-based conflict or honour-based violence. Under that umbrella, we realised that there was an overwhelming need for support, both for women who had survived FGM and children in Edinburgh who might be at risk of the practice.

My colleague Anne Spiers from the Multi-Cultural Family Base was one of the partners for the delivery of bright choices. The FGM support and protection worker for bright choices is still placed in the Multi-Cultural Family Base. That is our connection to that work.

Jan MacLeod (Women’s Support Project)

Good morning. The main issue for the Women’s Support Project is violence against women. We became involved in work on FGM after being approached by women survivors of FGM who wanted to be involved in community engagement work because they believed that there was a significant number of people who were not aware of the law in Scotland or the negative impacts of FGM on women’s physical and mental health. Through that we got drawn into work at the local and national levels.

It is important to acknowledge that we are all here today because of the grass-roots work, which has been led by African women in particular. We have tried to use that to guide our work. I caught the end of the previous panel and I agree that the involvement of the communities that are potentially affected and of women who have experienced FGM is vital.

We have been working within the wider context of violence against women and girls and human rights. We have tried to remain aware that, although FGM is a serious form of child abuse and can have a lifelong impact on the health of some women, in the vast majority of cases, parents believe that it is the right thing to do or is what is expected of them and that not carrying it out might have immediate negative consequences for their daughters.

That is a difficult issue for child protection systems here to struggle with. It also leads to an understanding that, in order to work effectively with communities or for community-led change to take place, we need to amend our approach slightly. For example, if someone genuinely believes that their religion requires them to carry out FGM, the law might not change their behaviour, but if we can work with their faith and show that no religion requires or condones FGM—as far as I am aware—we can get change for people overnight. We try to have those principles inform our work.

The work that we have delivered has included developing resources and training materials for practitioner training and public education, and supporting networking between statutory, voluntary and community sectors through newsletters and meetings. Last year, we had a national conference, which had a trauma focus. We have done a small bit of community engagement—we always try to do that in partnership with black and minority ethnic or survivor-led organisations. For example, we have worked with the Kenyan Women in Scotland Association, which has done excellent work in communities; Hassan Darasi and Community InfoSource; Saheliya; and the violence reduction unit. Although we do not have funding for a support service for women, we get a gradual trickle of referrals from lawyers, social workers and health visitors because we are involved in public education, so we are aware of the lack of services for women.

Anne Spiers (Multi-Cultural Family Base)

Thank you for inviting us. I work for the Multi-Cultural Family Base, which is, among other things, a social work training agency, so we work with social work students from all over Scotland. We also provide family support services to black and minority ethnic communities, from age naught to adulthood, across our various projects. We have always had a focus on new and emerging communities and on people who move to Scotland. Twenty years ago, we worked with Sikh and Pakistani communities, which are well resourced and self-supporting these days. We now work with a lot of refugees and asylum seekers, for example from Syria.

As Angela Voulgari said, we were part of a collaboration, partnership and philosophy that was called bright choices. Through that, we have in place our FGM support worker, who works with women, girls and families. MCFB also has an honour-based violence support worker, so we have two workers who work specifically on those issues. A Venn diagram would show that there is quite a big overlap between the two issues.

Hassan Darasi (Community InfoSource)

I am the project manager for challenging violence against women, at Community InfoSource. As a company, Community InfoSource started in 2006 and has a legacy of working with disadvantaged communities, particularly black and minority ethnic groups. I am one of the people who has benefited from Community InfoSource. I came here as an asylum seeker and helped to start the Scottish asylum seekers residents association, which was unique in the United Kingdom, given that asylum seekers were tenants and the landlords were white people. We have been working on a lot of pilot projects, such as the living well in Glasgow project. Our projects have benefited a lot from working in partnership with Jan MacLeod and the Women’s Support Project.

In doing that work, we discovered a need to work with men. We brought the issue to one of our partners, Saheliya, but, given that Saheliya works only with women, it said that it would give the work to community social workers, who deal with all genders, and we tapped into that work.

We work in a very challenging environment in which we deal with men from east and west Africa as well as some men from the middle east—many people from places in the middle east, such as Yemen and Kurdistan in Iraq, also practise FGM.

The work that we do with men is very challenging. The need to work with men came because we stand little chance of doing away with FGM if we work with only one gender. The involvement of men is therefore very important. That is where we come at the issue from.

The Convener

Thank you—that is very helpful. I will go straight to committee members for questions. Not every witness has to answer every question, but if you wish to contribute, you can. I will start with Oliver Mundell.

Oliver Mundell

We heard from the previous panel about how the protection orders have been working in England and Wales. I note that only 3 per cent of those orders were made at the request of the person who was to be protected. As we bring them forward in Scotland, how do we empower more people to come forward and seek protection themselves?

Angela Voulgari

We do that through education, first of all. The approach that we as a partnership have taken—it has also been taken by many partner organisations around Edinburgh and Glasgow—is about not jumping in and telling people what to do but making sure that people are on our side through an understanding of why FGM is a damaging practice and of the lifelong effects that it will have on the child, the girl and, later, the woman in her adult life. A lot of the time, once people understand those impacts, it becomes a lot easier to get them on our side and to get them to say, “That’s not the future I want for my child and I’m prepared to work towards protecting her.” I believe that my colleagues will agree with that to a large degree. It is about education, raising awareness and making sure that people understand that we are here to support, not punish.

Anne Spiers

To clarify the original question, was it about how we encourage people to engage with and seek protection orders themselves?

Oliver Mundell

Yes, that was the thrust of my question. In England and Wales, 39 per cent of orders were requested by local authorities and 58 per cent—I think—were requested by the police or other third parties.

Reflecting on the first panel’s evidence and on other evidence to the committee, I think that there is a feeling that the process is something that is being done to communities, rather than people coming forward themselves and having confidence in the process.

Anne Spiers

My starting point, which was reflected in the discussions that I had with my colleagues in the run-up to today’s evidence session, is that, like the previous panel of witnesses, we have some questions, not necessarily about whether the protection order is required but about what teeth it would have and whether it would be useful in addition to orders that already exist, such as child protection orders. Obviously, we are more familiar with some of those orders at Multi-Cultural Family Base.

If we could go back the way, we would change the title and call it a protection and support order, because if we are asking people to come forward and request something themselves, there needs to be something in it for them. Our experience of intervention is that it is best received when it goes alongside tangible support to people, so the order needs to offer people support as well as protection.

Although I take on board some of the points that the previous witnesses made about the prevalence of FGM, our view as an organisation that works directly with people who are affected by FGM is that if we have a child who is at risk of FGM, we have a circle of people around that child who are at various levels of risk as well. If one of the additional risks to them is of prosecution or criminalisation, they will not come forward or engage. Who would? If it is likely that it will put someone’s other children at risk of having a parent who is prosecuted or criminalised, the hope that they will engage on that level with a protection order is reduced. We have a lot of concerns about that area. If we offer protection and support, there is a better chance that people will engage more readily.

10:30  



Jan MacLeod

I agree with the replies from Angela Voulgari and Anne Spiers. When we had meetings with women from communities that are affected by FGM and we asked about the protection orders, the number 1 response was, “You can have as many laws as you like but if people don’t know about them or if they don’t believe that you are going to use them, it doesn’t matter what the law says.”

On how we increase the number of people at risk who apply for protection orders, the first thing is that they need to know about them. I can imagine situations in which both young women and adult women are at risk, because there can be a link with forced marriage. In some cultures, FGM is carried out on the eve of the marriage. The Rosa project research suggested some years ago that the age of protection should be raised to at least 25. That is an important gap in people’s thinking.

For children or younger women, the fact that somebody else applies for the order is not necessarily a bad thing. It is a huge step for anybody to take. Given the overlaps that sometimes exist in relation to domestic abuse, honour-based violence or cultural attitudes, it can be a help for family members if they are able to say, “Well, it wasn’t really us; it was that social worker that did it,” or, “The police made us do it.” Otherwise, it can cause a huge fall-out in the family.

Another thing that struck me about the discussions that we have had is that women often say that a woman cannot say no to her husband or her mother-in-law. That came across strongly—it is relevant to a different point, which was the suggestion of an offence of failure to protect, which was a huge concern in communities.

Hassan Darasi

I agree with what my colleagues have said. We have also been discussing the issue with other groups. We had the same view as Anne Spiers that we should call the orders protection and support orders. We did not say it that way but I like that expression.

We said that the measure is a real contribution to prevention. The strategy provides a deterrent and not just punishment. One of my colleagues used a nice expression: “If you are going only to punish, it is like closing the stable door after the horse has bolted.” Deterrent measures are far more important. People should be educated, and we should raise awareness in all communities. That is what is needed. Do not bolt the door by jumping to the punishment. We agree with having a protection order.

Oliver Mundell

To follow on from that point, will people see the protection orders as being sufficiently distinct from criminal prosecution, or will people see them as being connected to the criminal process?

Anne Spiers

It is hard to judge that. The understanding of the legislation and powers that might be brought to bear could be minimal among communities. In my experience, that is certainly the case in the white Scottish community. It is the same for all of us; unless something is specific to us, we might not have much interest in it. There could be a deal of confusion. Who delivers the information and in what way is probably more important to individuals and communities. I do not know whether my colleagues would agree with that.

Jan MacLeod

It is hard to say. In discussions, people have understood what the orders are trying to do, which is to be a first stage that can protect people without it criminalising their parents or close family. The forced marriage protection orders do not seem to be a huge issue, so the orders should be workable.

Annie Wells

The committee sent out a call for evidence on the bill, and we received 13 submissions, which were pretty mixed in their views on the additional protections that should be in the bill. Three provisions come to mind: lifelong anonymity for the victim, the offence of a failure to protect, and a mandatory duty to report. Should those provisions be included in the bill, or does it go far enough?

Jan MacLeod

The bill has gone far enough. We had huge concerns about the failure to protect, and it came out in all our discussions that there might be serious unintended consequences. I am not a legal expert, but that seems to be contrary to everything else that we do in law. How can it be proved that someone failed to do something?

To go back to my original point, I have heard stories in which parents did not wish to carry out FGM but came under huge pressure when they went back home. I am sure that the committee can imagine a situation in which someone would say to them, “You should have just said no.” However, as I have already said, women have told us strongly that there are circumstances in which a woman cannot say no and stay safe or have her children stay safe.

On anonymity, our view was that it is not helpful to pick out FGM when we do not have similar legislation about child sexual abuse, incest, rape and sexual assault. If something is needed, it should cover all victims of gender-based violence—males and females. I am not convinced that that is necessary.

Angela Voulgari

Our view was that, for FGM, lifelong anonymity should be guaranteed for any victim or complainer purely because of the further risks for them and their extended family members and community as a result of having spoken out against a centuries-old practice. There could be further repercussions from the wider community, and there could be all sorts of unintended consequences should the name of the person or the family be made known to the public.

The question on the failure to protect was quite divisive. Overall, we responded “Yes”, but our answer contained seven or eight considerations that need to be taken into account. Although we can see the benefit, it is not black and white. We need to be able to ask whether we have considered the specific circumstances in which the situation came to be what it is, and, if so—as Jan MacLeod suggested—how we prove that one way or another.

You also mentioned the mandatory reporting duty. That was another question for which answering why took a very long time. As Anne Spiers mentioned earlier, it is not just about making the reporting mandatory; it is about making the support for the child, woman or wider family and community mandatory. If we do not provide that support, further generations and potentially other members of the family will suffer, too. We need to step back and consider both sides of the argument.

I am sorry if that is not a very clear answer. However, it is not a very straightforward question, unfortunately.

Hassan Darasi

I agree with what my colleagues are saying. The proposals were discussed at the FGM summit in July, and there were many issues. The phrase “failure to protect” is very elastic and cannot be defined. What is meant by “failure to protect”? It might even put the victim in the same boat as the culprit. There were other issues, such as the question of anonymity.

I think that the bill goes too far. There is no clear guidance for various issues, including the failure to protect. The third sector does not have any clear guidance. On Tuesday, we were in a meeting about the national action plan. Even the statutory bodies are not clear about all those things, so how can we expect communities to be clear about what the law says? We do not know whether there will be some guidance for the third sector.

The language is too technical, as well. It will be hard to deliver to communities at the grassroots level, for example, where English is not people’s first language. All the technical language would be very hard to understand for the people whom the law is aimed at. There could also be some profiling of communities or stigmatising of people. If you are going to use the legislation only for certain categories of people, how will the communities perceive that?

As Jan MacLeod said, there are some similarities with people’s perceptions of the forced marriage legislation, but that affects only certain communities in the Asian community, not the community as a whole. The bill could be different from the forced marriage legislation. It would have an effect on the wider community.

Alex Cole-Hamilton

In the previous panel session, Dr Jackson made the interesting point that there is potentially sufficient protection coverage in existing child protection legislation to at least make the protection orders unnecessary. However, as I mentioned to Dr Jackson, we heard in a briefing from the bill team that sometimes adult women are subjected to FGM. Obviously, no adult is protected by child protection legislation. Can you talk about the prevalence of FGM among adult women if you have knowledge or evidence of that? Is there another route that we could go down instead of using a protection order which would not single out cultural groups in that way?

Jan MacLeod

On prevalence, nobody can say for sure how many women in Scotland are affected by FGM, because that information is not collected anywhere.

On whether FGM protection orders are absolutely necessary, I know that, when we first discussed the issue at a multi-agency meeting in Glasgow some years ago, there was a feeling that it was already possible to effectively protect children. However, I think that I am right in saying that, as discussions have developed, there has been a feeling—certainly among the women and some of the workers from other organisations that we have discussed the matter with—that there would be a benefit in having something specific on FGM. It would bring to people’s attention that this is very much an issue for Scotland and for Europe because of migration, and it will continue to be an issue. Various pieces of research have been done that show that migrant communities sometimes hang on to their cultures and traditions much more strongly than they would in their home countries.

We could certainly protect children and young people without those protection orders, but there might be advantages in having FGM-specific protection. One particularly problematic issue—again, I could not give the committee the national numbers—is that the asylum system’s approach to FGM risk is very definitely at odds with what you are all trying to do and what Scotland is trying to do to end FGM.

I will give an example of that. It involves a woman who was married in her home country. Her people did not practise FGM, but her husband’s family did. They were Christian and believed that it was part of their religion and that it was rooted in other traditions. They expected the woman to undergo FGM before her marriage, but her husband did not want that to happen.

10:45  



Everything was fine—they brought up their family for 12 or 15 years, and then the husband died. The daughter was 11 at that point. The family had just arranged to come to the UK to visit the mother’s sister. They got an unexpected visit from the husband’s family, who had the attitude that the husband had died prematurely because he had broken the family traditions and who believed that they could remove the bad luck and prevent any further bad luck in the family by restoring the traditions. They had arranged for the daughter to be married at the age of 12 and for the woman to be married to her husband’s brother. I almost forgot to mention the key thing, which was that the daughter overheard that conversation. When they came to the UK, the sister said, “You need to go to a lawyer.” The lawyer in London told the daughter, “You don’t need to worry—you’ll be protected in the UK.” Since then, their asylum claim has been refused again and the mother is terrified to tell her daughter that, because she is very concerned about her daughter’s mental health.

When that family came to us, a social work referral had been made, but months had gone by. I am very interested to know whether an FGM protection order would have some weight in such cases. I heard the response that the previous panel gave. In that particular case, FGM was not just a possibility but was planned. Despite that, the claim failed. That makes me wonder what communities make of the fact that, even though legislation has been put in place that is directed at their cultural practices, another section of British society says, “No, you’ll be fine—just move to a different town.”

I am sorry that that was a long answer, but I think that that example highlights the point.

Alex Cole-Hamilton

That has opened up several new avenues of inquiry for us, particularly as regards the interrelationship between our deliberations on the bill and the deliberations in relation to the UK immigration system.

I want to ask a question that I asked the previous panel, which is about the fact that FGM is a spectrum. There is the brutal mutilation of young girls, which happens against their will, right up to women from all cultural groups choosing to have changes made to their genitals, such as piercings or labiaplasty. Is there a danger that, by singling out one cultural practice, we might create an artificial racial barrier? There are cultural practices in our culture that are not traditions, but which are more prevalent. Do we need to reflect that in the bill, particularly in the context of consent?

Anne Spiers

That goes back to the previous question that you asked, with which there is a connection. You asked about the protection of women as well as girls and the extension of protection orders to women. With protection orders under other pieces of legislation, such as the adult support and protection legislation, the issue of consent for adults is a primary consideration. There needs to be a different approach when it comes to consenting women and offering protection to people with capacity so that a choice is involved.

I am sorry—I have slightly lost track of what your second question was, because I was working on the previous one.

Alex Cole-Hamilton

I asked whether the bill needs to be more nuanced in relation to the spectrum of FGM and whether it might need to refer specifically to consent. If what is regarded by the WHO as FGM is undertaken with consent—I am talking about a procedure such as labiaplasty—do we need to disaggregate that within the bill?

Anne Spiers

I was very interested in what our colleagues said previously on the issue. I am not sure that I have any answers, but some of the discussions that we have had have been about the risk of racial and ethnic profiling being too much of a consideration when FGM protection orders are looked at. We are talking about ethnic profiling that can go hand in hand with people who come from particular areas of the world. It can look like ethnic profiling, and we are concerned about that. On a spectrum, we have a mild, unconcerning area at one end. I am not concerned about what causes people to be influenced to undertake cosmetic FGM, for want of a better term, but I certainly have concerns about ethnic and racial profiling, which my colleagues spoke about earlier.

Alex Cole-Hamilton

I will clarify my question, which is about my growing thoughts about potential changes to the bill. If it explicitly referred to consent, all of that issue could be covered. We could remove some of the racial stereotyping that we are rightly worried about by saying that this happens in increasing numbers of cultures and most of it may be consensual and the person’s decision, but there might be times when a woman in our culture in Scotland will be forced by an abusive and coercive husband to have changes to her genitals, and she will probably need protection.

Anne Spiers

Yes.

Jan MacLeod

That is like changing the world. If you could do that, please do.

The issue comes up quite a lot in our training. We ask practitioners to think about being challenged when they say that they are a social worker and that FGM is against the law. A person might say, “How come? If I wanted to, I could just go and get labiaplasty.”

The bottom line is that there are women, including young girls, who are eagerly waiting until they are old enough to get it done because of social and cultural pressures, and also the impact of pornography. When I grew up, we rarely saw pictures of genitals, but now young people see them all the time. That has an impact on girls who have had FGM and did not realise how much they had been changed, and on girls and young women with regard to body image. There is a perfectly solid and strong argument that cultural pressures are leading to the same impact. However, most practitioners and people in general are clear about the matter. Although there might be concerns about people’s reasons for cosmetic genital surgery, the key thing is that it is not generally intended to limit women’s sexual pleasure or control their sexual behaviour.

References to piercing can be confusing. My understanding—I might be wrong—is that the original World Health Organization wording about “pricking” or “piercing” did not refer to jewellery, but was about tightening the vagina or something like that. That is unhelpful now. Sometimes, when midwives ask the question, it might be easier for people who are a bit uncomfortable to focus on the jewellery side, which is not really what the question is about.

Alex Cole-Hamilton

That was very helpful.

The Convener

That is an interesting issue and your response was helpful. The first thing that popped into my mind was that we need to be careful not to say, “That stuff that’s done in a cosmetic surgeon’s studio is fine—it’s a free choice—but that other thing is bad,” because all those things are related to the same structures in which women are not valued.

Lots of colleagues are waiting to come in—I am trying to remember in what order.

Angela Constance

I want to go back to the issue of anonymity. Do Ms Voulgari and other members of the panel have a view about whether, in the context of the bill, anonymity for victims should be automatic? How might that work in practice? At the moment, the courts can grant witness anonymity under the Criminal Procedure (Scotland) Act 1995. Four criteria must be met for that to happen.

You support witness anonymity. How would that work in practice? Are the existing provisions for the court granting anonymity sufficient?

Angela Voulgari

We firmly believe—this goes back to Alex Cole-Hamilton’s question, too—that automatic anonymity should be provided immediately. Many victims are children, but we have worked with women as old as 43 or 44 who were at risk of FGM and—if they refused to undergo the practice—at risk of an honour killing. We need to be aware that we are not just talking about children. The provision must be extended to adult women, including those in their late teens and early 20s.

Another consideration that influenced our response is that it is sometimes not necessary to state someone’s name, especially when they are a member of a community that is quite small and tightly knit. People in such communities know one another very well, and one of the issues that we raised in previous discussions was the way—

Angela Constance

I understand the arguments for automatic anonymity—they have come through well in your responses. What I am trying to get at is how it would work in practice if the current act was amended by the bill, and why the current provision is insufficient with regard to the courts providing anonymity when women or girls are the victims, or at risk of being the victims, of FGM. The Government will say that the existing law provides for the courts to grant anonymity. I am asking you why that is insufficient.

Angela Voulgari

If I am perfectly honest, I am not entirely familiar with the four conditions. We based our response with regard to this particular type of abuse on what we thought would be the most appropriate course of action as a stand-alone process.

Angela Constance

Thank you. Ms MacLeod, do you want to comment on that issue?

Jan MacLeod

I am a bit like Angela Voulgari in that I am not the best person to inform you about the details of the law.

The point that was just made came up strongly in a recent case in Bristol involving a Somali family. People in Glasgow knew which family that was from the way in which the media reported the case, even though no names were mentioned. People said that they could not imagine how additional legislation could be constructed that would stop the spread of information on social media. They talked about how quickly it spreads from one country to another, which has implications, such as family back home being threatened. I do not know how you could ensure anonymity.

Angela Constance

We can perhaps bottom that out with the Government.

Ms Spiers, given that your organisation supports the training of social workers, do you have any views on whether it would be useful for the children’s hearings system to be able to grant FGM protection orders?

Anne Spiers

If FGM protection orders end up coming into being, I would agree with the children’s reporter having the power to grant them as part of the children’s hearings system. It would be really useful for such orders to co-exist with the other orders that are available to the reporter.

I would say that it would be useful for the children’s hearings system to have the ability to grant FGM protection orders for all the reasons that have been mentioned, and because of what Andy Sirel said about the benefit in the children’s hearings system not taking children and their families further into the judicial system—the courts and so on—than is necessary. That would be a more supportive approach.

11:00  



Fulton MacGregor

I want to follow up on questions that I asked the previous panel. The academics on that panel were not sure how prevalent FGM is in Scotland. From my experience of the issue, it would seem that there is not a body of evidence on FGM. Many of the services that your organisations provide are front-line services. How prevalent is FGM in Scotland?

In the interests of time, I will combine that with another question that I asked the previous panel. If we do not get the engagement right with communities, does the bill have the potential to make it even harder to reach people? Might the practice be pushed even more underground, for want of a better term?

Anne Spiers

I completely agree. In our direct practice, we are in the business of building relationships with people who are vulnerable; at MCFB, they can be vulnerable for lots of different reasons. However, if we ignore the fears among communities or individuals, we will be in danger of driving practices underground, alienating our services from communities and not being able to offer support to the people who really need it. We already work very hard to engage with people, and if they associate that engagement with some sort of accusation or insinuation of criminal behaviour, we will be on a really sticky wicket.

Angela Voulgari

I agree that we need to get it absolutely right. The last thing that we want is to perpetuate the fear of engagement, not just with statutory services but with any kind of service.

To go back to your question about prevalence, that really is the golden nugget. Unfortunately, I do not think that there is an answer, partly because a lot of the numbers that we have come from maternity services, and not every woman who is a survivor of FGM will access maternity services. We tend to try to estimate the numbers using extrapolation based on census information, and prevalence in countries of origin. When it comes to women who are not going to access maternity services, are other professionals aware of what questions to ask in order to establish whether FGM is present? That includes not just health professionals but teachers, social workers and people working in services across the board that women are likely to access.

Jan MacLeod

Nobody can say for sure what the numbers are, but we have one Glasgow-based project, rights and choices, which, although not FGM specific, works with asylum seekers, refugees and migrant women. About 70 per cent of the women there have undergone FGM, and a significant number of them would have had type 3. We regularly—month in, month out—come across women who have been in touch with services and who have not been asked the questions or given the information that has allowed them to talk about physical or mental problems—health impact, rather—or problems in the family, some possibly relating to child protection. There are definitely significant numbers of women, and families, who have been affected, and who could have more negative impacts that are not being identified. We have made a big difference in raising awareness, certainly in the central belt, but I agree that we need to continue that work.

The answer to getting a better idea of the prevalence of FGM and to improving engagement is to target resources at key points of contact. Not everybody has children, but everybody should have a general practitioner, and women should be part of the national smear testing programme. Key points of contact include registration with a GP, the smear testing programme and maternity services. We should also ask whether there is an opportunity, when children go to nursery or school, to include something in every parent’s pack of information and to engage at that early stage, so that we start to build up a better picture. It is particularly important to do that in parts of the country where the percentage of the population who are at risk is very low, because if FGM does take place, it could have a catastrophic effect on girls.

On the argument about FGM being driven underground, I do not think that the bill will do that. However, if the law was badly applied in the first instance, that could certainly happen. Skills and training will require to be provided. My view is that if the first orders that were placed were seen as the family was just planning to go on holiday, that would have a really negative impact and would have unexpected negative consequences. At one meeting, a woman made the point quite strongly that, if a family really wanted FGM to take place, they would send the girl abroad and not bring her back. Families who are really committed will be able to do that anyway, but the bill could protect other young people.

Hassan Darasi

It is very hard to know how prevalent FGM is. I work with men, so it is very hard to know. Three weeks ago, we had a workshop where there were people from a number of communities. There were three people from the Yemeni community, who argued that there is no FGM in their country. They said that not even one person had been affected, although the rate of practice is 23 per cent in Yemen. We spent half an hour arguing with them, by showing them websites and googling. We showed them newspapers from their own country, but they said that they could not be relied on. We showed them other resources from their own country, but they were still adamant that the rate was not even 1 per cent there. If people do not know that FGM is happening in their own country, it could be happening in this country without their knowing.

The same is true for me. I have two daughters, and it was only when I engaged with these issues that I knew that FGM had occurred with them. In our communities, although there are some cultures in which men are involved, mostly, these things are done through the women. People do not necessarily know that it is happening, so it is very hard to know about the prevalence.

The other question was about whether protection orders will lead people to go underground. The answer is yes and no. A protection order could be empowering for people, if it is used correctly.

As Jan MacLeod said, many people perceive FGM as a religious thing. For our projects, we bring in some imams for Muslims, as well as some priests, to educate people, because there is a wrong interpretation of some religious sayings. For example, some sayings in Islam make it seem as though such things are acceptable. We bring in religious men to talk to people, and we give some examples. For example, Saudi Arabia is a totally Muslim country, but nothing is happening there. If FGM was related to Islam, Saudi Arabia would be one of the countries in which these things are done. North Africa is a predominantly Muslim area, but FGM is not practised there, except in the north-east, in Egypt, where the rate of practice is more than 90 per cent.

Protection orders will be a blessing if they are used properly to empower communities and raise awareness. A lot of work is needed, so we should not rush the introduction of the orders, because that might have a negative impact.

The Convener

While we are talking about the protection orders specifically, do panel members have a view on what length of time they should cover?

Jan MacLeod

They would need to be very flexible and potentially long term.

The Convener

Sometimes it is helpful for us to understand a scenario or a circumstance—it can seem a bit abstract just to talk about orders being out there. Can witnesses think of examples of women whom they have worked with and what type of intervention would have given them the protection or space to take action?

Anne Spiers

I am probably competing with my colleagues to give you examples—yes, we have examples. One involves a woman who was referred to us as a survivor. She was receiving support from us and she declared her fear that FGM would be performed on her two-year-old when the family returned to its home country after a period of study; they were in the country on a study visa. The two-year-old of the family would be at risk, as that had been declared to be the plan of the extended family back home. Her husband was, at best, ambivalent. He saw it as a tradition and—as has been said—did not feel that he had much of a part in it. For him, it was just something that was going to happen.

My colleague, the FGM support worker, worked with the woman closely, to the point at which we felt that the child was at risk and that the woman had very little agency to do anything to protect the child. At that point, following the getting it right for every child guidelines, we involved our statutory colleagues. The family then engaged with specialist social work services—in that case, asylum and immigration. The family went forward, engaging voluntarily, because there was a six-year-old little girl in the family who was an FGM survivor and the woman was an FGM survivor. She also had male children and she was in great fear.

An issue for her was that she came from a relatively affluent and well-educated family. She lived comfortably while she was here with her children, who were settled at school in Scotland. In pursuing the protection of her child, which was her number 1 priority, she faced, in all likelihood, the prospect of losing her husband, who would go back home without her. He may have attempted to take the children with him; however, secure arrangements were made to prevent that from happening. In her view, she would certainly be abandoned in a country that was not her own, speaking a language that—although she could speak English—was not that familiar to her. Her family would be uprooted because she would have to seek asylum. The children would be taken out of school and nursery, and they would be moved to and accommodated in Glasgow, where they knew absolutely nobody. That would be the result for her—she would be on her own in Scotland, where she did not choose to come in the first place, in order to protect her child.

That is where we talk about protection and support. The little bit of breathing space that a protection order might have provided in the first instance would perhaps have given her some time to think about her options, with some protection. However, it would not have changed her options much, because of the concern that we have all expressed about the interface between protection orders and the legislation that we have in Scotland and Home Office legislation. Hypothetically, there was the potential for that woman’s immigration and asylum situation to change and for asylum to be denied to her. She would then have been an abandoned woman going back to her home country with her children, and all that we would have done would have been to increase her vulnerability and the vulnerability of that child.

The Convener

How would a protection order make such a situation better?

Anne Spiers

I know that that sounded like a very well-rounded case study, but that is the question that I came here with.

The Convener

It is the key question, and it is one that we will certainly put to the Government. Does anyone have anything else to say on that question?

11:15  



Jan MacLeod

That is the scenario that I would have picked. I gave you the other example—the most common referral that we get is when there are quite urgent child protection concerns, especially when the family states that plans are definitely in place and it is not just a theoretical risk.

An FGM protection order might help only with winning an asylum claim. It might not help at all in relation to having an impact on the family, and what is needed is support for the family.

The Convener

Thank you. That is helpful.

Mary Fee

I thank you all for your evidence, which has been very helpful. I will ask you—as I asked the previous panel—about the guidance that will come with the legislation. That guidance will be incredibly important, and the committee can make suggestions about what we would like to see in it. I am keen to hear your thoughts about whether there is something in particular that should be included.

Mr Darasi, I was particularly interested in some of your comments about the work that you do with men in communities. We cannot exclude men from any of the learning, education and support for families. I appreciate that we do not have a huge amount of time, but I am keen to hear whether you know of any good practice in communities that we could recommend including in the guidance. If you cannot go into all the detail today, I would be grateful if you could contact the committee later, to let us know about that.

Hassan Darasi

We have discussed this in a group as well as with some people from here who visited us. What is available is a little porous, and it is not very clear. First, there is no clear indication of what the guidance is and whether the third sector will have its own guidance. We put something in writing about that. For example, it is not clear in the bill which people can apply for an FGM protection order. The list of people who can apply includes “any other person”, but only with the permission of the court. We are not clear about what that means, and we need some answers on that. If we do not have those answers, it will be hard to know what to do.

There should be some examples of what triggers the protection order. For example, as Jan MacLeod said, if a girl is going away for a longer period during the summer, that could give an indication that something might happen, but it could happen in an even shorter time. There are many things to consider.

We also want to know whether there are scenarios from other parts of the UK that could help us in our work on guidance. We work with different cultures—for example, some men come from the middle east and are Arabic speaking. There are some Kurdish people, and we deal with people from different parts of east Africa—Somalis, Eritreans, Ethiopians, and Sudanese people—and from west Africa. We deal with some Egyptians as well. It is very challenging.

It is mostly those people who come from east Africa who depend on their religious teachings, saying that type 1 FGM is a religious requirement, whereas in west Africa it is mostly cultural. The topic needs more time, and maybe I can give more feedback on it later.

Mary Fee

That would be very helpful. Thank you. Ms Spiers, do you want to comment?

Anne Spiers

My view of guidance is influenced by our training role. If guidance is issued, it needs to be accessible for training purposes. As you would expect from the third sector, we would say, “Could that please be resourced?”, because we cannot carry the burden of that training. In my previous role, I was a learning and development adviser, so I understand the importance of training as it comes down through the statutory sector to the workforce. Sometimes, in the third sector, we carry that burden ourselves. Angela Voulgari and I worked in partnership, and a big part of the bright choices initiative was to offer local authorities advice, training and support in relation to a number of the topics that we have covered today. Any guidance that is issued needs to be resourced in such a way that it can be disseminated.

Mary Fee

Okay. Do other panel members have a view?

Jan MacLeod

The existing guidance has a lot of helpful information in it, which can be built on. Obviously, we need to keep working on general awareness and, if the legislation comes into force, promoting it. However, there is a lack of practice skills such as how we ask the question, whether people are clear why we are asking it and what should follow from a positive response.

We need something that would get key organisations to have regard to the development, at key points, of appropriate skills such as going to the GP, using maternity services and entering education. Every family will do one of those things. If they have kids, they will have to use maternity services. We need to concentrate the resources, because just saying, “We should do more training” will have no impact.

I am not sure how it could be done, but we should highlight the importance of carrying out community engagement even if, initially, it is just engaging with organisations, so that practitioners are aware of organisations such as the Kenyan Women in Scotland Association—KWISA—the my voice project and the other projects that have submitted evidence. We should not talk to communities just when we have a crisis; communities should be able to inform us.

Work that was done in Glasgow about engagement was really informative. The good practice guide that came out of the Rosa-funded multi-agency initiative has strong and clear guidance for community engagement, and I recommend it. The guide recommends highlighting positive change, because African communities have demonstrated that they can change attitudes to FGM. It is not a simple story, but there has been a significant fall in its prevalence. If this initiative could be linked to positive, community-led change, that would go a long way to avoiding possible negative consequences and a bad start to the legislation.

Angela Voulgari

You asked for specific examples that can be used to inform further guidance. In July 2017, the Edinburgh child protection committee published the “Edinburgh and the Lothians Inter-Agency Procedures for the Protection of Girls and Women at Risk of Female Genital Mutilation (FGM)”, which has been instrumental in our work. It is a supportive, detailed and informative document that, as Hassan Darasi said, has been helpful because it breaks things down into the specific responsibilities for each professional. For example, what would a health professional, a social worker or a third sector worker do? It is clear about what they are expected to do. I highly recommend that, in any consideration, it would be a good document to consult.

Mary Fee

That is helpful. Thank you.

The Convener

I thank the panel members for their evidence. It has been very helpful and we are grateful to have had them here.

At our next meeting, we will continue to take evidence on the Female Genital Mutilation (Protection and Guidance) (Scotland) Bill.

11:24 Meeting continued in private until 11:37.  



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Second meeting transcript

The Convener (Ruth Maguire)

Good morning, everybody, and welcome to the 21st meeting in 2019 of the Equalities and Human Rights Committee. I ask everyone to switch off their mobile phones and put them away. We have received apologies from Angela Constance and Annie Wells.

Agenda item 1 is stage 1 of the Female Genital Mutilation (Protection and Guidance) (Scotland) Bill. I welcome our first panel. Esther Kamonji is from the Kenyan Women in Scotland Association, Girijamba Polubothu is manager of Shakti Women’s Aid, and Sara McHaffie is the violence against women development officer at Amina—the Muslim Women’s Resource Centre. You are all welcome. Thank you for being with us.

Can you tell us about your knowledge or experience of FGM, and the work that you do in relation to it and, in doing so, say whether you support the aim to strengthen the existing legal protection?

Sara McHaffie (Amina—the Muslim Women’s Resource Centre)

At Amina, we have a helpline that offers support for women who call us for any reason, including because they have a concern about FGM or have experienced it themselves.

My role involves training our staff and volunteers, including on FGM and related issues, and it involves awareness raising in the communities within which we work. I might, for example, lead a session in a women’s group during which we talk about violence against women and girls in general. We would include FGM as part of that, so it is not set off to one side as a stigmatised issue.

We also work with men’s groups: we work with sheikhs and imams and show a film that features them talking about FGM and the position on that within Islam.

We do campaigning, blogging and social media, to correct attitudes more widely than among the folk to whom we have time to reach out. Obviously, we also contribute to policy, locally and nationally.

Girijamba Polubothu (Shakti Women’s Aid)

We provide domestic abuse services and support women who are suffering all forms of domestic abuse, including FGM, forced marriage and dowry-related abuse. We are actively involved in campaigns on those issues.

We have been supporting women from countries where FGM is practised. FGM has already happened to the women whom we support and who have migrated to this country. However, recently, we have also had cases in which mothers are fleeing domestic abuse, and there is an element of fear of FGM happening to their children.

Currently, we have five cases: one mother with three children, a single person and another woman with children. I hope that it is okay to say this: for one woman, FGM took place in Europe and she fled from there to prevent further harm. Those are the types of cases that we support.

We also support other domestic abuse cases; we support the women to get access to accommodation and to financial support, including benefits. If there are issues to do with immigration and asylum seeking, we help the women and children to get them sorted out.

If a woman or child discloses that FGM is happening, we support them to access protection orders, on which we work closely with the police and social work.

The Convener

Esther, could you say a bit about your organisation, please?

Esther Kamonji (Kenyan Women in Scotland Association)

Thank you. I am sorry for being late.

Our work is mainly focused on African women. I will give the whole context. Most of the people whom we work with and associate with in respect of FGM come from the African continent and its diaspora, and many come from the FGM-affected areas.

I will briefly give the historical context of the Kenyan Women in Scotland Association and how we came into being. We were not the first to fight FGM. In Scotland, the Prohibition of Female Genital Mutilation (Scotland) Bill was introduced in 2005, and a lady called Khadija Coll, who is still very active today, fought hard until it came into being.

09:15  



In 2002, Akina Mama wa Afrika, a group of Scottish African women, came together. They worked on FGM and talked about it, and thereafter even offered training. Akina Mama wa Afrika has since become an international organisation that has its head office in Kampala.

Over the years, many people have become experts on FGM. At one point, everybody was talking about it. However, within the community, people were getting very disgruntled. In 2013, we decided to come together to address the issues because our voices were not being heard and our faces were not being seen in relation to FGM. Everybody else’s fingers were in the pot, but our fingers were not; we were just being dished the food, as we say.

In 2014, KWISA had a seminar in Linlithgow with the assistance of West Lothian Council. Eighty women came from 14 different countries. You will note that KWISA is Kenyan Women in Scotland Association: we had to register some organisations because if you are not registered, you are not known. All those women were involved in fighting against FGM in one way or another, but we did not have a platform. That is how we came together.

At that seminar, we cried and laughed at the same time, but it was clear that we needed to have our voices at the front, and that we needed to contextualise how FGM was being discussed at that time. The issues were about everybody else being an expert, and the language that was being used. Our involvement in the whole discussion was just a token and we were not part of it: people talked about us, but without us. That is how all the women who came to that seminar felt. It was clear that we needed to raise awareness, to talk among ourselves and to be involved with other people.

After that, in one year, women tried to come together on a voluntary basis, but it could not work because of other commitments and because it was voluntary. African women in Scotland against FGM was formed, and it was recommended that, having worked for one year, we really needed to formalise that properly and move forward. Later on, we were funded through a grant of £20,000 from the Scottish Government, which propelled us on in starting the project.

I will show the committee our model later. The KWISA engagement model is not the traditional engagement model that is used, especially in policy making and the process as a whole. You will see that, when we make policy, we start with the policy agenda, then move on to risk assessment, then formulate the policy, then we do consultation, then implementation.

This is a community issue. So that is where we start. That concept has been used in many countries. Our community issue at this time is FGM within the context of other things, so we analyse and prioritise it, and we do community learning, looking at skills and development. Then we consider delivery of services that we have around us and which influence us, and then we look at changing behaviour. We started with the women. We have worked with other stakeholders, but the community is the main stakeholder.

We are insiders. Some of us have been through FGM so we know the context. We wanted to avoid the single story that was being told that there is only one type of FGM—cutting—because there is a lot more to it than that. FGM is not just about cutting.

Looking at the whole picture of what happens, it is critical that we engage men, women and faith leaders, when it comes to FGM. The service delivery organisations also need to be engaged, especially social workers and the national health service, which we have worked with.

The Convener

Esther, I will pause you. Many of the things that you are saying about what has happened in the past will be relevant to what we are doing now. I hope that questions will draw out more of your experience.

What are panel members views on the existing legal framework? Are the approaches that we have to hand at the moment being used effectively, and if not, why not?

Sara McHaffie

The existing legislation describes FGM quite well. It would be ill advised to adopt new language without thinking that through. As Esther Kamonji said, it is a matter of consulting extensively with practising communities. Some of the language in the consultation was quite inaccurate. It included, for example, “vaginal elongation”, which is not a thing.

The existing legislation is quite clear. It covers things such as labial stretching in type 4 FGM. I think that the current legislation is sufficient in how it describes FGM. There are issues related to the fact that we have not had prosecutions. We have to consider whether this is about supporting women and girls who have already experienced FGM, as well as criminalising what might happen, that we might not currently be able to capture. Protection orders might fill that gap through prevention, rather than through retrospective criminalisation.

The Convener

Does anyone else wish to comment on the existing provisions?

Girijamba Polubothu

I agree with most of what Sara McHaffie has said. Before the meeting, we discussed other things. Esther Kamonji referred to the language that is used in describing FGM. Also, demonisation of communities in which the practice happens seems to be a problem.

There is a way to do things better. The bill is good, but as Esther said, we should work with the community and find the words that describe FGM. For example, some of the women whom we support do not like the word “mutilation”; they prefer “cutting”. Sometimes, we push the communities away through the language that we use; they go on the defensive because they have been used to the practice, which has been passed from generation to generation. I am sure that in the past nobody even thought about it as being against human rights or anything else. Our role is to work with communities, while supporting the survivors of FGM.

I will mention one more thing. There is a problem of cases involving domestic abuse such as we support, in which men have used FGM to prevent women from visiting their families. There was, for example, a case involving the death of a family member in which the woman could not go to her family.

The Convener

To be clear, are you saying that abusive partners are using FGM as an excuse to prevent women from travelling?

Girijamba Polubothu

Yes. When women want to visit a family member, the men say no, especially when there are female children. They might say that there is a fear that she is going somewhere for FGM. That creates a problem. That is not the intention of the woman, but it is used.

Alex Cole-Hamilton (Edinburgh Western) (LD)

I have a brief supplementary question, but I will come back later with other questions.

Girijamba’s point is really interesting, and we have not heard it before—at least, I had not—so I would like to explore how to deal with that, perhaps through guidance that would accompany the bill.

Further to the convener’s question, we heard powerful evidence last week about dangers in respect of racial profiling and stereotyping, through the bill, and about the creation of a legislative framework that might unnecessarily prejudice a community. We are very sensitive to those issues. The same person also suggested that existing child protection legislation is sufficient to protect young girls in such situations. Do you agree?

Girijamba Polubothu

Sometimes, when we get calls asking for our advice in such cases, we simply say, “I’m not a lawyer, so I don’t really want to comment on something I’m not an expert on.” As a woman and as a domestic abuse worker, I sometimes get so frustrated when people come in and say that a child is at risk of either FGM or forced marriage and they concentrate more on the cultural aspect and whether they will offend the community. In such cases, we ask those people what they would do if the child was part of mainstream Scottish culture and they felt that some harm was going to come to that child. Of course, they would use a child protection order. People should think about the subject in that way, rather than finding barriers and saying, “Maybe I’ll offend them” and “This is a cultural thing”. People get entangled in that discussion. We need both the existing child protection legislation and the bill, because we might need to use both.

Alex Cole-Hamilton

So, you do not oppose the introduction of the bill.

Girijamba Polubothu

No—it would be good to have the bill.

Alex Cole-Hamilton

You think that it would be good to have the bill, on top of the child protection legislation.

Girijamba Polubothu

Yes. I want to make it clear that we support the bill.

Esther Kamonji

I agree with Girijamba Polubothu: the child protection legislation and the bill are definitely both needed. Of course, we can get entangled in the cultural aspect, because everybody has a fear of racial profiling, but it is important to name the problem so that we can frame it adequately. Both measures are important.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I will follow on from Alex Cole-Hamilton’s question about child protection procedures, a big part of which is the children’s hearings system. We have asked previous panels for their thoughts on whether the children’s hearings system should be able to make an FGM order, which is not currently provided for in the bill. What are your thoughts on that?

Esther Kamonji

I am not so sure—I think that it should still stay in the children’s hearings system. Most of the people who undergo FGM are underage. There may be instances when some adult women undergo FGM after marriage or for whatever reason, but most cases involve children below the age of 18, so we should handle them like every other child. That is what we believe.

Fulton MacGregor

Perhaps I can rephrase the question, because I probably did not put it very helpfully. At present, the children’s hearings system can implement legal orders for children who are at risk of harm and in need of protection. That was mentioned in the responses to Alex Cole-Hamilton’s question.

However, the bill proposes that only a court would be able to make an FGM order; the children’s hearings system would not have the ability to do that, although the court could refer the issue back to it. I am trying to find out whether you think that it would be helpful if the children’s hearings system also had that power, or if you feel that it would be best placed with the court.

Sara McHaffie

One answer might be to look at how forced marriage orders are currently implemented. Obviously forced marriage can affect adults as well as children, but since those orders came into being it has sometimes been felt that not enough bodies are able to ask for an order. Perhaps the provisions could be widened to include another body with expertise. That approach could even be trialled—it does not necessarily have to be a black-and-white change. Amina tends to support adults rather than children, so it does not have specific expertise on children’s hearings.

As regards how the bill will be put into place, looking at how forced marriage orders have been used and monitored will definitely be helpful.

09:30  



Esther Kamonji

Although we have children’s services, I do not know much about how children’s hearings work so I would prefer not to comment on that.

As Sara McHaffie has said, it is better to widen the number of people who can seek orders. For example, the right to seek forced marriage orders has been extended to the police, which was a development that we supported.

The Convener

I come back to the earlier point about why we would ever treat girls who have been affected by FGM differently from any other girls we were concerned about.

Esther Kamonji

Our argument is that we should treat such children the same as we would treat Scottish children who might be at risk of harm from their parents because of the parents’ drug addiction or similar problems. If a child is at risk of FGM, that is a family issue that we must treat in the same way as any other.

Fulton MacGregor

I want to move on to what are perhaps wider questions. What does the panel think the overall impact of FGM protection orders will be? Will there be a need for training across the various agencies and bodies that are likely to be involved?

Girijamba Polubothu

We find that whenever legislation on FGM is passed, disclosures and reporting increase—and, of course, there is now more awareness of the subject among the public. However, there are no services to support survivors once they have reported cases. It is good that legislation is being passed, but the Parliament also needs to look at how survivors who report cases might be supported.

You also asked about training, which is a very complex subject. Services need to partner with people who come from the practising countries. Organisations represented on this panel offer services. We all have service users who we consult and our workers do that too, so we are quite confident in our training. Unless a person comes from the relevant community they will not be able to answer some of the questions that arise in training. I know that because I have been training myself and have come across such questions. At the same time, I repeat that we do not want to see communities being demonised. FGM has been practised for a long time, but we want to work with communities and survivors to eradicate bad practice.

Esther Kamonji

I agree that there will definitely be a need for training and informing everybody—the community, practitioners and service providers—because the bill adds value to what exists. However, when it comes to training, what Girijamba Polubothu has just said will be critical. I add that the reason for KWISA’s coming into being was that everybody was training back then, in 2013 or 2014, and they have continued to do so. We have discussed before, however, in the context of the FGM national action plan, that there is a need for standardisation, attention to language, understanding and community involvement, because this is not a single story. There are many and diverse reasons why people practise FGM.

Also, the context in which training is done might either offend individuals in the community or allow them to take up the issue. I will give you an example. A housemate of mine, who is South African and has gone back there now, knew that I was involved in a lot of FGM and community work. She once went to a training session somewhere in Edinburgh—I do not know where. She is not from a practising community, but she is a mature woman. In that group, men and women were seated together and a young person was doing the training. The trainer was excellent and knew everything, because she was a highly qualified nurse and she understood everything.

When my housemate came out of the training, she came home raging and said to me, “Esther, in your FGM work, do you actually go out there and tell people to look at what African women look like?” I asked her what she meant, and she said, “I am upset because people are being exposed.” Remember that, under normal circumstances, even within the communities that practise FGM people do not know what is happening. She told me, “I felt that they are telling people that when they meet an African woman they should expose her and check.”

That trainer was well versed with the programme, and with training and the issues, and if my housemate came out feeling that way, what about the person who has absolutely no idea of what is going on? That is my tic. We need to be very careful about how we do things and to partner with the communities so that we can standardise, speak their language and support what is already there on the ground. That is why I talked about the history. Women have been working on those programmes in this country since 2005, but we are still talking about the same things today, in 2019.

Sara McHaffie

My speciality is training, so you must tell me to stop when I have talked too much. As white Scottish people, we need to remember that FGM is not something that one community is doing far away from us, and remember our relationship with those communities. As white westerners we have a long history of fetishising sub-Saharan African women. We can look at what happened with Saartjie Baartman and the way that she was treated and exposed; particularly, the way that her genitals were made a feature of her identity in a way that other women do not experience. Also, we exported Victorian colonial attitudes to other countries and seeing those attitudes reflected back reflects on us more than it does on those communities.

When we talk with women—and men—from practising communities, one of the big concerns is that it becomes their whole story. Those people do not necessarily have a platform or access to ways to tell the stories of their achievements and of themselves as human beings. In effect, the first thing that somebody might assume about a person is that they are from a community that practises FGM. It does not necessarily respect geographical boundaries; we cannot assume that because somebody is from a certain country they have experienced FGM, and we certainly cannot assume that they approve of it or otherwise without having a gentle conversation around attitudes.

Even health professionals can sometimes demonstrate that a little knowledge is a dangerous thing by assuming that somebody who looks as though they might be of sub-Saharan African origin has experienced FGM. Other examples might be assuming that someone has sickle cell anaemia when they are not remotely from the side of Africa where that is a thing. There is a lot of, “Oh, you are from this place: therefore, this must affect you and you must feel like this about it,” while on the other hand they do not unpick personal bias from the side of being a white western practitioner.

Training needs to be funded enough to allow people to unpick that bias. If it is e-learning, for example, where somebody rapidly reads it through, perhaps on their lunch break because they are so busy, it does not go in in the same way and people do not necessarily notice their own bias. Even if someone has a long history of reflective practice, there can be blind spots.

Some practitioners might be more able to attend training sessions, which is great, but other people working in the area—interpreters, for example—will not necessarily have the ability to do that on a paid basis. When issues come up locally, there can sometimes be a general sense of panic, even though we have great harmful practices protocols. I might be running around like a blue-arsed whatever doing training here and there, and there are other wonderful organisations doing the same, but people panic. They do not necessarily look at the protocols, and they sometimes push the responsibility on to third sector organisations. They might even ask those organisations to provide interpreters. Obviously, that presents a conflict of interest. The interpreter could be a family member—again, that would be a massive conflict of interest.

There may be a paid interpreter—the family may have had their right to access an interpreter explained to them, or a social worker may have organised an interpreter—but interpreters do not always have the chance to debrief after a session. They are paid sessionally, generally speaking, and they do not have the chance to attend training on a paid basis. It would really help if interpreters could be reimbursed for attending training sessions that were provided by organisations recognised as training to a gold standard, as Esther Kamonji mentioned. It should not just be anyone who provides the service; there should be some way of centralising what the training is meant to be. That goes for all the issues around violence against women and girls—VAWG issues. The training should be in line with the values of equally safe, and no one community should be stigmatised.

It would be really helpful to have something like a training bursary. I know women from practising communities with whom I have co-facilitated training, or who have helped me to create materials for training if they have not felt able to speak openly themselves. I am trying to mentor women who seem promising as trainers, and when I suggest to those women that they should go to this session or that session, we find that there is no training budget. They might be working in the area, but they are not able to access funds. They may be developing expertise, but they might not be able to put it into a wider context, because of the restrictions on working for third sector or voluntary organisations. It might help to have some kind of budget to allow people who are already experts to give training. It would also be good if there was some magical way to pressure people from the courts to access training, if they are going to be passing orders.

Fulton MacGregor

I have a further question, although I am aware of the time constraints.

There was a wee bit of discussion earlier about criminalisation, and we heard some views about that for the record, which is good. Are the members of the panel able to give their views about the penalties that have been set for breaching an FGM protection order?

The Convener

It is okay if the panel members do not have a view on that.

Alex Cole-Hamilton

This next point taps into some of the questions that we have been discussing about the application of the proposed law. I am thinking about other laws of a similar kind that the Parliament has passed. The clearest parallel can be drawn with the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005, which created risk of sexual harm orders, or RSHOs. The order is a preventative measure that can be applied to protect potential victims from online grooming. That act came into force more than 10 years ago, but we have discovered that the number of RSHOs that have been applied by the courts can be counted on one hand. That is not to say that the problem is not happening or that children are not at risk of sexual harm, but there is a lack of guidance to the police, the judiciary and other stakeholders. What additional measures do we need to take to make the bill that we are discussing real, so that it protects people and is used, and so that it is not allowed to wither on the vine?

09:45  



Esther Kamonji

It is important to have protection and support. If we just go criminal, it will not work. It would be good if we had protection and support for the person who is reporting. Remember that these things happen within the family and the community. It does not matter if the community is in Scotland, London or Africa. Today, with WhatsApp and the media, people will find out. It is important for the community or individuals to understand that they are being supported through the process.

At the moment, there are a lot of issues around protection. A child may come and say, “I am being taken away. I am going for FGM. What happens to my mother?” Remember that it is done in love but it is a crime at the same time. Does the child want their mother, their uncle or their auntie to go to prison? We must have protection and support systems in place.

I have another example. FGM has been fought, especially in Kenya, for more than 100 years. You should read “Facing Mount Kenya” by the first president, Mr Jomo Kenyatta. We need to understand why communities practise FGM. Why is the practice there? Why has fighting it legally not worked? It has worked in places where the communities have taken the lead, so that the people are supported. There are plenty of examples of that across the world. For me, the bill needs to come with protections and support.

Alex Cole-Hamilton

That was a helpful answer. Do we need to ask the Scottish Government to provide money to properly train social work, the police and the judiciary in understanding the issues around FGM, so that they can use that arrow in their quiver, rather than just applying normal child protection laws?

Esther Kamonji

Training is good and it is important to the practitioners, but where is the community in all that?

Alex Cole-Hamilton

That is a helpful question.

Esther Kamonji

The community must be there, giving its views on the way things happen. The KWISA model works from the ground up. We are just women who came together. This year, the Scottish Government gave us £25,000, which is helpful, but our way of working is about the fact that I know people back home and people here. Women from 15 countries have something back in Africa and something here. Within the bubble of their communities, there is a snowballing effect. That information is gathered together.

If we want change to happen, we should train the community members and get them involved. We should get the leadership, especially the faith leaders, involved. Faith leaders are critical in all this, because people go to churches and mosques. We should also get opinion leaders involved; not just one person, because then we get a single story, such as, “It is only cutting”, although we have four other stories.

Yes, we should train the practitioners, but we should also get the communities involved, so that we get the whole picture, people talk to each other and we know the intrigues and intricacies of the whole concept.

Alex Cole-Hamilton

Thank you. That was helpful.

Girijamba Polubothu

The training should be made mandatory for social work, police and anybody who is involved in supporting or who may come across FGM cases.

Esther Kamonji mentioned the communities. For me, it is important that we work with the survivors, irrespective of whether it is historical FGM that was done elsewhere or here. It is important to take their opinions and ideas into the training. I agree that there should be money available to train the survivors to become trainers. If a survivor has just some input into a whole day of training, that would be a good idea.

Sara McHaffie

It might also be good to have some awareness raising available to MSPs or Scottish Government policy people who speak out about it, because there has been some unhelpful language from politicians. For example, the word “barbaric” is racially loaded. I am picking up the word “traumatic” a lot. We are all obsessed with language but, if you have only a couple of column inches to put the message across, it paints a vivid picture of disgust at somebody who is a Scottish citizen. That is never appropriate. To call it inherently traumatic does not pick up on the fact that some survivors will use that word and some will not. It does not echo what we hear from women who have experienced it. When the change is implemented, the way that we put the message across is just as important as the way that support bodies and statutory organisations use it. When it comes to awareness raising, we get one shot at press releases and that kind of thing. That will put it in the news. If it is done in the right way, it will increase the need for support; if it is not, it will entrench secrecy and stigma.

Alex Cole-Hamilton

That is helpful, if mildly terrifying. To that end, if that feeling exists, I would appreciate a submission on the language that we use here, such as a glossary of terms that are racially charged or unhelpful. We do our best, but we have many different plates spinning and we might easily get that wrong. Please make a submission to guide us through the process.

I have a final question. It is only if we can reach the girls who are most at risk of FGM and impart to them the reality that FGM is not right, that they have a choice and that they can be protected, that the bill will be a success and that we will fully eradicate the practice or risk of FGM in this country. As we have discussed, a range of barriers, such as language, culture and, sometimes, family, mean that those girls are potentially further removed from society and other girls. How best can we communicate directly with those girls? How can we get them to talk to one another about what is right and about their right to protection?

Girijamba Polubothu

With any form of abuse, whether it is forced marriage, domestic abuse or FGM, we have to start talking about it in schools. It has to be part and parcel of education. It is not just about talking to the children from African communities. We want the mainstream children to know about those things, too, because they are our future citizens and they are the ones who will lead the country. We want to raise awareness with every child in the country. It is not just about the children who come from practising communities. As I said, with every form of abuse, that is what should happen.

Esther Kamonji

I agree. Looking at the way that we have worked, KWISA started working with women, then with men and women. Our most recent project, which we did with Glasgow Caledonian University, was a research project with Glasgow City Council. Unfortunately, the project ended after a year. We were working with schoolchildren. The beauty of the project was the energy that we saw in those children. Some of you came to the conference on 6 February and saw the impact of the information on those girls after we had worked with them for six weeks. Although they are African children, some of them had never heard about FGM. Nobody talks about it in school.

However, it is not just about FGM. We cannot put FGM in isolation without talking about human rights and the other issues that go with it. Traditionally, FGM is supposed to be a rite of passage. We need to have those programmes in schools but in a way that will not stigmatise the children. I agree with Girijamba that everybody needs to talk about it. The girls need to start knowing, because some of them opened up when they were asked to go and talk to their families. It is about giving them the knowledge, the confidence and the aptitude, because it is not an issue that is openly talked about. That project was for one year and it is finished now, so we have to find a way to work with it and, we hope, with you.

Alex Cole-Hamilton

Thank you. That was helpful.

The Convener

We probably need more than a glossary to properly address our inherent bias. I appreciate that issue. Feel free to challenge us if we use language that is not helpful.

Mary Fee (West Scotland) (Lab)

I apologise for my voice. I have a couple of questions around guidance, which I will ask together. I also have a specific question around training.

The bill gives ministers the power to introduce statutory guidance. Do you agree that the guidance should be statutory and not advisory? What should be in the general guidance and in the specific guidance on the protection orders?

Sara McHaffie

I made a submission to the original consultation. It took me a while to think through, look at what was out there already and give a fully informed answer. I cannot do justice to the question in the five minutes that we have left, but moving towards having statutory guidance might lend credence to the fact that, as we were saying, people need to take it on board and take it seriously.

Esther Kamonji

The guidance should be statutory, but without going into the details. People need to see the seriousness, whereas if they are just advised they can decide to take it or leave it.

What was the question about training?

Mary Fee

I will come on to training in a moment. Does Girijamba Polubothu have a view on the guidance?

Girijamba Polubothu

We worked intensely on the forced marriage statutory guidance and had a lot of input into it. From our experience of that, it is necessary for the guidelines to be statutory. We can strengthen the current guidelines. Whether or not there are guidelines, it is the responsibility of every citizen in Scotland to prevent FGM and protect survivors of FGM or any other forms of domestic violence.

Mary Fee

Thank you.

My second question was around training. I will start with Sara McHaffie. Multi-agency guidance on FGM already exists. Do you use that as part of your training? Should whatever guidance is issued with the bill be suitable to use as part of a training process?

Sara McHaffie

Yes—to both questions. I highlight the laws and guidance that exist and other resources and organisations, such as the FGM aware website, KWISA, Shakti Women’s Aid and Saheliya, which offer support. I use what exists and I would like to be able to say that it is statutory guidance. Even if, as we were saying before, there might be few times when somebody is the subject of an order, that would help me, just as having a law helps me when I am training. Although I can think of only one time in the north-east of Scotland when it would have been helpful, it would have been really helpful for that family. If we can say, “This law exists” or “This guidance exists”, that might strengthen what we say as Scottish people about FGM being unacceptable and about how best to work with communities in which children might be at risk.

The guidance should incorporate the experience of folk who work in that area. We more often come across someone who has experienced FGM than we come across a situation of risk for a young person. We might see someone who is the subject of a lot of panic, although they have no intention of subjecting their child to FGM and would be shocked that somebody thought that they might do that, because they see FGM as trauma.

In any guidance, it would be helpful to recognise the fact that figures can be unreliable. A Scottish Government report said that around 24,000 folk

“in Scotland were born in a country where FGM is practised”.

However, a lot of people who were born in France, Italy or Scotland are from a practising community. Looking at someone’s country of origin is not necessarily the most useful thing. Sometimes, it can be reassuring to have definite, black-and-white facts and figures. At other times, it is better to be open to nuance and learn more about the reality of how things play out on the ground.

10:00  



Esther Kamonji

I agree. There is definitely a need to use the guidelines and all the information that we have. Above all, we need to incorporate the experiences of people on the ground. If the training is standardised in understanding the culture, the feelings and the whole concept of FGM, it will not be rejected. When people walk out of a training room, you have talked and finished and nobody else has said a word. I have come across a number of people like that. They went into training but when they left they were a little bit disappointed. We do not want that, because it means that nothing has been taught and that people go back into their own cocoons and say, “Those people were speaking to themselves.”

Girijamba Polubothu

We mostly deliver training on forced marriage, but we are developing training on FGM. Like I said, we want to do a good job of it. We want to consult our survivors and get the real stories. With the forced marriage training, we talk about the legislation and the consequences of breaching it because it is important for whoever we are training to know that.

We do not do specific training on FGM although it is part of harmful practices. As Sara McHaffie said, that is how we will be training on it. We want to involve our survivors, and one of them is an active campaigner. I wanted to ask her to come today, but she is in Gambia so she could not come. She was part of the launch of the bill; she was on telly, which is good. We like to see role models.

Esther Kamonji

KWISA cannot do major training with the £20,000 that we have been given. Although we have trained outreach workers and community champions—women who are within the communities—they are constrained because they are doing that on a voluntary basis. When we think about training, we should think about resourcing the whole package, including connection to universities and colleges—the whole works.

Mary Fee

Thank you; that is helpful.

Oliver Mundell (Dumfriesshire) (Con)

The bill is a slight departure from the approach that has been taken by the rest of the UK and in the Serious Crime Act 2015. Do you have any views on anonymity for victims, the offence of failure to protect and the duty to notify? Should they have been included in the bill, or are you happy with the bill as it is?

Sara McHaffie

The submission that I made in December or January talks about that in a bit more detail, and I am conscious that people have to leave. Anonymity or some way of preventing the names of victims from getting into the press one way or the other is helpful.

The Convener

I am sorry to interrupt, but could you clarify whether you mean your submission to the Scottish Government consultation?

Sara McHaffie

Yes. I do not think that I can say anything that is not already in there.

Girijamba Polubothu

We were also part of the Scottish Women’s Aid submission.

When a women is suffering domestic abuse, she can be identified as the perpetrator of FGM by the abuser. We have come across that. Police, social work and such services have to look outside the box. Sometimes the woman is under so much pressure and that is part of the domestic abuse that she had gone through. She really does not want to do that to her child, but she ends up implicated in the act because of tradition.

When we come across cases of domestic abuse in which the woman is accused of being the perpetrator of FGM, we perhaps need to consider who the perpetrator is. That issue is raised by our survivors, who say that they were not the perpetrators, but that there was family pressure and everything else, and that that was the reason that they left the home.

The Convener

We have heard that from others, and the committee would acknowledge the coercion around the issue and how it can be a continuum. We would also acknowledge that risk and protection factors in such things can sometimes be muddled up a little bit. Thank you for that—it was really helpful.

Sara McHaffie

One thing that can be helpful to social workers, if they are in an area where there is a safe and together model, is just to use the training that they already have in that context. If it is part of domestic abuse, they should look at the strengths that the mother is displaying and not jump to thinking, “Oh, we can get a prosecution for failure to protect”, or something like that.

Oliver Mundell

My other question—witnesses touched on this when we talked about education—is whether there are other things that the Scottish Government should be considering to sit alongside that, or whether there are alternatives to help eradicate FGM.

Girijamba Polubothu

I think that education in schools is the best thing. I said that education should be for everybody, and one of the reasons that I said that is that an African child may disclose to a friend, who is a mainstream child, that FGM is happening. If that friend knows about FGM, they will be able to support that child. Education also means that, as we go along, we will not need to be talking about training, because people will already be trained and know about the issue from school.

As we mentioned, another thing is working with communities. At Shakti, we have a women’s group, and we bring in subjects such as FGM and sexual abuse—all kinds of issues. We also bring in people to talk to the women, and not just to the African women. We want them to talk to all our women, who are of different ethnicities, because we want everybody to know about it. It is about raising awareness not just in schools but in communities and in women’s groups everywhere—they can be Scottish, Irish, African or Indian women’s groups. Awareness should be for everyone; it should not target just those communities in which the practice is in existence.

Esther Kamonji

We need to look again at the way in which we resource and fund various organisations, including KWISA. There are a lot of small funds, so all the community groups end up competing for resources and for the same people, and not being as organised as we should be. That also means that programmes are started but never really finish—they start, and then they are left on high. We train community outreach workers, but then we leave them to do their own thing. We work with faith leaders—we even had a big declaration that they signed to say that FGM is not part of their religious order, whether Islam or Christianity—but then we leave it on high. We work with schoolchildren, but then we leave it on high.

As such, the communities are always going through the phases of, “We are running and we are doing something” and then, “Oh no, we are deflated.” It is therefore important that we look again at the way in which organisations are funded. Of course, it is important to work with various groups and definitely with children. Whichever way we look at it, for me, resourcing and considering expertise are also important.

Oliver Mundell

Thank you—that was helpful and very interesting.

The Convener

The points that witnesses have made have also been picked up in our budget inquiry. It is useful to hear them in evidence today as well.

Sara McHaffie

There is an on-going issue with funding for voluntary and third sector organisations. It would be good to think that all bodies that ask for training would have a budget to pay for that training, so that we were not necessarily having to ask for all the money from a very small equalities budget. Equally, if that budget could be increased, that would be fantastic.

It is good to think about ways of training people who want to look at the whole manifestation of violence against women and girls. There is a real risk that people ask because they are fascinated about one particular aspect, such as FGM. I will not be able to expose someone who has experienced FGM to that environment. Thinking about what training can do—it is not a form of entertainment—is also quite important.

The Convener

Okay. Fulton MacGregor has a very brief question, and I am sure that there will be really succinct answers.

Fulton MacGregor

I just want to return to Oliver Mundell’s earlier questioning on anonymity, which I think is a very interesting part of the discussion on the bill. Do you think that the courts already have powers that they could better use to provide anonymity? Are there powers already in place?

Sara McHaffie

That is not my area of expertise, so I cannot comment.

Girijamba Polubothu

Same here.

Fulton MacGregor

Okay. Thank you.

The Convener

Thank you very much for being with us this morning. Your evidence has been really helpful.

10:11 Meeting suspended.  



10:16 On resuming—  



The Convener

Welcome back, everybody. I will introduce our second panel. We have Vickie Davitt, gender-based violence midwife and FGM lead at NHS Lothian; Dr Rachael Wood, consultant in public health medicine in the Information Services Division of NHS National Services Scotland; Obi Amadi, lead professional officer at Unite the union; and Katie Cosgrove, organisation lead for gender-based violence at NHS Health Scotland. I thank the witnesses for being here this morning.

Do you support the Female Genital Mutilation (Protection and Guidance) (Scotland) Bill’s aim to strengthen the existing legal protection? If not, why not? What is your general view of the existing legal framework in Scotland? In your answers, you might want to say a bit about your own work.

Katie Cosgrove (NHS Health Scotland)

We support the bill’s provisions. The work that we have been doing on FGM, as part of the gender-based violence programme, is specifically about the national action plan and its implementation. I chaired the writing group that produced the multi-agency guidance. Part of our work is about ensuring that that guidance is disseminated and implemented.

The bill’s provisions undoubtedly strengthen the options that are available in the existing legal framework. The orders will create more visibility within communities, which will be fairly positive in raising awareness. We also support putting the guidance on a statutory footing.

Obi Amadi (Unite the Union)

We support what is proposed, but the bill should go a bit further on providing clarity and sending a very clear message on FGM. We would like the committee to consider whether the bill could better reflect the legislation in England and Wales, so that the legislation across the UK would be more similar. That would be beneficial in providing clarity for professionals.

The Convener

We will probably get into that issue a bit more later.

Dr Rachael Wood (NHS National Services Scotland)

I support the bill’s aims, but I do not think that I am well placed or qualified to comment on whether the specific proposals in the bill are the best way of achieving those aims. My role is in the NHS Information Services Division, and I am the clinical and public health lead for our national data on maternal and child health. That is my area of expertise.

Vickie Davitt (NHS Lothian)

I can speak only from an NHS Lothian perspective. The existing legislation needs to be strengthened. The bill is helpful in that it sends a clear message that Scotland will not tolerate FGM. However, I stress that I am speaking from an NHS Lothian perspective, because that is my job.

The Convener

How is FGM currently recorded by health services? Are there ways by which we can more accurately record it, so that we can better establish a baseline for how much FGM is happening in Scotland? A previous panel told us about how we are calculating numbers, and it would be interesting to hear this panel’s perspective on that.

Vickie Davitt

I have my figures, but those are only the NHS Lothian maternity services figures. We need to find some way of recording FGM. The Royal College of Midwives has launched an e-platform that is accessible to people working on FGM at various levels, as well as people from affected communities. One of the bits on the website concerns figures. There is a list of services that are available across the UK but, when you look at the section on figures, you see that everyone falls into the sea at Berwick-upon-Tweed, because there is nothing for Scotland. You could interpret that as meaning that FGM is not an issue in Scotland, but we know that it is. Therefore, as I said, we need to find some way of recording FGM.

Part of the problem concerns people using different systems that do not talk to each other. In Lothian, we use the TrakCare system for our electronic patient records, and we can extrapolate figures from that, but in Glasgow, they use BadgerNet.

Another issue is that as an FGM midwife, I would not be supportive of something that would create extra work for people who are working in this sphere—we are busy enough as it is without having to remember to record things on a different system. However, we need to find some way of getting figures that are as accurate as possible. I know my figures, because they represent the number of women who have been referred to me by staff from NHS Lothian maternity services. I have got figures from a colleague in Glasgow and a colleague in Aberdeen, but they are very much anecdotal. We need to be more accurate because that has implications for resourcing. I can prove that my job is needed, because of the figures that we have got, but the issue is wider than that.

The Convener

So, there are complexities around the various systems and the need to not add to people’s workload.

Rachael Wood

There are two issues to consider. One is the recording at local level, in patients’ full clinical notes. In 2014 and 2016, the chief medical officer issued guidance to say that, if a woman was known to have experienced FGM, that should be recorded accurately in patients’ notes. Vickie Davitt is right to say that different boards use different systems to maintain those local notes.

There is then a separate question of national returns—that is, the returns that come to ISD from across the health service. It might help your understanding if I give a little bit of context. Different types of records will be generated depending on the element of care that the NHS provides to a patient. For example, when someone attends a consultant-led out-patient clinic, there is a certain return that comes to ISD; when someone is discharged from general in-patient care, there is another record; there is a specific record when a woman is discharged from an episode of maternity care; and there are also child health records, which operate a little differently—I could speak about them separately. If a patient undergoes an operative procedure during their care, whether in-patient or out-patient, a specific code from a particular coding classification—the OPCS-4—is added to that record. There is also a separate coding system for in-patient records that can be used to record the diagnosis that a patient has—that is, the reason why they came into hospital as well as any other significant medical problems that they have. The CMO’s guidance is clear that, if a woman is known to have had FGM, the code indicating that should be included on those records.

It is important to understand what that means. Those are coded records. FGM or procedures to correct FGM can only be recorded once there is a code for that. The procedure codes for deinfibulation were introduced in 2014, so we have been able to count those events since then, and the diagnosis codes that indicate that a woman has had FGM were introduced in 2016, so we now have three years’ worth of data in our national data sets. Before coming today, I looked at the figures. ISD holds the figures in the general data sets that we hold, and we publish general information on the number of people coming into hospital. Currently, we do not specifically publish the number of women with FGM, but we can provide those figures on request.

The number of women being recorded as undergoing a deinfibulation procedure remains very small. Looking across out-patient and in-patient records, we see that fewer than 10 women a year have been recorded as having that procedure. The number of women being recorded on national records who are being cared for by the NHS, either because of their FGM or for something else, and who are known to have a history of FGM, is now at around 100 women a year. That has increased from 2016-17, which was the first year that we could look at it. It was about 50 in that year; in the most recent year, 2018-19, about 100 women are recorded.

That shows that FGM is now being recognised in the health service and is being recorded more accurately than it could be previously.

The Convener

Do any other panel members wish to come in on that point?

Obi Amadi

I am unable to comment on the detail of the data capture that is used by the different organisations in Scotland. However, on the national data collection, I would very clearly support the need to be sure that everybody understands the categories and what it is that they are recording and reporting. We had an issue in England with confusion among professionals about recording and reporting. Being clear on that is essential. The training for professionals that needs to go along with that recording and reporting is also key, to make sure that they are addressing the issue and addressing it properly.

The Convener

Thank you. That is helpful. Katie Cosgrove, do you have anything to add?

Katie Cosgrove

The main issue is about identification of FGM in presentations—whether it is directly related to that experience or not. Quite a lot of our information is captured in recorded notes, which do not necessarily make their way on to the system. The practice for the health service in Scotland has been fairly fragmented over the past few years, but it is relatively new, so I would anticipate that there will be growing recording that the ISD will be able to capture in future. The challenge for us is to ensure that staff are aware of the requirement, that they know which codes to access and that they record accurately.

The Convener

That leads me quite nicely to my next question. Will you give the committee your reflections on whether health professionals feel supported to have discussions about FGM with women and girls whom they are caring for?

Katie Cosgrove

A lot of health professionals are covered under that umbrella. Certain aspects of the health service, particularly maternity services, probably feel more supported than others, because there is more focus on them. There has been a huge concentration of effort on ensuring that we can have sensitive conversations with women when they present to maternity services around some of the implications that FGM might have for their subsequent pregnancy. There has perhaps been less attention in other areas of the health service.

One of the issues that has dominated discussion over the past few years is child protection—the need to prevent FGM and to protect children. That has been a little bit to the neglect of the other needs of women who have experienced FGM. They are not just mothers. They have been through an experience that may have been traumatic—I bear in mind what Sara McHaffie said earlier—and the repercussions for their long-term mental and physical wellbeing need to be taken into account. I am not sure that we have given as much attention to that across the rest of the health service as we have to the need to put in place provisions to ensure that the child protection concerns are noted and acted upon.

We have a challenge in relation to ensuring that our mental health service professionals understand how to have conversations with women on the impact of those procedures if the women’s mental health has been affected. Professionals in other areas of the health service must also know how to have those conversations, because there are multiple points of entry into the health service and we know the litany of subsequent emotional and physical impacts of FGM on women’s health.

10:30  



Alex Cole-Hamilton

I have a supplementary question about something that both Vickie Davitt and Katie Cosgrove have addressed. We heard in our initial briefing from the bill team that the bill needs to cover women as well as children because, after childbirth, a woman might be taken somewhere to have further FGM conducted on her. Are you aware of that being a practice? After childbirth, might there be further mutilation?

Vickie Davitt

Certainly, from a Lothian perspective, that is not very common, but we are aware of the possibility. We had a case where we were not concerned about the potential of FGM being carried out on the daughter who was born, but we were concerned about the mother because, when I questioned her, she could not tell me why she would want to be restitched.

It is important to us that women know that, if they have type 3 infibulation and it is opened to allow for the delivery of a baby, they will not be stitched closed. We are not allowed to do that and we would not do that. However, we knew that after that woman’s first child was born, she went back to her country of origin and was restitched there. We were clear that that could not happen here, but she could not answer me when I tried to talk to her about it. That goes along with what the earlier panel said. We were fairly convinced that there was a lot of controlling behaviour from the husband, so we were more bothered about it being a problem for the woman than we were about the potential of FGM being carried out on the little girl who was born.

Alex Cole-Hamilton

What action did you take to protect that woman when you realised what had happened?

Vickie Davitt

It was really difficult, because she is over 18 and therefore, in theory, she has a choice. However, you could debate choice up, down and sideways and you might never get the answer. She would say that she is freely choosing to have that done, but it is not a free choice if she is choosing to have it done because she is worried that if she does not, her husband will take another wife. In another case that we heard of, a woman who had infibulation did not want deinfibulation because she was convinced that her husband would take another wife if she did. I am trying to think of a delicate way to say this—she was convinced that if he did not get the enjoyment that he wanted from her, he would go looking for it elsewhere. That was a real concern for her.

Alex Cole-Hamilton

Should we put something in the bill to protect those women, even though they might suggest that it is their choice?

Vickie Davitt

It would be a useful adjunct to raise awareness of that possibility. As a midwife, I have a foot in both camps—I am aware of the child protection issues surrounding FGM but I am also aware of the issues for women who have had FGM as children. It would be a useful way to bring into the light the fact that FGM is not all about children; we are dealing with some women who have been severely traumatised by events that have gone on in their lives, and that needs to be recognised. To include that point in legislation would give credence to the idea that it is a problem and that we are aware that it is a problem. Certainly, from a Lothian perspective, it is not a massive problem, but we need to be aware of it.

Alex Cole-Hamilton

Thank you.

The Convener

I will bring the discussion back to how professionals interact and talk with women about FGM. Does anyone have any reflections on that?

Vickie Davitt

Certainly, in Lothian—you are going to get bored with me saying that—I fought very hard to get my role included in maternity services. I am lucky that my boss in NHS Lothian is very supportive of me in the role. Part of it is working with women and part of it is training midwives. One of my colleagues on the team was speaking to medical students at the beginning of August. We get invited to speak to all sorts of different health professionals. It is important that health professionals are aware of the language that they use when speaking with women.

A month or so ago, I was at Glasgow airport working with the UK Border Force and Police Scotland on operation limelight and I needed to tell them about the importance of the use of language. If you ask a woman, “Do you know about FGM?”, there is a good chance that she will not know what you are talking about, and some women might be very offended by the use of the term FGM. It is about finding out what words women use—what do they understand? If I say “female cutting”, what do you understand by that? A woman to whom I was speaking yesterday calls it circumcision, so with her I called it circumcision. However, that is not a word that I would usually use, because of the links to male circumcision, which is a whole other issue—let us not get into that.

It is important to use language that women recognise. At our training, we give out a little postcard—I think that it came from the Scottish Government—with different words in different languages. I know that there are four different words in Arabic, for example, and it is a question of picking out which word is useful. When I was working in Glasgow, I managed to peel from somewhere at the back of my head the Somali word for FGM when people were speaking to a Somali woman. It is about using language that women understand. Health professionals can be good at that, but they can also be bad at it.

The Convener

I wonder whether in the sort of environment where you are caring for someone, you are not necessarily asking questions directly and using that language. Are there other routes of inquiry in terms of symptoms that people experience? With something so sensitive, even in maternity settings, just coming out with that question may be tricky.

Vickie Davitt

In Lothian, we have a policy of universal inquiry—this goes back to the possibility of racial profiling. All women are asked whether they have had any form of cutting or piercing that might cause problems in childbirth. That might include something such as a genital piercing that has gone wrong and got badly infected, which could cause a problem. If the woman gives a positive response to that inquiry, she will be referred to me and I then ask questions, because women often do not know what has been done to them. I work as a midwife and am very familiar with women’s anatomy, but a lot of women are not familiar with what a woman should look like. For example, a woman expressed surprise when I described the fact that there are three holes, because she thought that there was only one. If a woman does not know what her anatomy should look like, she does not know whether hers is normal.

A lot of my work is teasing out what problems a woman might have. She might say, “I’ve not had a lot done; it was just a little bit.” However, when I talk to her, I might realise that she has bigger symptoms than she is telling me. I have a colleague in Birmingham who would describe the same thing—women are told one thing and sometimes the opposite is true. It is about finding out how each individual is affected by her personal experience of cutting. I can tell you what type 1 or type 3 is, or whatever you want, but within those categories are women who may have been cut by a doctor or by an old woman who does not see very well and is just doing whatever she thinks. The categories are useful but only up to a point, because it is about the individual woman and what her symptoms are.

The Convener

Does Obi Amadi have any reflections from a health visiting perspective?

Obi Amadi

Unite has found that health professionals often feel uncomfortable about broaching the subject of FGM, which is why we favour a universal approach, such that everybody is included, involved and asked. Some health professionals have concerns that, when they begin to have such conversations, there will be time pressures to get everything done. We recognise that co-operation is needed for that important work to be successful.

The input in schools is very important. In their conversations, health professionals ask that work be done with boys as well as with girls. Much of the time, the focus is so much on women and girls, and people forget about men and their roles within families and communities. It is definitely of value for health professionals to speak to everybody about FGM.

Apart from work pressures, people feel uncomfortable about being viewed as racist if they raise the subject. We know that the majority of occurrences are on the African continent, but there is concern about questions being asked about people’s views and whether they are racist. Clearly, those conversations should take place and are of value. Until we have a system that works, in which professionals feel trained, competent and confident to raise the issue, there will always be people with doubts. In the past, people felt the same about domestic violence—they did not want to ask questions or broach the subject. Now, professionals are much more comfortable with doing that and it is routine. We need to get to that position with FGM.

Mary Fee

Given what the witnesses have said about guidance, I take it that you all agree that there should be statutory guidance with the bill. What specific information should be included in statutory guidance to assist health professionals in dealing with women and girls who have had, or who are at risk of, FGM?

Katie Cosgrove

I am not sure that I can think of any gaps. Moving the guidance on to a statutory basis would give it more weight among professionals and ensure that it has wider reach than it has at the moment. The idea of speaking to women about abuse could be highlighted in the guidance. When we pulled our guidance together, we consulted women from various communities on the language that should be used in the guidance, and on how we should reflect how those women want to be spoken to about FGM. That was not just about whether we call it “cutting” or “circumcision”; it was more about the atmosphere and circumstances in which we ask about the subject.

From a health point of view, it is important that health information be highlighted. We should not just ask whether a woman has experienced FGM on the basis that she is African; it should be much more about asking whether FGM has had an impact on the person’s health and, if so, what that impact has been. We should ask, “Has it affected your presentation here, today?”, “Will it affect your pregnancy?”, “Will it affect your mental health?” and we should ask what we can do to mitigate and ameliorate those circumstances.

Strengthening the guidance by giving it a statutory basis might allow more focus on areas of the health service outwith maternity care. There is a preponderance of focus on that area because most of our statistics on FGM come through maternity services. We know that affected women use all our health services, but that is not reflected in the stats, which suggests either that there is a very good clinical and health service response, so further work is not required, or that we are not having those conversations across the different domains in the health service.

Mary Fee

I will ask Vickie Davitt a specific question on that. I was struck by what you said about being at an airport with the Border Force and the different language that is used by different communities to describe and talk about FGM. Are the differences of language and the words that are used already in the multi-agency guidance? If not, should that be included in statutory guidance to help all the different agencies when they come to talk about FGM?

10:45  



Vickie Davitt

We have multi-agency guidance in Lothian and there is the national guidance, which I do not know as well as I know the Lothian guidance because I was on the working group that put the Lothian guidance together. There is, at the back, a glossary of all the terms that are used in lots of different languages. It is at least one page of A4, if not more.

If I talk about female genital mutilation, female genital cutting, cutting and circumcision, I have already said four different things. However, within that, there is also, for example, labial elongation, or it could come down to something as simple as what we mean by piercing. Piercing can mean having your ear pierced, where there is a hole and you put something into it, or it can mean that a hole is made, which is, potentially, type 4 FGM.

There is a glossary in Lothian’s guidance; I assume that there is one in the national guidance. It would do no harm to put one in Government guidance so that everybody would know what they are talking about.

Mary Fee

Would you use guidance in training?

Vickie Davitt

Yes. As has already been said this morning, Government guidance gives everything more weight, so that when we are training, we can say, “Look—this is the law; this is what you need to do.”

When I speak to women, I always make very clear the legal position in Scotland, which is backed up with the Scottish Government leaflet. All the women are given that. Whether they know the law or express protective views, they are all told the same thing. It is the same when I am doing training; everybody is told the same thing. We have the law, and they cannot argue with it. That is how it is.

Mary Fee

That is helpful. Do other panel members have anything to add?

Katie Cosgrove

I confirm that there is an appendix in the national guidance that covers terms that are used. However, health staff are unlikely to learn multiple terms. The point of flagging them up in the guidance is to ensure that staff are aware that there is not just one term that can be used.

The other thing that has come across in the work that we have done with women is that routine inquiry of any form of abuse has to be couched in such a way that it makes sense to the person who is being asked about it. We want questions of that nature to be couched in terms of whether anything has happened to them that has caused them hurt, that might be causing them health problems or concerns, or, in the case of pregnancy, that might make it difficult for them to have a smooth and uninterrupted labour.

The way in which the topic is broached is much more important than understanding 30 or 40 different terms that are used across different communities for a particular procedure.

Rachael Wood

As I understand it, the multi-agency guidelines focus primarily on advising and guiding front-line staff on identification of risk of, or actual, FGM, and on responding to that appropriately. I am responsible for what comes after FGM has been acknowledged and recorded in someone’s notes, which should be coded accurately in national records. ISD is responsible for producing national guidance for health records departments on how to code things. We produced guidance on that in response to CMO letters of 2014 and 2016. Our national terminology team produced guidance on how to code for all the health records departments in Scotland. If FGM is identified by front-line staff and appropriately recorded in the woman’s notes, there is guidance on how it should then be recorded in the national returns.

That is probably separate from the multi-agency guidance that you are talking about.

Mary Fee

Thank you. Obi, do you want to add anything?

Obi Amadi

No. I agree with my colleagues.

Fulton MacGregor

I want to ask a question that I put to the previous panel. Should children’s hearings be able to grant FGM prevention orders?

Rachael Wood

I do not feel qualified to comment on that.

Katie Cosgrove

I am not sure. If hearings had such a power, that might expedite matters a bit. However, I am not sure that it would necessarily change the situation greatly. Children’s hearings currently have powers on compulsory supervision orders, and cases are often referred from the children’s panel to the sheriff court. I do not see any huge detriment to cases of people seeking FGM prevention orders coming through the courts, but that is just my personal opinion.

Vickie Davitt

I do not have enough experience of children’s hearings to comment in detail, but I agree with what Katie Cosgrove has just said.

Obi Amadi

Anything that would expedite or clarify matters should be pursued. If children’s hearings having that power would be more helpful to professionals in the system, then it should be considered.

Fulton MacGregor

The committee has explored the matter previously to try to get a sense of what people think of that prospect.

I will move on. What are panel members’ views on criminalisation of breaches of FGM protection orders and on the penalties that have been set for them?

Vickie Davitt

I can tell you what the women say. As I have just explained, I set out the legal position to all the women whom I see. More often than not, when I mention the length of custodial sentence that is possible, many of them say that it is not long enough.

Rachael Wood

I am not qualified to comment on that.

Obi Amadi

I cannot comment, either.

Fulton MacGregor

I will go back to Vickie Davitt’s answer. Do the women whom you speak to feel that the penalties should be increased?

Vickie Davitt

That is very much the opinion of women who are survivors of FGM. They want the practice to stop and they think that one way that that could happen is much tougher sentencing.

There is a difficulty in that there has been only one conviction in the UK. Until we have more evidence on how courts treat cases, it will be hard to say that penalties should be increased, because we do not have evidence to support that view. In that one case, the woman who was convicted went to jail for 12 years, so it was taken very seriously. However, we do not know whether that would happen in all cases until more cases are decided. That would send the right message—that Scotland takes FGM very seriously—and it would show what will happen to people who are caught practising it. Yesterday, I was speaking to a lady who said, “Well, I know that if I did it I would go to jail”, so the message is already out there that it is taken very seriously in this country, which is important.

Fulton MacGregor

It is interesting to hear about your direct experience of working with women. The panels that we heard from last week expressed the fear that the tougher the sentencing, the more the criminalisation process could force the practice underground. It sounds as though a balancing act between those two aspects is needed. Do panel members acknowledge that?

Vickie Davitt

I definitely agree with that. On the one hand, women are saying that sentences are not long enough, but we also know that they are already quite vocal about FGM being wrong and about the need for it to be stopped. However, there is, among families and communities that still practise FGM, the potential for it to go underground. Just because I say to women that it is illegal in Scotland, that does not mean that it is not happening. We know that murder is illegal, but it still happens.

A delicate balancing act is required. There is difficulty getting the right intelligence from within the communities, because women are told that they should not talk about FGM. If it is not talked about, how can we find out whether it is being done? It is a difficult issue.

Obi Amadi

The anecdotal information that we have is that women want there to be custodial sentences, but I cannot support or advise the use of a particular sentence term. The existence of custodial sentences sends a clear message to perpetrators that FGM is a crime.

In respect of the fear that that would drive the practice underground, I say that it is already underground. If there were a shop that people could go to for FGM, we would know that it was not underground, but that is not the case.

We need to work with communities and professionals. It is an issue on which we cannot work in isolation. A much wider approach in terms of educating and supporting people is needed. If we do that, there will be fewer opportunities for an underground system or practice to thrive.

We need to think about the matter in terms of all of the stuff that is going on behind the scenes and we need to think about how we can work with communities. The leaders in the communities are the key to reducing the occurrence of FGM. As my colleague said, other things that are criminal offences continue. In order to make a big impact, we need to ensure that other people are involved in the right way.

The Convener

Earlier, you talked about the fact that there are slightly different systems in England and Scotland. I will ask Obi Amadi to answer the question first, then others can come in. What lessons can be learned from the approach that is taken south of the border? Are there things that are working well there that are not proposed in the bill, or are there things that we have missed?

Obi Amadi

One of the most difficult issues is mandatory reporting, which has been controversial and, perhaps, unpopular in England. However, some of us view it as having been quite successful, because it has enabled the professions to be clear about FGM. We had a situation in which some health professionals felt that when someone said that they had had FGM, they needed to examine them, but that is completely inappropriate. Examination must be left to professionals who have specialist knowledge. Mandatory reporting has led to an increase in people who have specialist roles around FGM. There were always some midwives who specialised in the area, but the number has increased, and other professional groups are starting to have people who have such knowledge. Identification and confirmation of FGM are specialised.

The Convener

One of the opinions that was given to us—either by a witness in a committee meeting or someone on one of our visits—was that mandatory reporting could be harmful to the relationship between a GP and their patient. It was accepted that there would not be collusion in the practice, but the possibility was raised of harm being caused in relation to communication. How would you address that?

Obi Amadi

I do not agree with that. In England, a lot of general practitioners were concerned about what might happen to their relationships with patients when mandatory reporting was introduced. The things that happen in a GP practice are quite important; the practice nurse or the GP will see people who come repeatedly with backache or urinary tract infections, but might not always think that those are symptoms of something that they need to have another conversation about. That is why universal provisions are much better.

Much of the success around issues such as FGM is the result of good relationships. Deterioration of the relationship is much less likely in an open and honest relationship in which people trust each other. As is the case in child protection and safeguarding situations, if people are honest and clear about why they are doing and saying something, there is less chance of deterioration.

11:00  



The Convener

Do other members of the panel have a view on mandatory reporting?

Rachael Wood

We need to be clear about what type of mandatory reporting we are talking about, because health professionals in England are under two separate duties in that regard. First, they have a duty to report any cases of FGM involving children to the police. Secondly, they have a duty to report identifiable information to NHS Digital, which is ISD’s rough equivalent.

I think that, today, you are talking about mandatory reporting in the health service. I must respectfully disagree with Obi Amadi and say that ISD is clear that we would not support that in Scotland. There are established mechanisms in England to mandate returns to NHS Digital, because the secretary of state works under different legal powers. In Scotland, we do not have those mechanisms. Obviously, some health events are subject to statutory reporting, but they are subject to specific laws in and of themselves. For example, terminations of pregnancy are reported to the chief medical officer and notifiable infectious diseases are reported under public health legislation. However, currently, there is no mechanism for ISD to mandate an identifiable return on FGM. There are practical issues why we would not support such reporting.

My personal preference, and the preference of my organisation, would be to support the accurate recording of FGM as it is identified in the routine records that we already receive. As I have already said, I think that that process is strengthening, and we are already starting to see that coming through as a result of the guidance that is available.

There are wider professional issues to do with mandating reporting. I have concerns about how it influences the relationship between health professionals and their patients. It potentially puts doctors in conflict with their professional duties from the General Medical Council, as the duty of an individual patient’s care must always be our primary concern. If a doctor is under separate mandatory duties that take away their clinical judgment about what that person’s best interests are, that can put them in an uncomfortable professional position.

Katie Cosgrove

I echo what Rachael Wood has said. When we were developing the guidance, we considered some of the issues to do with mandatory reporting that they have in England. We were very much concerned with the need to have a proportionate response. We were also concerned about the need to ensure that we can support health staff to identify and respond sympathetically to women presenting with FGM, and ensure that that confidentiality was maintained.

When we consulted, women were concerned about the fact that they would not have any control over the information. They were not sure what would be done with it and they did not necessarily make the distinction between what was being done with it internally in the health service and externally with the police. Part of the concern was about the impact that that would have on their relationship with their practitioner.

There is clear guidance on how we share information across the health service. At times, sharing information is obviously very important. However, the concerns that were raised by women—and by practitioners, because there has been concern about the nature of that reporting among some practitioners in England—certainly shaped our thinking when we decided not to support mandatory reporting in the bill.

Rachael Wood

There are a number of articles that I could point you to in which health professionals express serious disquiet about the mandatory reporting requirements. Ironically, mandatory reporting does not necessarily lead to good information. You can mandate it, but, actually, NHS Digital continues to publish its statistics as experimental, and there are concerns about the quality of the information that is being generated.

The Convener

It is always helpful for the committee to hear differing perspectives.

Vickie Davitt

What would we be trying to achieve with mandatory reporting? The current system would not cope with its introduction. You risk criminalising women who have had something done to them. Who are we trying to get to here? Are we trying to give a woman who was subjected to FGM as a five-year-old child a criminal record? When I talk to midwives about mandatory reporting and I say that it includes the reporting of tattoos, there is general hilarity, because we have all seen 17-year-olds with tattoos; legally, they should not have them, but they do. Are we going to give those girls a criminal record because they have chosen to get a tattoo? That is completely different from a 17-year-old who was subjected to FGM when she was five. The two things are not the same. I respectfully disagree with my colleague. Mandatory reporting is not the way to go.

Rachael Wood

I think that Vickie Davitt’s question about what we are trying to achieve through mandatory reporting is really important. I assume that we are trying to achieve better visibility of the prevalence of FGM in the Scottish population, so that we can plan to meet the needs of those women appropriately. As I said, I think that there are better ways that we can do that through routine NHS records, but it would also be interesting for the Scottish Government to consider commissioning research on the prevalence of FGM, because there is none for the Scottish population. That is a positive thing that could be done.

Alex Cole-Hamilton

Vickie Davitt’s point about the mandatory reporting of tattoos is well made. My interpretation is that mandatory reporting is more about issuing protection orders than it is about giving someone a criminal record. For example, Vickie Davitt talked about the woman she assisted who had given birth, who had talked about getting restitched or whatever it was. If there was legislation that could be leaned on, so that a protection order could be imposed on her—for example, that woman could have her passport removed until she felt that she was no longer at risk—she would not be able to fly back to a country where that restitching could take place. That would not be about giving her a criminal record; it would be about protecting her. How do you feel about that scenario and having the obligation to report such a concern?

Vickie Davitt

The two examples are not necessarily the same. It is very difficult. If you take away a passport from somebody, when do you decide that the risk is no longer there? My colleagues and I in the al-nisa service in Lothian work on a continuum of risk. The risk never goes away. It is always there, but it just changes over time. At what point would you give that woman her passport back? Are you really going to prevent her from going back home to visit her family when she may or may not be at risk?

If the woman is over 18, this is, again, about choice. For a lot of the women whom I see, their body works how their body works and that is how they like it. I have seen one woman who has had two pregnancies so she has been through my system twice, but I have also had discussions with her twice outwith pregnancy. Therefore, I have had four interactions with her to talk about deinfibulation. She does not want to have deinfibulation because her body works how her body has always worked. It is her husband who is trying to persuade her to have it done, which is a bit different. She is just not interested. She would say, “My body is fine, thank you very much. I don’t want to change how it works.”

For women over 18, when do we decide that somebody is being coerced into having something done or whether they just want their bodies back to how it was? That is what all women want after they have had a baby, but it just depends on what the meaning of that is.

Alex Cole-Hamilton

That is the challenge before us.

Obi Amadi

I did say that the issue is controversial.

On what my colleagues said about doctors finding it difficult, doctors are the same as all other health professionals and it is no different for them than it is for other people. If they have the information and are clear about it, there is no issue with deteriorating relationships. We do not believe that and have not seen it.

Another thing to remember is that many survivors, when we have conversations with them, want to speak, tell, be asked and share, because they do not want it to happen to other women or, in particular, to girls.

On criminalisation, we are talking about mandatory reporting when it comes to children, but the reporting is more along the lines of recording when it comes to adults.

The Convener

Thank you all for coming along this morning. Your evidence has been very helpful.

At our next meeting, we will take evidence from third sector member organisations, regulators, inspectors and third sector equality organisations as part of our scrutiny of the Scottish Government’s budget for 2020-21.

11:11 Meeting continued in private until 11:26.  



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Third meeting transcript

The Convener (Ruth Maguire)

Good morning, everyone, and welcome to the 24th meeting in 2019 of the Equalities and Human Rights Committee. I ask everyone to ensure that all mobile devices are switched off and put away. We have received apologies from Angela Constance and Alex Cole-Hamilton, and I welcome Beatrice Wishart, who is here as a substitute.

Under agenda item 1, we will continue our oral evidence on the Female Genital Mutilation (Protection and Guidance) (Scotland) Bill. I welcome Andrea Bradley, assistant secretary in education and equalities at the Educational Institute of Scotland; Detective Superintendent Elaine Galbraith, who works in public protection and is from Police Scotland’s specialist crime division; Suzanne Hargreaves, senior education officer for health and wellbeing at Education Scotland; and Liz Owens, senior officer in child protection at the Glasgow health and social care partnership, who is here on behalf of Social Work Scotland. Thank you for being with us.

What is your experience or knowledge of FGM? What work do you do in relation to it?

Detective Superintendent Elaine Galbraith (Police Scotland)

I am the head of child and adult protection for Police Scotland. In that role, I have various portfolios, one of which is the child protection portfolio. I have a team that works very closely with other divisions and which is responsible for developing our policies and working with other agencies in relation to FGM. We work closely with third sector organisations, in particular, to learn how the police’s approach to dealing with FGM can be developed and improved. That work is on-going.

Over the years, we have attended various events. A couple of years ago, we held a conference at the Scottish Police College, which was centred around enhancing our work with communities. A lot of the groups that we work with were invited to attend the conference, and we centred the whole day around survivors’ experiences in order to better our practice. We combine that work with the work that is done by officers in the public protection arena and by community officers, which helps to share learning. That summarises my experience and that of my team.

Andrea Bradley (Educational Institute of Scotland)

I am the assistant secretary in education and equalities at the Educational Institute of Scotland. We are the biggest teacher trade union in Scotland, representing members across the nursery, primary school and secondary school sectors.

A huge number of matters relating to FGM are of professional interest to teachers. Teachers have certain professional responsibilities in relation to child protection and equalities matters so, as a trade union and a professional association that represents teachers, the EIS has a particular interest in FGM. We have been long-standing campaigners on various aspects relating to gender equality, and we view FGM as sitting comfortably within that work.

The EIS is concerned with any matters that relate to the professional standards by which teachers are governed. The General Teaching Council for Scotland’s professional standards clearly outline the duty of teachers to safeguard and protect the wellbeing and interests of young people. Teachers also have a responsibility to ensure that, as far as possible, young people are treated equally in their experience of school education. Given all those aspects, we have a particular interest in the subject.

We have not had too much dialogue with our members about FGM specifically, but we keep an eye on the area. We have not had a large number of reports from our members of FGM being a particular concern. However, there is an issue with professional learning, which is another area for which I have responsibility in the EIS. From inquiries that we have made, we know that members feel that they need professional learning specifically on FGM and on equalities more broadly. It has been a long-standing ask of our members that they have systematic, easily available and high-quality professional learning that relates to equalities, and we would like to see specificity around FGM.

The Convener

We will certainly get into that later on.

Liz Owens (Social Work Scotland)

I am a senior officer in Glasgow’s central policy and practice child protection team. My experience of FGM spans direct practice, policy development and training.

On practice development, our role is to support best practice. We would be consulted by our social work colleagues to offer advice and guidance and attend child protection case discussions in special circumstances in which FGM is a concern with partner agencies, such as the police and health and education services.

We have developed FGM guidance in Glasgow with the child protection committee and partner agencies, and we have delivered multi-agency training with education and health colleagues.

We have experience of engaging with communities. Over the past few years, we have engaged with black African communities in looking at child protection in its broadest context. That has included discussion of FGM. From that, we developed a one-day cultural competence training programme for all multi-agency staff that considered how culturally competent we are to have really sensitive conversations with communities and how we can work better with communities so that we do not drive FGM and other harmful practices underground.

Suzanne Hargreaves (Education Scotland)

I am a senior education officer for health and wellbeing at Education Scotland.

One of the organisers in the curriculum is relationships, sexual health and parenthood. Within that, there are experiences and outcomes and benchmarks. I am here to talk a little about the work that we have done on the curriculum aspect of health and wellbeing.

The experiences and outcomes and benchmarks are progressive and coherent. FGM comes in at the third level, at secondary 1, S2 and S3. We use it as an example of gender-based violence.

The benchmarks were marked internationally to ensure that Scottish children are not out of step in age and stage-appropriate aspects of learning. Children learn from a very young age from “My Body Belongs to Me” straight through to the third and fourth levels, at which children learn about the support that is available and current legislation relating to types of abuse, such as FGM, domestic abuse, grooming and child sexual exploitation.

At this year’s Scottish learning festival, we launched a new relationships, sexual health and parenthood resource that is progressive and coherent for people all the way through from three to 18. At the third and fourth levels, there are lessons on FGM, human sexuality and the idea of sexual rights. It is all very well having a resource, but we have a plan. I am glad that Andrea Bradley mentioned professional learning. On 29 October, we will launch a programme of professional learning for teachers and practitioners who work with young people, because young people told us that they wanted teachers who are confident and competent on this aspect.

The Convener

Thank you. That is really helpful.

Do you support the bill’s aim to strengthen the existing legal framework? It would be helpful to know your general views on the existing framework.

Detective Superintendent Galbraith

Police Scotland supports strengthening the legislation and certain aspects of what has been proposed. We support anything that can provide us with more opportunities to identify where FGM is occurring and, more important from a policing point of view, more opportunities to enforce legislation that will help to eradicate FGM. We whole-heartedly support the proposal for FGM protection orders in particular. We see the orders as an obvious tool to prevent certain activity and place conditions on individuals, which will assist us in trying to enforce the legislation.

In our experience, the current framework has some limitations with regard to prevention in particular. I think that everyone would agree that prevention is what we want—we do not want to wait until a child has been abused and then enforce the legislation. We would certainly wish to explore any opportunities for preventative legislation on offending.

The Convener

Obviously, FGM is already illegal. Are the approaches that are currently available being used to their full extent? If not, why?

Detective Superintendent Galbraith

As I said at the beginning of the session, a lot of that potentially comes down to underreporting. As the committee will know, the data on the prevalence of FGM across the country is very limited.

I spoke earlier about the discussions that we have had with members of communities. I think that there is also a fear aspect attached to FGM. If we cannot identify whether FGM has occurred, that makes it difficult for us to enforce the legislation that is currently in place.

The Convener

What is it about the protection orders that you think will improve the situation?

Detective Superintendent Galbraith

First, it is a civil order, and we have seen other civil orders used effectively to address the conduct of others. Secondly, it gives us the ability to put measures in place. The legislation says that FGM is illegal, as it has done for some time. However, individual members of communities will be able to say that there is an order that prevents them from removing their child from this country, or that prevents someone from coming into the country to carry out such acts or to encourage or coerce parents to remove children from the country. We see that added layer of protection as one of the positives of the bill.

The Convener

Do any other panel members have a view on that?

Liz Owens

Social Work Scotland definitely upholds the strengthening of the bill. As Elaine Galbraith said, engagement with communities has been really good. We have had some very important and frank conversations, and we have heard from women and children about their experiences. The order would be a really protective and empowering tool to have.

Andrea Bradley

We concur with that view. There are child protection procedures firmly in place across the school sector, and teachers are confident in the way that they engage with those procedures. However, there is perhaps a question with regard to how well 16 and 17-year-olds are protected by the current procedures. The strengthening of legislation in this area offers an opportunity to educate all our front-line workers who work with children and young people on FGM: what it looks like, who might be at particular risk of experiencing it and what measures might be taken to counteract it across all our service areas.

With regard to statutory guidance, it is important for that element to be included. However, it would have to be framed in terms that practitioners can understand. It should be light on bureaucracy so that teachers do not have to spend a significant amount of time trying to understand and process it.

I also reiterate my earlier point, which Suzanne Hargreaves echoed, on the importance of professional learning being attached to anything that we do in this area. I think that we in Scotland would, as a society, want to do all that we practicably can to safeguard the wellbeing and the personal, physical and psychological safety of all our children and young people, especially girls who might be vulnerable to that kind of abuse.

The Convener

You have answered my next question without my having to ask it, which is good. It is about the evidence that we have heard on the gap that exists for 16 and 17-year-olds. Do other panel members have any reflections on that?

09:15  



Liz Owens

The current child protection procedures apply to children aged up to 18, but legislative opportunities to offer them protection stop if they just come into the system at the age of 16 or 17. Our experience has been that forced marriage cases often involve 16 or 17-year-olds, so it is great that we have been able to use forced marriage protection orders successfully in those. There needs to be greater focus on young people of those ages. We need to hold them in our child protection processes as well as thinking about whether to apply for forced marriage protection orders, so it would be very useful to have a similar option in FGM cases.

Beatrice Wishart (Shetland Islands) (LD)

I was going to ask for panel members’ views on FGM protection orders, but they have probably covered that. I am interested in finding out how we can protect women and girls who are taken out of the country and then brought back. How might such orders help them?

Detective Superintendent Galbraith

I will go first again, if I may. The travel aspect has been a huge factor in tackling FGM cases. We should possibly consider having conditions that would prevent such travel from occurring in the first instance. A lot of the multi-agency discussions that take place are on individual concerns from our partners in areas such as education, where a trip might be planned. Such cases are quite difficult, because we might have nothing other than an indication of what could be going on. We must then look at other risk factors to determine whether that child is potentially at risk of significant harm. It is very difficult to make such an assessment based solely on the fact that a trip is planned. However, by having a protection order, looking at the case through a risk assessment framework and having multi-agency involvement through an interagency referral discussion, we can say that there is merit in trying to prevent the child from going out of the country in the first instance. The best means of doing so is to have protection in place at the border.

Beatrice Wishart

Do other panel members have any thoughts on that?

Liz Owens

Again, there is an interplay among the current child protection processes in relation to child protection orders and whether there is a discussion to be had with our partner agencies at the IRD stage about whether to apply for a child protection order if there is immediate risk on that day; we then consider whether to apply for a forced marriage protection order.

To draw a parallel with our experience in forced marriage cases, throughout our initial referral discussions and case discussions we have successfully considered whether we needed to have an application ready and waiting, and the case flagged at ports and airports. There is practice there on which we can draw. In Scotland, there is not a huge amount of it, but there is practice that enables us to think about how we might look at our statutory guidance and what we would guide people to do in practice.

Beatrice Wishart

Convener, may I ask another question?

The Convener

Of course.

Beatrice Wishart

Why do panel members think that there have been no prosecutions in FGM cases in Scotland?

Detective Superintendent Galbraith

It comes down to difficulties with identification and underreporting of cases and with the sufficiency of evidence. There has been one prosecution in the United Kingdom. As regards the processing of concerns that we hear emerging in Scotland, I agree with Liz Owens that every case in which there is significant concern will go through child protection procedures. We regard the issue of FGM as being part of child protection, so there is multi-agency assessment, information sharing and decision making. If there is a need to investigate further, that is undertaken either jointly or via a single agency. However, it often follows from that process—whether it is through fear or people not wishing to speak up in their communities—that there is a lack of sufficient evidence for a criminal case to be brought.

Oliver Mundell (Dumfriesshire) (Con)

I will follow on from what you said about criminal cases. What do you think about the breaching of FGM orders being criminalised?

Detective Superintendent Galbraith

Making it a criminal offence to breach an order will send such a strong message. Getting the order in the firsft place and then, if any of the conditions are broken, policing it, will go a long way towards outlining that Scotland very much sees any association with FGM as a criminal offence.

Oliver Mundell

This is not my view, but I put it to you that people say that the current legislation is difficult to use, because people are fearful that it may lead to criminalisation. Is there any risk that they will confuse the criminalisation of a breach of an FGM order with the current legislation, and that it will change how they think about FGM protection orders?

Detective Superintendent Galbraith

No; I think that protection orders will be seen as a protective measure and as being about—I think that the word was used earlier—empowerment. From a survivor’s or a victim’s point of view, they will have a protection order, which means that the responsibility is not all on them. The protection order comes in to prevent FGM from occurring in the first place. To be perfectly honest, the criminalisation of the breach of an order is only a good thing.

Oliver Mundell

That is very helpful. What should the penalty be if an order is breached?

Detective Superintendent Galbraith

It should be similar to what we have in relation to the forced marriage protection orders.

Liz Owens

I think the same as Elaine Galbraith. Important conversations and change are already happening in communities, with women and girls talking about FGM and wanting the practice to change. Criminalising the breach of an order will strengthen that position and help to sustain and progress that change.

Oliver Mundell

Do the witnesses have a view on whether children’s hearings should be able to grant an FGM protection order? If so, why?

Liz Owens

Wow, that is a big question. I have not considered children’s hearings being able to grant an order. It would make it easier for under-16s, if we were already going for a child protection order and were in that process. To be honest, I am not sure how it would actually be done.

The Convener

How might that be for the girl and the family who are involved—would there be a difference?

Liz Owens

It is a different process. The court process could be much more sensitively managed, potentially by using special measures, whereas a children’s hearing can be an adversarial and difficult process to be involved in, and people would be given all that information. I do not know about Social Work Scotland, but speaking personally, I am not sure how skilled people would be in managing such sensitive information.

The Convener

That is interesting.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I have a brief supplementary question to Oliver Mundell’s line of questioning. We heard mixed evidence from previous panels around criminalisation. Most folk would agree with the general principles that you have described—that it sends out a clear message—but there is also a worry that it could push the practice even further underground. Do witnesses have any thoughts on that aspect of criminalisation?

Andrea Bradley

The point that Suzanne Hargreaves made about the curriculum is important, as is Elaine Galbraith’s point about underreporting. There is a job to be done to raise young people’s awareness of their rights to protection, safety and security. That bit of the picture needs to be kept strongly in mind, so that, when we consider introducing legislation that might have the unintended consequences of greater underreporting than we already have, we are conscious of that risk and counteract it by skilling up young people on their understanding of the issues and their rights and entitlements as human beings. We need a strong human rights approach to all that within the school curriculum. My plea is that we need to create the time and space in the curriculum, so that teachers can consider and address those complex and sensitive areas.

Liz Owens

I agree. It is also important that we think about our engagement with communities and public awareness, that we have those public conversations and think with communities about how we change. We need to talk about criminalisation, the law and our duty to protect children. FGM is a form of abuse and it should not be treated differently from other forms of abuse. However, we need to engage with communities and have those conversations with faith leaders, mothers, fathers and grandparents, as well as doing vital work with children and young people.

Fulton MacGregor

Thank you; what started off as a supplementary question has taken me nicely on to my line of questioning about education and raising awareness.

Do we need to raise awareness of FGM right across Scotland, through every group in every part of Scottish society, or should it be targeted?

Liz Owens

We probably need to do both. We need to do general public awareness. I have engaged with communities around child protection and done a lot of work on child sexual exploitation and I sit on the NWG Network for tackling child sexual exploitation, as well as the FGM national action plan implementation group. It is important to talk about child protection generally and include FGM in the conversation as another form of abuse.

Fulton MacGregor

That is a good point. In relation to targeting, we have also heard evidence about concerns over possible racial profiling.

Liz Owens

Absolutely.

Fulton MacGregor

It is interesting to hear your response.

Suzanne Hargreaves

I agree with those points about universal and targeted education. The new resource that has just been launched does not shy away from the issues that young people face in the 21st century, including unprecedented access to porn. The resource is being built with that in mind. We piloted it in 38 schools, where young people worked with the resource and they have been influential in designing it. We need to be careful about how we look at issues such as gender-based violence. The curriculum was designed to meet the needs of the children in front of us, so teachers and schools will decide the most appropriate aspects of RSHP for children to learn. FGM might be one of those aspects, under the topic of gender-based violence.

Fulton MacGregor

Would that approach be rolled out to all children who go through the curriculum?

Suzanne Hargreaves

Yes.

Fulton MacGregor

I will also ask about training more generally for each of your services. You do not need to go much further than what you wrote in your submissions, but what training have your services had and what plans are in place for future training? Some panellists have already mentioned that.

Detective Superintendent Galbraith

From a policing point of view, FGM is part of the child protection standard operating procedure. It also sits within its own standard operating procedure, alongside honour-based abuse and forced marriage. We are reviewing all our standard operating procedures to make them more accessible and applicable to all 23,000 police officers and staff across Police Scotland.

09:30  



There are specific training inputs through the Scottish Police College, as well as localised multi-agency training. There are public protection inputs into the various stages of the detective officers’ training—the investigators development programme—right the way up to senior investigating officer level, with specific inputs on the investigation of FGM.

In addition, for officers coming in to the child protection specialism, there is a separate child protection course that includes a lesson on FGM. Probably the most important course is that on the interagency referral discussion. It is a three-day course at the college to assist officers who are undertaking that role, dealing with multi-agency partners in the national health service and social work. It is about how to make decisions when information comes in, because that is the critical point in terms of how we go forward.

It is safe to say that the standard operating procedures, guidance and information on FGM are universally available through our intranet, but there is also specific, bespoke and concentrated training for those who will be working in this area.

Andrea Bradley

It would appear that some teachers, in some schools, in some local authorities have some exposure to FGM training, usually within the package of training that they receive on child protection more generally.

We asked a question about the confidence levels of teachers in relation to handling potential cases of FGM as they might emerge and we got a very mixed response. Some people said, “Yes, I am confident that I would know how to channel that through child protection procedures,” but others said, “I am not confident at all—please can we have some guidance in this area,” even though the teachers reported that this was not something that they were coming across at all. People had heard some anecdotal references, but nothing really specific.

Our impression is that training is patchy. Local authorities have different responses to FGM training. One local authority has included it quite systematically within a child protection online training package that it has recently adapted, but there seems to be a dearth of such approaches.

Fulton MacGregor’s point about racial profiling is important. It needs to be quite carefully thought out—it not just about how to upskill teachers on FGM, but how to do it in a way that would avoid exactly that scenario. The training on the prevent duty that has been rolled out south of the border has resulted in some really unfortunate cases of children and their families falling foul of misjudgment around matters relating to different kinds of extremism.

Training needs to be systematic across the country. Statutory guidance on that would be helpful and we need to take careful consideration of the potential racial profiling element.

The Convener

What is the benefit of making the guidance statutory rather than advisory?

Andrea Bradley

The current guidance is advisory and our teachers are telling us that this issue is not high in their consciousness and they do not feel confident about addressing it. Strengthening the status of the guidance could generate a bit of activity within the system to improve that picture.

That said, I am conscious of the number of asks on the education service, the amount of strain in relation to teacher workload, and the number of training and professional learning demands. It may be a question of decluttering by deciding what is an absolute priority. Space has to be created in the system, because this is about the safety of girls and young women.

The Convener

That is really helpful. Do any other panel members have any views on guidance for practitioners?

Liz Owens

I concur that such guidance would strengthen and support the development of practice and responses.

On training, the national implementation action plan group asked the 32 local authorities whether they have a training strategy for FGM, what it is and how robust it is. I agree that we have single-agency training, and multi-agency child protection, so there is training for different levels, for different areas and specialist investigators, but that is different across the country and that does not support us to drive practice forward.

Mary Fee (West Scotland) (Lab)

I will look in more detail at the practical impact of the protection order. In response to earlier questions, we have heard words such as “empowerment” and that the order will protect women. In practical terms, what will the protection order do for women and girls?

Detective Superintendent Galbraith

It will provide a layer of protection, in our opinion. I was asked earlier about the difference between the protection order and the existing legislation. The fact is that anybody can apply for a protection order. The responsibility is not necessarily on the shoulders of a young victim or a survivor. It means that society is saying that we want to protect you, so we will apply for an order. It could be a local authority, the police or another agency that applies for the order to protect someone.

Child protection arrangements will take care of a child if she is at risk of significant harm. As Liz Owens said, we are then getting into child protection orders, compulsory supervision orders and the children’s hearings system. An FGM protection order would impose certain conditions on any potential perpetrator and prevent any activity or conduct being undertaken; that is where its level of protection comes in.

Mary Fee

Does any other witness have any thoughts on the practical impact of the protection orders?

Liz Owens

I agree with Elaine Galbraith. The orders will let us look at bringing perpetrators to justice and offering protection to children, young people and women.

The parallel with forced marriage is important, in that we can see people’s experience of being protected by a different kind of order. I am aware that that has been fairly successful for some young people.

Mary Fee

In some evidence, we heard people saying that young girls would be particularly unlikely to speak out against their families and that there is a section of the population that does not know that FGM is against the law. FGM is not talked about and people say that, although it happens, they do not talk about it.

If protection orders come in and people do not know that FGM is against the law or are reluctant to speak out against their families, how will the protection order help them?

Liz Owens

It is similar to sexual abuse. Suzanne Hargreaves talked about what we are doing in the curriculum to help children to understand that they have a right not to be abused. So many lessons are being learned from the historical sexual abuse inquiry that is going on just now, and the situation with FGM is not dissimilar to victims not recognising that sexual abuse is not okay, that it is against the law, and it is abuse.

Mary Fee

Does anyone have a different view?

Suzanne Hargreaves

It is important that young people know about their sexual rights and about the legislation. That is why it is important that these things are in the new teaching resource and the curriculum. A new document has just been published about health relationships and the law around consent. Again, our young people do not understand that law. It is a similar argument; we need to make sure that our young people know the law and what their rights are around consent and abuse.

Detective Superintendent Galbraith

I agree with that—it falls in with the rights aspect. We know that a lot of people do not understand that FGM is illegal, so it is our job to ensure that that understanding is out there and that we link it to the protection of women’s rights and the prevention of gender-based violence.

That goes back to our discussion about universal awareness. We need to publicise the fact that FGM is a criminal offence and that FGM protection orders will be in place to protect people. That would go hand in hand with how we would see information around the bill being rolled out.

Mary Fee

What support is currently available for women and young girls, and families, who have experienced FGM or who are likely to be removed to another country so that the practice can be carried out? Is that support adequate? When the protection orders come into force, should a different type of support be put in place?

Liz Owens

The FGM national action plan implementation group has been looking at that question, because support is patchy across the country. The group asked the same question when we were looking at child sexual exploitation. We looked at the support services that were available to children and young people and to their parents and carers. Again, we know that provision in that area is not consistent.

The national implementation group is asking each of the local authorities what support they have available. If they do not have any support in place, do they need to think about that? What services could they put in place? What services do they have? Can they use existing services or do they need to think about creating other resources?

Mary Fee

I want to ask Liz Owens a question, and then the other panel members can answer as well. If you come across a young girl who is potentially at risk from FGM, what can you currently do to support her?

Liz Owens

In Glasgow, we have services, such as Saheliya, to which we would refer her. We are able to access resources in Glasgow, which is good, but I am not sure what would happen in other places.

Mary Fee

I accept that it may be slightly more difficult for the education people on the panel to give an answer, but perhaps Elaine Galbraith can respond. What services do the police have at their disposal to help and support people who are at risk from FGM?

Detective Superintendent Galbraith

The support is very similar to what is available from a local authority point of view. I echo what Liz Owens said about the patchwork of support that is available across the country in respect of all aspects of child abuse.

That is where the interagency referral discussion comes in. We have to look at what is out there, what is best and how we can support people. We need to put the child at the centre and ask, what does this child need by way of support and is that support available?

The agencies that Liz Owens spoke about are very much the same ones that we would go to, but that would be done within a multi-agency setting so that we can ensure that we get the best support that is available, if it is available.

Mary Fee

We have heard that legal aid should be free to anyone who needs support around FGM. What is your view on that? I accept that you may not have a detailed view. Do you think that legal aid should be free?

The Convener

Everybody is nodding.

Mary Fee

Yes, everybody is nodding.

Liz Owens

Why would it not be?

Mary Fee

We have heard that the usual criteria for an application for legal aid would be applied in the case of FGM. A financial assessment would be done, and some financial contribution may be required. However, we have also heard that legal aid should be completely free. Should the usual criteria apply, or should it be completely free?

Detective Superintendent Galbraith

It is not something that I have considered, so I am considering it on the spot just now.

Due to underreporting and people not coming forward or not having faith in the system—that is the evidence that you have heard so far—I support the argument for legal aid being free. FGM is not like any other crime. It is different, because people are not confident in the system or, as you pointed out, they do not even know that it is a criminal offence.

09:45  



Annie Wells (Glasgow) (Con)

We have heard, especially from Elaine Galbraith, about the underreporting of FGM, which has potentially led to there being no prosecutions in Scotland. What is the panel’s view on the introduction of a duty to report?

Should we make an offence of failure to protect?

We have heard strong support for the anonymity of the women or girls who come forward—what are your views on that?

Should we put those three aspects in the bill, or should they be dealt with through statutory guidance or other measures?

Detective Superintendent Galbraith

We have established child protection procedures, so notification is already taking place in the conversations that are held when we feel that there is a risk to a child. Statutory guidance to clarify that existing framework will help. I was involved in the development of the multi-agency guidance and a conversation about when to have the interagency referral discussion was certainly part of the discussion about agencies informing other agencies. We already have a good, sound child protection process in place that will be further strengthened by the revision of the national guidance on child protection. We have those links in Scotland.

If there were an offence of failure to protect, we would be asking people to come forward, to tell and to report, but, after gathering evidence, we might end up telling those people that they have failed to protect. The danger is that that might drive the practice of FGM even further below the surface. That is our concern. If there is clear and obvious evidence that a parent or carer has exposed a child to danger, there is existing legislation—section 12 of the Children and Young Persons (Scotland) Act 1937—to deal with that.

There are processes in place in the legal system to protect the anonymity of individuals. I am not sure about the automatic right to anonymity, because it comes down to the individual. Some people might want to have their details known, to stand up in court and have their evidence heard, and to not remain anonymous. It comes down to their rights. Each case should be dealt with individually and the appropriate measures put in place, if need be. The Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 will come into play in Scotland soon, which will increase the use of prior statement or evidence by commission, so that will be another option.

Annie Wells

If no one has anything to add, I will ask my other question. Earlier, we touched on some people not feeling confident enough to report, if they have never had to do it before. Perhaps guidance is needed on how to go about reporting, rather than having a duty to report in the bill. We need to make sure that people feel able to go to the relevant person to make a report. I think Suzanne Hargreaves touched on giving people the means to understand and have a conversation in order to move on. Should we look at that?

Suzanne Hargreaves

Teachers always refer to the child protection officer and do not deal with such matters directly. CPOs know the children really well and that system is well established.

The Convener

Previously, we heard evidence about the potential damage to relationships between practitioners. Although child protection is the most important aspect, having a duty to report might cause harm. Do you have a view on that, or can you provide examples of it?

Liz Owens

I agree with Elaine Galbraith—I am not in favour of a duty to report. We have robust child protection multi-agency processes and practices. Each case needs to be looked at individually when it comes to decisions about criminalisation, or a failure to protect. Situations are frequently delicate. We work with mothers who might not be aware, might be being coerced or might be powerless to do anything. There should be individual risk assessments and we should think about what interventions we make in our on-going work with non-offending carers. That is important. We do not require a duty to report. It would be a detrimental practice.

Andrea Bradley

It is all about extremely careful professional judgment. It is about knowing children, observing their behaviour and habits, and talking to other professionals about what has been observed—all in a climate of trust and openness. Introducing legislation such as a duty to report could create a culture of fear and hypervigilance, and might result in actions that are counterproductive to what we are trying to achieve.

The Convener

For clarification, if anonymity provisions were in the bill, would a woman or girl be able to tell their story? Elaine Galbraith said that that should be down to individual choice, and that we already have the capacity in the system for anonymity. If it was in the bill, would it prevent someone from speaking?

Detective Superintendent Galbraith

It could if there was automatic anonymity. That was my point: it should be down to the individual to decide. There should be other protection measures in place—which there are—if anonymity is not what they want, as opposed to it being decreed that they have to be anonymous.

Oliver Mundell

Do you mean that they should have an automatic right to request anonymity?

Detective Superintendent Galbraith

They should have the choice to request anonymity, rather than it being decreed that they remain anonymous.

Oliver Mundell

If they request anonymity, should it be automatically granted, or should it be dealt with case by case?

Detective Superintendent Galbraith

Depending on what they request and why they request it, that should absolutely be respected.

The Convener

Thank you very much for your helpful evidence.

09:53 Meeting suspended.  



09:58 On resuming—  



The Convener

Our second panel this morning is: Anne Marie Hicks, national procurator fiscal for domestic abuse and head of victims and witness policy at the Crown Office and Procurator Fiscal Service; Neil Hunter, principal reporter at the Scottish Children’s Reporter Administration; and Gillian Mawdsley, policy executive at the Law Society of Scotland. I welcome you all and ask you to spend a couple of minutes telling us about your experience and knowledge of FGM and the work that you do in relation to it, and to say whether you support the bill’s aim to strengthen the existing legal protections.

Anne Marie Hicks (Crown Office and Procurator Fiscal Service)

The Crown Office and Procurator Fiscal Service supports the aim of the bill to strengthen the protections for women and girls at risk of female genital mutilation. We have been involved with multi-agency partnerships in discussing guidance on the issue and we have been involved in work on the equally safe strategy, in which FGM is recognised as a key factor.

Our approach involves guidance for prosecutors in relation to offences under the Prohibition of Female Genital Mutilation (Scotland) Act 2005. We also have a national lead prosecutor who is a very experienced prosecutor in our national sexual crime unit, who will be the lead prosecutor for cases on FGM. To date, we have never received a case reported by the police in respect of those offences.

10:00  



Neil Hunter (Scottish Children’s Reporter Administration)

The SCRA fully supports the bill. As you know, the children’s hearings system is fairly unique, taking a broad and holistic approach to how we deal with the care and protection of children and young people in Scotland. It has significant longevity and it has adapted over time to a whole range of changing circumstances and societal challenges. We see ourselves as being very much in the forefront with our ability to adapt to a whole range of demands on and changes to the work of the hearings system.

At this stage, we have had limited exposure in terms of operational experience of FGM, but we continue to brief our staff and to make sure that they have a level of understanding and knowledge of it. We, like others, see FGM as being very clearly part of the spectrum of child abuse and exploitation that the hearings system was established to deal with in a child-centred way. We fully support the aims of the bill, and the hearings system will adapt to demands as required.

Gillian Mawdsley (Law Society of Scotland)

The Law Society of Scotland is in full support of the provisions of the bill. Our involvement is, in part, on behalf of our members, who represent both the defence and the procurator fiscal service and who will be involved in matters in connection with the terms of the bill.

However, it is not just about our membership. There is also the much wider matter of the public interest in promoting and protecting the rule of law, and the principles of the bill clearly do that. As we have said before, that is the benefit of having legislation that makes it abundantly clear to all parties what their responsibilities are and we welcome the Parliament’s efforts to do that. FGM is clearly an unacceptable practice. I have not had any cause to come across it in my professional practice, but I am certainly aware of the undercurrent. The more that can be done about it, as is clearly demonstrated by all the literature in support of the bill’s provisions, the greater the benefit to the public in Scotland as a whole.

The Convener

Why are the available approaches not being used fully at the moment?

Anne Marie Hicks

I had the benefit of listening to the previous panel and I fully support what they said. There are lots of barriers to people reporting FGM, including fear and lack of knowledge of the law. There may be levels of coercion and different power structures in communities so that people are not able to report it. There are many complex reasons why people cannot come forward and also challenges in gathering evidence, even in cases where something is made known to the police. There is no doubt that it is a very challenging area.

The Convener

How do you think that the protection orders will assist with addressing that?

Anne Marie Hicks

Being able to act before something has happened is always a good thing. We have seen examples of that with other protection orders, such as forced marriage protection orders, domestic abuse interdicts, civil non-harassment orders and the like. If we have orders that enable people to seek help—not only the people at risk but also local authorities and the police, so that they can intervene if someone is at risk of harm—that has to be a good thing as it prevents behaviour before it happens.

Mary Fee

I have a question for Gillian Mawdsley on some of the comments in the Law Society’s written submission. I accept what you have said this morning, but the submission says:

“We query exactly how the Bill would be shown to be more effective in preventing FGM and safeguarding those at risk”,

and at the end of that paragraph, it says:

“Exactly why there have been no criminal prosecutions in Scotland is ... a complex issue but without that information, it is hard to illustrate its current effectiveness or otherwise at present or provide a comparator”.

Do you have any further comments on that? Is that still the Law Society’s view or is there a slight nuance to that?

Gillian Mawdsley

We were talking about the need for an evidence base. We are fully supportive of measures being taken—there is no doubt about that, and there is no change there. However, we are concerned about how we could show that the provisions were working without an evidence base. We were trying to highlight the need for a starting point. I hope that that clarifies our position.

We are aware that there is a problem but that, as Anne Marie Hicks said, there have been no prosecutions. There are complex reasons for that. You heard from the previous panel that, as well as introducing the provisions in the bill, we have an opportunity to drill down into why there have been no prosecutions. It is important to show that legislation that has been introduced is effective. If we do not have a starting point, that can be hard. Does that help?

Mary Fee

It does. Thank you.

Beatrice Wishart

Good morning, panel. We have heard about the possible reasons why there have been no prosecutions in Scotland. What are your views on the FGM protection order and what it might be able to achieve?

Anne Marie Hicks

The previous panel talked about empowerment, which is really important. It is important that people have their rights protected. The order will prevent behaviour, but it will also apply where an act has already happened—it will protect people from further harm. We have examples in relation to other legislation where a breach of a civil order is a criminal offence, which can strengthen enforcement. We see that with domestic abuse interdicts, non-harassment orders and the like, and also with forced marriage protection orders. They provide people with additional protection.

Beatrice Wishart

Are there any other views?

Neil Hunter

Having protection orders on the statute book will offer an opportunity to respond quickly and effectively to issues of FGM as they arise. Where there are concerns about a child’s safety or vulnerability to FGM, it will also allow, as Anne Marie Hicks said, a preventative approach to be taken in order to avoid the child being harmed or removed from the UK, or any other potential risk to the child. There is both a reactive and a preventative element to the protection order, which we support.

Gillian Mawdsley

As my colleagues have said, the crucial words are “prevent” and “reduce”. If someone does not obey an order, it will be a criminal offence, but the criminal sanction should not come into play if there are ways of avoiding the problem starting. I stress that section 1 of the bill says exactly that—the protection order is there to

“prevent, or reduce the likelihood of”

an act of genital mutilation. Before we get to the commission of an offence, protection orders can be put in place and protect those who are at risk.

The Convener

Can I press you on the empowerment aspect? Empowerment is a good thing and it is a good word, but can you give an example of how the protection order will empower a mother and a child? It is potentially something that will be done to them. It might be helpful for us to have a scenario—perhaps one that you know about at present, when we do not have the legislation—in which the protection order will empower them.

Anne Marie Hicks

I think that it will give people options. Someone might choose not to take the option, but they might wish to do so. If people have knowledge of that and children are aware of their rights, it will give people opportunities to have those conversations and seek orders. It is also—

The Convener

I am sorry—I am going to be a bit of a pest and interrupt you. What will they have an opportunity to do? Can you think of a specific example?

Anne Marie Hicks

They will have an opportunity to seek help. A young person might think that they are at risk of FGM. Perhaps there have been discussions in the family and they are aware that they are to be taken out of the country. I have dealt with some forced marriage protection order issues, and the ability to have such an order means that people will contact a support agency. They will not necessarily contact the police or the local authority, but they will often contact one of the stakeholder organisations, whether it is Saheliya or one of the other agencies, which can then get involved and get an order.

It is about having a framework where people know their rights and know that they do not have to get the protection themselves but can ask someone else to get it on their behalf. I accept that, as with the reporting of criminal offences, not everyone would wish to do that, but it is important that a suite of measures is available to people.

The state sometimes has to intervene to protect people who are at risk of harm, and it is important that the responsibility for seeking orders is not all down to the individual. There can be financial and other constraints on individuals, and it is sometimes appropriate for the police, the local authority or others to intervene if someone is at risk of harm.

The Convener

Oliver Mundell has a supplementary question.

Oliver Mundell

On the balance between the individual and agencies, my understanding is that under the bill as currently drafted, someone with parental rights would have to go to the court to get permission to seek an order, whereas the police and social workers would have an automatic right. Is that the right balance, or should people with parental responsibility have an automatic right to seek an order?

Anne Marie Hicks

Proposed new section 5C of the Female Genital Mutilation (Scotland) Act 2005 lists a number of parties who can apply for an order. We cannot really comment on whether parents should have an automatic right. A number of parties, including a person who is at risk of harm and a parent, can make an application. From my reading of the bill, there is an adequate range of provision for everyone who might need to apply to the court for such an order to be able to apply.

Oliver Mundell

On empowerment specifically, if the mother or father of a child sees that they are at risk, is there a disparity in their having to seek permission from the court before they could go ahead? In a lot of cases, particularly involving younger children, it is unlikely that a person might feel able to do that without support from a parent.

Anne Marie Hicks

That is not really a matter for me to comment on. Whether members want to change that provision is a matter for them, but it is important that another person is allowed to apply. I suspect that the bill is drafted in that way because a person who is not a parent could apply, and we would not necessarily want another person in the neighbourhood to apply as well. That is probably the reason for that provision. It is simply to allow the court to have some scrutiny of who is applying for an order as opposed to trying to prevent someone who has a legitimate interest from doing so. If a parent applied to protect a child from risk and was trying to care for them, I do not foresee any difficulty with the court envisaging that they had a legitimate interest in becoming involved. I hope that that clarifies the matter.

Oliver Mundell

That is really helpful. Thank you.

Neil Hunter

The extra step helps us to ensure the legitimacy of the applicant and the applicant’s relationship with the child, young person or adult, and ensures that the court is able to assess the appropriateness of the application. Therefore, the balance seems right to me.

The Convener

We have heard evidence that there is a potential risk that abusive husbands, as part of their coercion, could claim that the child was at risk of FGM from the mother. Forgive me—I cannot remember whether we heard that evidence last week or the week before. In that case, would you consider that that extra step is needed to ensure legitimacy?

Anne Marie Hicks

I can envisage that that could be done as part of an abusive process, but it would be a matter for the court to consider all the circumstances.

Oliver Mundell

In my main line of questioning, I am interested in two things. First, should the children’s hearings system be able to grant an FGM protection order?

Neil Hunter

In our written evidence, we said that we do not see that as necessary. We have a broad range of grounds of referral to the children’s hearings system that cover a range of issues and difficulties that come up in children’s and young people’s lives.

10:15  



We are not seeking additional powers in relation to the hearings system. We believe that the current grounds of referral are sufficiently broad and, more importantly, holistic as regards our approach to children and young people. Neither are we seeking additional powers for the reporter to the children’s panel in relation to protection orders. We believe that the strengths of the hearings system lie in its focus on the child or young person—their best interests and the paramountcy of their welfare—and a hearing’s ability to make compulsory supervision orders to regulate who has contact with the child and where the child can reside and to apply additional conditions that it might deem appropriate in individual circumstances. Therefore we believe that we have most of the powers that we require to respond to FGM cases at this stage.

We also have routes into the hearings system, to the reporter from the courts, as outlined in the bill. Importantly—and uniquely—we have a single source of referral to the children’s reporter, which allows anyone who has a concern about a child or young person’s welfare or protection to contact us. We then have a duty to assess and investigate such concerns. We have very strong links with local authorities in relation to emergency protection for children and young people and with the police, who remain the referrer to the reporter in by far the majority of cases.

Oliver Mundell

In its submission, the Law Society of Scotland supported—

Gillian Mawdsley

We responded from the perspectives of both criminal and family law. From the perspective of family law, it was suggested that there should be an additional ground of referral. I bow to Neil Hunter’s greater knowledge of the children’s hearings system, but I can quote the Law Society’s family law committee’s reasons for that suggestion, which were that an additional ground would ensure that

“a child ... enjoys the same procedural safeguards and protections that an equivalent person would in a similar situation where the risk or welfare concern was other than FGM”

and would avoid

“the possibility of important decision making being made for the child already within the children’s hearing system outwith that system, and so outwith that ‘whole system’ focus.”

It would also prevent

“the prospect of a child being made the subject of conflicting orders or measures”

and ensure

“that the thresholds for intervention are consistent with those that exist in relation to other grounds for intervention”

at present. Finally, it would place an

“additional responsibility on the various stakeholders to specifically assess and identify children in need as to whether they are at risk of FGM”.

Clearly, I support any suggestion in relation to the children’s hearings system as it represents a specialism in that field of law. If it would be helpful to the committee, I would be happy to let it have in writing our committee’s further comments, from which I have just quoted, since they were provided after our evidence was submitted.

Oliver Mundell

Yes, that would be helpful.

Does the Crown Office have a view on the matter?

Anne Marie Hicks

No.

Oliver Mundell

Would you be happy with whatever the Parliament decided?

Anne Marie Hicks

I think that we do not have the expertise to comment on what happens in the children’s hearings system, so I prefer not to express a view.

Oliver Mundell

That is still helpful.

My second set of questions is on whether the criminalisation of breach of FGM orders is appropriate. If you feel that it is, what should the penalties be?

Anne Marie Hicks

I think that criminalisation is appropriate. As I said earlier, we have seen examples of it in the context of other legislation and civil orders such as forced marriage protection orders and domestic abuse interdicts.

The offences that we have in Scotland go further than those created by the legislation in England and Wales: it is not only the person who breaches an order who is criminalised. The approach in proposed new section 5N of the 2005 act is to create three other offences by people who have not themselves been made subject to the order. That is fairly novel, because the usual approach would be to criminalise someone for not having followed the terms of an order to which they themselves are subject—for example, a bail order or a non-harassment order.

In our submission, we commented that such prosecutions could present evidential challenges, because we would have to prove that such an accused person knew the terms of the order as well as proving that they had breached it. That would be far easier to do if the accused person was the person who had been made subject to the order and it had been served on them. However, the outcome of such challenges might depend on the circumstances of the individual case.

Penalties would be a matter for the courts. The English and Welsh offence has a five-year penalty. The forced marriage protection order has a two-year penalty on indictment, although that offence was introduced eight years or so ago. Perhaps things have simply moved on, and it may make sense to have similar penalties to those that exist in the rest of the UK. That is just an observation—sentencing would be a matter not for COPFS but for the courts.

Oliver Mundell

On gathering evidence, going back to the lack of prosecutions, is there an issue whereby, by putting things in law, we will not be able to prosecute and pursue, and we undermine confidence in the legislation? Is that a legitimate concern, or is it more important to send out the message that we think that it is wrong?

Anne Marie Hicks

I do not know whether it would undermine the legislation. The first offence, against the person who is subject to the order, is really important. It is for Parliament to consider whether it chooses to take a further step and legislate to include other people who are not themselves subject to the order, but who act to assist that person or who do the act that the person is prohibited from doing. It would be really important for enforceability that, at the very least, it is a criminal offence for a person to breach an order that they are required by the court to obey.

Mary Fee

Could you say something about the support that is currently available to women and young girls who are at risk of FGM, and whether that support will be adequate once the protection orders are in place? Also, if the support is not adequate, what else needs to be put in place to make sure that women, young girls and, indeed, families are adequately supported?

Anne Marie Hicks

The panel members who were here earlier are probably better placed to talk about that, because they will be dealing with people at a far earlier stage. Obviously, by the time that it comes to my office, that work has already started.

I know that a number of organisations and stakeholder groups such as Saheliya and Scottish Women’s Aid and children’s charities such as Barnardo’s and the National Society for the Prevention of Cruelty to Children get involved in that kind of work. It is really important that that support is there.

The points that were made earlier about education are also critically important. If we are to have a law that is effective, it is important that people in communities that are likely to be affected know about it, and also that children know about it, and know how to access their rights.

Mary Fee

If we are in a scenario where cases will potentially be going through court, do you think that the victim support service in the court system should do something differently, or—perhaps—broaden the scope of its support services?

Anne Marie Hicks

At the moment, Victim Support Scotland deals with victims of a crime, so, if someone was going through the court in respect of a civil protection order, they would not be referred to it. I do not think that that would be its role unless we were prosecuting a breach and someone was going through the court, in which case those measures would kick in.

It is important that there are good measures in court, and that there are proper support measures for people to give evidence. However, it is also critically important that there is support in the community before it gets to the stage of court proceedings.

Neil Hunter

In relation to a child or young person who is coming through the hearings system and who is at risk of FGM, I emphasise that elements of the system are hardwired in terms of the duties that are placed on local authorities to support, direct and provide services to children, young people and their families as part of a compulsory supervision order. Those elements seem pretty robust and well established.

In each part of the country, there is probably a need for a balance between local specialist services, which have a role in providing on-going and intensive therapeutic support to children, young people and adults who have experience of, or who are at risk of, FGM, and non-specialist universal services, in which I am particularly interested. Such services have a role in aiding understanding and providing clarity, and they have a higher level of awareness of FGM issues, which allows them to support children, young people and adults. The services also have a clear role in prevention and in the detection and identification of needs and risks. Across the whole workforce, on-going professional learning and development needs to be accelerated so that, wherever they are, a child, young person or adult who is at risk of FGM can receive a degree of support and guidance, in a competent and confident way, to meet individual needs.

Mary Fee

You talk about the need for a balance in services. Are you concerned that there is a postcode lottery in relation to services because of the nature of the country’s geography?

Neil Hunter

I do not have a clear enough picture of the situation across the 32 local authority areas in Scotland. I suspect that specialist and more generic services will be provided in some of the big urban centres, as we would expect. As time progresses, and as we focus on wider awareness and workforce development, I think that some of the provision can be evened out.

Mary Fee

That is helpful. Does Gillian Mawdsley have a view?

Gillian Mawdsley

Much has been said. One of the main thrusts of our response has been to highlight the role of education and training, which is essential if the bill is to progress successfully. As we have said on a number of occasions, there is no point in having a law unless people are aware of it and the provisions are there. I am aware of the number of specialist stakeholders, to which Anne Marie Hicks referred, but there needs to be that level of awareness and support across all specialist services. The NHS and schools need to be aware of the provisions so that they can support people who are most at risk, particularly in the light of what we said about the lack of an evidence base. That is not a criticism but a statement of fact.

I very much agree with what Mary Fee said about there being a postcode lottery, because I think that the provision of services will be piecemeal. Obviously, we should target resources at pockets of communities where FGM might be more likely. Libraries, help groups and so on all seem very important but, fundamentally, getting the message out will involve education and training. I accept that that includes legal professionals and members of the judiciary who might become involved in these matters being aware of their powers and of the prevalence of FGM. People need to be aware that FGM is happening under the surface, but there have not been the prosecutions and convictions that would have made the issue more apparent. That is a difficulty for all of us who have a role in the matter.

Mary Fee

That is very helpful.

One view that has come out of our evidence sessions is that legal aid should be free for anyone who is at risk of FGM. On the one hand, the consultation said that the “usual criteria” would apply to legal aid, so a financial assessment would be done and, even if legal aid was granted, a small financial contribution might be required. However, on the other hand, there is a view that legal aid should be completely free. What is your view?

Gillian Mawdsley

That question is probably for me, wearing my other hat. Legal aid should certainly be available to provide advice and assistance. Making it free could open gates and lead to people saying, “If this is free, something else should be free.” Looking at the spirit of access to justice, which might be the easier context, I can see arguments in support of making legal aid free. If we are trying to encourage people to get advice and assistance, we want to ensure that they are not hindered by the burden of financial assessment. On the other hand, I recognise the requirements of the state and that, if we start to make certain areas exempt, there will be calls for there to be exemptions in other areas.

I do not know how large the problem would be, because we do not quite know how much demand there would be. I stress that, as well as making legal aid available, we need to have the lawyers to provide the legal aid in order to ensure that people can access justice wherever in the country advice and assistance might be required.

Mary Fee

Before Anne Marie Hicks comes in, I have a question. We have talked a lot about forced marriage and forced marriage legislation. If someone is going through the courts in relation to forced marriage, are they entitled to free legal aid or do the usual criteria apply?

10:30  



Anne Marie Hicks

I am not sure.

Gillian Mawdsley

I am not sure, either. If the committee would like clarification, I can check that point through the legal aid committee and come back to you.

Mary Fee

That would be helpful, because we have talked about the issue a lot. Although FGM is not the same as forced marriage, there are similarities around the fact that it is underground and is not talked about, and we need to encourage more people to come forward. If you could provide some information around forced marriage, that would be helpful.

Gillian Mawdsley

I would be happy to do so.

Mary Fee

Thank you. Anne Marie Hicks, do you have any view on legal aid?

Anne Marie Hicks

As Gillian Mawdsley said, there are various considerations. I do not think that it would be appropriate for the Crown to have a view on that.

Mary Fee

That is fine.

Neil Hunter

The only thing that I would say is that, if agencies, local authorities and others are not making the application for a protection order on behalf of an individual, the likelihood is that the circumstances in which individuals find themselves require really rapid access to legal advice and assistance. I would imagine that the degree of urgency around an individual who is seeking to make an application to protect themselves through an order would require pretty rapid access to legal advice and assistance. That suggests that, if there are barriers or inhibitors to accessing legal aid, we need to examine and try to reduce them.

As Gillian Mawdsley pointed out earlier, there is a need for everyone to have a level of awareness and understanding to be able to enact our public protections rapidly and effectively.

Mary Fee

Whatever guidance comes with the bill, the strength of that guidance will be its ability to point people in the right direction, whether that is for legal aid, support services or something else. Everything has to join up and be reflected in the guidance and information that comes with the legislation.

Gillian Mawdsley

Just to pick up on that point, I think that the signposting of information on legal and practical assistance is crucial, and that has been reflected in other areas that the Parliament has been examining. It is also important that that signposting service is available no matter where in Scotland the person at risk might be.

The guidance is extremely important, because it will be on the books, so people can go and look at it. Therefore, I would very much welcome that strong guidance.

Mary Fee

That is helpful; thank you.

Annie Wells

There are various responses in the submissions that we received with regards to the anonymity of victims, the failure to protect and the duty to notify.

The question on anonymity is whether there should there be automatic anonymity if a woman or girl comes forward to report FGM, or whether it should be necessary to go through the sheriff, as is the case at the moment, to get those special measures put in place.

On the question of failure to protect, the Law Society of Scotland said that that could be considered after the bill is passed. On the duty to notify the police, we heard from Detective Superintendent Galbraith, on the previous panel, that there are already measures in place that would allow that to happen.

Those aspects are in the legislation for the rest of the UK, but that is not the case here. What are you views on that?

Anne Marie Hicks

There are already provisions in place at common law and under statute to address the issue of anonymity in cases across the board. I think that they would be adequate to address the issue for FGM cases. Whether you want to go further and make that the position in such cases, as has been discussed, is a policy choice. The only observation that I would make is that there are lots of other cases where there is no automatic anonymity, such as sexual abuse, exploitation or even other non-sexual cases involving exploitation. From a practical point of view, a number of measures can already be employed and would be employed in such a case when it was appropriate to do so.

The failure to protect is a fairly novel aspect. Yesterday, I was at an event at which a senior social worker was talking about the negative legacy of the failure-to-protect approach that social work adopted to domestic abuse. That had the effect of blaming mothers who were victims for exposing their children to it, and prevented people reporting to the police and seeking the help that they needed from social work. That has to be a concern.

From my perspective, there is already a lot in section 12 of the Children and Young Persons (Scotland) Act 1937 that would allow us, when the circumstances are appropriate, to prosecute someone for wilfully neglecting a child or exposing them to harm. Provision is therefore already in place that might not have the unintended consequences of a specific offence.

We are not particularly involved in the duty to notify. I listened to what the witnesses from the police and social work said earlier, and the established child protection procedures seem sensible. I do not have anything further to offer on that.

Gillian Mawdsley

On balance, the Law Society came out as supportive of the anonymity provisions. I take Anne Marie Hicks’s point that there might be adequate protections, but in our consultation response and our response to the call for evidence, we said that there might be circumstances in which the press would try it out.

Our feeling about it touches on something that was mentioned earlier about the need of vulnerable witnesses for support. Although we do not want unnecessary legislation, and I will touch on that shortly, there might be an opportunity for that bill to carry such a specific measure.

As I say, I am not saying that there is not adequate protection already, but if it was in the bill, you would be very much underlining the fact that anonymity is there for people. Whether other areas of legislation should have that provision is a matter for another time and place, but as I understand it, you are looking for things that could actively be done to tackle an undercurrent of a problem. To go back to the point about clarity of legislation, making what you are saying abundantly clear means that there can be no doubt. It will not be left to a sheriff to decide, and the press will not try something out and make a mistake. I suppose that anonymity is the one aspect of the English set-up that we could see would work.

With regard to the other aspect, I refer to what I said in our evidence. On failure to protect, whether there are adequate protections or not, the criminal law committee is concerned about the possibility that the over-criminalisation of the law could make it too complex or bring about a situation in which there are so many offences that the police do not know what to report and it becomes difficult to prosecute. I am hedging my bets. If, after the bill is enacted, you find that there is some need for the provision, you could look at the legislation again when you had an evidence base.

I do not really have anything to add on the duty to notify the police. If there is always to be a positive duty, it must be contained in statute. I am always concerned about the fact that we set out all these duties in legislation when, sometimes, they can be best left to guidance. I do not think that there is any more that I can add.

Neil Hunter

We operate on a strong presumption of anonymity in relation to children and young people in any case. Certainly, the hearings system offers stringent protection in relation to the transmission or reporting of any proceedings or any information about a child or young person in the system.

Anonymity in the broader sense will be important in this context. Again, we might work on a presumption that anonymity will be offered to people who make representations and applications.

I agree with my colleagues on failure to protect. It is a complex area.

In relation to children and young people, where demonstrable wilful neglect or harm is exercised on a child, that is a criminal offence. That area is much more complex, because there are a lot of power differentials at play within families and within relationships.

I see the potential benefit of a broader duty on people to protect and report where they can, but there is a degree of complexity in relation to power and exploitation and oppression, which make it more complex, as Anne Marie Hicks has suggested.

Annie Wells

That answers my questions very well; thank you.

The Convener

Our colleague Fulton MacGregor has had to go to another committee, but he had some questions on training, which I will ask for him. What specific training on FGM is there for the people you are speaking on behalf of? Are there any gaps in that training?

Anne Marie Hicks

The Crown Office has guidance in place and we also have regard to the multi-agency guidance. Because we have not had to deal with any cases, it is not a major area of training for us. However, for any bill that is passed that creates a new offence, we will likewise create new resources for prosecutors. If any further training needs developed on top of that, we would address those needs.

Neil Hunter

As you may expect, we do a lot of work with our children’s reporters on the issues of child sexual abuse and child sexual exploitation. FGM fits within that continuum of children who are vulnerable and at risk. We have not done a huge amount on FGM specifically but we are at the stage where we have a degree of confidence about our workforce’s awareness of—and the visibility of—the issue.

There is something compelling about a wider workforce plan on FGM. I have touched on how important universal services are in relation to health, education and so on. There is real potential in having a workforce development approach that has interagency professional training at its heart so that people are able to learn from one another’s roles and responsibilities.

The Convener

Another issue that was raised with us is the potential for racialisation of this issue. Do you have training on that side of things? That cuts across other areas—even if you are not dealing specifically with FGM at the moment, there is a more general point there.

Neil Hunter

We have taken a broad, generic approach to the issues of child abuse, child exploitation and child-related harms rather than focusing on particular groups or particular subsections of the community. We are well aware that abuse and exploitation of children and young people happens across the community, so a broad awareness of the issues is important.

In our previous evidence to the committee, we have focused on some of the research work that we have done with black and minority ethnic communities in relation to child protection procedures. We identified a need to increase understanding and raise awareness among the wider workforce of some of the fears and anxieties of people within those communities in relation to child protection procedures, so that we can close the gap that exists in that regard.

We are taking a broad approach to the development of training and awareness but we understand that particular areas of the community have worries and concerns about child protection and childcare issues.

The Convener

Is there any focus in the training on the racial biases that we all have?

Neil Hunter

There is always an emphasis in training on bias, misunderstanding and prejudice, so to that extent, yes, there is a focus.

The Convener

Does anyone else have anything to add?

Gillian Mawdsley

There have not been any criminal prosecutions but defence solicitors would be aware of their responsibilities, as they would in any defence case, so there would not be an issue around specialist training. Anne Marie Hicks has already dealt with the Crown Office side. In-house lawyers who work for organisations might have to produce guidance for staff, so solicitors might be involved in the area in relation to legal responsibilities.

10:45  



On your point about racialisation, clearly, equality and diversity are a key part of much of legal training, both at university and otherwise, and within any office or organisation. To a large extent, that is the area in which the specific issue will be covered. Certainly, that is a part of training that is followed all the way through legal careers.

Anne Marie Hicks

I echo that. The Crown Office has made a significant investment over a number of years in training on diversity and equality issues. We have a big commitment to that. We have also had training for our staff on things such as unconscious bias. For any case that is reported to us by the police, we consider the facts and the evidence, and we also have regard to any available guidance. I am quite confident that we could deal with the issue appropriately.

The Convener

Okay. Thank you all very much for your evidence, which has been very helpful.

Our next meeting is on 31 October, and meeting details and an agenda will be available on the Parliament website on 25 October.

10:46 Meeting continued in private until 11:16.  



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Fourth meeting transcript

The Convener

Agenda item 2 is consideration of the Female Genital Mutilation (Protection and Guidance) (Scotland) Bill at stage 1. I welcome Leethen Bartholomew, who is head of the National FGM Centre. Good morning, Leethen; you are very welcome. We will move straight to questions from committee members, as we have a lot to ask you.

Beatrice Wishart (Shetland Islands) (LD)

Good morning. Could you give us a bit of background on the work that you do, the history of your organisation and how it operates?

Leethen Bartholomew (National FGM Centre)

Good morning. Thanks a lot for inviting us to come to Scotland to share the work that we do in England.

The National FGM Centre started in 2015 with funding from the Department for Education as part of the children’s social care innovation programme. It is a partnership between Barnardo’s, which is the largest children’s charity in the United Kingdom, and the Local Government Association. In 2015, we had full funding from the DFE to work in six pilot local authorities in the east of England. We worked specifically only on female genital mutilation. The approach involved looking at a system change in how local authorities respond to cases of FGM. The intervention model that we used involved placing project workers in children’s social care. They were based either in the front door, which is the multi-agency safeguarding hub, or the equivalent, or an assessment team within the local authority. We had either delegated authority, which meant that our worker acted as the local authority worker, or delegated responsibility, whereby we would work alongside the local authority social workers. We would provide the interventions to support them in completing the assessments and doing direct work with families.

Part of the model involved community engagement, because we know that ending new cases of FGM by 2030, which is the goal of the United Kingdom and the United Nations, requires engaging with communities. Part of the work of the project workers—later, we recruited a community engagement worker—was to engage with communities to bring about an attitudinal change. We also have a training arm. We have a lead who is responsible for delivering training. We know that professional confidence is an issue with FGM, and we must ensure that people are culturally competent to respond to such cases. The other part of that is our knowledge hub. Our website has resources on FGM and other harmful practices, so it acts as a repository.

In 2017, the Department for Education decided to continue to fund our work, but to provide us with part funding, with the intention that the centre would achieve sustainability. Therefore, although we have funding from the DFE for the period between 2017 and March 2020, it is important to point out that that funding tapers off and that, this year, it has tapered off significantly, to the extent that we receive only 25 per cent of our funding from the DFE. Barnardo’s, as a charity, contributes a significant amount to the running of the centre.

In 2017, the DFE asked us to focus not only on FGM but on other harmful practices, so we also work on breast ironing or breast flattening and child abuse that is linked to faith and belief. FGM overlaps with other forms of harmful practice, such as breast ironing and child abuse that is linked to faith and belief. Our work originally started off on FGM and then it moved over to those other harmful practices. Another aspect of the work that we do now is that we have project workers who are based within the health sector. We have one worker who is based in St George’s hospital in London. She speaks Arabic, so she can provide a form of translation for the women and tries to connect them with community organisations. We have another worker who is based in London who works with health visitors and school nurses in supporting women and providing educational support for health practitioners.

Beatrice Wishart

That is helpful. Do you support the bill’s aim of strengthening the existing legal protection?

Leethen Bartholomew

Yes. Even though we think that the child protection system is very robust, a number of measures that were brought in with the Serious Crime Act 2015 strengthened the support around prevention and prosecution for survivors and for girls who are at risk. One aspect of that is the extraterritorial powers that go with the Female Genital Mutilation Act 2003, whereby if the offence happens overseas, it is as if it happens here in the UK, which is not part of other existing legislation.

Angela Constance

Good morning, Mr Bartholomew. There are very different legal and policy contexts across the UK. We have the Scottish Parliament and the Scottish Government, which have responsibility for health and education, and a different legal system. I am conscious that you are funded by a UK Government department and the Local Government Association, which covers England; nonetheless, I am interested to hear whether—based on your experience south of the border or any reflections that you have that relate to Scotland—you think that there are existing approaches that are not being utilised to protect people from FGM.

Leethen Bartholomew

The FGM protection orders are still poorly understood by professionals and communities. Professionals do not understand the threshold around FGM protection orders; such an order is sometimes considered to be the last option when it should be considered to be the first option. The process is seen to be very draconian for communities. In some communities, having to engage with any legal system or any professionals is considered to be very taboo.

Another issue is the way in which some local authorities respond to FGM protection orders. I will give you a very recent example. I was contacted by a police officer whose concern was that a mum was concerned about her partner wanting to cut her daughter. When she approached the local authority for support, the response that she was given was, “You can apply for the order in your own right,” which left the mother feeling very distraught. The police officer approached me and asked what she should tell the local authority, so I had to break it down and tell her what to say to the local authority. In the end, the local authority responded positively and intervened and, from what I understand, an FGM protection order was put in place. One of the biggest issues for us is a lack of understanding and awareness of FGM protection orders.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

You have talked about FGM protection orders. In your submission, you said:

“we know FGM is being practised in the UK”.

What evidence do you have to back that up? Why do you think that there has been only one prosecution in the UK?

Leethen Bartholomew

At the National FGM Centre, we have worked with just over 250 women and about 15 girls who have been cut. In at least two of those cases, the women’s story is that they have been cut here in the UK. One was cut and did not disclose it until she turned 18, because she was aware of mandatory reporting and did not want her parents to be prosecuted. The approach that we took in that case was to focus on the cutter, but it was very difficult for that young person to remember the details, because it happened to her when she was younger.

That is just cases. We have also worked with survivors who have not been referred to local authorities but who have disclosed to us in the course of our work with communities that they were cut in the UK. I must admit that the numbers that we know of are very small, because it is a huge step for someone to make such a disclosure, knowing the consequences for their parents and family members.

I am sorry—I have forgotten the second part of your question.

Fulton MacGregor

I have forgotten it myself. [Laughter.] It was about why there has been only one prosecution.

Leethen Bartholomew

There are several reasons for that. One is that, as I just said, in some communities, giving evidence against your parents is a huge step. FGM is cloaked under the guise that it is done for love and, when someone is brought up in a culture thinking that that is why it is done, it is very hard to go against that. If we think about communities where FGM is not practised, giving evidence against their parents is a very difficult thing for any child or young person to do.

09:45  



Another reason is that we know that there is a lack of paediatricians with the expertise to examine girls, and the Crown Prosecution Service would need such medical evidence. In response to that, the centre is having a round-table discussion on 3 December, which will bring together a number of medical and legal professionals and the police to look at why there are so few paediatricians. Even if they can medically examine girls, they do not want to, because that would require giving evidence in court. We know that there was a case that resulted in a failed prosecution, in which the work of the health professionals was not—I am thinking about the right word to use—celebrated by the judge, because it was considered to be not a good piece of work. That could be a barrier to medical practitioners coming forward to medically examine girls.

In addition, an FGM protection order is a preventative order that prevents FGM from happening, so another reason for the lack of prosecutions could be that we are responding before girls are being cut and they are being protected. Another reason is the fact that FGM is a very hidden thing—we cannot forget that. We will never know the true prevalence of what is happening to girls in our communities, which means that we are not going to get people to come forward.

Fulton MacGregor

We have heard such powerful evidence on the family dynamics from a number of witnesses. That takes me on to something else that you said in your submission. You said that, in certain circumstances, FGM protection orders could

“empower families to protect their daughters from FGM.”

When might such situations arise, given what you have said?

Leethen Bartholomew

We know that, in some situations, mothers would want to seek an FGM protection order. FGM is multifaceted—in about 20 to 25 per cent of our cases, it accompanies domestic abuse. At the point of leaving a relationship, the woman would seek an FGM protection order for her daughter. It is a case of giving a mother the agency and the power not only to take a stance and protect herself but to also protect her child. That is a very empowering thing for a mother. In a community that is very collectivist, where people make their journey in life not by themselves but with other people, relationships become enmeshed, and standing out from that is a very empowering thing for a woman. We have supported some women in seeking such an order for themselves. We work closely with a few barristers who will represent the women in court pro bono, because we know that if they do not qualify for legal aid, they will have to pay for it and some women just cannot afford it.

In addition, if an order is taken out by an individual, they have to pay to get it served. We are able to lobby on behalf of people in that position, and a pilot is being carried out by the police, which I can talk about later on, if you are interested in it, in which the police will be able to serve an order on behalf of the parent. That is a very supportive approach, and it shows that there is a team supporting the parent, which is also a very empowering thing for women who come from a situation in which they have lost power and control over their life because of interpersonal violence in relationships.

Fulton MacGregor

You said that you have been involved in gaining 35 FGM protection orders. Will you tell the committee a wee bit about your experience of doing that and provide some examples of the requirements of FGM protection orders, particularly with regard to the length of time that they last?

Leethen Bartholomew

Yes. We have been involved in 35 protection orders. In our model, our project workers are based in local authorities, and in cases where we do assessments, there will have been advice from the local authority that an FGM protection order is needed. We play a crucial part in driving that, and also in risk assessing, planning for safety and recommending which conditions should be included in the FGM protection order.

Our social workers and project workers have also written court reports in relation to FGM protection orders. We have been commissioned by local authorities independently. We are based in 11 local authorities at present, but we are commissioned by other local authorities that ask us to write court reports. If there is an interim order, they will ask us whether the order is needed or whether it should be overturned. We have had situations where we have said to the court that the risk has been reduced because we have done the intervention and the education work with the parent and the child, and in those circumstances we have recommended that the order be removed.

In our work on FGM protection orders, we have developed leaflets for communities and for parents because, as I said, they are poorly understood.

I know that there was a second part to your question.

Fulton MacGregor

I think that you have answered it. I asked for some examples of the requirements that can be in place, particularly with regard to the length of time.

Leethen Bartholomew

Some of the orders that have been made have lasted until the girl reaches the age of majority—until she is 18. Some have lasted until she is 16. Recently, we recommended in a court order that it should last until the age of 16 but with some intervention until the girl reaches 11—until the end of primary school. It all depends on the circumstances of the case.

Fulton MacGregor

Thank you for that. I will ask my other questions together. What is your view on the criminalisation of the breach of an FGM protection order? Do you have a view on the penalty that has been set?

Leethen Bartholomew

Breach of an order is a criminal offence. If we look back to forced marriage protection orders, we can see that it was originally not considered to be a criminal offence to breach such an order, but it was changed later to be a criminal offence.

FGM is a huge human rights violation and there must be some consequences to it. We know that some victim survivors do not want their parents to be prosecuted, but some see that as a need because it sends a very strong message. Views are very much divided. As I said, FGM is a human rights violation and it has serious consequences and implications for the lives of women and girls. Across the world, some girls have died because of it. Criminalisation should be considered for such an act. That also ties in with the view that the act polices a woman’s or a girl’s body in a way that nothing else does.

There is also the racialised element. However, as we find out more about FGM and begin to understand it, the idea that it criminalises a certain group of people probably ends up being on shaky ground, because we have worked with families from over 65 countries. It happens in Russia. We have worked on the case of a Russian woman who was cut, and her children as well. Someone contacted us about a case involving a white woman from the African continent who married into a country. There was also a case in the newspapers where a white American woman was cut.

With our growing understanding of FGM and the evidence, we know that it is much broader than we thought. If we really want to ensure that we send a message that it is not about “them against us” and that it affects not just one group but others and is growing, we need to look at it much more broadly. We have worked with white British women who are married to or in a relationship with a partner from an FGM-affected country and have had to go to court to seek an FGM protection order. It is much broader than we think.

Fulton MacGregor

What are your thoughts on the penalties? The penalty on summary conviction is

“imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum”.

On conviction on indictment, the penalty is the same as in England and Wales:

“imprisonment for a term not exceeding 5 years or a fine (or both).”

Leethen Bartholomew

How long is long enough and what sentence is fitting? It is difficult for me to answer that, but I would say that five years or a fine would probably be suitable. I do not think that that is too draconian compared with the penalties for other offences.

Fulton MacGregor

I appreciate that that is a difficult question to answer. Thank you.

The Convener

Mary Fee has a supplementary question.

Mary Fee

You said that, quite often, a young girl who has been cut will not want her parents to be criminalised. I absolutely understand that. When you work with a young girl who has been cut, what work—if any—do you do with the parents to raise awareness of what they have done to their child? Do you do any work with the broader family to raise awareness of the issue of FGM?

Leethen Bartholomew

Our approach is that we try to work with the entire family. The work with the parents involves education. It involves thinking about their idea of why FGM happens, because we know that there are a lot of myths associated with it, and we try to debunk some of those myths. If we know that it relates to a religious requirement, that will be the focus. We focus on taking a child rights approach and a human rights approach. We help parents to understand what bodily integrity is and what child rights are, and we look at the health implications of FGM.

We sometimes make the mistake of speaking about FGM in the singular, whereas we know that we should look at it in the plural, because there are many different types of FGM and many different reasons why it is done. That is a focus of the work that we try to do with the parents, and we tell them about the law. Sometimes, parents think that people where they are originally from have moved on and that FGM is no longer an issue there. With such parents, we have to look at the international landscape—especially the country that they are from—and help them to understand that it is still a live issue, that work is being done to end cases of FGM and even that there is a law in their country that they are not aware of.

We try to include the wider family, but some of that work depends on parents giving us consent and allowing us to be in contact with the wider family and community. That is still a bit of a struggle. However, we work directly with the family. It is also about doing the work together. In some situations, we work with the child and the parent separately and then bring them together.

Mary Fee

That is helpful. Thank you.

Oliver Mundell (Dumfriesshire) (Con)

In your evidence today and in your written submission, you have said that you have helped more than 260 adult and child survivors of FGM. We have heard in other evidence that the support is just as important as the other aspects that an order can bring. What support is available in England and how does it interact with FGM protection orders?

10:00  



Leethen Bartholomew

We know that the provision of support is a postcode lottery. In London, there is an organisation called the Dahlia project, which is the only FGM counselling service that is available for women. The idea of counselling is a very new one in some communities, so we have to be creative in how we think about it, because people do not have our understanding of it.

Support for children, especially medical support, is sparse. In some local authorities, it is almost non-existent. We have only one dedicated FGM clinic, which is based at University College hospital. As I said earlier, we do not have medical experts available who can examine girls. FGM affects men as well, but very few organisations are dedicated to supporting men and enabling them to change their attitudes to FGM. Support for girls in schools is very limited, as is support that different organisations and institutions can provide at points when girls and women interact with them.

There has been a good step recently as FGM clinics for non-pregnant women have opened in a number of places across the country. In London, there is one in Croydon and another in Brent. A lot of work has been directed towards pregnant women, but what about non-pregnant women? At those clinics, there is therapeutic support for women, which is one of the best things that can happen. Women sometimes say to our workers that the point at which we engaged with them was the first time that anyone had taken the opportunity to talk to them about FGM. Those women have been through the healthcare system, been to their general practitioners and given birth, but no one has had that conversation with them.

The guidance for health professionals talks about mandatory recording, but it does not say that it is mandatory to ask the question. Recording is mandatory, but it is not mandatory to ask the question. If I do not ask the question, I do not have to record it, and we know that women are still not being asked the question. If they are not asked, they are not given an opportunity to get the support that they need. Even if we ask the question, we know that there is limited support for these women.

Oliver Mundell

On our committee visits, we have heard that people feel that they do not have secure access to housing and are concerned about their immigration status. Should support in relation to those things be included in the protection order? When the court grants a protection order, should it include support that sits alongside the other actions? Does that happen in England?

Leethen Bartholomew

We know that housing and immigration are issues in some of our cases. Some families have no recourse to public funds, which is a minefield. We work closely with some law firms that are willing to provide legal advice to parents and family members free of charge, but it all depends on where people are located.

Immigration advice and support is sparse and housing stock is limited. To include such advice as part of the conditions of an order would be difficult. For sure, if housing and immigration support are needed, they should be provided, but how would local authorities respond, especially on housing? It is a difficult ask.

Oliver Mundell

Should free legal advice be provided automatically in cases involving FGM protection orders?

Leethen Bartholomew

Yes. As I said, FGM is a huge human rights violation when it happens, and the risk of it happening creates fear, especially when it intertwines with the idea of honour-based abuse and the threat to someone’s safety and life. Sometimes, parents feel that they are being punished twice because they have uprooted themselves from their homeland and left their country—perhaps they have done so as refugees and have sought asylum here, and concerns about FGM may be among the reasons why they have travelled here to seek refuge—and then, when they come here, they fear that they will be returned home.

I know of a few cases where a parent has been told that they can go back to a different part of their country. That might seem logical in our context, because someone can leave London and come to Scotland and they might be able to fit in. However, in some countries, people will be going to another part of the country where people are not from their ethnic group, and there are conflicts between ethnic groups. We might think that people do not need to say who they are, but they can be very identifiable. If they have scarification, for example, people will know which group they belong to, and there is a long history of conflict between different groups. It is not as easy as saying that people can go to another part of the country. It is a real fear for some parents, and they feel as if they are being punished twice.

The Convener

You mentioned asylum and refugees. Oliver Mundell said that, when the committee met the workers, they said that one of the most helpful things would be for FGM protection orders to influence asylum applications in the immigration system. We have had a response from the UK Government on that, and it is not as we would wish it to be. Will you say a little more about the cases that you have been involved in and say whether FGM protection orders have been used as helpful evidence in asylum claims? If they have not, should they be?

Leethen Bartholomew

They should be. We have had cases where there have been immigration issues. I am thinking of a recent case that was before the court in England.

The family court should do its own risk assessment where there is a high risk if the child or family member returns to their home country. The Home Secretary could disregard the advice that the family court gives with regard to the level of risk, but FGM protection orders play a strong part in driving decisions by immigration authorities with regard to risk. I think that FGM protection orders should be considered in all circumstances and the family court should continue to do its own assessment of the risk to the child, because its advice still has some weight in the decision that will be made.

Oliver Mundell

I think that you mentioned racial profiling. There has been a suggestion that FGM protection orders could lead to racial profiling by professionals. What is your view of that suggestion? Is there evidence of such an outcome in England?

Leethen Bartholomew

I agree with that suggestion, but is it the orders that lead to that outcome or is it people’s attitudes towards others? Should we target people’s attitudes, to help them to change their views? It is about cultural competence. I know that some communities have been affected by not just FGM protection orders but the approaches that are taken by different local authorities.

Is it about the orders or just people’s attitudes towards others? Do the orders make things worse? We must remember that FGM protection orders are served in the context of a legal framework and it is not the individual who grants the order. Yes, people will have to give evidence, but we have to rely on the court granting the order on the basis of what it hears. Even if it is an interim order, parents can go to court to have the order removed.

Some communities feel very much affected by the orders—they feel that they are being targeted—but the problem goes beyond FGM protection orders. Communities feel scapegoated, and the issue ties in with wider issues such as Islamophobia and how some communities feel about that. The issues become enmeshed and they do not separate one from another in their total experience of living in a society in which they are being othered. FGM protection orders are just one more thing.

Oliver Mundell

You work as a national centre. Do you think that having pilot projects with individuals based within local authorities has made any difference to how professionals work?

Leethen Bartholomew

We are based in 11 local authorities, and we have workers in the front line of children’s social care in 10 of those. In one local authority, our work is focused on the new relationship and sex education curriculum, and it involves consulting parents, communities and children and young people themselves on the curriculum and what should be included in the material that will be taught to students.

In the other local authorities, we are working to bring about a system change. We have been based in some local authorities since 2015, and, because we have been there longer and because our multi-agency approach involves many partners such as education and health, our interventions have reaped a lot of benefits and rewards. When we work in a local authority, we work with community organisations on the ground, which helps us to drive the work of community engagement.

I do not deny that there are challenges, because to change attitudes you have to change your approach and adapt your work. It is a difficult thing in itself to engage different professionals to talk about FGM, because practitioners are sometimes afraid to respond, or they respond in a knee-jerk way. For example, we had one referral about a black family who were going to Barbados on holiday. I am from the Caribbean, and Barbados is very close to where I am from. I just cannot understand why a professional would be concerned about a family going on holiday to Barbados.

Our work is not only about intervening and supporting families; some of it is about professional development and about helping professionals to have the confidence to ask the question and know how to ask it in a trauma-informed way. We have heard of cases in which a woman has been shown an image and been asked, “What type of FGM do you have?” FGM is a very traumatic thing for most women, and showing them an image—asking them to talk about it that way—is not a trauma-informed approach, as it would obviously take a woman back to the point at which she had been cut.

Our work is about helping professionals to respond in the right way and not to be anxious about it. We help them to understand that it is just the same as any other safeguarding concern, and we try to allay their fears and give them the skills that they need. One of the most important things is asking the question, and we need to support professionals with something as simple as that.

Mary Fee

I want to ask about three areas, the first of which is guidance. Is there a benefit to making the guidance statutory as opposed to advisory? Multi-agency advice and guidance about FGM already exists across Scotland, but, while we have been taking evidence, we have heard that guidance should be statutory. Do you agree with that? Perhaps you can give us your thoughts on what would be beneficial, both in the FGM guidance and in the guidance around FGM protection orders. Is there something specific that we could include that would be helpful?

10:15  



Leethen Bartholomew

There would be benefit in making the guidance statutory. Professionals sometimes do not refer even to guidance that is statutory, and that is even more the case if the guidance is advisory. We undertake work on child abuse that is linked to faith or belief. Back in 2007, the guidance was non-statutory and virtually no one knew about it, so it faded away and is now not referred to at all.

If statutory guidance places responsibility on chief executives and the directors of children’s social care and other departments, saying that they must adhere to what is written in the guidance, that creates accountability at a very high level, which ensures that accountability cascades down to the front-line professionals. It is really important to have statutory guidance, and that would be the correct step to take.

Thinking about what should be included in statutory guidance, I had a look at the 2017 multi-agency guidance for Scotland. That guidance is a step in the right direction and mirrors the guidance in the rest of the UK.

FGM is a global issue and professionals must have an understanding of it. It is a matter of thinking globally but acting locally. The international context does play a part for families, and the guidance should include an element of that. It should also include information about the best approach to working with families and what the evidence says about what works, to give some tips. Sometimes, professionals speak only to other professionals, not to people who really know about the families. They do not engage with places of worship.

Perhaps there could be something that spoke to communities and helped them to understand their part as well as looking at how best to engage with and respond to communities. That would probably not be part of the statutory guidance, but it could be written the other way around, as guidance for communities about engaging with professionals. We know that there is a lack of trust between communities and professionals, and that could help us to make a dent and change attitudes—to engage with communities—by helping communities to engage with us and bridge that gap.

Guidance is very general and is not written with particular cases in mind, so we have to adapt it for the families that we work with. In my experience, some practitioners struggle with safety planning and what should be included in FGM protection orders, so some tips—looking at existing case law and what conditions are included in the orders—would be useful in helping professionals to understand what should be included.

There is also an issue about how the FGM protection orders are served. In one case that I know of, the order was granted here but the family members live in another country, so the order was served by another family member via WhatsApp. You need to think about creative ways of serving orders, taking into consideration how useful the internet and various electronic tools can be. Things like that should be considered in serving FGM protection orders.

Mary Fee

That is very helpful. I want to come on to awareness raising and education, but I will ask about something else before I do that.

I have a bugbear about guidance, because guidance can be a very useful tool but it comes down to accountability and the importance that is placed on it. I am always concerned that guidance is taken down from a shelf once a year, that people look at it and put it back and do not do anything with it. Do you think there is a benefit, particularly in relation to FGM, in guidance being regularly reviewed and updated? If you agree with that, how often should guidance be reviewed?

Leethen Bartholomew

You are right. There can be a long gap between a professional—a social worker, for example—getting the guidance and their deciding to refer to it. They get all the training and the guidance is issued to them, but it is only two or three years down the line, when they get a case, that they decide to open the guidance—if they even remember that there is guidance. That is the danger.

FGM overlaps with many other issues. If there is guidance on mental health, for example, FGM must be included in it, because we know that there are cases in which mothers have mental health needs that are related to FGM. We know that FGM overlaps with domestic abuse, so it should be included in domestic abuse guidance, too. FGM issues will then stay alive in people’s minds and will not just go away.

It is difficult to say what is the right timeframe for the reviewing or revamping of guidance. In any organisation, all guidance and even policies should be reviewed and reconsidered annually. We know that Public Health England conducts a joint needs strategic assessment annually in some contexts and that FGM is included in that process, which keeps alive what our local areas are telling us about FGM and what learning we need to disseminate.

In the context of violence against women and girls, in some of the domestic homicide reviews involving women from FGM-affected communities that I have looked at, there is no mention of ethnicity or whether there has been any FGM overlap. We are doing women and girls an injustice in looking at FGM as a single issue. We do not look at it within the totality of their lives. We talk about FGM within a deficit model. Many women and girls are very resilient and empowered, but what makes them who they are is not the FGM but other aspects of their lives. That should be a focus in itself and should be celebrated; in that way, FGM will be kept on the agenda.

Going back to your question about the timeframe for review, I think that all policies should be reviewed annually. That does not mean that they will change, but they should be on the agenda.

Mary Fee

If you have true multi-agency working, with collaboration between professionals, if something is on the agenda or in the guidance that is issued to all the different professional groups, one body that picks up on anything can highlight it to the other organisations.

Leethen Bartholomew

That is where the local safeguarding partnerships, which were previously the local safeguarding children’s boards, should play their part. They are multi-agency networks, and that is where guidance could be reviewed. Health and wellbeing boards should also play a part. Within local authorities, review of the guidance should also be placed on the agenda of the lead councillor with responsibility for children. Do not look at FGM as a single issue; for us, it is always FGM plus something else.

Mary Fee

I want to move on to education. In England, teaching about FGM in schools is mandatory. Can you briefly tell the committee what the education looks like and what benefits it has brought?

Leethen Bartholomew

It will be mandatory from September 2020. It is not mandatory yet, and it will be only for secondary schools, not for primary schools. We think it is a step in the right direction, but, knowing that FGM happens at a much younger age in most communities, we think that teaching about it in primary schools should be considered.

I have been to one primary school where it is part of the curriculum. I sat in on a class of year 3 students. The approach that is used in that school is to embed the issue in the science curriculum. In that school, there is a strong ethos around the United Nations Convention on the Rights of the Child, and those children knew their rights pretty well. My experience was that those children grasped the issue and understood it pretty well. They asked very informed questions, including questions that some adults would not even think of. I also had the opportunity to meet a group of year 6 students who go into secondary schools to teach about FGM.

That school shows the issues around FGM being taught in a very creative and engaging way, with the teaching pitched at a level that the year group is able to understand, not using any images. As adults, we are anxious about images being used, and some people use unhelpful terms like “barbaric” and other language that alienates people, but the teachers do not use any language of that kind with those primary school children. The issues around FGM are taught at that school from year 1 to year 6, and if that school can do it, others can.

In 2017, we worked with that school to develop the curriculum. It was a whole-school approach that involved training teachers and school governors, and we also had sessions for parents. Those trainees then went into 10 primary schools in London and shared their knowledge with the teaching staff, who would go into their classrooms and pass it on.

Education can work, but I understand parents’ anxieties about it, which is partly why we are doing the work that we are doing on the RSE curriculum in one local authority.

Mary Fee

You have spoken about raising awareness. Do you think it would be beneficial to raise awareness across all communities in Scotland rather than just among specific groups of people?

Leethen Bartholomew

Yes. Patriarchy is at the heart of the matter. It is about inequality, and we know that people in other communities—women, for example—experience inequality. That is what patriarchy creates.

If you started off with a very broad context, helping people to understand the different forms of inequality that women, for example, experience—it is sometimes double inequality because of who they are—you could then narrow it down to specific examples, including FGM. I think that you would hit a number of different targets, not just FGM, because you would be starting with a wider conversation. That is the approach to take: do not narrow it down to one particular group, but look at inequality in its broadest sense and work with many different groups to help them to understand, because they all have a part to play. A woman might marry someone from a different community, after which inequalities may start to affect her. Why would we think of targeting just one group when we know that inequality is felt equally across all groups?

Mary Fee

FGM is very much a taboo issue that is not in our everyday conversation. Doing the things that you talk about doing would help to break that taboo.

10:30  



Leethen Bartholomew

Yes. Communities, too, feel that there is inequality. For example, a white British woman could have certain procedures done and they would not be considered bad or negative. Someone from another group might take the view that they are being targeted for doing something that is slightly similar. That is why that group should be included in the discussion as well—so that we start to have a dialogue between the different communities and groups in order to understand the issues.

Mary Fee

Are you aware of any interventions in other countries that have been successful in helping to tackle FGM? Are there any alternative approaches that the Scottish Government could consider?

Leethen Bartholomew

Yes. We are part of the End FGM European network. When we think about prosecutions, we think about France, which has gone down the route of prosecuting parents. Other European countries are probably several steps behind the UK, but there are still lessons to be learned from them as well. The work that we have done in the UK should be celebrated, because a number of important measures have been put in place over the years since the girl generation conference in 2014.

We would probably not have safe houses for girls to flee to, as they have in Kenya, for example, but the community engagement that takes place in France seems, from the organisations we interact with, to be a good thing. We recently had a visit from an organisation from Finland, which came to learn about the work that we do in the UK and about our model at the centre. In its view, Finland is a step behind, although I would probably say the reverse. We have made a lot of strides forward, and people come to see our model and the work that is done here.

We can learn a lot from the countries that are affected by FGM about how they engage with communities and the approach that they take. It is much more a live issue in those countries than it is here. When we think about the communities who are affected by FGM, we should remember that poverty and deprivation affect those communities more than others. In the summer, I visited a country where there is a high prevalence of FGM. The drive there is to empower women and provide economic stability, because that gives them agency and means that they do not have to depend on others to play a part in ensuring that they can eat daily. We, here, can learn how to empower women and give them that sense of independence and agency, so that they do not feel pressured by family members that they are dependent on.

Annie Wells (Glasgow) (Con)

Good morning. In your submission you state your views on the additional provisions that are available regarding FGM in England and Wales and in Northern Ireland—anonymity for victims, the offence of failure to protect and the duty to notify. Can you explain a little bit more your thoughts on those three? What is your view of Scotland’s having taken a different approach by not including those provisions in our bill?

Leethen Bartholomew

Was the last of the three about mandatory reporting?

Annie Wells

Yes.

Leethen Bartholomew

For us, victim anonymity is a step in the right direction. Anonymity should start at that point when the allegation is made, and it should be ensured that it is provided in respect of publication of names and locations. When a case goes to court in, let us say, Bristol, we know that that will likely mean that the family lives close by. It then becomes very easy to identify the person and even the professionals who are involved in the case. Is there a need to ensure that the professionals who are involved in a case are also not named? In the affected communities it is very easy to narrow down who the people in a case are, and it is then very easy to send the message back home about what is happening.

We know that the responsibility for, for example, newspapers’ breaches of anonymity is placed on editors and not on journalists. I am not sure what the answer is, but a question for me is why is only the editor responsible, and not also the journalist who has played a part through writing the article?

For us generally, however, victim anonymity is a positive thing and is a step in the right direction.

Another question that I have always had about anonymity relates to FGM within the family context, and whether anonymity should go beyond the child who has been cut and the parents. What happens about siblings who are not born yet and siblings who are not involved in the case? Anonymity should also obviously include them.

When we think about failure to protect—

The Convener

I am sorry to interrupt. I have a question about anonymity. Should anonymity be automatic or should the girl or woman have the choice as to whether she remains anonymous?

Leethen Bartholomew

Anonymity should be automatic for children. In broad terms, a child might make a decision but be unaware of how it will affect them in adulthood. That could also apply to adults, who might say that they do not want anonymity because automatic anonymity in some sense removes power and control from the woman to make decisions about her life. The matter should be considered case by case, but the default position should be, at the starting point when the allegation is made, that the person is given anonymity.

The Convener

Thank you.

Leethen Bartholomew

On the offence of failure to protect, we do not have much evidence at the moment of how it really works. It is very difficult to prove failure to protect, so it is a challenge. Does it have symbolic value? Probably, it does, but does that mean that it should be included in legislation? In our work with parents we have told them that it is their responsibility to protect their child and that if something happens to that child they will be held responsible. That is a strong message to send to a parent: it is a strong message to send to other family members, too, because failure to protect is not only about parental responsibility; the responsibility also applies to the person who has responsibility for the child at a given point in time. A grandparent who takes the child on holiday, for example, has the responsibility to protect and safeguard that child during that time, so the offence of failure to protect could apply to them, in that context. We are still in the very early stages in respect of the offence of failure to protect, so we do not know whether it is a useful thing. It is, however, still a strong message to send.

We know, based on anecdotal evidence and from talking to professionals, that mandatory reporting is not working as we think it should work. People question why there should be mandatory reporting for FGM but not for other forms of abuse. That is still poorly understood and is being misused. Even last week at our team meeting we were talking about a case of an adult woman for whom a health professional had dialled 101 for mandatory reporting when mandatory reporting does not apply to adults. That resulted in the police turning up at an address without having had a strategy meeting or discussion with other professionals. It was a knee-jerk reaction. I think that mandatory reporting is probably not a good measure.

Annie Wells

What is your view on the Scottish Government taking a different approach to the UK Government by not introducing the three measures? Does that create the understanding that there will be differences across the UK?

Leethen Bartholomew

Yes. My view is that victim anonymity is a good thing and should be considered by the Scottish Government. Not doing so sends the message that just across the border they take a different approach. We know, from the Department for Education’s children in need census, which was published last week, that Newcastle City Council did 43 assessments for FGM during the financial year of the census. We know that it is an issue there and that a different legal approach is used there. How would that impact on families here in Scotland? I ask the committee to reconsider in particular the inclusion of victim anonymity, because of the message that that sends.

The Convener

May I go back to the offence of failure to protect? I would be interested to hear your reflections on that. You mentioned that a lot of the women whom you work with experience other forms of violence in their homes. What is your reflection on a mother being coerced and controlled while harm is being done to her child? I suppose that I am asking whether, if we were to have the offence of failure to protect, there is a risk that we would be punishing women again?

Leethen Bartholomew

That is an interesting question. I know that, in the dynamics of how FGM happens, women are unable to say no—they would be unable to stand up against their family members. It might seem as if we would be persecuting someone who has a different view around FGM, because in some communities the child does not belong to the mother, but to the wider family or even the man’s family. I agree that it would be unfair to prosecute, for failure to protect, a mother who has voiced concern and has said that the FGM that happened should not have happened.

We are not dealing with a foolproof system. The answer is in how we ensure that we engage with communities—especially mothers who find themselves in such situations, to help them to understand that there is support out there for them. From our work in encouraging mothers to apply for the FGM protection orders themselves, and in providing legal advice from the solicitors and barristers with whom we work and who do that work pro bono, we know that many women are unaware of that.

There exists the possibility that a woman who is not inclined to cut her child at all could be held responsible if that were to happen to her child.

The Convener

Two more members want to come in, but I will press you a little more on mandatory reporting. We have heard from social workers and health professionals in Scotland that mandatory reporting is potentially damaging to relationships. You gave the example of a professional’s knee-jerk reaction, or overreaction. Could mandatory reporting contribute to such things? Obviously, we do not want anybody to collude with someone who would harm a child, but there are relationships and other aspects to think of.

10:45  



Leethen Bartholomew

Any type of reporting can affect a relationship. If we just step away from mandatory reporting, I point out that if a professional has a general safeguarding concern and makes a referral, that will affect the relationship. Why have mandatory reporting when all the evidence that we have so far shows that it is not really working? Research that has been done—not in the UK but overseas—shows that some professionals find ways of getting out of mandatory reporting because they do not agree with it. It can affect the relationship between a health professional and their patient.

In the case that I mentioned earlier, the person waited until she turned 18 to disclose the FGM because she did not want her parents to be prosecuted. Mandatory reporting therefore results in a barrier around disclosures for women who would want to seek support and help. That is a consequence of mandatory reporting, but in general terms any form of reporting could be considered to be a bad thing.

The Convener

I am sure that across the UK, everyone who is in contact with children in the context of child protection is very clear about their responsibilities and what they have to do. In the example that you gave of things going wrong the person who was reporting was an adult.

Leethen Bartholomew

Yes. That is because—as I said—responsibilities are still very poorly understood. We can find cases that should have been referred that have not, and that all goes back to professionals being fearful of what will happen because they hear of cases in which reporting has not been responded to appropriately. The experience from the health sector is that because a woman has been cut the health professional will just refer, when that professional should first be doing a risk assessment. The Department of Health and Social Care has risk assessment tools for health professionals. The department’s guidance says that a determination to refer a case should be based on that risk assessment, but referrals are just being made.

That has implications for community cohesion and engagement because people can feel that they are being targeted. That says something about confidence and it says something about othering people, as well. There are also implications for children’s social care in respect of how such cases are responded to.

Angela Constance

It has been really interesting to listen to your evidence, which is based on your experience in England and Wales. I have heard clearly that mandatory reporting is not working as was intended and is poorly understood. In relation to the offence of failure to protect, you have given nuanced evidence that highlights some of the pros and cons, and you have been very balanced. You are very much in favour of automatic anonymity.

I wanted to draw your attention a bit more to the context in Scotland. There are, obviously, UK-wide regulatory bodies for professional social workers, and there are health professions’ regulatory bodies, from which there can be consequences for people’s future careers when people do not perform the duty to care.

The convener mentioned our domestic abuse legislation, which is different from that which exists south of the border. Even more fundamentally, we have our children’s hearings system, which is very different from what exists elsewhere, and our legal system is different. Nobody in Scotland gets automatic anonymity, but there are procedures—for example, for victims of sexual offences—such that there is some accommodation for that in our established systems. It is always great to compare and contrast, so I wonder what your exposure has been to the issues and the organisations in Scotland, and whether you can give nuanced evidence on that.

Leethen Bartholomew

Can you clarify that you are asking about anonymity and—

Angela Constance

I am very clear about the evidence that you have given about mandatory reporting and the offence of failure to protect, but have you looked at how our court system operates in terms of the anonymity issue?

Leethen Bartholomew

No.

Oliver Mundell

I will go back to the offence of failure to protect. Your answer was very interesting. How many cases are you aware of from the 260-plus people with whom you have worked? Is it common that failure to protect is pursued?

Leethen Bartholomew

Failure to protect is an offence. Obviously, when a case goes to court that will be one of the offences. We know that there have been very few cases—just four.

In the cases that we have dealt with, the narrative that we are given by parents or girls about what happened to them is sometimes that one parent did not want FGM to happen but the other parent allowed it to happen, so one parent failed to protect that child. That goes back to these questions: what happened to that parent, could they have actually said no and were they in a position to protect their child? It is very difficult for parents to go against the entire family. If the context is, for example, a marriage in which the parents are cousins, it is very difficult for them to go against the entire family. To prosecute such a parent seems to be a bit unfair.

The story that we are given is sometimes that both parents wanted FGM, or that a grandparent wanted it. In terms of FGM there is a whole gerontocratic system in which elderly people make decisions on behalf of others, who are very powerless and cannot say no to them. That is a common theme as well, where both parents have failed to protect the child. That has been a consistent narrative in cases that we have dealt with.

Oliver Mundell

That is very helpful. Thank you.

The Convener

That brings us to the end of the evidence session. I thank Leethen Bartholomew very much for the evidence, which has been extremely helpful.

Our next meeting is 14 November, when we will hear from the Minister for Older People and Equalities on the Female Genital Mutilation (Protection and Guidance) (Scotland) Bill.

10:53 Meeting continued in private until 11:15.  



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Fifth meeting transcript

The Convener

Agenda item 2 is an oral evidence session on the Female Genital Mutilation (Protection and Guidance) (Scotland) Bill. I welcome, from the Scottish Government, Christina McKelvie, Minister for Older People and Equalities; Trevor Owen, bill team leader; and Nicholas Duffy, senior principal legal officer.

Minister, we have approximately one hour to question you, so we are going to be disciplined in our questions and I know that you will give concise answers. I invite you to make an opening statement of up to three minutes.

Christina McKelvie (Minister for Older People and Equalities)

Good morning, and thank you for having me along to the committee. I am pleased to be giving evidence today on the bill. As we know, FGM is a physical manifestation of deep-rooted gender inequality. It is an illegal and unacceptable practice that violates the human rights of girls and young women. The Government’s position is absolutely clear: FGM is simply unacceptable and we are committed to preventing FGM and protecting all girls and women who are at risk from it.

I want to be clear that the law and non-statutory guidance that we have in place at the moment work, but the bill takes things a wee bit further by strengthening the law and placing a greater focus on prevention and the protection of women and girls who are at risk. The bill puts in place a specific FGM measure—a protection order—which means that our public services and courts can focus on the need to protect those persons who are at risk. Building on the experience of other jurisdictions in the United Kingdom, and reflecting on the support of our consultation, this is an effective and proven approach to reducing risk to potential victims.

Under the bill, FGM protection orders will be made by a court and will be unique to each case. They will contain conditions to protect girls and women from FGM. They will also be able to be used by law enforcement agencies against those who wish to perpetrate this terrible crime, restricting their activities, even when no potential victim has been identified. To support the new protection orders, the bill places a duty on ministers to issue statutory guidance on the protection orders, and provides a power to issue guidance on FGM more generally. Crucially, public bodies will be required to have regard to that guidance. That is an important point.

As evidence given to the committee has shown, the bill must be part of a holistic approach to tackling FGM. There is no single solution to ending the practice. The bill is part of our national action plan for preventing and eradicating FGM. We are making progress in implementing that plan, and the year 3 progress report, which was published last Friday, provides more detail. The report was provided to the committee last week; I hope that it was helpful.

A key component of the plan is to improve the provision of services and support to those who are affected by FGM and to ensure that people in communities play a central role in shaping the services, policy and statutory guidance. The evidence to the committee has been clear that the involvement of communities is key to the success of the programme of work, and I agree with that. I am committed to implementing a comprehensive programme of engagement and involvement as we implement the bill. Nothing about them without them is my watchword.

Our approach to tackling FGM in Scotland, through the national action plan, must be considered, collaborative and based in the community. In that way, we can ensure that what we do helps to prevent FGM, provides protection for those who are at risk, provides the required support and, through participation, gives a voice to the people and communities who are affected by the practice. Alongside the national action plan, the bill has the right mix of prevention and protection.

I am happy to take your questions.

The Convener

Thank you.

What evaluation did you undertake to ensure that the measures proposed in the bill—the protection orders—are necessary?

Christina McKelvie

The committee will know about the work of the national action plan, which has been on-going for a number of years, and about the organisations, groups and young women who have been involved in that. Continuing from that, we held a statutory consultation in which 80 per cent of the stakeholders suggested that we needed the two measures, and we started our work from that. The bill will ensure that a protection order is in place so that young people—specifically young women—are not put at risk. Given that we worked with the stakeholders and they came back with such a resounding result on the consultation, we felt that the best approach was to bring forward a tight bill with two provisions in it, on statutory guidance and protection orders.

The Convener

We have heard evidence that there is a gap in child protection for 16 and 17-year-olds. Do you agree and have you identified any other gaps in current practice?

Christina McKelvie

I have heard that evidence about the gap for 16 and 17-year-olds. The bill provides targeted protection for under-16s and for those over 16 who fall outwith the child protection system who are perhaps not deemed vulnerable enough to be part of the adult protection system. Crucially, we want to wrap around and continue the level of protection for a girl at risk, even when she moves on from the child protection system and becomes a young adult. The care, attention, support and protection will all continue.

The Convener

You mentioned that the protection orders will be unique to each case. Will you explain to the committee how they will work in practice and perhaps give an example? We are keen to hear what a protection order will mean for a young girl or woman at risk and how it will help them.

Christina McKelvie

There are case studies in the policy memorandum. We looked at examples, because I like to see how something will work for real people. We looked at how things have worked in other jurisdictions. You are right that we have to ensure that we understand all the issues, and we used some of the case study evidence to do that. I direct the committee to the policy memorandum, which might be helpful.

The Convener

Who can raise an order and what will the process be?

Christina McKelvie

In the new section 5C that the bill will insert into the Prohibition of Female Genital Mutilation (Scotland) Act 2005, there is a list of the people—individuals and organisations—who can raise a protection order. The list is not exhaustive and is pretty open, but we suspect that it will mostly be local authorities and perhaps, on rare occasions, individuals themselves who will look for a protection order.

The Convener

In England, it is mandatory to record FGM in a patient’s healthcare record, and from September 2014 it became mandatory for acute trusts to collate and submit basic anonymised details every month to the Department of Health and Social Care about the number of patients whom they have treated who have had FGM. Guidance from the chief medical officer advises clinical staff in Scotland to record cases of FGM, and that information is monitored by the Information Services Division of NHS Scotland. Can you update us on that?

Christina McKelvie

The committee will know that the chief medical officer issued that guidance in a letter to all health boards and national health service authorities in 2014. The service is most likely to come across the condition in those places. The diagnosis and recording of the types of FGM are clinical matters, which is why the chief medical officer takes responsibility. However, our current multi-agency approach contains an expectation that all agencies should gather, record and collate that data.

We are working, through the FGM action plan, on ways that we can do that. The implementation group is important in that work, because we want to ensure that we record the data that we need in a sensitive way that helps us to understand the issue, and helps professionals to understand it so that they can give the right support. We are working closely with NHS boards and data collection agencies to do that appropriately, through the implementation group, which is working alongside the community to make sure that we get it right.

The Convener

That is helpful.

Alex Cole-Hamilton

The Law Society of Scotland told the committee that children’s hearings should be able to grant FGM protection orders, although Liz Owens from Social Work Scotland expressed doubts about that and suggested that the court process would provide a more sensitive approach. What is your view on whether children’s hearings should be able to grant FGM protection orders?

Christina McKelvie

You will know that children’s panels and hearings are called for a specific purpose, which relates to compulsory supervision orders and all the things that go along with them. All the issues that would lead to a child being referred to a panel would be taken into account. FGM is a schedule 1 offence, which would trigger a referral to the panel. That measure is already in place. The Law Society has raised an important point but, because FGM is treated as a schedule 1 offence, there is an automatic trigger. There are other ways in which to trigger a referral to a panel.

Child protection is child protection and child abuse is something from which we should protect our children. If a compulsory supervision order and the intervention of a panel are needed, there are mechanisms in place to make that happen.

Alex Cole-Hamilton

Given the scarcity of examples of FGM, most panellists will not come across it in the entire duration of their service on the children’s panel. There are also particular cultural sensitivities around FGM. Is there a plausible case for having particular training for panel members on that?

Christina McKelvie

There are always opportunities for training. As a former social work training officer, I would always say that people should take up those opportunities. The committee heard evidence from the principal reporter of the Scottish Children’s Reporter Administration, who suggested that the measures that are in place are enough and that the normal processes of the children’s hearing panels, such as compulsory supervision orders, are sufficient.

There are always opportunities for training. Part of the training on the wider aspects of protection orders and the guidance will be addressed in the work of the implementation group. I assure members that, if there are bodies that think that they should be involved in that, we will consider that and work to ensure that we get that information out to all the right places, so that—as Mr Cole-Hamilton says—on the rare occasion that FGM comes up, people are ready for it.

The implementation group for the national action plan is well versed in working with other organisations and is doing a lot of awareness raising. The general policy has not changed: FGM has been illegal for a long time. There is already lots of training out there. For the purposes of the bill, we are considering how we can use protection orders and the statutory guidance to ensure that people understand their role in protecting girls and women.

Oliver Mundell

I want to ask about free legal aid and advice. The bill does not make that automatic, but we have heard from several witnesses that they would like it to be so, partly because of some of the difficulties that they have seen in bringing FGM cases in the past. They think that there is a special case for putting in place free legal aid in respect of FGM in the bill in order to prevent barriers to justice.

Christina McKelvie

That is a point well made. Perhaps I can give members some information on how our legal aid system works, as I think that some of the evidence that the committee took related to how legal aid works in other jurisdictions in the UK. In Scotland, we expect that, in the vast majority of cases in which an FGM protection order is sought, that will be done by a public body, so legal aid will not apply. There might be a situation in which the parents of a child wanted to bring a case, and they would go through the normal procedure of testing of their wealth and financial support. In most cases, I would expect people to be eligible to be supported by legal aid.

In 2018, the independent strategic review of legal aid, “Rethinking Legal Aid”, highlighted that Scotland’s current legal aid spend is the third highest per head in the European Union. We are spending quite a lot of money. In Scotland, about 75 per cent of people are financially eligible for some form of legal aid, compared to only about 25 per cent in the rest of the UK. We think that we have a robust system. Given that individuals as well as local authorities can apply for protection orders, we think that we have the right measure of support and understanding. I suspect that people will get the support that they need to take forward a case.

It has just struck me that, if it is the young person who is applying rather than the parents, they would qualify for that type of support, too.

09:45  



Oliver Mundell

To push back on that a little, I probably do not need to say to you that many people find frustration and delays with legal aid; they find the process complicated. Parents who might be going to come forward on the issue could be in particularly vulnerable situations and there might be a matter of urgency. I am concerned that the legal aid system might put a barrier in front of people when they are making very difficult decisions. That applies particularly to some of the people who we have met. Can anything extra be put in place to provide initial legal advice to get a case going?

Christina McKelvie

We can certainly consider that. That would take us a wee step further than the current arrangements, which I think are robust and supportive enough but, if you think that we should take other measures, I am happy to hear about them. I shall take that away, consider it and come back to you.

Oliver Mundell

That is helpful, and it links to my next question. We had evidence last week from the National FGM Centre, which covers England. Would you consider adopting its approach? We have the national implementation group, but could we have a service to provide support, in the early stages, to individuals who are taking forward protection orders under new section 5C without the support of a local authority or Government agency?

Christina McKelvie

We will certainly take that up with the implementation group and the groups that we are working with. We want to ensure that stakeholders and the communities that are affected are at the heart of all this. If they think that they need that—they have not raised it with us directly yet—I am happy to hear that and to see where we can work together on it.

Oliver Mundell

We heard generally about support through the National FGM Centre and we took evidence from Liz Owens on behalf of Social Work Scotland about the support that will surround FGM protection orders. How do you plan to meet broader support needs? We have heard concerns about housing and longer-term impacts on health. What support will be put in place to sit alongside the protection orders?

Christina McKelvie

That is wider than the scope of the bill, but I am happy to hear some of that. You will know that FGM has been an illegal practice for more than 10 years. Many social work settings—indeed, all of them, I suspect—are well-versed in the issues that arise, especially in communities where interventions are already in place. It strikes me that we need to do another piece of work with the implementation group to talk to some of the professionals. We have done that. We spent a really informative day in the summer with all the organisations to talk about some of the wider challenges.

I am not sure what you mean about housing and health. Do you want to drop me a wee note on the wider implications of that, or will the convener indulge you and let you go into that quickly now? I am not sure quite how it ties into the bill, which is about protection orders and guidance, but there may be a space in guidance for some of those issues.

Oliver Mundell

I can talk about that now. The convener was with me on a visit to an organisation in Edinburgh that works with some of the people who we hope the bill will help. Its concern is that the protection order could do the legal bit, but individuals who are sharing a house with someone who might want to go ahead with FGM practices would not feel confident in coming forward, because they might not have somewhere to live if that family relationship broke down. There are also concerns about how people might support themselves financially in cases where family relationships have broken down. Is part of protecting people making sure that they have access to other services that sit round about?

On health, we heard last week that a number of people would benefit from longer-term counselling or other support because, obviously, going through the legal process and revisiting traumatic experiences can be very difficult, particularly for people on the margins of society. Could an element of support be encompassed within the protection orders?

The Convener

Oliver Mundell mentioned our visit in the summer. To give a specific example, the choice—if it could be called a choice—that was available to a woman whose child was potentially affected was to move across the city to be in emergency temporary accommodation. We were struck by the fact that protection orders can give legal protection but the people involved have multiple challenges and issues—none of this happens in isolation. The woman was a victim of domestic abuse. We recognise that you are here to talk about the bill, but it is important for us to see how things join up in focusing on the women and girls whom the bill will protect, and that protection orders will give them a choice and will help them.

Christina McKelvie

I absolutely understand where you are coming from. A protection order can direct local authorities to put such support in place. Members may be interested in the work that has just been announced on barring orders for domestic violence situations. You may also know that, where a schedule 1 offence has been committed, a perpetrator or potential perpetrator can be removed from a situation in order to protect a person who is at risk. Those measures will also be available. I hope that that gives members reassurance.

On the health issue, members might know from their visits that we currently fund Waverley Care, Saheliya and other organisations to do direct work to support people in a culturally sensitive way. Statutory authorities sometimes need the support of people who work in communities. Saheliya involves women who have lived experience of FGM or women who have supported people with lived experience of FGM or other culturally sensitive issues, such as honour-based violence. We look to them as the experts in ensuring that people get the right support. Local authorities can certainly direct people to that support, and a protection order can direct local authorities to take responsibility for ensuring that that happens.

Oliver Mundell

That is excellent. I am glad that we continued that discussion, because I think that the whole committee will be very pleased that that is the case.

My final question is a specific one. Last week, Leethen Bartholomew from the National FGM Centre highlighted his concerns that some paediatric doctors might not have the expertise to examine women and girls for FGM, that they might be reluctant to do so and that they might be reluctant to give evidence in court. How do you plan to ensure that professionals feel confident about dealing with such cases in Scotland?

Christina McKelvie

That issue had not been raised with us before. After I heard that evidence last week, I instructed officials to go away and look into the issue for us. Since then, we have reached out to the National FGM Centre to get more information on what Mr Bartholomew spoke about. We have taken those measures since we heard that evidence.

Currently, territorial health boards in Scotland have gender-based violence leads, so they have people who support the development of staff’s capacity concerning FGM. Members can be reassured that people are taking the lead on that in each territorial health board.

Each board also has a clinical lead for FGM, and some boards have specialist midwives to work with pregnant women who have a history of FGM, to ensure their safety and wellbeing during their pregnancy and delivery.

It would be good to ensure that that is firmly rooted in the statutory guidance that we will develop. As I have just explained, that will build on what we already have and where we might go next on ensuring that all our health professionals who might be on the front line on these issues have the necessary expertise, capacity and understanding. I am happy to hear from committee members if they have ideas on how we might do that. However, I also reiterate that we will be working with the implementation group to ensure that we get our approach absolutely right.

Mary Fee

I want to ask about the guidance, which you have just mentioned. I have three questions, which I will roll into one so that we can keep to our time.

The bill gives ministers the power to introduce statutory guidance. Why is it so important that the guidance is statutory and not advisory? What should be in both the general statutory guidance on FGM and the specific statutory guidance on FGM protection orders? Finally, who will be responsible for ensuring that the guidance is followed, and will it be monitored at the national level?

Christina McKelvie

Okay—those are three big questions rolled into one.

On statutory versus advisory guidance, the straight answer is that each set does exactly what it says on the tin. People must have due regard to statutory guidance, and adapt their understanding accordingly, whereas advisory guidance is open to interpretation. We want to work closely with the implementation group so that we can make the statutory guidance as sharp, clear and on point as possible, so that it contains no room for interpretation or misperception. We feel that statutory guidance, along with protection orders—which we already have in child protection and other aspects of adult protection—is best. Professionals then know exactly what they need to do and when and how they need to do it. Such guidance also makes the whole process much more supportive of them.

I am not sure what you mean when you ask what should be in both forms of guidance. If you have an idea to suggest in that area, I would be happy—and, indeed, keen—to hear it. We managed to publish our year three progress report a wee bit sharper than we anticipated, so that the committee could see it. Members will see how page 12 clearly highlights the sets of guidance and how they should be used. I ask Mary Fee to give me a wee bit of clarity on what she means in her question.

Mary Fee

There will be general statutory guidance on FGM and there will also be specific statutory guidance on the protection orders. I wondered whether there was any crossover and whether some things should be in both sets of guidance.

Christina McKelvie

I ask Trevor Owen to come in on that point.

Trevor Owen (Scottish Government)

Thank you, minister. I will briefly take the committee through the two distinct sets of guidance.

The general guidance on FGM issues will cover the status of the guidance; relevant persons; the aims of the guidance; an overview of the Scottish Government’s approach to tackling FGM; a comprehensive summary of the issues around FGM; actions for chief executives, directors and senior managers to whom the guidance will apply; and information on definitions and language.

The question was about crossover with the guidance on FGM protection orders. That guidance will go more into what such an order is and how it is underpinned by legislation. It will also cover the roles and responsibilities of the different actors in relation to such orders; costs; access to legal aid; how to apply; reporting a breach; supporting an individual who is at risk of FGM; and further information on indicators of risk, which is aimed at professionals.

Therefore, although there is certainly some crossover, there is also a strong distinction between the two sets of guidance. I hope that that has been helpful.

Mary Fee

It is very helpful. Although there will be a lot of crossover between the two sets, it would be good if they could stand alone but also reference each other. That way, when people look at one set and see that the other is referenced, they will be in no doubt about where they should go.

Christina McKelvie

That is a good point.

Mary Fee

That is very helpful—thank you.

What about the monitoring? Who will be responsible for ensuring that the guidance is adhered to?

10:00  



Christina McKelvie

The national implementation group will monitor the work that we do around the guidance. As I have said throughout this morning, we intend to work closely with the group when developing the guidance, which means that it will have ownership of it as well as the responsibility to monitor it. That will also keep it a bit independent and keep us and the statutory authorities on our toes, if the guidance needs to be updated and reviewed. We hope to have something that has been worked on really hard and comes across as absolutely clear, so that there are reference points and professionals know exactly where to go. It will also allow us to use the monitoring process to measure the difference that the bill is making.

Mary Fee

Last week we heard some very helpful evidence from Leethen Bartholomew of the National FGM Centre. He raised some issues around the training that professionals receive. Does the minister intend to roll out training to professionals, in addition to issuing the guidance? How will that training develop?

Christina McKelvie

The committee will have seen from the financial memorandum to the bill that we discussed training with the relevant bodies. We are looking for the most efficient and effective method of delivering accessible and specialist training on the provisions in the bill to local authorities and Police Scotland during the implementation phase. We are talking about the protection orders, which are pretty specialised, so it will involve a very small group of individuals across Scotland. We anticipate that some of that training will take place within local authorities and Police Scotland, so that they understand what they need to do. It is important that it is covered by the statutory guidance.

We are keen to work within the legal framework to gain a clear understanding of what we need to do and to work with the implementation group and other interested bodies to make sure that the training is absolutely right. There is on-going training about FGM and the wider policy area, but the new training will be on how to use protection orders. Some professionals know how to use them from having used forced marriage, child and adult protection orders, so it will not be an alien concept, but we need to look at how focused the training needs to be on the specific issue of FGM. We are working on that to make sure that we get it right.

Mary Fee

Another thing that we heard from Leethen Bartholomew was that health professionals often did not understand the threshold for obtaining the protection orders, which have been used as a last resort rather than a first resort. We obviously want to avoid that with this legislation. How will you ensure that professionals know that protection orders are a first resort and are aware of the thresholds?

Christina McKelvie

That ties into your earlier point about training, clarity and understanding. In 2017, we published multi-agency guidance on FGM in recognition of the fact that statutory organisations need to equip themselves and their workforce with the necessary skills to understand the issue, to know what to do next—what to do first rather than last—and to identify the issues effectively and respond appropriately. We are now working with the implementation group to make sure that we get that right in the statutory guidance.

Angela Constance (Almond Valley) (SNP)

There has been a suggestion from some of our witnesses, based on the experience in England, that there is a risk that FGM protection orders could lead to racial profiling by professionals. Do you have a view on that? Do you agree that it is a risk and, if so, how would that be countered?

Christina McKelvie

I heard some of that evidence and I reject the assertion that the bill racially profiles people. The bill does not do that. We need to understand that FGM is a form of child abuse and gender-based violence and that everyone deserves to be protected from it. We know that FGM has been practised across many countries, continents, communities and belief systems for about 5,000 years. Because of global migration patterns, it now happens globally.

We agree with the evidence that the language used around the issue is incredibly important and that we need to be very careful about how we use language and frame the issue.

Having heard that evidence, we will consider very carefully how we should develop our statutory guidance, and we will again consult the communities closely. We do not want to create the idea that the bill could lead to racial profiling or racialisation of the issue. We know that FGM is child abuse, and everybody needs to be protected from that.

Angela Constance

On the issue of wider awareness, the committee heard examples where affected women—who were using maternity services, for example—were not offered support and professionals did not enter a dialogue. There has been a suggestion that, to avoid concerns about things such as racial profiling, maternity services should ask every woman the same core questions. Do you want to say anything about how we are raising awareness across the community and not just within what we perceive to be an affected community?

Christina McKelvie

That is why training and guidance for professionals—especially front-line professionals such as midwives, obstetricians, doctors and medical staff—is important. They need to be able to broach the subject with confidence. Whether they should ask everyone the same core questions is something that we can consider, but if someone is at risk, we need to equip our professionals with the tools that they need, and the careful use of language that I mentioned needs to be entrenched in that.

The work with the community and the organisations that support people in this situation is key to making sure that we get it right. The last thing that we want is a situation where, because a professional does not feel confident or feels that they could be accused of racially profiling somebody or whatever, they do not ask the questions. That would be the most dangerous thing, because someone could be put at risk when, actually, a simple dialogue could resolve the situation.

Angela Constance

The committee heard in evidence that in England, there will be mandatory education on FGM from September 2020. We all know that in Scotland, we have a framework curriculum. What are your views on how education and awareness can be taken forward in school settings?

Christina McKelvie

As you know, we have the curriculum for excellence, and one of its pillars is health and wellbeing. You might know that, in September, the Deputy First Minister announced a review and new resources for relationships, sexual health and parenthood education. I never get that right; I get the letters RSHP mixed up, for some reason—they are in a different order in my head. The new guidance and resources for teachers provide for age-appropriate education for young people at all ages and stages. A lesson plan is included for the delivery of learning to third and fourth year pupils on sexuality and the idea of their rights, and that includes FGM, so it is embedded in the work that we are already doing.

We are working closely with Education Scotland to implement the national action plan to prevent FGM, which also contains measures, and you might know that the national improvement hub that has been created includes a page on FGM, which provides a brief description of the issue and guidance and support for senior leaders and practitioners on how to approach a case of FGM. Work to develop the hub is continuing, again in consultation—you have heard me use that word a lot this morning—with members of the national action plan implementation group to include all the issues that it feels could come up. That brand new resource is just over a month old and it is being used by educators across the sector, but we are still working with Education Scotland to make sure that we are refining this all the time.

Fulton MacGregor

Good morning, minister. While taking evidence on the bill, we have consistently heard about the importance of community involvement, particularly given the nature of FGM. You have mentioned that in your opening statement and in several answers. Will you expand on how the Government is engaging meaningfully with communities across the country and how it will continue to do so?

Christina McKelvie

Absolutely. Community engagement is imperative and it has to be at the heart of everything that we do. On such a sensitive subject that has been hidden for a long time, it is sometimes really difficult, and in many cases people have to deal with it within families, so community engagement is, as I have said, at the heart of our approach to tackling FGM.

We want to empower communities and not disempower them. We also want to allow them to challenge and tackle outdated attitudes, which we think give rise to this gendered form of violence. I know that we need to do more in the area, and that is why those key groups are incredibly important in the work that we are doing.

We are also working in partnership with our third sector organisations and community-based groups, building on the good relationships that we already have. During the consultation on strengthening the law, we worked with all those stakeholders in engagement events in Edinburgh, Glasgow and Dundee. We received 74 responses to the consultation, 24 of which were from individuals, which shows a real balance and individual interest in the subject.

As I said in my opening statement, we will take forward a big piece of work on community engagement, because we want to ensure that when we develop the guidance and raise awareness of FGM protection orders, we get it right and, as I said in my wee catchphrase, we do nothing about them without them.

The national action plan implementation group will meet in the new year, on 20 January. We are not sitting on this. We are looking at how we will work with the groups to co-produce what we need to do, giving them ownership, seeking their help, reaching into the communities to make sure that we get this done in the right way, and having meetings out and about to make sure that we understand what is happening.

If you look at some of the young women who are involved, such as in the Kenyan Women in Scotland Association, you will see that they are hungry for action and are absolutely up for supporting us in doing that work. I am really grateful to them for that. In the same way, Waverley Care and Saheliya are really keen to get involved.

The community has to be at the heart of this. It cannot be about Government sending down guidance that does not reflect people’s needs or wants or the real sensitivities in communities. That is incredibly important in this piece of work. I think that it is the biggest piece of work that we will do, and the most important piece, too.

Fulton MacGregor

Thank you for that answer—

The Convener

Fulton, before you move on to your next topic, we will go back to schools. This is down to my chairing and not colleagues’ questioning. My deputy convener had a follow-up question on education.

Alex Cole-Hamilton

Thank you, convener. I will not take long. I am sorry to cut across you, Fulton, but I wanted to come back in with a question on education in schools.

Minister, you mentioned the guidance on relationships, sexual health and parenting education and its development in the curriculum in recent years. There is a lot to cover in those lessons, and families may seek to withdraw their children from that block of education in schools for cultural or religious reasons. That happens, so we need to be mindful that we might not reach the people whom we really need to reach when we cover FGM in RSHP. To that end, it strikes me that there are similarities with the need to communicate with pupils about child sexual exploitation. There has been an established workstream on that subject within Government. I wonder what input it has had and what learning points we can discern for FGM, perhaps using peer groups within schools to get that education out to children.

Christina McKelvie

That is a good point, and it leads back to what I said in my response to Fulton MacGregor. The education approach that we are taking is not the only approach that we are taking, and the work with communities is key. In areas where, as in the example that you used, parents may withdraw children from classes, there may be other ways to reach those individuals and groups through some of the community groups that are involved. That is why community involvement and the community driving some of the work that we are doing is important. I hope that, if we do not get the right support, information and understanding in one way, we will get it in another way. That is why we need to take a holistic, staged approach.

Peer groups—and how they work—are incredibly important. That is why I drew attention to the Kenyan Women in Scotland Association. It has been absolutely pivotal in ensuring that young women understand what their rights and responsibilities are. More importantly, it gives them support. Some young women challenge their own family structure, which can be incredibly difficult. Maybe that cannot be done in an education setting, but it can be done in a peer support setting. That is why that group and the work that it does are incredibly important and why it will be at the heart of everything that we do.

10:15  



Fulton MacGregor

I want to follow up my earlier question about community involvement. The committee’s work involved going out to community organisations throughout the summer. The organisation that I visited in Glasgow works with men specifically; it might be the only organisation in Scotland that does that on FGM, although it might be one of two. Have you or the Scottish Government specifically considered the role of men? It struck me on that visit that individual after individual told me that they were not aware that FGM was an issue in their family until they were well into adulthood—until they were 30, 40 or sometimes even older. That was powerful. It really struck me, and it got me thinking about how that specific issue could be addressed.

Christina McKelvie

That is a really good point. We have considered that issue, and we are investing funding to ensure that organisations are supported to do that work.

When you were on your visit, you might have heard about the on-going champions for change project, which involves men working with men. Men are supported to change the cultures in their communities. It is a bit like the work that White Ribbon Scotland does on domestic violence. We thought that it was incredibly important to ensure that men were involved, as well. There has been £75,000 over the past three years to support that work.

If we are going to get cultural change on a deep-rooted issue that is very difficult for anybody to disclose, it is very important to have all the parts of the community on board. In some cases, men are the leaders in communities and are taking responsibility. Being a champion for change will drive forward the culture change that we need. I completely support your point.

Fulton MacGregor

I want to ask a question about asylum, which is topical, given the horrendous situation with Serco and asylum seekers in Glasgow. We have heard evidence in committee sessions that FGM protection orders could possibly be used to assist in asylum cases. Do you have any views on that? Have there been any discussions with the UK Government about that and how it might work in practice?

Christina McKelvie

Yesterday’s news was not nice to hear. I was among the first members of the Glasgow campaign to welcome the refugees all those years ago when I was a lowly Unison representative, and it was quite worrying to see such a decision yesterday.

It is a worry for me in my role that public services that are delivered by a private company do not seem to be covered by the Human Rights Act 1998. I know that Ms Campbell, in her role as Cabinet Secretary for Communities and Local Government, is taking that issue very seriously, and I will look at it from a human rights point of view.

We would fully expect that any risk for anyone, including a person who already holds an FGM protection order, should be taken into account in considering an application in the immigration system. We know that that happens in relation to protection orders in the rest of the UK. Our view is that a clear risk of FGM presents a strong argument for the individual not to be returned to their country of origin. Sadly, we have seen circumstances in which women and girls have been at risk. We hope that the protection orders that are now in place in England and Wales and those that will come into place in Scotland will protect those women from being sent back to somewhere where they could be at risk, and that the risk will determine their status, and not anything else.

Annie Wells (Glasgow) (Con)

Good morning, minister. The Scottish Government has chosen to take a different approach from that of the UK Government by not introducing in the bill three provisions, which are on anonymity, the failure to protect and the duty to notify police. Will you explain your reason for that and set out the evidence on which your approach was based?

Christina McKelvie

The evidence is that the Scottish justice system is very different. We are very proud of the fact that it is open and accessible and that our courts have powers to ensure the protection of anyone in such a situation in a relevant case. In Scotland, such a power applies in both civil and criminal cases. I am very clear in my belief that automatically granting lifelong anonymity would cut across those principles. I am not convinced that providing anonymity by such means is the right way to go. However, the Scottish courts have at their disposal a number of powers to use anonymity for the protection of a person’s identity, which include being able to provide it in circumstances in which it is justified.

If a child is involved in proceedings, further statutory prohibitions are available. In most cases, publication of the identity of a child is automatically prohibited.

Members might remember Neneh Bojang, the young woman who supported the launch of the bill. She gave evidence and did a lot of work on the issue in public. At that time, she told us that if she was not able to speak publicly about the issue, nothing would change. We need to think carefully about our approach. If we were to close down avenues for people to tell their stories, we might not understand the full impact of the issue.

Therefore, although we are not convinced that the bill should provide for the automatic granting of anonymity, we are absolutely convinced that the courts have the power to offer it when circumstances require it.

Annie Wells

The committee has taken a lot of evidence on those additional provisions. A number of witnesses have indicated their support for the automatic provision of anonymity, including the Law Society of Scotland, Police Scotland and Mr Bartholomew, who appeared before us last week. Would it not be worth while to have automatic anonymity there in the first place, from which people could then withdraw if they chose to? Based on the evidence that we have heard, I feel that such an approach could work better for them. Will you give your views on that? Could such an approach be considered as the bill is progressed?

Christina McKelvie

We are absolutely clear that the courts in Scotland have the power to grant anonymity when it is needed. We need to balance that with the views of the professionals that you have just listed and with what the stakeholders have told us. The stakeholders are not keen on anonymity, because it prevents them from telling their stories and thereby publicising the issue. We need to raise awareness of FGM, which has been a low-profile, secretive issue for such a long time. We might compound that if we were to put more measures in place when they were not necessary. It should not be for us, as politicians, to decide whether a person or their issue should remain anonymous; it should be for the courts to provide for that in the specific circumstances where it is necessary.

Therefore I am afraid that I am not convinced at all by the views of the organisations that you have mentioned. I am more convinced by what the stakeholders have told us that they need.

Oliver Mundell

I hear you say that it is for the courts to decide on the question of anonymity. FGM is a very personal issue for those who have gone through it, so I wonder why it should not be for victims to decide. Why we should leave such a decision to be made in a court setting by a group of people in Scotland who might be seen as not being representative of affected communities, rather than let the women and girls who are most affected by FGM decide whether it should be made public?

Christina McKelvie

They can decide to do so. If a woman or a girl—with the support of an organisation or her legal team—were to suggest that she needed anonymity, I suspect that a court would be quite happy to grant her request. It is important to get the balance right. We cannot just shut everything down. We should have a system in which people have choice—and they do. A local authority or an individual can make a request for conditions of anonymity to be put in place, which I am sure that a court would not be averse to granting.

The Convener

Could a court refuse someone anonymity if they requested it?

Christina McKelvie

I have never experienced any case involving a vulnerable person or a child in which the court has rejected such a request. I suspect that it would not do so in an FGM case, given the sensitivities of the issue. Our courts are pretty well versed in the treatment of sensitive issues, and we should trust them to do the right thing.

The Convener

I am sorry, Oliver—I jumped in before your question.

Oliver Mundell

Minister, I was going to ask whether you recognise that in order for an individual to reach the point of their case going to court, they will have had to take the risk that they might not be granted anonymity. Some of the people with whom we have engaged perceive that they would first have to disclose quite a lot of information about themselves, with no guarantee of being granted anonymity, and that they would then have to justify why very intimate details about them should not be shared publicly.

Further to that, we also heard about issues with the existing provisions. Because of the nature of the communities that victims often come from, if the places where they live are identified, it is possible to identify them even if their names are not given. Other people might take an interest in reports of such cases, or even figure out the courts in which they might be heard. Has the Scottish Government given any thought to that aspect?

Christina McKelvie

It is tough to get the balance right on that. However, we already have the same circumstances in other situations where we currently have similar protections in place, such as in cases of rape or sexual assault. I am absolutely sure that a court would not put anyone at risk and would use its powers appropriately to ensure that they were protected.

We also have to get the balance right on your point about other people being able to identify a victim through identifying the community in which they live. I want to ensure that anyone who proceeded with a case had the right support to do so. That is where all the other aspects of our approach, including providing support and guidance on how protection orders work, would become paramount.

Anonymity would not be the first aspect on which victims would need support, but all the other aspects would have been dealt with before they went to court. If they did then seek anonymity—or the case involved a child or a vulnerable person who was at risk—the court would take the right action. However, the circumstances would be tailored to that individual, which is the most appropriate way to deal with such cases.

Angela Constance

There are obviously arguments for and against the automatic granting of anonymity, in the same way that there are for and against the automatic granting of legal aid. In your view, is it problematic or desirable for a change to be made in a bill for one particular group of survivors or victims? Would it be more productive for those who are advocating changes of that nature to seek more fundamental change in our legal system?

Christina McKelvie

The same people who gave evidence to the committee on one aspect of FGM, such as the Law Society of Scotland, would be interested if we were to open up and change the system for one aspect of, for example, gender-based violence, which could have ramifications for the whole of the justice system. That is where getting the balance right has to come into play. The procedures that we have in place in Scotland are very robust and supportive and our courts are well versed in them, so I consider that the provisions that we are now proposing are the right ones.

You are absolutely right that a small change in the law here could have ramifications across the justice system and in many areas might have unintended consequences that we would not want to see. I agree that we must get the balance right and understand that, but I feel that our current position is the right one.

The Convener

Minister, that draws our session to a close. I thank you and your officials very much.

The committee’s next meeting will be on 21 November, when we will hold an evidence session on race equality in Scotland.

I move the meeting into private session.

10:29 Meeting continued in private until 11:12.  



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12 September 2019

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19 September 2019

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10 October 2019

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7 November 2019

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14 November 2019

Equalities and Human Rights Committee Committee's Stage 1 report 

What is secondary legislation?

Secondary legislation is sometimes called 'subordinate' or 'delegated' legislation. It can be used to:

  • bring a section or sections of a law that’s already been passed, into force
  • give details of how a law will be applied
  • make changes to the law without a new Act having to be passed

An Act is a Bill that’s been approved by Parliament and given Royal Assent (formally approved).

Delegated Powers and Law Reform committee

This committee looks at the powers of this Bill to allow the Scottish Government or others to create 'secondary legislation' or regulations.

Read the Stage 1 report by the Delegated Powers and Law Reform committee published on 31 October 2019.

Debate on the Bill

A debate for MSPs to discuss what the Bill aims to do and how it'll do it.

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Stage 1 debate transcript

The Deputy Presiding Officer (Linda Fabiani)

The next item of business is a stage 1 debate on motion S5M-20223, in the name of Christina McKelvie, on the Female Genital Mutilation (Protection and Guidance) (Scotland) Bill.

15:33  



The Minister for Older People and Equalities (Christina McKelvie)

I am very pleased to open this stage 1 debate on the Female Genital Mutilation (Protection and Guidance) (Scotland) Bill, which is an important bill that will make a real difference to women and girls who are at risk of, or who have experienced, the abhorrent practice of FGM.

As members know, the Equalities and Human Rights Committee published its stage 1 report on the bill earlier this month. That report gave unanimous support for the principles of the bill. I thank the convener and members of the committee for their thoughtful and considered report. We responded to it quickly and positively on 11 December, and I am sure that members have now had the opportunity to read that response. Above all, I thank the organisations and experts who took the time to provide their invaluable perspective to the committee. It is incredibly valuable to have that lived experience.

Like other forms of gender-based violence, FGM is a manifestation of power and a means of controlling the sexuality of women and girls. It is a form of violence against women. As the minister responsible for the Scottish Government’s work in the area, I am committed to preventing FGM in Scotland and ensuring that girls and women who are at risk of FGM are protected from harm.

FGM has been illegal since 1985. The bill seeks to add to the existing protections and improve the system response for women and girls who are at risk of harm. It has been established that at least 200 million girls and women across 30 countries have been subject to FGM. Its prevalence in Scotland is difficult to estimate because of the hidden nature of the crime. A Scottish Refugee Council report in 2014 found that there are communities potentially affected by FGM in every local authority area in Scotland, with the largest communities being in Glasgow, Aberdeen, Edinburgh and Dundee.

This issue is not new, but this Government has been taking action. In 2016, we published the national action plan to prevent and eradicate FGM in Scotland. The purpose of the national action plan is to foster an environment of prevention in Scotland, and to improve the welfare and quality of life of FGM survivors. We are taking steps to engage with communities, raise awareness and improve the response of front-line services. Our work includes strengthening the existing legal protections for those who are at risk of FGM.

The Female Genital Mutilation (Protection and Guidance) (Scotland) Bill creates a new specific FGM measure—a protection order—which means that our public services and our courts will be able to focus on the need to protect those persons who are at risk or those who have already suffered from FGM being carried out on them. Building on the experience of other jurisdictions in the United Kingdom, and reflecting on the support for that in our consultation, it is an effective and proven approach to reducing the risk to potential victims.

Under the bill, FGM protection orders will be made by a court and will be unique to each case. The orders will contain conditions to protect girls and women from FGM. Further, and in addition to what the equivalent orders in the rest of the UK can do, law enforcement agencies will be able to use the orders against those who wish to perpetrate this terrible crime, restricting their activities even when no potential victim has been identified.

To support the new protection orders, the bill places a duty on ministers to issue statutory guidance on the protection orders, and gives them the power to issue guidance on FGM more generally.

I turn to the committee’s report, which made a number of points and recommendations. The committee asked us to be mindful of the risk of racialisation and stigma in developing guidance and training. I have been clear in rejecting the assertion that the bill racially profiles communities, although I acknowledge the importance of being careful with language and the reality of stigma. The public bodies that are tasked with responding in this area are working to embed equality and diversity within their workforce, and that will help to reduce risk. We will work to ensure that guidance and training are shaped by communities, and that they reflect the reality of FGM.

Community engagement was a strong focus of the committee, and it is absolutely critical for me. The phrase “nothing about us without us” is my watchword. Following royal assent, we will put in place a comprehensive programme of engagement with communities and stakeholders to shape guidance.

Ensuring that support is available for women and girls who are at risk of, or who have experienced, FGM was also identified as important. We will work closely with the Convention of Scottish Local Authorities to ensure that clear information on the support available is included in the guidance. The third sector also has a critical role here, and we will continue to fund work in that area.

The committee noted the importance of education and links with the wider child protection system. We are absolutely clear that FGM is a form of child abuse, and our national child protection guidance for Scotland is being updated now to reflect that. In schools, the Scottish Government believes that it is for teachers, schools and local authorities to determine how best to deliver learning and teaching on any topic and subject, in line with the curriculum for excellence. However, we support our schools and teachers to deliver relevant and engaging learning. Earlier this year, we supported publication of an online teaching resource for relationships, sexual health and parenthood education. I have seen that excellent piece of work at first hand, and I encourage all members to take a look at it. It is incredibly helpful. It includes content on FGM that can be targeted at the early secondary level. There is also material for the late primary level to create the building blocks so that our young people can better understand what constitutes abuse.

The committee considered additional provisions that are in place in the rest of the UK relating to anonymity for victims, a duty to notify and the creation of a specific offence of failing to protect someone from FGM. I am pleased that the committee agreed with our assessment that a duty to notify and a failure to protect offence should not go into the bill. The committee asked us to look at what more we could do to ensure that those who seek anonymity in court can be granted it, and I have undertaken to respond to that point before stage 2.

Underlying many of the issues that we will discuss today is the need to ensure that people and communities play a central role in shaping the services, policies and statutory guidance. That is key for me as minister. As I have said, I am committed to taking forward a comprehensive programme of engagement and involvement as we implement the legislation. In that way, we can make sure that what we do helps to prevent FGM, disrupt the activities of perpetrators, provide protection to those who are at risk, provide the support required and, through participation, give a voice to people and communities who are affected by the practice. Therefore, the bill, alongside our action plan, provides the right mix of prevention and protection.

I want to end my opening speech by quoting someone called Waris Dirie, a Somalian activist against FGM. This is how she described her own terrible memory of undergoing FGM:

“Mama tied a blindfold over my eyes. The next thing I felt my flesh was being cut away. I heard the blade sawing back and forth through my skin. The pain between my legs was so intense I wished I would die.”

If the bill prevents just one person from going through what Waris experienced, it will be well worth it.

I commend the general principles of the bill to Parliament.

I move,

That the Parliament agrees to the general principles of the Female Genital Mutilation (Protection and Guidance) (Scotland) Bill.

The Deputy Presiding Officer

I call Ruth Maguire to speak on behalf of the Equalities and Human Rights Committee.

15:40  



Ruth Maguire (Cunninghame South) (SNP)

Over the past few months, the Equalities and Human Rights Committee has heard from women’s organisations, academics, midwives, educators, police and other professionals. We have heard how the UK Government and agencies handle FGM, and about the interaction between protection orders and asylum and immigration.

However, the most powerful evidence in our scrutiny of the Female Genital Mutilation (Protection and Guidance) (Scotland) Bill came from our engagement with organisations and through meeting survivors and front-line workers. They told us about the difference that protection orders might make, and how Scotland can better deal with and prevent FGM. I would like to share some of their experience with members.

As part of our engagement, we worked with the outreach and engagement teams in the Parliament on a digital storytelling project. Through a series of workshops, women who have been affected by FGM created short films of their experiences, which meant that they could tell their story their way, in a supported and safe environment. Those digital stories make powerful and difficult viewing, and I urge members who want to get a greater understanding of FGM and the impact that it has on women to view them.

When we are talking about FGM, I do not particularly like the word “story”, because it suggests fiction—it suggests a neat narrative and a happy ending—and, for many of the women we met and heard from, neither of those is true. The situations in which FGM is a threat can be complicated and complex. If FGM seems far removed from members in the chamber, the digital stories show us that it is a very real thing for some women in Scotland.

In our evidence, we heard concerns about racialisation. We recognise those concerns, and we asked the Scottish Government to be mindful of the issue as it develops the statutory guidance around FGM. We know from our evidence that there is no one culture or community that practises FGM. It is found around the world, and it is always a fundamental violation of human rights.

FGM contravenes articles in the European convention on human rights relating to cruel, inhuman or degrading treatment, and it contravenes other human rights treaties, including the convention against torture, the International Covenant on Civil and Political Rights, and the Convention on the Rights of the Child. We are all entitled to the same human rights, but we recognise that, when we try to realise them, we come from different starting points. For the women and girls who face the threat of FGM or who have to deal with its consequences, that starting point can seem a long way back.

Through our work on human rights, we have learned that the key to realising human rights is to take a person-centred approach. To put that simply, as lawmakers, we must understand that we all have different backgrounds and needs. For our laws to be good laws, we must put the individual at the centre and involve them in the process. The women who shared their digital stories want to be involved. They have lived experience and expertise, and they must be at the centre of work on the bill as we move forward.

What did women tell us that they needed? At the Women’s Support Project in Glasgow, Mary Fee and I heard from women about the struggles that they faced finding suitable healthcare. One of the women said that she felt as though she stood out in her hijab and was embarrassed to be in a sexual health clinic. Women wanted to speak to someone who understood their experiences in a supportive environment. They wanted help and support to be available, and not just through maternity services. We welcome the Scottish Government’s commitment to look at that further.

At the Multi-Cultural Family Base in Leith, Oliver Mundell and I heard about a woman who had come to Scotland with her children and husband on a temporary visa. During their time in Scotland, they had a daughter. The family were due to return to their home country, where the girl would face FGM. The mother did not want that to happen. Her options were to return to her home country, where her daughter would be cut, or to seek asylum in Scotland. The more we understand what her choice means, the more we can see that it is not much of a choice. As an asylum seeker, she would be in Scotland with her children but without her husband, and she feared that she would be disowned by her family. She would be relocated from Edinburgh to Glasgow, far from the community and connections that she had made, and she would face poverty and uncertainty in the name of protecting her child. We were asked how a protection order would help this woman. Would it assist her asylum case? Would it give her time and space to assess her options? Would it provide housing for her and her children? Answers to those questions will be key to the success of the bill.

As a committee, we agree with the general principles of the bill. We welcome anything that can provide additional protection to those facing the harm of FGM, and we heard from our witnesses that the bill’s protection orders would do that. However, we heard from women and communities about their need for support. Legislation in isolation will not stop FGM in Scotland. For the bill to work, we must look at the support that women need, and we should put them at the heart of developing that support. That is how we will ensure that the bill will make a meaningful change for women and girls.

I finish with a plea from one of the digital stories created by all the women together as they reflected on their thoughts and hopes for the bill. They told us:

“Do not doubt stories about FGM. They are real. We want our thoughts and our voices to be heard in our own words. We want change and we hope our experience can help bring this change about.”

On behalf of the committee, I offer my sincere thanks to all those who gave evidence, shared their experiences and helped us to form our conclusions. We believe that the bill is an opportunity to create a new chapter in the story, and we urge the Scottish Government to ensure that the legislation is truly person centred. As the minister told us, there must be “nothing about us without us”—make these women the leading roles and not the supporting actors.

The Equalities and Human Rights Committee supports the general principles of the Female Genital Mutilation (Protection and Guidance) (Scotland) Bill.

15:47  



Annie Wells (Glasgow) (Con)

We welcome the publication of the Female Genital Mutilation (Protection and Guidance) (Scotland) Bill, and the debate.

FGM is a form of violence against women and girls, and it is a violation of their human rights. FGM includes all procedures involving partial or total removal of the external female genitalia, or other injury to the female genital organs, for non-medical reasons. It is mostly carried out soon after birth or when the person is a young girl; occasionally, it is carried out on adult women. Because FGM is carried out at different ages, it can be difficult to identify when a girl is at imminent risk of FGM.

There are no health benefits of FGM: it is likely to cause short-term and long-term physical and psychological harm. The procedure can cause serious injuries, including severe bleeding, problems in urinating, cysts, infections and, potentially, complications in childbirth. As we have heard, more than 200 million girls and women who are alive today have suffered FGM. I am thankful that the practice is far from being a norm in Scotland and the UK, but we should still send a clear message about how wrong it is, and we should do whatever we can to prevent it.

Scotland has developed specific legislation and policy on FGM; we have a broad range of tools to support and protect women and girls who have been subjected to FGM. The practice has been a criminal offence in the UK for 34 years, since the Prohibition of Female Circumcision Act 1985. In the rest of the UK, excluding Scotland, the Female Genital Mutilation Act 2003 repealed and replaced the 1985 act. The Prohibition of Female Genital Mutilation (Scotland) Act 2005 carried out the same functions in Scotland. The 2005 act made it an offence to have FGM carried out abroad, and it increased the maximum penalty to 14 years imprisonment. It also changed the terminology from “female circumcision” to “FGM”.

To date, no criminal prosecutions have been brought in Scotland under either the 1985 act or the 2005 act. There could be many reasons for that. There is no doubt that, for some people, it is difficult to challenge family members. In some cases, there might not be enough evidence to prosecute and, sometimes, professionals might be reluctant to speak out on what they mistakenly believe is a cultural or religious practice.

We welcome the publication of the bill and today’s debate. We are firmly behind the principal aim of the bill, which is to strengthen legal protections for women and girls who could be at risk. The bill makes provision for FGM protection orders—a form of civil order that will be able to impose conditions or requirements on a person. The protection orders’ aim is to protect a person from FGM and to safeguard them from harm if FGM has already happened.

Although we firmly back the principles of the bill, we believe that a further look is needed at some areas. As the minister said, we believe that more work needs to be done on victim anonymity. In its evidence, Police Scotland highlighted that there might be a need for automatic anonymity for anyone who comes forward. It said that there can be a difficulty in dealing with instances of FGM in that victims have an inherent fear of repercussions. The police say that without the protection of automatic anonymity, there might be a barrier to people reporting the crime. I am pleased to have heard the minister committing to coming back to us on that before stage 2.

The police also suggested that that problem could be mitigated by the inclusion of FGM in the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019. That would mean that all victims of FGM would have access to non-standard special measures—for example, use of a prior statement or providing evidence on commission.

We also believe that more work needs to be done—for example, through the legal aid process—to remove barriers for those who seek help with FGM protection orders. As the Law Society of Scotland said in evidence, the bill has “significant implications”. For example, there are issues to consider in relation to raising awareness within communities in Scotland that FGM is an unacceptable practice. The Law Society fears

“that those at risk may well not have their first language as English so they may experience problems in communicating and understanding.”

Elaine Smith (Central Scotland) (Lab)

Will Annie Wells put to her colleagues at Westminster the argument that FGM needs to be considered seriously in relation to asylum seekers? It is an important point that ought to be made.

Annie Wells

I will be happy to write to the Secretary of State for Scotland to ask what the process will be, going forward. We received communication at the committee, but I will write as well for clarification of how we can make sure that we are looking after these vulnerable women.

Finally, Conservative members believe that there needs to be a further look at working with front-line health workers to understand how data on FGM can be recorded better. The General Medical Council supports the bill and recognises the role that doctors and other healthcare professionals can play, but has stated that statutory guidance should provide details of additional responsibilities on healthcare workers.

In summary, I say that although we feel that further work is needed in some areas, the Scottish Conservatives support the broad principles of the bill. Clearly, FGM is an abhorrent practice that must be rooted out. We will support proposals that support victims of the crime, and we hope the bill can prevent FGM from happening in the first place.

15:53  



Elaine Smith (Central Scotland) (Lab)

I am pleased to be opening for the Labour Party, especially as I have a history in Parliament of involvement in legislating on FGM. I thank the cabinet secretary for introducing this welcome addition to existing law to prevent and eradicate FGM. I thank the committee for its work, on which my committee colleague, Mary Fee, will expand when she speaks.

As FGM survivor Neneh Bojang, from Edinburgh, said of the bill:

“I was just nine years old when I was subjected to FGM. It was excruciating and has caused me pain throughout my life. If this Bill prevents even just one woman from going through the same, then in my eyes, it will be a success”.

I served on the Equal Opportunities Committee when the Labour-led Administration introduced the Prohibition of Female Genital Mutilation (Scotland) Bill. At that time, we heard harrowing testimony from women who had been subjected to this horrendous act of violence, and who carried the scars and health problems for the rest of their lives. I was the committee’s gender reporter, and I met Somali women out in the community. They were keen to share their experiences, their medical problems, their trauma and their suggestions—but not to do so publicly. That is something that we must really reflect on. In order to hear from them on the record at that time, the committee met in public, but the witnesses were protected by being given anonymity. That was quite a groundbreaking way to gather the invaluable evidence, experiences and opinions that were used to shape our legislation in Parliament.

There are really no words to describe how barbaric the procedure is. It is usually performed on small girls, without anaesthesia and with little or no hygiene, and it is often fatal.

During our evidence gathering, members of the Somali women’s action group in Glasgow could not believe that what we deemed to be a criminal offence against a UK national or permanent resident was not an offence against asylum-seeker women and children. My amendments to the Female Genital Mutilation (Scotland) Bill shaped the eventual legislation such that it became a criminal offence in Scotland for FGM to be carried out on all women and girls.

I turn to the situation in 2019. The World Health Organization estimates that more than 200 million girls and women who are alive today have undergone the practice, and that every year 3 million girls are at risk of undergoing FGM. Unfortunately, we do not have available data for Scotland on the incidence of FGM. However, the Scottish Refugee Council has estimated that about 24,000 men, women and children who are living in Scotland were born in a country where FGM is practised to some extent.

Progress has been made in global efforts to eliminate FGM: a girl is one third less likely to be cut than she was 30 years ago, although that means that there are still far too many being cut. Before we become complacent, I note that UNICEF warns that population growth means that, by 2030, more than one in three girls worldwide will be born in the 30 countries where FGM is most prevalent. That will mean 68 million more girls will be at risk, which is quite alarming.

Another worrying change has been the medicalisation of FGM, which means that medical professionals normalise the practice by claiming that safer methods make it acceptable. They might argue that that is damage limitation, but it is still damage. It goes against the ethics of the medical profession, and I think that there is no justification for it.

It is also important to note that there is no religious requirement for FGM in any country or culture. However, it is a sensitive issue, and we must not stigmatise the communities in which we believe women and girls are at high risk of FGM.

The University of Bristol has worked with the Somali community this year, and the report that has been produced is instructive. Existing safeguarding services in England were found to be stigmatising and traumatising. The families who participated were already committed to eradicating FGM, but found that statutory approaches could be offensive and traumatic, especially considering that some of the mothers were also victims of FGM. School referrals had led to unannounced home visits by social services staff and uniformed police officers. We must not repeat those mistakes here.

Those issues must be considered, but others must be, too. For example, midwives—who, like most of the medical profession, are key in the fight to eradicate FGM and deal with the issues that it raises—are struggling because of funding cuts. The Royal College of Nursing has noted that it is of significant concern that 26.5 per cent of posts in midwifery and nursing are vacant posts. If we are to give extra responsibilities to teachers, medical practitioners, social workers and police officers, we cannot ignore vacant places, shrinking numbers and cuts to services in those professions.

A new strategy is definitely needed. In February 2019, we saw the first person in England to be found guilty of FGM. There have been no prosecutions in Scotland, but we know that that does not mean that FGM is not being practised here.

I welcome a strategy of prevention and detection that must always avoid stigmatising and persecuting vulnerable members of the community. I look forward to following the progress of the bill. On behalf of Scottish Labour, I say that we support the Government bill.

15:58  



Patrick Harvie (Glasgow) (Green)

In an opening speech in a debate like this, it is the norm to thank the committee for its work. That is particularly important in my situation; when a political party does not have a member on the lead committee, it is an extra challenge to get to grips with the work that has been done. Usually, the challenges are around the complexity of the legislation. This bill is not complex legislation, but it raises highly complex issues. We all recognise that it is difficult to learn about the lived experience of the survivors of FGM, so I thank the committee for the work that it has done in producing the report.

Our purposes should be twofold. That is recognised in the legislation as well as in the wider work that the Government has undertaken on the issue. The bill is partly to protect women and girls from the risk that FGM will be perpetrated against them, but it is also to provide safeguarding and support for people who have already come through that experience—the survivors of FGM. In both those purposes, looking at people who are at risk and at people who are in need of support, complex issues arise in terms of identifying the individuals involved.

The issue of racialisation, which the minister touched on in her opening speech, is one of the first areas of complexity. It gives rise to an overwhelming need to emphasise support and training for people who are working in settings where they may have concerns. Many people may have concerns but feel uncertain about how exactly to express them without risking stigmatising people in terms of racial or religious groups. The committee’s evidence reflects the balance of views on that difficult point—the need to be conscious of the risk of racialisation in the approach to the issue and the need for that not to become a barrier to taking the necessary action. I am pleased that the committee has taken the time to consider that and has asked the Scottish Government to develop guidance and training. The need for guidance and training is a theme that comes through many aspects of the report.

Elaine Smith talked about asylum seekers and refugees and the report recognises the particular challenges in relation to those groups—the lack of protection available through the asylum system, the failure in the system to recognise that women may have been unable to relocate from one part of their country of origin to another in order to escape the risk of FGM, and the culture of disbelief. That is clear throughout the asylum system, where applicants for asylum are overwhelmingly treated with an assumption of guilt until innocence is proved, which is the opposite of the way in which it ought to work. When we are talking about an issue that is complex, sensitive and difficult to express, such as the risk of FGM or the experience of having gone through it or having family members who have gone through it, the culture of disbelief in the asylum system must be an insurmountable hurdle for a great many people even to begin to talk about the issues or to know whom they can trust in the system.

Elaine Smith

Does Patrick Harvie agree that language can also be an issue?

Patrick Harvie

Undoubtedly. The language barrier is one of the biggest reasons why natural justice has so frequently failed in the asylum system, particularly given the issues that need to be talked about in relation to FGM. It is a whole other level of language barrier that many people would not have considered if they were not already closely familiar with the subject.

I was interested to note that a small section of the report mentions that the WHO definition of FGM includes genital piercings. That is a different professional setting, and the people who work in it may not consider that they need to understand or know about FGM as a wider issue, and the definitions in it will be very different. I am sure that we would not want to approach that issue by trying to forbid or ban body modification practices that are undertaken as a choice by empowered adult individuals. However, the ambiguity about the definition gives rise to another level of complexity that may be difficult to pin down in law—the distinction between people who take an empowered and informed decision as adults and people who are under cultural or coercive pressure or an expectation to undergo procedures that are not genuinely of their choice.

Finally, Presiding Officer, all those issues raise again the importance of support and training. I was interested that the committee was open to the idea of renaming the orders “protection and support orders”. I believe that the Government has considered whether it will be willing to look at that as the bill goes forward. The training and support services that we put around the legislation are at least as important as the bill itself. That said, the bill is greatly valued and I hope that it will pass stage 1 unanimously tonight.

16:05  



Alex Cole-Hamilton (Edinburgh Western) (LD)

I start by echoing the thanks that have already been offered to my fellow members of the Equalities and Human Rights Committee, to the clerks and, most important, to the witnesses, who gave us an education in a very important area. I thank the Scottish Government very much for bringing forward the bill.

On behalf of my parliamentary colleagues, I speak in full-throated support of the bill, which will become an essential piece of legislation. As deputy convener of the Equalities and Human Rights Committee, I know that it was a very important and sensitive topic. There were issues that challenged us and issues that surprised us.

I recognise that the tone of the debate has been one of consensus, and I hope that that will be the case for the entirety of the bill’s passage through Parliament, because it should indeed command our consensus at every stage. It is clearly a subject that unites us all.

It is not a bill that will affect many people, and that is to be welcomed—it is a welcome reality. Nevertheless, the fact that we need to have such a debate and such legislation at the end of the second decade of the 21st century is an indictment of how far we still have to go in our global efforts towards modernity and the empowerment of women. Female genital mutilation is a clear manifestation of a patriarchal attempt to control and possess women. It is about men’s power over women. The victims of FGM are likely to experience short and long-term physical and psychological harm. Every year, almost 3 million girls and young women are subject to acts of brutality and mutilation in the name of culture and tradition.

I pay tribute to my colleague and former leader, Jo Swinson, who strove throughout her parliamentary career towards the empowerment of women. During the week of the United Nations international day of zero tolerance for FGM this year, Jo revealed new statistics that showed that health boards in some of Scotland’s biggest cities, such as Glasgow and Edinburgh, continue to treat women who have experienced FGM.

FGM is not only a cruel and traumatic practice that should be eradicated; it is an indication of a deep-rooted gender inequality that still prevails. I welcome the bill’s aim of strengthening effectively the legal protection for women and girls who are at risk of FGM, which is a practice that is already illegal. Early interventions are key. However, they are not always possible, so I fully support the introduction of the new protection orders, which, in the words of Leethen Bartholomew, from the National FGM Centre, give a woman

“the agency and the power not only to take a stance and protect herself but also to protect her child”. [Official Report, Equalities and Human Rights Committee, 7 November 2019; c 7.]

Protection orders will enable a preventative approach to be taken to avoid harm to a child, or to avoid the child’s removal from the UK.

During stage 1 consideration, a parallel was drawn between the creation of risk of sexual harm orders in the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005, and the potential creation of FGM protection orders. That parallel relates to the application of the proposed law, and how often the orders might be used. Although the 2005 act came into force more than 10 years ago, the number of RSHOs that have been handed down or applied for through the courts can be counted on the fingers of one hand. That is a salutary lesson for the bill. For the legislation to be effective and preventative, we need to work together to develop effective guidance on and awareness around FGM protection orders, to ensure that the additional measures are in place for the police, the judiciary and all other stakeholders.

I also worry that, unlike the United Kingdom Parliament’s Serious Crime Act 2015, the bill does not include provisions for lifelong anonymity for victims of FGM. I am not persuaded that it is entirely justifiable to exclude such a provision from our bill, and I will perhaps work with others to test that at stage 2, because I do not believe that our justice system is materially different from the justice system in the rest of the UK.

Both Police Scotland and the Equality and Human Rights Commission advocate anonymity in legislation, and they reference the difficulty in evidencing incidents of FGM due to fear of repercussions. Police Scotland stated that anonymity would encourage women and girls to come forward and protect individuals, and that, without the protection of automatic anonymity, there will remain a barrier to such reporting.

Ruth Maguire

I hear what Alex Cole-Hamilton is saying about anonymity, and we share some opinions on that. However, anonymity for all victims of all sexual crimes might persuade more women to come forward. Will he reflect on whether the issue is bigger than just this bill and needs to be dealt with elsewhere?

Alex Cole-Hamilton

The convener of our committee makes a valid and very reasonable point. I am not wedded to amendment at stage 2. We perhaps need to have a wider discussion about the issue in the context of all sexual crime; I absolutely take Ruth Maguire’s intervention in the spirit in which it was offered.

I am glad that the bill is grounded in a rights-based approach, as all our bills should be, and that its policy is firmly rooted in article 24 of the UN Convention on the Rights of the Child, which calls for the prohibition of all traditional practices that are detrimental to the health and wellbeing of women. I am firmly of the belief that, when we fully incorporate the UNCRC into Scots law, as the Government is prepared to do, we will finally make rights real in that context. In striving to be a human rights leader, we must act now, as we cannot lead the world on children’s rights from the back of the pack.

Government, Parliament and community leaders in our society all have a central role to play in the matter, but it is also about public participation in challenging arcane and brutal traditions and abandoning certain attitudes towards the education of girls. As we have heard, there are challenges in respect of terminology, but embarrassment—for whatever reason—should not prevent us from discussing the issue. To make progress, we need to talk about these issues, bring them forward, encourage others to do so, and move forward in the atmosphere of consensus that we have displayed today. We support the bill.

The Presiding Officer (Ken Macintosh)

We move to the open debate. I encourage members to keep their remarks to five minutes or less.

16:11  



Angela Constance (Almond Valley) (SNP)

I joined the Equalities and Human Rights Committee only in September, and it has been a pleasure to serve on it. Under the quiet, but nonetheless determined, stewardship of the convener, Ruth Maguire, all members come to committee with a deep commitment to a fairer Scotland and a genuine desire to work together. That has been evident in our scrutiny of the Female Genital Mutilation (Protection and Guidance) (Scotland) Bill, which led to the presentation of a unanimous stage 1 report to the Government. I am pleased that the minister’s response to the committee has been equally collaborative.

As we know, FGM is illegal, and the purpose of the bill is to update and strengthen protection for women and girls who are at risk of the practice by creating new protection orders and putting guidance on a statutory footing. FGM is a fundamental violation of human rights. It is a manifestation of deep-rooted gender inequality, it is a breach of international law, it causes short and long-term physical and psychological harm, and there are absolutely no health benefits from it.

The bill was widely supported by stakeholders. However, crucially, it was informed by the lived experience of survivors. Earlier, Elaine Smith powerfully quoted the personal testimony of Neneh Bojang. As the minister said in her opening remarks, if the bill prevents just one woman from going through the trauma of FGM, it will have been worth while. It is crucial that the voices of women and communities are at the very heart of engagement and—in particular—the development of statutory guidance. The experts are those with lived experience, and we need to make an enduring commitment to survivors that participation and engagement are on-going, and not a one-off event. That approach is absolutely essential to minimise the risk of stigmatisation and even racialisation, as expressed by some committee witnesses.

The minister in her evidence to the committee, and the convener in her opening remarks today, rightly stated that FGM has been practised across many countries, and many continents, communities and belief systems, for about 5,000 years, and that it is indeed a global issue.

One of the many complex issues that the committee wrestled with was lifelong automatic anonymity for survivors. There were mixed views about that, and at present in Scotland those matters are decided by the courts on a case-by-case basis. After much thought and deliberation the committee concluded that the views and wishes of individual survivors in individual cases should be paramount and central to court considerations. The minister made a commitment to reflect on that and on other matters and to respond before stage 2.

Based on the evidence that was heard and received by the committee and not on politics, there was an acceptance that the legislation should be different to what exists south of the border. There was cross-party concern about the lack of consistency in the treatment and consideration of FGM within the asylum system leading to a lack of protection for women. Those two points were made by Elaine Smith and Patrick Harvie.

The Equalities and Human Rights Committee has collectively worked very hard to test and tease out the added value of this bill given that FGM is currently illegal, there are existing child protection measures in place and there is a national action plan to prevent and eradicate FGM, along with a very honest reflection that legislation alone is rarely a silver bullet—particularly for crimes that are often hidden. However, when the need to protect women and girls of all ages is considered, the case for this legislation is very well made. It will allow better support to be given to those aged 16 and 17 who are not always captured by the children’s hearings system. It will also address the need to build bespoke measures for both protection and support.

I say well done to the minister on what I believe is the first bill that she has lodged in her current role. I thank her team and the committee clerks.

16:16  



Maurice Corry (West Scotland) (Con)

I welcome the introduction of the bill. It is my pleasure to speak in the debate.

Female genital mutilation is a pervasive form of gender-based violence that millions of women and girls in the world face. As we know, it is recognised internationally as a gross infringement of their human rights, and steps must be taken to prevent and eliminate the practice.

In 2011, it was found that around 24,000 individuals who were living in Scotland were born in countries that practise some form of FGM. From 2001 to 2012, 2,750 girls were born in Scotland to women from those communities. Even with that data, it is still not known how many people within those communities are directly affected. FGM is, by its nature, a matter of hidden complexities. That makes it difficult to create a solution that adequately addresses such harms in order to prevent them, and support those who are already impacted.

Current legislation provides a broad range of policy and tools to help support the victims and survivors of FGM. The Prohibition of Female Genital Mutilation (Scotland) Act 2005 increased the maximum penalty to 14 years of imprisonment and changed the terminology from “circumcision” to “mutilation”. That removed any possible justification for the execution of such an act, and the aim was to ensure that the legal protection in Scotland was equal to that of the rest of the UK.

In addition, the national action plan to tackle FGM was implemented in 2016. It introduced measures to train the staff of statutory agencies about FGM, such as how to talk to survivors and how to identify those at imminent risk of FGM and those on which it had already been performed, and it strengthened information sharing about FGM. Those steps have opened up the conversation about FGM and how to tackle it effectively.

This new bill crucially builds upon that existing legislation as a step further in protecting the rights of women and girls by enabling individuals to obtain a female genital mutilation protection order, or FGMPO. Those who are at risk can be provided with a proactive means to protect themselves or their daughters from FGM.

I am totally supportive of the legislative steps forward that this bill makes, but there are areas that require further examination and discussion as the bill advances. The ability to obtain a specific FGMPO is a helpful approach, but we must consider the process behind acquiring the protective order. Because of the nature of the FGMPO within the legal system, access to legal advice and assistance would be advantageous to ensure an accurate and successful application.

In that regard, there are a number of concerns about barriers that might prevent the people who most need it from acquiring that integral protection. We need to consider how accessible the legal system will be for the women who are most at risk. Given that many such women come from different countries, it is understandable that our legal system might be overwhelming and confusing. Legal aid would provide such women with an invaluable guide to successfully negotiating a system that might be unfamiliar and daunting.

The ability to pay for necessary legal aid is also important. Not all FGMPO applicants will be eligible for legal aid and some women will be simply unable to afford it. No woman or girl should be put at such devastating risk because of a lack of financial resources.

We must take note of those barriers and consider how they can be removed, to ensure that individuals can navigate applications for and acquisition of FGMPOs in a timely manner. Enacting legislation does no good if the law is unable to help those who are most in need.

Christina McKelvie

On that point, I intend to write to the UK Government about all those measures. Will Maurice Corry join me in doing so? Some of the issues that he raised relate to how the asylum system will work alongside protection orders. Will he support calls from this Parliament for the devolution of some of that, so that we can deal with it here? Will he also take on board the issue to do with people who have no recourse to public funds, which affects some women?

Maurice Corry

I thank the minister and understand what she is saying. We must look at individual cases; not every case is the same. As my colleague Annie Wells just said, we will take up issues that Elaine Smith brought up and we will write to the UK Government. I am sure that, in discussion with Annie, we will look at some of those issues; the minister has made an important point that we will certainly consider.

In addition to eliminating barriers to acquiring a protection order, the question about victims’ anonymity must be fully examined. Anonymity is not currently included in the bill, but the subject should be carefully considered and further explored, in relation to how we can most effectively provide support to FGM victims.

Given the hidden and private nature of FGM, the most effective way to identify victims and obtain evidence is through information from victims themselves. Every step must be taken to ensure that women and girls feel comfortable and confident about their ability to report their experiences and be protected from possible repercussions. Whether that means granting automatic anonymity or providing victims with a clear and assured path of gaining anonymity at their request—an issue that has been talked about—all options must be considered and victims’ concerns and wishes must be central to consideration and the decisions that are taken.

The new measures that the bill will introduce have the potential to bring about necessary change. For the change to be as effective as possible, we must consider and eliminate all potential barriers. The measures, when coupled with robust education and training, will do much to demonstrate Scotland’s on-going commitment to eliminate FGM practices.

16:22  



Mary Fee (West Scotland) (Lab)

I thank the Scottish Government for introducing the bill for consideration in the Parliament. I also thank the witnesses, including women and girls who are affected by FGM, who assisted the Equalities and Human Rights Committee in its stage 1 inquiry. Without their input, it would be difficult to fully understand the effects of FGM and the harm that it causes. Their evidence was invaluable.

FGM is, rightly, illegal, and consideration must be given to how we can prevent it. That is what the bill aims to achieve. I fully support the aim of strengthening protections for women and girls who are at risk of female genital mutilation.

Female genital mutilation is not limited to a particular race, religion or country. It is believed to have occurred for more than 5,000 years across the world and across religions. During our evidence sessions, committee members were told that the practice has been performed as part of people’s adherence to religious or cultural traditions and as a rite of passage.

Female genital mutilation does not benefit women and girls in any way. It leads to lifelong physical and mental health problems. It is a form of abuse and control.

I understand the position of the Government and some witnesses on racial profiling. There must be clear guidance and training to ensure that no person feels stigmatised or criminalised. I welcome the minister’s comments, in her opening speech, on how that work will be taken forward.

During evidence sessions on medical services, the committee heard that NHS Lothian applies a policy of universal inquiry. Such an approach is not taken in other parts of the country. To prevent people from feeling targeted because of their race or religion, there must be a universal policy for all public services that deals with justice and with women’s sexual, mental and medical health.

In relation to guidance and training on reaching out to women and girls, there must also be wider training and education. That is backed up by the experts who provided evidence to the committee.

On the subject of education, which is crucially important, I back calls for FGM to be consistently taught in schools, to both boys and girls. Schools now include human rights education. As FGM is a human rights violation, that enables schools to better educate their pupils on the issue. The Scottish Government response to the committee’s report says that FGM is covered from S1 and that abuse and being protected from abuse is covered at P5. I wonder whether there is scope for the specific issue of FGM to be covered at an earlier stage, particularly if girls are a target for FGM prior to starting puberty and their teenage years. I accept that there may be concerns around the age and stage of children when discussing the issue of FGM, but I wonder whether the minister could consider that, either in her closing response tonight or at a later stage.

It is very important that men are also taught about the dangers and lifelong consequences of FGM. That is discussed in the stage 1 report, which says:

“The role of boys and men in FGM conversations was also raised by the men at Community InfoSource. Men said they were not aware of FGM happening in their own communities, or their own families, until they attended workshops with Community InfoSource.”

It is evident that such workshops are fundamental in the pursuit of eradicating FGM.

I fully support the introduction of the FGM protection orders. They will play an integral part in supporting women and girls and protecting them from FGM, and hopefully in eradicating the practice in Scotland and for those living in Scotland, including asylum seekers. That is a crucial issue for me.

Anne Spiers, the deputy chief executive officer of the Multi-Cultural Family Base, rightly suggested that the word “support” be added to the orders. Support is an integral aspect of tackling FGM and helping victims. It is right that the Scottish Government speaks with stakeholders while considering the recommendation. I hope that it does. However, with or without the term “support” included, the orders will serve the same purpose.

I wanted to touch on anonymity, but we are short of time. I am grateful for the comments that have been made by the minister about the intention to look at that issue and come back to the Equalities and Human Rights Committee prior to stage 2.

Once again, I thank the women and girls who so openly and honestly spoke to us and shared their experiences with us.

16:27  



James Dornan (Glasgow Cathcart) (SNP)

I have a members’ business debate tonight on a completely different type of abuse of women—financial coercive control—but female genital mutilation has always struck me as a particularly brutal and extremely harmful type of abuse.

Some religious sects call the practice “sunnah” and refer to FGM as a religious cleansing. However, the practice is strongly condemned in all religions, and in fact the ritual of FGM predates any particular religion.

As Annie Wells said, performing FGM has zero health benefits and is physically and psychologically damaging to women and young girls. Those who have been victims of FGM can suffer a multitude of consequences: infections, including urinary tract infections, menstruation problems, lack of sexual desire, pain during sex, complications in childbirth and, unfortunately on some occasions, even death.

There is no acceptable justification for FGM, and I commend the Equalities and Human Rights Committee, led by my colleague Ruth Maguire, for spearheading efforts to update Scottish action on this intolerable and senseless abuse towards women and girls.

The World Health Organization estimates that more than 200 million women and girls alive today have undergone FGM in one of its many forms. It also estimates that a further 3 million girls are at risk of undergoing female genital mutilation every year.

Although the rates of female genital mutilation in Scotland are unknown, the NHS records, where it can, patients who have undergone it. In 2017 and 2018, NHS Lothian identified women with FGM on at least 93 occasions. In the same period, NHS Greater Glasgow and Clyde identified 138. That is at least 231 women too many.

As FGM is illegal in Scotland, young Scottish girls are often taken abroad on summer holidays, without knowledge of the real reason for their travel. The procedures are usually performed using traditional methods, with no anaesthetics or antiseptics, and often by someone who has no professional medical expertise. Genital mutilation is traumatic. It is often carried out with knives, scissors, glass shards or razor blades. It is normally non-consensual, and I cannot begin to imagine the nightmare that those women and girls endure as they are physically restrained and subjected to torturous procedures.

The Scottish Parliament has an admirable record in this area, as it has been fighting FGM for some time. Indeed, I am proud to say that Scots have been at the forefront of action against this barbaric practice for almost a century. Dr John Arthur, a missionary from Glasgow, campaigned in 1929 to stop the Kikuyu in Kenya from carrying out the practice. He recognised that the senseless suffering that women endured through clitoridectomy had no basis in Christianity and that it should not be tolerated. He encouraged the baptised Kikuyu to urge the Kikuyu Central Association to end the practice. He campaigned vigorously on this matter, to the point that he resigned from the Legislative Council of Kenya and saw his personal reputation being traduced by the British and church authorities because of his passion to protect those women and girls.

At the same time, his fellow missionary, Marion Stevenson from Forfar, introduced the term “sexual mutilation of women”. She also taught Raheli Warigia who, along with other Tumutumu women, formed an organisation called the Shield of Young Girls to protect girls from FGM. The group wrote:

“People are being caught like sheep. One should be allowed to follow her own way of either agreeing to be circumcised or not without being dictated on one’s own body.”

I think that we could all agree with that.

Stevenson saw FGM as part of a concerted attack on women’s rights and used it as a focal point for her campaign to expand women’s rights through measures such as establishing girl’s schools, which, among the basic subjects, also taught domestic science and hygiene. She also trained many teachers and worked in hospitals. Her experiences demonstrated to her that, in many cultures, FGM forms part of the fight to curtail women’s societal rights.

The bill strengthens the current legislation and delivers on the promises that were made in the Scottish Government’s national action plan to prevent and eradicate FGM. Although FGM is a hidden and deeply complicated problem, all of us—the Scottish Government and the rest of us—must be vigilant and play our part in the effort to eradicate it.

It is clear that there is no complacency in the Government’s approach to the fight to bring this abuse of women to an end. The bill is an important part of that fight, and that is why I support the general principles of the bill at stage 1.

16:32  



Michelle Ballantyne (South Scotland) (Con)

There is no justification for female genital mutilation. No religion condones it, and there are no health benefits to it. Its practice is a violent and barbaric assault against women and girls.

During a debate in November 2017, I recounted my first encounter with FGM. I was a student nurse at the time, and the patient was a victim of FGM who had given birth to a daughter. She begged us not to discharge her. Her husband planned to take their child straight to the airport whereupon she would be taken out of the UK, and that perfect little girl would then undergo female genital mutilation. Back then, there was nothing that we could do. We delayed her discharge as long as we could but, eventually, we had to let her go. I had the job of carrying that baby down to the car alongside her distraught mother. It is an experience that I have never forgotten.

In summing up for my party in that debate, I said that I hoped that the cabinet secretary had listened to the comments in the debate and that she would take forward some of the actions to ensure that Scotland followed the UK’s decision to enact FGM protection orders. It is, therefore, extremely welcome that this Parliament is now debating stage 1 of this bill, and I personally thank the minister and the cabinet secretary for making good on the promises that were made to take this forward.

The creation of FGM protection orders is an important milestone in the development of legislation to prevent this vile practice. In that respect, Scotland has lagged somewhat behind England, Wales and Northern Ireland, all of which introduced FGM protection orders as part of the Serious Crime Act 2015. That said, concerns have been raised about the need for specific protection orders. It was noted in some consultation responses that FGM protection orders were not the best instrument to counter the issue.

Although I agree with some of the views of the Law Society and the Scottish Children’s Reporter Administration that existing legislation covers FGM offences, I think that the right decision has been made to introduce a specific protection order. Such an order not only signals intent, but deals with a very complex and problematic area for society and criminal law and can provide an immediate intervention to prevent a crime.

However, given the impact that such protection orders could have on families, particularly when strong personal relationships and high levels of familial influence are at play, they are not enough on their own and should not be seen as the solution to every instance in which a potential FGM case is reported.

As Ruth Maguire described, the order may provide protection, but it will not address the cultural and family ties that accompany the practice of FGM. A stronger framework and an increased duty on professionals to report such crimes can only serve to tackle this hidden crime.

The evidence clearly shows that data collection is key. A spokesperson for NHS Greater Glasgow and Clyde admitted this year that it has

“no confirmation FGM is being practiced in Scotland”,

and the Scottish Government said:

“There are no clear and robust figures for the prevalence of FGM in Scotland because of the hidden nature of the crime.”

However, we know that there are cases, because hospital records demonstrate that.

We can introduce all the legislation that we want, but unless we improve our methods of identifying and reporting suspected instances of the crime of FGM, we will have the same blind spot that was created by the Prohibition of Female Circumcision Act 1985, as a result of which young women came to hospitals with clear signs of mutilation without a single case being successfully prosecuted.

SCRA’s view to favour strong statutory guidance for professionals working with young people who are at risk is important. We have seen in England and Wales that although social care and healthcare professionals are obliged to report to the police incidents of FGM involving under-18s, many staff still do not fully understand the implications of the Serious Crime Act 2015 and the duty that it bestows upon them. Without staff taking the first steps, protection orders will do the victims little good.

Although I very much welcome the multi-agency guidance published by the Scottish Government, the onus is still on getting the guidance right as a key step in eradicating FGM in Scotland. Efforts must also be made to ensure that that guidance does not simply gather dust on local authorities’ shelves. It must be embedded in the minds of front-line workers who are best placed to identify girls who are at risk, understand the family dynamics and act quickly and effectively to avoid a potential offence.

The need to ensure that witnesses and potential victims will be given anonymity underpins all of those issues. I agree with some comments that such anonymity should be lifelong, because the fear and distress that women and girls experience must not be underestimated. The impact is often compounded when English may not be their first language and where cultural pressures are significant.

I welcome the consensus that I have heard in this chamber. In progressing this bill, we are sending the message that we are not divided on the issue of female genital mutilation. It is cruel and abhorrent and no society should ever allow it to be carried out.

16:38  



Rona Mackay (Strathkelvin and Bearsden) (SNP)

I warmly welcome the principles of the Female Genital Mutilation (Protection and Guidance) (Scotland) Bill at stage 1, and I am pleased to have the chance to speak in this debate.

Female genital mutilation is physical and coercive abuse of women and girls. There is no other way to describe it. The word “mutilation” says it all. FGM violates the rights of women and girls and has lifelong physical, sexual and mental health implications. It has no health benefits—quite the reverse. It is, of course, illegal and abhorrent.

As we have heard, the aim of the bill is to strengthen legal protection of women and girls by enabling the court to make an FGM protection order—a civil order—to protect a person at risk of being subjected to FGM, which will safeguard them from further harm if FGM has already happened, or reduce the likelihood that FGM offences will happen. A person at risk, a victim, a local authority, Police Scotland, the Lord Advocate or any other person with the permission of the court will be able to make an application for an FGM protection order. Anyone breaching an order would be committing a criminal offence, with a potential prison sentence of up to five years.

FGM has been illegal in Scotland since 1985 but, to date, no criminal prosecution has been brought in Scotland and only one has been brought in England. That says it all about the need for this bill.

The multi-agency guidance on FGM reinforces Scotland’s child protection guidance, but it is currently advisory. The proposed FGM protection orders and statutory guidance will complement that system. Although FGM is an international practice, we have a duty of care to those who live in Scotland, and this bill will give protection to the most vulnerable.

The Law Society of Scotland’s helpful briefing points out that this is not the first step taken by the Scottish Parliament on FGM. It builds on the Prohibition of Female Genital Mutilation (Scotland) Act 2005 and implements Scotland’s commitment in the national action plan to prevent and eradicate FGM, the aim of which is:

“to foster an environment of prevention in Scotland and to improve the welfare and quality of life of FGM survivors, with a focus on the linked areas of prevention, protecting girls at risk; and provision of appropriate support and sensitive services for survivors of FGM.”

There is no doubt that early intervention through communication and education is key to the success of the new bill. In addition, we need reliable data to determine the exact scale of the problem in Scotland. The Scottish Refugee Council published a report in 2014 that estimated that the number of people living in Scotland who have come from countries where FGM is practised is around 24,000, which provides some indication as to the scale of the issue. That number shocked me and it highlights the desperate need to raise awareness of the bill in the relevant cultures and communities. We must overcome language barriers and cultural differences in our public services such as the national health service and the police—who do a fantastic job of being inclusive—so that we can simply say, “No, this is not acceptable.”

I agree with Mary Fee that we must reach girls through the school curriculum as part of our getting it right for every child strategy, and we must regard this as a child protection issue. If we can protect girls at an early age by educating them against the dangers of the practice, issues surrounding older girls and women will be eradicated.

There also needs to be clear guidance on how to report issues with a protection order, and we must win the trust of potential victims in communities most at risk so that they know that they will be protected in Scotland. Anonymity is not specifically provided for in the bill, in contrast to the position for victims in England and Wales. I support the committee’s view in its stage 1 report that we should ensure that

“the views and wishes of victims and survivors are paramount and ... anonymity on request is a reasonable expectation for victims of FGM.”

Given the nature of the abuse, and the sensitivity surrounding it, I think that anonymity should be included.

Access to legal aid for victims is also extremely important, as without that, many vulnerable groups might not feel empowered or will be simply financially unable to proceed with legal action.

I want women and girls to live in a world where they feel safe; one where their rights will not be violated and their future ruined. I believe that the bill, when it passes stage 3, will give women and girls that protection and send out the message that Scotland is a country that values all its citizens and is striving to keep them safe with legal protection and support.

16:43  



Elaine Smith

We have heard some harrowing stories of women who have been subjected to FGM. The minister opened with a powerful example, James Dornan gave an example and Ruth Maguire asked us not to doubt those stories, because they are real—that is a very important point. Annie Wells explained what FGM is, which is important to know but hard to listen to.

FGM is a global issue and, as I said earlier, we cannot be complacent about successes in eradicating the practice. As Maurice Corry said, it is clearly a form of sex-based violence against women and girls—a point also made by Rona Mackay.

Today, just as in 2005, there is much to be done to challenge the views that normalise the mutilation of mainly girls under the age of 15. Alex Cole-Hamilton made a point about patriarchal culture. I reiterate the point that other members have made, as it is an important one: there is no religion that actually agrees with, or requires, FGM.

In February this year, in response to a freedom of information request, NHS Greater Glasgow and Clyde and NHS Lothian disclosed that they had treated victims of FGM on more than 230 occasions in 2017-18. Those figures were also mentioned by James Dornan. FGM can be difficult to deal with. For example, when women have to be cut open to deliver babies and then ask to be resewn, because that is all that they have known, that presents a real challenge for people working in our health service and it is something that we have to bear in mind.

FGM is now illegal in all European Union member countries, but the number of successful prosecutions is still relatively low, with the exception of in France. The threat of imprisonment and large fines alone is not enough as a prevention strategy. The evidence from France also highlights how intrusive and stigmatising prevention strategies can sometimes be. We have to be very careful.

In Scotland, we must refocus our efforts to work with families, communities and community leaders to deliver the necessary information, including on the benefits of abandoning the barbaric practice of FGM. I think that the bill will very much help to do that.

I welcome the multi-agency approach of the new legislation and note Mary Fee’s pleas for education in schools and a consistent approach across services. The convener of the Equalities and Human Rights Committee, Ruth Maguire, made the important point that, when we identify communities in which the practice is still prevalent, we must not racialise the issue or victimise people who are already victims themselves. That is especially relevant when we look at how enablers of FGM or people who do not report it are treated. Often, they are women who do not have the power or the ability to prevent it, so they should not be criminalised.

We have to give people the confidence to discuss, challenge and report the practice, which can be deeply embedded in their traditions. That is what the Equal Opportunities Committee did in 2005. That raises the issue of anonymity, which Mary Fee and Rona Mackay spent some time talking about.

We have to give people support to use the law to protect themselves or someone else who is at risk of FGM. I was very pleased to hear Annie Wells say in response to my intervention on asylum seekers that she would write to the Westminster Government. Patrick Harvie, Mary Fee and Angela Constance also outlined issues relating to the asylum system that need to be dealt with and challenged, including the language barrier.

We must ensure that there are adequate funds to train professionals to apply for protection orders when they are needed. I note that support should also be included—many members have made that point. Michelle Ballantyne gave a powerful personal example of the need for that in her speech.

I welcome the more consistent multi-agency response, but I see service after service stretched to its limits. That can make it difficult for the health service to provide the services that are needed. Many services are underfunded and understaffed, and we can add to those burdens. Therefore, we have to add to their funding and their allocation to back up the strategy.

Sadly, we can expect only more austerity from Boris Johnson’s Government at Westminster. However, many of the services that will be involved in the prevention strategy are funded by local government. Therefore, I urge the Scottish Government to stop the underfunding of councils in Scotland.

I do not want to finish on a negative note. I think that this debate unites us all—other members have said that—and I know that the minister cares passionately about tackling violence against women and girls. The bill is a small but important piece of legislation that will enhance the previous good work. I congratulate Christina McKelvie on her first bill.

In 2005, our legislation in Scotland was better than the Westminster legislation—I simply throw that into the mix.

I thank the Equalities and Human Rights Committee for its work in scrutinising the bill at stage 1 and, like Mary Fee, I thank the women and girls who gave evidence. By working together and respecting and listening to the communities involved, I am sure that we will move forward towards the eradication of FGM in Scotland and abroad.

16:48  



Miles Briggs (Lothian) (Con)

I am pleased to close the debate for the Scottish Conservatives. We have had a useful, constructive and positive debate, and l thank the organisations that provided briefings for members, including the Law Society of Scotland. I am also grateful to colleagues on the Parliament’s Equalities and Human Rights Committee, from whom we have heard, for producing such a thorough and thoughtful stage 1 report. We should also put on record our praise for the charities that work on the front line, including Shakti Women’s Aid and the Scottish Refugee Council.

As my colleague Annie Wells indicated, the Scottish Conservatives very much support the aims of the bill, and we will look to strengthen it as it moves through the parliamentary stages. We will back measures to put in place legal and criminal justice systems that are designed to support victims as effectively as possible and to punish and deter those who perpetrate these abhorrent practices. FGM protection orders are therefore a major and welcome step forward.

Last year, I met prominent women’s rights campaigner Nice Nailantei Leng’ete, who was presented with the People’s Postcode Lottery hero award in recognition of her work to end FGM in Kenya. The Amref Health Africa UK support charity oversaw work involving four years of dialogue with elders in Nice’s village to change hundreds of years of culture and abandon the cutting of girls in Africa. One of the things that Amref saw was a surge in the number of girls attending school after that happened.

Much of today’s debate has rightly focused on how we improve the bill and the committee’s constructive recommendations for that. As Maurice Corry said, we believe that further work on the bill is required. We have heard that from a number of members today.

We back calls for the Scottish Government to set out clearly how it will engage with and involve women and communities to develop further guidance on and awareness of the FGM protection orders. The committee specifically asks ministers to address difficulties around prosecutions in light of the fact that there has only ever been one prosecution for FGM in the UK. That is important.

Although reasons for the lack of prosecutions are varied—and include, not least, the difficulty of challenging family members and the mistaken beliefs of some professionals—we should look to move forward on prosecutions. It would be useful to look at that in more detail at stage 2.

I agree with Police Scotland that the Scottish Government should give thought to closing a potential gap in the legislation to cover what happens when someone is found to have items in their possession that suggest an intent to carry out FGM. We need to take that forward, and there might be merit in considering a preventative provision around intent and the possession of items for the purpose of FGM. I welcome what the minister had to say on that, and the fact that she will consider it at stage 2.

I welcome the provisions of the bill, especially those on the creation of FGM protection orders, which have the potential to be a useful tool for our agencies and individuals in implementing the FGM guidance at the statutory level. Communities and professionals must be closely involved in the creation of the guidance, and we hope that the legislation will play a part in helping to achieve the societal, cultural and attitudinal change necessary to eliminate FGM in Scotland, and to send a message on that across the world.

I will conclude with the words that Nice used at the People’s Postcode Lottery event. She said:

“The practice is devastating for the health, rights and chances of young girls, and we won’t stop until every girl in Africa can become the woman of her dreams.”

As members from across the chamber have said today, if the proposed legislation results in just one individual in Scotland not facing the barbaric practice of FGM, it will have been worth while. We support the general principles of the bill.

16:53  



Christina McKelvie

I am pleased to be closing this stage 1 debate on the Female Genital Mutilation (Protection and Guidance) (Scotland) Bill. It has been an excellent debate and some fantastic points have been raised. I will try to get through lots of those points, but if I do not get to them all today, they are all on my list so members should not worry.

Mary Fee talked about how we change the culture when we work with men and boys, which is an important point. I will send her some information on the change makers project that we fund, which involves men working with men and boys to combat FGM in communities.

James Dornan raised the issue of summer holidays. Part of the FGM protection order will involve the removal of travel documents such as passports so that that summer holiday does not happen.

Michelle Ballantyne suggested that the Scottish Government is lagging behind the rest of the UK. Perhaps that is right in relation to bringing legislation forward, but we know that there are challenges for the UK legislation, and we wanted to take our time to work with communities and consult people appropriately to get our legislation right the first time because unintended consequences could be incredibly harmful.

Ruth Maguire, Patrick Harvie, Mary Fee and many others raised the issue of racialisation, which came out at committee. I reassure all members that we will work closely with stakeholders and others to ensure that the training is cognisant of that issue. We will be guided by communities on the best way to reflect that in the development of the guidance and the subsequent training. Angela Constance asked that I commit to on-going participation, so that this is not just a one-off. I reassure her that my answer is a very clear yes.

On guidance and training, Alex Cole-Hamilton, Angela Constance and Ruth Maguire all talked about the need for a person-centred approach. I cannot emphasise enough that we will work with stakeholders to assist with the effective operation of future statutory guidance on FGM, and we will take into account the digital stories that Ruth Maguire spoke about to ensure that the core training adequately reflects the position on FGM for which the updated legislation provides.

Elaine Smith made comments about the health experience in Scotland and England. We have taken great interest in that issue, and we are progressing work on it. We will work closely with our health colleagues when we develop the guidance and the training to ensure that we get those absolutely right.

Patrick Harvie talked about the importance of lived experience. That is at the heart of everything that we do. I also hear Mary Fee’s calls for a universal approach.

Rona Mackay, Alex Cole-Hamilton and others talked about the need to raise awareness. In the national action plan, we are committed to raising awareness of FGM and the harms that it causes. Specifically, we want to ensure that statutory services work with partner agencies and community organisations to raise awareness of the rights of women and children to be free from FGM. Today, I commit to working intensively with community-based stakeholders to ensure that they are aware of protection orders and understand how to obtain them.

Annie Wells, Maurice Corry, Alex Cole-Hamilton and others raised the issue of anonymity. We have noted the committee’s view on that important subject, and we will respond more fully before stage 2. We note that the committee has not recommended automatic lifelong anonymity, as Angela Constance said. The justice system in Scotland is based on justice being open and accessible, and that includes the ability to provide anonymity if the circumstances justify it. If a child is involved, there are other statutory provisions that we can use.

Ruth Maguire, Patrick Harvie and Angela Constance raised the issue of asylum seekers and FGM protection orders, and Elaine Smith made several interventions on the subject. I will write to the UK Government on that important matter. Members will have heard what I said on that in my intervention on Maurice Corry, and I hope that that reassures them.

Legal aid is another big issue that many members, including Annie Wells and Rona Mackay, brought up. In the majority of cases in which an FGM protection order is sought, the order will be sought by a public authority, so there will not be a need for legal aid. However, if the individual who seeks an order is a child, legal aid will be available. Eligibility for legal aid would normally be subject to means testing of the parents’ income, but only when it would not be “unjust and inequitable” for that to happen. It is worth noting that the 2018 independent strategic review of legal aid, “Rethinking Legal Aid”, highlighted that Scotland’s current legal aid spend per head is the third highest in the European Union. Given that FGM protection orders would often, if not always, involve consideration of restrictions on parents, we think it highly likely that such means testing would always be unjust and inequitable. In those circumstances, legal aid would be granted. We will continue to engage with the Scottish Legal Aid Board and others to ensure that such issues are taken into account when the bill is implemented.

Another issue that was raised was that of data collection and recording. In July 2014, the chief medical officer and the chief nursing officer issued a letter to help healthcare professionals in the NHS to recognise FGM, to identify the services that are most likely to come across the condition and to record the diagnosis and types of FGM in clinical letters. We are working with the FGM national action plan implementation group to ensure greater consistency with regard to data collection policies on FGM across different NHS boards.

Miles Briggs mentioned an issue that Police Scotland raised in its evidence to the Equalities and Human Rights Committee. It might be helpful to note that the circumstances that were set out by Police Scotland would be covered by the bill. If a type 3 FGM protection order was granted, it could prohibit persons with an intention to cut from possessing items that could be used to perform FGM and would make possession of such items a criminal offence. I hope that that will reassure Police Scotland.

Michelle Ballantyne gave us a clear picture of what happens when a woman is subjected to FGM.

I want to conclude by paying tribute to a very special young activist, Neneh Bojang, who lives not that far from the Parliament. She underwent FGM at the age of nine and, like Waris Dirie, she is an activist against the practice. I was privileged to launch the bill with her. That is an example of us putting lived experience at the heart of what we are doing, which I mentioned earlier.

I congratulate Elaine Smith on her long-term commitment to addressing FGM. The first time I heard the subject being debated was when she spoke about it, probably in 2005.

Neneh Bojang said:

“If this Bill prevents even just one woman from going through the same, then in my eyes, it will be a success.”

If that is the case, it will be a success in our eyes, too.

Once again, I commend the general principles of the bill to Parliament.

Vote at Stage 1

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Vote at Stage 1 transcript

The Presiding Officer (Ken Macintosh)

There is one question to be put today. The question is, that motion S5M-20223, in the name of Christina McKelvie, on the Female Genital Mutilation (Protection and Guidance) (Scotland) Bill, be agreed to.

Motion agreed to,

That the Parliament agrees to the general principles of the Female Genital Mutilation (Protection and Guidance) (Scotland) Bill.

MSPs agreed that this Bill could continue

Stage 2 - Changes to detail 

MSPs can propose changes to the Bill. The changes are considered and then voted on by the committee.

Changes to the Bill

MSPs can propose changes to a Bill  these are called 'amendments'. The changes are considered then voted on by the lead committee. 

The lists of proposed changes are known as a 'marshalled list'. There's a separate list for each week that the committee is looking at proposed changes.

The 'groupings' document groups amendments together based on their subject matter. It shows the order in which the amendments will be debated by the committee and in the Chamber. This is to avoid repetition in the debates.

How is it decided whether the changes go into the Bill?

When MSPs want to make a change to a Bill, they propose an 'amendment'. This sets out the changes they want to make to a specific part of the Bill.

The group of MSPs that is examining the Bill (lead committee) votes on whether it thinks each amendment should be accepted or not.

Depending on the number of amendments, this can be done during one or more meetings.

First meeting on amendments

Documents with the amendments considered at the meeting held on 23 January 2020:

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First meeting on amendments transcript

The Convener (Ruth Maguire)

Good morning, and welcome to the first meeting of the Equalities and Human Rights Committee in 2020. I ask that everyone ensure that their mobile devices are switched off and put away.

Item 1 is stage 2 consideration of the Female Genital Mutilation (Protection and Guidance) (Scotland) Bill. Members should refer to their copy of the bill and to the marshalled list and groupings of amendments.

I welcome Christina McKelvie, the Minister for Older People and Equalities.

We will begin our consideration of amendments. Everyone should have with them a copy of the bill as introduced, the marshalled list that was published on Monday and the list of groupings of amendments, which sets out the amendments in the order in which they will be debated.

There will be one debate on each group of amendments. I will call the member who lodged the first amendment in a group to speak to and move that amendment, and to speak to all other amendments in the group. Members who have not lodged amendments in the group but who wish to speak should indicate that by catching my attention in the normal way. I ask anyone who speaks to be succinct and to ensure that their contributions are relevant to the amendment or amendments that are being debated.

I remind members that this stage is not a rehearsal of arguments about the general principles of the bill. Members will be able to comment on the merits or otherwise of the bill in the stage 3 debate in the chamber.

The standing orders give any Scottish minister the right to speak on any amendment. I will therefore invite the minister to contribute to the debate just before I move to the winding-up speech.

The debate on each group will be concluded by my inviting the member who moved the first amendment in the group to wind up. Following debate on each group, I will check whether the member who moved the first amendment in the group wishes to press it to a vote or withdraw it. If they wish to press it, I will put the question on that amendment. If a member wishes to withdraw their amendment after it has been moved, they must seek the committee’s agreement to do so. If any committee member objects, the committee will immediately vote on the amendment.

If any member does not want to move their amendment when it is called, they should say, “Not moved”. Please note that any other MSP may move such an amendment. If no one moves the amendment, I will immediately call the next amendment on the marshalled list.

Only committee members are allowed to vote. Voting in any division is by a show of hands. It is important that members keep their hands clearly raised until the clerk has recorded the vote.

The committee is required to indicate formally that it has considered and agreed to each section and schedule of the bill, so I will put a question on each section at the appropriate point.

Section 1—Female genital mutilation protection orders

The Convener

Amendment 23, in the name of Oliver Mundell, is in a group on its own.

Oliver Mundell (Dumfriesshire) (Con)

Thank you, convener. Subject to the guidance that you have just given, I will first make a general point about my amendments, because I think that it will speed things up throughout the proceedings. At stage 2, there are always two choices: to try to put things that are perfect into the bill, or to use the stage as an opportunity to put things that are important into the bill and thus create an incentive for the Government to work with members across the committee and the Parliament at stage 3 to get the technical drafting correct.

With that in mind, amendment 23 is designed to be a simple amendment to give voice to concerns that the committee heard throughout our evidence gathering, and which I heard on our visit to the Multi-cultural Family Base, where a number of people whom I spoke with were concerned about what teeth the protection orders will have. I had the feeling that they needed to see practical support in place immediately.

For me, the most important word in amendment 23 is “may”, where it says:

“the court may include in a ... protection order a requirement to provide ... practical support”.

The amendment does not say that the court must do so and it does not interfere with responsibilities that are already set out. It is an additional provision. I think that there are circumstances in which it would be appropriate for the court to be prescriptive and to place such a duty on public sector bodies and, potentially, individuals. The nature of the offence and what we are trying to do in the bill are so important that there is a public policy incentive to put that special provision in place. I hope that members across the committee will agree with that.

I move amendment 23.

The Convener

Do any other members wish to contribute?

Mary Fee (West Scotland) (Lab)

I will comment briefly on amendment 23. I am minded to support the amendment, because support for victims will be crucial to the success, or otherwise, of the protection orders. Throughout the evidence sessions, the committee heard that the support that victims will be provided with will be crucial.

I have only one point to make, and I would be grateful if the member could clarify these things when he winds up. I would like to know what he envisages that that support would look like, who would provide it and who would fund it. The wording of the amendment could be considered quite broad, so some clarification of what he views that support to be would be helpful.

Alex Cole-Hamilton (Edinburgh Western) (LD)

I echo Mary Fee’s comments. I also support the amendment, for a number of reasons—not least because there is a symmetry between amendment 23 and the process in the children’s hearings system.

It may be that, by definition, the people who would be subject to the orders do not have a lot of interface with the public sector or the state, and they may miss out on opportunities for support when they are in need.

There are other examples, elsewhere in law, of the court making such provision. Therefore, I support the amendment.

Angela Constance (Almond Valley) (SNP)

I approach this with many years of front-line experience of going to courts and tribunals to ensure that vulnerable people receive support and protection. I know that I am not alone in having done that—there are many others on this committee who have front-line experience.

I recognise that the motivation for lodging the amendment comes from listening to people talk about their real-life experiences and from a desire to do something in response to hearing about those heart-wrenching experiences.

However, where my view differs from Mr Cole-Hamilton’s is that I think that there is a theme, in amendment 23 and in other amendments in Mr Mundell’s name, of attempting to cut out a separate set of arrangements for one particular set of victims. Although there are some parallels with what happens elsewhere in law, there are also some differences. The important thing is that information should come from the professionals who are on the ground. In child protection orders, parole reports and many other examples, the information is gathered by those professionals and presented to the court. It seems that, under amendment 23, the court would be empowered to make very specific decisions that would not fit well with the rest of the system.

I would like to hear from Mr Mundell more of the specifics on stakeholder support. The committee received feedback from the minister, who has tried to take things forward, but there are mixed views. I am concerned that we will end up with legislation that is not implementable and that becomes meaningless or, in the worst-case scenario, causes providers to be criminalised.

Oliver Mundell

I am interested to know why the member feels that amendment 23 would make the legislation unworkable when it is a stand-alone provision in addition to what is already in the bill. I do not think that it would prevent the bill from doing anything that it currently would do.

It is an additional provision that would be open to the courts to use. They would not have to use it. It would not prevent them from doing anything that the Government intends the bill to do; it would just allow them to require the provision of practical support if they thought that that was necessary. I think that Scottish courts are considerate, mindful and used to dealing with complex situations, so they would be able to decide when it was necessary to confer that specific obligation.

Angela Constance

The member has made a few points, and I appreciate the opportunity to respond to them.

The information and the expertise are meant to come from the ground up, not from the court system down. If Mr Mundell wants to see more mandated support, that would need a whole-system review or change across the adult and child protection systems. I also draw Mr Mundell’s attention to Mary Fee’s comment about what he means by “practical support”.

I am keen to hear more from the minister about her specific deliberations on the practicalities of the amendment and whether she can offer Mr Mundell or the committee something to improve matters and take things forward. Also, having been around the houses a few times with various pieces of legislation, I am a wee bit concerned that, although stage 2 amendments do not have to be perfect, they do have to be bottomed out and at least subject to reasonable stakeholder consultation and support. Do we know the views of the Scottish Courts and Tribunals Service, for example? The minister might be able to offer a way forward that will help the committee as a whole.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I broadly agree with what Angela Constance has said. I get where Oliver Mundell is coming from. He has shown the committee that he always provides thoughtful and appropriate interventions—and, in this case, amendments. However, I also note that the minister has acknowledged that there is a need to expand this area and has offered to work with Oliver Mundell. That is the right approach, because we need to be careful.

My background is similar to that of Angela Constance. I worked in the child protection field for eight years and attended many child protection committees. I fully believe that that is where these decisions should be made, not in the courts. Amendment 23 would almost draw us into a battle to decide whether the courts or the agencies and services that work with children, young people and vulnerable adults are best placed to make these decisions. The committee will know what side I come down on. The reason for that is that workers in those fields are trained in person-centred approaches.

Oliver Mundell

Will the member take an intervention?

Fulton MacGregor

No problem.

Oliver Mundell

I am happy to stand corrected if I am wrong, but my understanding is that, where the bill says “the court”, for a children’s hearing that would mean wherever the case was being heard. It is just the language that is used in the bill—it does not mean one or the other.

Fulton MacGregor

That brings me to a point that I am worried about. The court might make one direction and the professionals and agencies might say that it is not right, because they know the family.

Alex Cole-Hamilton

Will the member take an intervention?

Fulton MacGregor

I will finish this point first. The professionals know the family, but the person might have to go back to court, which means that vulnerable folk might be put back through the court system. That is what we are trying to avoid.

Alex Cole-Hamilton

I accept what Fulton MacGregor says about the expertise of our stakeholders, particularly around children, and the agencies, social work and the rest. However, Mr Mundell’s amendment explicitly says that the practical support that could be offered by the court is for the purpose of reducing any on-going risk of FGM to that person. That is a very specific risk and not one that those agencies and social work departments are used to coming up against. There is a focused power for the court.

Fulton MacGregor

I understand that point, but it brings me back to my opening remarks. The matter needs to be handled very carefully. Alex Cole-Hamilton makes his point well, but there could be many unintended consequences. That is why we can all get behind the minister’s approach of working with Oliver Mundell, going into stage 3, as the most sensible way forward. I am quite surprised to hear that Mr Mundell is considering pressing amendment 23, because, on my first reading of it, I thought that it would be a probing amendment.

09:15  



The Minister for Older People and Equalities (Christina McKelvie)

I will take time to go through all the issues that are presented by the amendment. I also have a proposal. There are not many amendments, so I hope you will indulge me by letting me go through each of my points about Mr Mundell’s amendment. We all want to create good, competent legislation.

We all agree on the importance of supporting women and girls, and their families, when there is a current or future risk of FGM. It is right that those who need that support should have access to it. My approach to tackling FGM through our strategy, through our preventative work in communities and through the bill is to support vulnerable girls, to ensure that we have the person-centred approach that everyone has referred to. The committee is committed to that, as am I.

However, I cannot support the amendment, as I believe it would have unintended consequences. Those are fourfold, and I will run through them all to help the committee to understand my thoughts.

The bill already allows the court to consider the provision of support. The explanatory notes set out what a court might consider it appropriate to require a relevant local authority to do as part of an FGM protection order. Members will recall that, in my evidence session with the committee, we explored what services might be needed to support those who are most affected. That is combined with the power that the bill gives ministers to bring forward statutory guidance that will be applicable to those bodies that would provide that support.

When it is published, the guidance will set out clear expectations of the response of those bodies to women and girls who are at risk of, or who have been subject to, FGM. Those steps will ensure that the necessary framework is in place, so that women and girls can benefit from targeted, bespoke support to meet their needs. That is the person-centred approach that we all agree on.

Oliver Mundell’s amendment 23 risks disrupting the balance of competencies and expertise that exists between the court and the service providers. Inviting the court to be precise and directive could risk removing both the benefits of a professional assessment of need and that tailored, individual support. I am sure that the committee agrees that that work is best carried out by people who provide complex support packages every day. Support is generally provided by a range of organisations from the public and third sectors. Those organisations are unlikely to have the opportunity to make representations to the courts, and a court might set such precise conditions that an organisation would not be able to meet them.

Angela Constance asked about the Scottish Courts and Tribunals Service. The service has indicated concerns about to whom the order might apply and about how the court could be informed about the support that might be available. It is clear that Mr Mundell’s amendment creates a targeted requirement that is not limited to the public sector but could also capture charities and even private persons. That creates the potential for a public or third sector body to be in breach of an order, and potentially to be liable to criminal sanction. I am sure that none of us wants that outcome.

There are also issues with how “support” is defined in the amendment and about what “practical support” actually means. The term is not defined, which could pose problems if the court was not guided by the bill on the types of support that it could mandate. There is a risk of a disconnect between the court’s order and what a body can do within its statutory powers and limits. In some cases, a court could inadvertently order something that might be impossible for a body to lawfully provide.

Alex Cole-Hamilton

The minister makes a very strong case about the potential problems with the amendment. I take her back to Oliver Mundell’s original comment about how the value of stage 2 may sometimes be in signalling to the Government that it is the will of the committee or the Parliament to have something in a bill changed. An amendment can be subject to drafting changes or to clarification in the bill or through statutory guidance. Although the minister’s points are valid, they do not negate the value of the amendment.

Christina McKelvie

I was coming to that very point, and I will answer it for you. However, to continue on the point about what the courts could do, mandating precise support in the order would form part of the conditions of the order, and that would have a real effect. It would require repeated applications for variation or extension whenever the person’s prescribed care package needed to be changed. That could result in multiple applications and visits to court, even just to bring about the more straightforward changes, and would further formalise the experience and perhaps alienate the very women and girls whom the order is designed to protect and support. Variations could even be sought by individuals who are not the protected person, which could unhelpfully interfere with that individual’s care package. There could be a multitude of ways in which an order could be varied or changed, involving multiple court appearances, which is not the way that we want to go.

Although it is possible that such variations could be resisted—we know that they can—the mere need to attend court or to acknowledge that the court will review the support package could cause further distress. In my opinion, that is exactly what would happen. It is simply not desirable if an individual who is already vulnerable is repeatedly required to attend court for that purpose.

To respond to Alex Cole-Hamilton’s question and intervention, the third issue with the amendment concerns the reference to “reducing any ongoing risk”. Mr Cole-Hamilton picked up that point. The amendment does not take into account any future risk. If there is no on-going risk but only a future risk, the support requirement cannot be mandated. We would not be ensuring that any future risk to a girl or woman would be taken into account.

Oliver Mundell

Does the minister not recognise that that would not affect what happens under subsections (4) and (5) of proposed section 5A of the Prohibition of Female Genital Mutilation (Scotland) Act 2005, which allow future risk to be considered when it comes to support? Amendment 23 concerns on-going risk, which is much more immediate. That is what justifies the court making specific requests of people to provide something. I do not consider my proposal as being about everyday matters or on-going care packages; I see it as being used when the court thinks that something urgent and exceptional needs to be put in place.

Christina McKelvie

A protection order is about protection, which could involve on-going or current risk. We have to ensure that all of that is covered in the bill, but Oliver Mundell’s amendment 23 limits that.

To continue, there is, fourthly, a real question about the signal that the court might send to a public body should it decide not to deal with support, for whatever reason, within an FGM protection order. There is a possibility that the public bodies with responsibility for helping a person or family might feel that, because the court was silent on the issue—if it does not direct anything—there is no need for support to be provided. I think that that is a dangerous route to go down.

As I have said, I have seriously considered all the issues that are covered by amendment 23 in detail and taken into account the views of the committee and of stakeholders as expressed at stage 1. In keeping with what I have said, the bill has been drafted to allow some form of support to be considered by the court, while respecting the balance of competencies and expertise that exists between the court and service providers.

I will lodge an amendment at stage 3 to expressly provide, under proposed new section 5B of the 2005 act, that the courts may include a requirement in an order for a named public body or bodies to consider providing support. Such a requirement would direct those with the relevant expertise to actively consider what support could be required and would allow input, such as was needed, from support professionals on the precise form that the support would take. Again, that is a person-centred approach.

Social workers and other front-line professionals are best placed to make such complex assessments of need and appropriate care. Fulton MacGregor and Angela Constance referred to their own professional experience, with a view to ensuring that the particular needs of individuals are addressed in the circumstances. That cannot easily be determined by a court, which, by virtue of its role, is not intimately involved with the family or with providing the appropriate forms of available support.

The issue that we are facing is an incredibly sensitive one. As a former social work professional, I know about the complexities of people’s lives and the need to work with people as part of an on-going relationship to design and provide a package of support that is tailored to their individual needs. Oliver Mundell’s amendment 23 rides roughshod over that person-centred approach, which we talked about earlier, by giving responsibility for the details of that support to the wrong public body—the court. That responsibility should not lie with the court.

My proposed stage 3 amendment would have the advantage of almost completely avoiding any unintended criminalisation of public bodies as a result of failing to meet the more onerous condition in Oliver Mundell’s amendment, which could be impossible for some bodies to do in some cases, while ensuring that support is explicitly referenced in the bill in a way that is consistent with the purposes of the bill to protect individuals and prevent FGM from happening. It would also be my intention that the statutory guidance would spell out clearly to the public body the seriousness of the order and the steps that it should take in order to comply with it.

In order to keep to the spirit of the committee’s stage 1 recommendations, I urge the committee to vote against amendment 23 and to vote for the amendment that I intend to lodge at stage 3.

Oliver Mundell

I thank the minister for those comments, some of which were helpful. However, we have a fundamental disagreement about whether it may be necessary, on occasion, for courts to put a specific measure in place. My experience as a member of the Scottish Parliament is that public bodies are not always very good at following the directions of ministers and that they do not always get things exactly right. I think that the court is the right body to have such a power. Courts are the ultimate guarantors of our human rights and are responsible for ensuring that things do not slip through the net.

Fulton MacGregor

You have mentioned the Scottish Courts and Tribunals Service; other people have also mentioned its role. Did you have any consultation with it before drafting amendment 23? If so, what are its thoughts on that amendment?

Oliver Mundell

I did not consult the Scottish Courts and Tribunals Service because, ultimately, I think that its job is to implement the laws of Parliament and to listen to the will of MSPs. I understand that the SCTS is uncomfortable with the amendment and does not like how it is currently drafted, and that it does not necessarily like some of the sentiment. However, given the very serious nature of FGM, the difficulty that we have in getting people to come forward and the particular vulnerabilities of the women whom the issue affects, I believe that there is a policy reason for this step.

The Convener

I know that you are coming from the position of wanting to do the best for women. When you wind up, will you address the points about flexibility of support and victims having to go back? We were both at Multi-Cultural Family Base, and we heard about women, girls and families who are quite far away from the establishment and about how difficult it was for them to engage. That is my biggest concern. If we are to be person centred, we want any support to be able to adapt to meet the needs of the women and girls.

Oliver Mundell

That is a legitimate concern. I think that it is very unlikely that the court would act silently and that it would be unlikely to come up with provisions of its own accord. I am happy to look at the drafting of the amendment and to work with the minister on a similar amendment that would include something that would allow provisions to be varied.

The Convener

We heard about families in quite complex situations and other forms of domestic violence. It is important that, as things change and improve, the support that is provided to such families can change, too. I am not suggesting that people would blindly offer a package of support without consultation; I am specifically asking about how it would work in practice if the support for the family needed to change as their lives changed.

Oliver Mundell

It is perfectly open to the court to impose time-limited measures and review mechanisms—the court has discretion to do that. I am also open to working with other people to come up with the right amendment.

I am concerned when I hear the minister talk about a different amendment that she will lodge at stage 3, which will require bodies only to “actively consider” support. In those cases, that is not good enough. We want a guarantee for people who come forward under the mechanism that specific things could be fulfilled for them.

09:30  



Angela Constance

Do you accept that, given everything that has been discussed today and everything that the committee has heard, many of the problems and sensitivities that we are trying to navigate and the problems that we are trying to solve cannot be navigated or solved in splendid isolation, and that it is not right—not just for you but for any of us—to approach the matter as if we have the solution. I do not downgrade your motivations, ideas or suggestions, but we will land in the right place only if there is good working with others.

Given the fact that the minister has offered to come back with an amendment at stage 3, do you consider that there is still an opportunity for you to protect your position by not pressing your amendment? You can come back with the same amendment or a similar or better amendment at stage 3 with the minister’s amendment. You are trying to do your best, but I am concerned that your amendment is in splendid isolation. How will you work with others to get support for the right solution that is based on evidence of what will work?

Oliver Mundell

I thank Angela Constance for that advice. However, my experience in Parliament of working with the Government is that we get far more support on technical drafting and exploring ideas and points of view if we already have something in the bill. If I was interested only in preserving my position, I would have accepted a handout amendment from the Government for stage 3. You see amendment 23 as a probing amendment but, for me, a point of principle is at play, which is that the court should—not that it must in every circumstance—be able to put specific measures in place for a very vulnerable group of women. I accept that the drafting might not be perfect, but I am not tied to that wording.

Angela Constance

Can you cite evidence that what you propose will work?

Oliver Mundell

It is easy to see how something like that could work. Notwithstanding the issues that the convener has raised, I do not think that there are any major issues involved. The court would easily understand what is meant, even if the amendment was not changed, although it could be changed and improved. It would be possible to add a provision to allow for things to be done by regulation and guidance.

It is difficult to see why members are so resistant to the court being able to put specific provisions in place. We all know that public bodies do not always move quickly or get the right support in place. That applies to housing and the provision of aspects of medical support and assistance—for example, counselling or advice. My broad experience of issues as serious as that is that, even when courts have placed general obligations on public bodies, things do not always move quickly for people once they are in the system. It is important that the courts have the power, in limited circumstances, to make specific requirements of public bodies to support people.

Fulton MacGregor

You raise an issue about what public bodies generally do and do not do. However, as Angela Constance said, you are doing this off your own back. What we have heard is not what we have heard at committee and is not my experience of the issue, and it is a wee bit dismissive—I know that this is not your intention—of the child protection agencies and services that are out there working with children and vulnerable adults.

You have acknowledged that, although you have not spoken to the Scottish Courts and Tribunals Service, you understand that it would not be happy with amendment 23. Despite that, you are pushing on with it. Please do not take this the wrong way, but it seems to be the case that the view that you are putting forward is Oliver Mundell’s view and Oliver Mundell’s view only. If we had heard more evidence on the issue, we might be in a different situation, but that is not the case.

Oliver Mundell

I understand that Fulton MacGregor has a different view on amendment 23, but I recall the provision of support being a significant concern for people during our evidence sessions. That is reflected in the Official Reports of our meetings.

The Convener

I fully acknowledge that the support that women and girls need is absolutely central, but I come back to my concern that that support needs to be centred around them. Given the cultural sensitivities and the environment that the women and girls who need protection from FGM are likely to be in, I think that the people who are best placed to decide on the package of support are the specialist third sector and charitable organisations that we heard from and professionals on the ground, rather than the courts. For me, that is key.

Oliver Mundell

While I reflect on that, I will take an intervention from Mr Cole-Hamilton.

Alex Cole-Hamilton

I am very grateful to Mr Mundell for taking yet another intervention.

Although I absolutely accept what the convener has just said, the point that she made does not address the immediacy of the need for support. If a protection order is being issued, that means that there is a real and present threat that the person will be taken somewhere and mutilated. Amendment 23 addresses the immediacy of that need. Sometimes the bodies that the convener mentioned cannot operate at that speed and cannot put in place support or assess what is required in that timescale. Giving the court the power that is proposed in amendment 23—it is a power, not a duty—would address that.

The Convener

May I make a brief comment on that intervention?

Oliver Mundell

I am reflecting carefully on Mr Cole-Hamilton’s intervention, so I am willing to take another one from the convener.

The Convener

All that I would say about what Mr Cole-Hamilton has just said is that the specialist third sector and charitable organisations that work with women and girls day in and day out might not have the ability to act quickly. Therefore, if we impose a legal duty on them to do so, how will that help them to act more quickly? Surely that risks punishing them.

Oliver Mundell

I would answer that by saying that, in circumstances in which legal duties exist and people could, as the minister said, be held responsible for failing to deliver on a court order, people are usually much more inclined to act quickly. Such a requirement can cut out some of the bureaucracy. That is why the law is there. Its most important role is in ensuring that people’s rights are upheld.

I think that that is why people in the courts and tribunals system recognise that amendment 23 would change the status quo. Although it might require them to make changes, I think that any such changes would be positive, and I hope that members will feel able to support me and to work with me to get drafting help from the Government to make sure that the concerns that have been raised today are taken into account and that we guarantee that a power for the court to make specific provisions makes it into the bill.

I therefore press amendment 23.

The Convener

The question is, that amendment 23 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Wells, Annie (Glasgow) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Fee, Mary (West Scotland) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)

Against Maguire, Ruth (Cunninghame South) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Constance, Angela (Almond Valley) (SNP)

The Convener

The result of the division is: For 4, Against 3, Abstentions 0.

Amendment 23 agreed to.

The Convener

Amendment 24, in the name of Oliver Mundell, is in a group on its own.

Oliver Mundell

Amendment 24 has been designed as a belt-and-braces amendment to ensure that the bill includes the ability for ministers to make regulations to ensure that at least a basic level of legal advice is available to people who are considering applying to the court for an FGM protection order.

I have excluded public sector bodies, the police and the Lord Advocate, who should be able to access the relevant advice; my amendment is focused on members of the public who would be coming forward. I understand that the minister has written to the committee since I lodged the amendment. However, as I think that everyone would accept, that letter arrived quite late in the day, so there was not a huge amount of time for detailed consultation around the issue.

Notwithstanding what is said in the letter, I do not think that there is any harm in putting the provision in the bill, because it still allows for the general rules of legal aid to be updated. It simply ensures that, regardless of what happens with that, there would be advice in those very specific circumstances. That is set out for the avoidance of doubt in proposed new subsection (5B). That is the only reason that amendment 24 is allowed, because it would otherwise likely be outwith the scope. It does not interfere with any other legal aid provisions that might be made.

Angela Constance

When you were drafting the amendment, what consideration did you give to the wider work that is going on to reform the legal aid system? In addition, could you specifically give us a flavour of who you engaged and consulted with and perhaps say which stakeholders support your endeavours today?

Oliver Mundell

In answer to the first point, I am aware that there is on-going work around legal aid, but there is pretty much always on-going work around legal aid. It is a difficult system for the Government to operate. In practice, it is not an easy thing to deliver across the country and across a wide range of areas. However, as with my previous amendment, there is a special case here, given that we are trying to encourage people to come forward and use the protection order. Having this additional provision as a back-up is an attempt to take forward concerns that were raised in evidence with the committee about how easy it would be to access legal advice and support.

If there are specific concerns about the wording of the amendment, I am open to looking at that. However, I think that there is a difference of substance in the debate, in that the Government will say, “We are already doing this. Don’t worry about it. There are no problems here,” whereas I take the view that it is better to guarantee specific provisions for this very limited set of circumstances, and to include them in the bill. If the Government has a different idea and gives us details of a proposal that satisfies members ahead of stage 3, this amendment could come back out of the bill or something else could replace it. However, I think that it is important for people who want to bring forward an application for a protection order to be able to access advice before doing that.

I move amendment 24.

Angela Constance

Once again, I heard Mr Mundell use the phrase “a special case”. However, although there is undoubtedly some uniqueness around FGM, I am also conscious that there are many victims and survivors of horrendous sexual violence, and I think that carving out a different set of arrangements for one set of survivors as opposed to another—albeit for understandable reasons—is problematic. I reiterate what I said earlier: if people want to see wholesale change, then it is wholesale change that is required, particularly when it comes to our legal system and the legal aid system.

I have not heard whether any specific stakeholders support Mr Mundell’s amendment—I accept nonetheless that he, as an MSP, has a right to pursue it. Further, I have not heard about the specific engagement that he has undertaken with others around the detail of amendment 24. Perhaps he could address that in his closing remarks.

09:45  



Fulton MacGregor

I see exactly where Oliver Mundell is coming from with amendment 24. We heard concerns about legal aid during the committee’s evidence sessions. I do not necessarily disagree with the amendment in principle. Indeed, when we took evidence on the matter, every committee member agreed that women and girls going through the process should get legal aid if they need it. However, I did not hear any suggestion from anyone at any time that they would not get legal aid, and I note the minister’s remarks on the matter.

My concerns are the same as those of Angela Constance. As members know, I sit on the Justice Committee as well—as Oliver Mundell did previously—and I know that the issue of legal aid comes up across the board. Recently, the committee dealt with the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill and heard some harrowing accounts in relation to that.

I would have liked us, as a committee, to speak with one voice in our input to the debate around legal aid reform, rather than lodge something that is specific to this piece of legislation. I ask Oliver Mundell not to press amendment 24, and to work with the Scottish Government—and, indeed, all of us—as we go into stage 3, so that we can take a collaborative approach that gets the right message across.

Essentially, I share Angela Constance’s view that wholesale change is better than making one specific change in this legislation.

Mary Fee

The process of applying for legal aid is not simple or straightforward. The award is not made on the day that someone turns up and says that they need legal advice and legal aid. We are talking about a small number of very vulnerable people who are in a very difficult position.

I welcome Oliver Mundell’s comments about the belt-and-braces approach. The amendment is about ensuring that a group of extremely vulnerable people have almost immediate access to legal advice and support at the point that they need it and not after they have gone through a process of filling in application forms and waiting for the legal aid board to say yes or no, which can take three or four weeks and sometimes longer. It is about providing immediate support for people who are in desperate measures and need it there and then.

The fact that people require or feel that they need access to legal advice was raised in evidence on a number of occasions. For that reason, I am minded to support amendment 24.

Christina McKelvie

We all agree that access to justice is something that we particularly want for the most marginalised and powerless people in our society. It is a central tenet of our legal system and one that we are incredibly proud of. From speaking to Oliver Mundell, I understand that his amendment is about establishing a bespoke service for individuals seeking an FGM protection order, and the effect of the amendment is to require the Scottish Government to make regulations for that to happen. It is unfortunate that his amendment does not say that and focuses solely on legal advice.

First, we already have a system in Scotland through which individuals can seek support for access to legal advice—it is called legal aid. As I said to the committee in November 2019:

“In 2018, the independent strategic review of legal aid, “Rethinking Legal Aid”, highlighted that Scotland’s current legal aid spend is the third highest per head in the European Union ... In Scotland, about 75 per cent of people are financially eligible for some form of legal aid, compared to only about 25 per cent in the rest of the UK. We think that we have a robust system. Given that individuals as well as local authorities can apply for protection orders, we think that we have the right measure of support and understanding. I suspect that people will get the support that they need to take forward a case.”—[Official Report, Equalities and Human Rights Committee, 14 November 2019; c 14-15.]

Although it might be the case that bespoke services are needed in England and Wales, the Scottish legal aid system is more expansive and better funded. We do not need a parallel system here for the provision of advice.

Secondly, as I set out in my response to the committee, in future funding arrangements for work to tackle violence against women and girls I will explicitly call for bids that focus on providing a specialist initial point of contact for individuals who seek to apply for FGM protection orders to work with stakeholders to raise awareness in our communities and with public bodies to ensure that they are aware of the availability of such orders and their potential role in seeking them. For public bodies, in particular, that process will inform and connect with the statutory guidance to be made by ministers under the bill, which will bring all that work together in one place.

Thirdly, and most importantly, I turn to an issue that Mary Fee raised. I said that I was committed to ensuring that the automatic grant of legal aid for cases of special urgency is extended to those seeking FGM protection orders. We do not need an amendment to the bill in order to do that. Through secondary legislation made under the Legal Aid (Scotland) Act 1986, we already have the power to make legal aid available in such cases.

I said that I would update the committee on this issue ahead of stage 3, and I am happy to do so now. I confirm that we will include FGM protection orders within the scope of existing regulations, which will ensure that those seeking such orders will automatically have access to legal aid. That will also ensure that anyone who has sufficient grounds for making such an application in the first place will automatically have access to civil legal aid to enable them to do so urgently. I hope that that approach will answer some of the questions that Mary Fee raised. That change to regulations will apply to all types of applications, including those for interim orders and those to vary or discharge existing orders, provided, of course, that they concern urgent matters.

We expect that, in cases in which an individual—as opposed to a public body that is listed in the bill—is legitimately applying for an FGM protection order, they will do so with a degree of urgency. We can all agree that such cases are likely to be urgent. The change to regulations will mean that they would have access to legal aid at the very point of application and would not have to wait for weeks on end, as some had feared.

In light of what I have said, I believe that Oliver Mundell’s amendment 24 is unnecessary, as we are already ensuring that there will be ample access to legal aid for those who need it. In my opinion, his proposal would not represent an efficient use of resources. In addition, there are issues with the amendment as it is currently drafted, which mean that it would not necessarily achieve its intended purpose.

Alex Cole-Hamilton

Will you expand on your comment that Oliver Mundell’s amendment does not represent an efficient use of resources? Which resources are you referring to?

Christina McKelvie

It would not be efficient to have a bespoke parallel service, as opposed to people having access to legal aid for urgent cases. I hope that we will have remedied that problem through the approach that I have described.

Oliver Mundell

Given that it will be for the Scottish ministers to make regulations on the arrangements, would it not be open to them to consider what they might be? I said not that I wanted a bespoke service but that there could be ad hoc provision and support within an existing service. I do not know why the Scottish Government would not want to make that a permanent feature of the support that the bill will offer people.

Christina McKelvie

When Mr Mundell and I had a conversation yesterday, I explicitly asked him whether he was talking about a bespoke, point-of-contact service. He said yes. If his position is now different from what it was yesterday—

Oliver Mundell

Perhaps our recollections are slightly different. I said that I envisaged that there might be a bespoke point of contact on FGM as a result of the bill, and that such a provider would be able to help individuals to access ad hoc legal advice. That is not the same as creating a bespoke legal advice service—the two are slightly different.

Christina McKelvie

We will have to disagree on that: I think that what you are asking for is a specific service. Our existing legal aid functions and regulations, and the new regulations that I will make, will address all those issues.

Angela Constance

So that we are all clear about the facts—I think that you did mention it, but I just want to keep us on track with regard to this important issue—did you give a timescale for the introduction of regulations?

Christina McKelvie

After stage 1, the committee asked me to consider how we could ensure that we provide for urgent cases and for regulations on the availability of legal aid in FGM protection order cases. I worked on those issues with my counterpart minister, Ash Denham. We explored a few ways in which those aims might be achieved, and we realised that the power to make regulations or to extend the current legal aid regulations currently sat with ministers. We have instructed colleagues to start work on the regulations now, so that they will come into play when we need them to, in parallel with the bill. Legal aid will be available when the bill is enacted.

Angela Constance

Will the regulations that you and Ms Denham have instructed come into play in parallel with the bill coming into force?

Christina McKelvie

The plan is for the Scottish statutory instrument to be in place for commencement of the bill, so they will come into effect at the same time. I considered the issues and thought that that approach was better than staggering them.

My other issue with Mr Mundell’s amendment 24 is that it is limited to arrangements for advice only for persons at risk of FGM or who have had FGM. We want to consider an expansive and system-wide approach that can include, for example, the parents or guardians of those who are at risk and can deal with unexpected issues. Amendment 24 would cut across ministers’ general power to do so, limiting our ability to provide a wraparound solution.

I therefore ask Oliver Mundell to consider seeking leave to withdraw amendment 24. What I have proposed will meet the intention of Oliver Mundell’s amendment about providing legal aid without enshrining provisions in legislation in a way that could unnecessarily complicate matters in the middle of a significant review of the legal aid system. We took that into account when we instructed the work on the regulations.

Oliver Mundell

I will make a couple of points about matters that have been raised in the debate. I have no issue with making specific changes in specific bills. A false argument that comes up far too often in this Parliament is that it is too difficult to put bespoke provisions in place for individual offences—indeed, we have just heard from the minister a firm commitment to put a bespoke arrangement in place in this very case. It is an odd argument to say that we cannot make bespoke provisions because they are too problematic.

My heart goes out to all victims of sexual offences—and victims of all crime—but the idea that we cannot change things for one group without changing them for everyone at once is not the correct policy approach.

Fulton MacGregor

Will Mr Mundell take an intervention?

Oliver Mundell

Not at this point.

It is better to consider changes in each piece of legislation. As law professors are fond of saying, the law is like a ship at sea: you change the planks one at a time rather than dismantle the whole ship.

The provisions that we have heard about from the minister are welcome. My only concern is around limiting the advice to cases that are considered to be urgent. In bureaucracy, there is always a risk that one person’s “urgent” is not the same as another’s. I ask the minister to consider ahead of stage 3 whether it is possible to provide automatic legal aid when people identify a risk, rather than when a case is considered to be urgent. Risk should be the deciding factor, not urgency. For the individuals concerned, every case will be urgent. The one time they ask for legal aid might be the only time; if they have to wait, they might not take the matter forward.

We have heard all the bold statements about legal aid in Scotland. The system is good and it works for some people but, given the major review that is on-going, we would be kidding ourselves if we said that it works perfectly every time. With something as serious as the subject that is dealt with by this bill, lowering the threshold for the automatic right would be welcome.

Angela Constance

Would Mr Mundell accept that the minister has made a commitment on the record to doing not what I asked for but what he asked for? I know that he has welcomed it, but does he take some heart and comfort from the real and practical commitment that was made by the minister today?

Oliver Mundell

Naturally, I do—I am pleased that the minister has responded to the concerns that the whole committee has raised. However, I do not think that that precludes me from asking for a little bit more ahead of stage 3. I am certainly not asking for it for myself. It is about the threshold for when that automatic provision kicks in, and the purpose of requiring regulations that will go through Parliament is that they will be subject to scrutiny. There is a strong case for lowering the threshold, and I want to put that on the record.

I thank the minister for outlining the actions that the Government intends to take. I do not intend to press my amendment.

Amendment 24, by agreement, withdrawn.

10:00  



The Convener

Amendment 1, in the name of the minister, is grouped with amendments 2, 3 and 18.

Christina McKelvie

Amendments 1 to 3 and 18 are technical in nature. They are to provide that local authorities have the power to apply directly for an FGM protection order in cases where the order will cover a class or description of persons, as opposed to an individual person, and to allow a local authority to use its local court for an application in such cases.

As the committee knows, the bill allows for an FGM protection order to prevent and protect in relation to an individual—a “protected person”, as named in the bill. It also allows for protection of any person falling within a particular description. That could be, for example, a local community or faith group whose members might be at risk.

We have sought to use these amendments to put beyond any doubt that a local authority can intervene in that way. We recognise the importance of these matters being dealt with locally and in a person-centred way, so we seek to amend the bill to ensure that a local authority can submit an application to its local sheriff court.

I move amendment 1.

Amendment 1 agreed to.

The Convener

Amendment 25, in the name of Oliver Mundell, is in a group on its own.

Oliver Mundell

I think that amendment 25 is the most substantive and probably the most controversial and complicated of my amendments, although amendments 23 and 24 have perhaps called that into question. It is certainly the one with the most drafting issues, but I should say that I engaged with the chamber desk and took its advice on how to give voice to policy intent.

Even if the Government does not want to work with me on the amendment, if it is agreed to today, I will certainly make some changes to the wording myself to ensure that the new section that it inserts applies only to people who are protected by an FGM order and includes a provision for public and other relevant bodies to share such information as is necessary with other people, to ensure that support or other aspects of the order can be fulfilled.

It is important that we get anonymity in the bill at stage 2, to give the Government the opportunity to work with committee members and the Parliament to come up with a workable provision. I was convinced by evidence that we heard that something extra needed to be done on anonymity. Blanket anonymity would not be the right approach, but the person at the centre of the protection order—whose life would be intimately affected by it—should have the expectation that a court will grant them anonymity and take reasonable measures to ensure that their identity and personal information do not make it into the public domain.

The Government did not bring forward an amendment on anonymity. It said that the proposal on anonymity had a mixed response from stakeholders, but I think that 75 per cent of respondents to the Government consultation agreed with it. Notably, the Law Society of Scotland and the Scottish Human Rights Commission believed that it was necessary to do something on anonymity and that the proposal was helpful. I think that people should have the right to anonymity, unless there are really exceptional circumstances, because otherwise we will struggle to get people to come forward and use FGM protection orders.

I move amendment 25.

Alex Cole-Hamilton

Subject to the assurances that Oliver Mundell has given the committee about drafting, I am minded to support amendment 25.

Ideologically, I am generally in favour of more anonymity for victims across the board. I said as much in the stage 1 debate, whereupon you intervened on me, convener, to make the fair point that that issue involves a discussion that goes much further than the specifics of the bill. However, as there is no proposal before the Parliament for anonymity for victims of crime in general, we must take opportunities where we find them to extend that anonymity incrementally, and this is one such case. The crime that we are discussing is of such intimacy and privacy that it is a good place to start to extend the reach of anonymity for victims or potential victims.

This is a robust amendment, subject to the drafting changes that Oliver Mundell has committed to, and I support it.

Fulton MacGregor

As others have said, we have heard mixed views on anonymity. Good arguments were made on both sides of the debate. I know that you have instructed us not to rehash the general principles of the bill, convener, but we could go through those particular arguments all day, to and fro. As many members said at the time, we heard one argument and thought that it made sense, and then we heard an argument on the other side and thought that it made sense, too.

Oliver Mundell made a good argument for amendment 25, but he also acknowledged that there is a lot of work to be done on it. It is fine to have a commitment to change X, Y and Z at stage 3 but while there is a risk that potential perpetrators could get anonymity, too, I do not feel that, as responsible MSPs, we can agree to the amendment.

Like everyone on the committee, I am open to the idea of anonymity. However, I would like to see something more substantial at stage 3 that would protect only the victim.

I had more to say but, to be honest, I think that Oliver Mundell made the argument for me when he said that he knows that there is more to be done. I know that he does not want unintended consequences to occur, so my question to him is, why press amendment 25 today?

Mary Fee

I will be brief, because many of the points that I wanted to make have been made by Alex Cole-Hamilton. Oliver Mundell gave a full explanation of the reasoning behind amendment 25. I fully accept the concerns around unintended consequences, but I come back to the point that was made by Oliver Mundell about the number of people who, in their responses to the consultation, said that there should be provision for anonymity.

Throughout our evidence sessions, we heard about the need to protect victims, and 75 per cent of the people who responded to the consultation agreed that the bill should provide for anonymity, and said that that would enhance the dignity of victims and encourage reporting of the crime. Surely, that is what the bill should do.

Angela Constance

I will be uncharacteristically brief. Oliver Mundell honestly acknowledged that this is the amendment that needs the most work done on it. I point to the fact that you do not need a messy stage 2 amendment to get commitments from the minister as a stepping stone to reaching the best way forward or the best solution. It is important to state that the minister’s explanation and any commitments that she makes will be on the record. Sometimes, that is a better path than lodging a complex amendment.

The Convener

Before I bring in the minister, I just say that the issue with amendment 25, which Oliver Mundell highlighted himself, is the potential for perpetrators to receive anonymity.

There might well be a debate about whether accused perpetrators of sexual violence should be anonymous, but I am really uncomfortable with that. Obviously, there is the aspect of anonymity for victims of all crime and how helpful or otherwise that would be. However, I accept the points that members are making about where we make changes in that regard.

Minister, we have heard in evidence that victims can already receive anonymity, but it would be helpful for me to hear how that works from the victim’s perspective. What actually happens? What can the court do already to protect a victim’s identity?

Christina McKelvie

I am happy to go to my comments on amendment 25 and answer your question as we go along, if that is okay with you, convener.

Again, I hope that you will give me a wee bit of time to set out my thoughts on amendment 25 because—believe me—I have given it a lot of thought. I hope that I can convey my and my bill team’s deep concern about amendment 25. I expressed my concerns to Mr Mundell yesterday and I want to ensure that the committee is fully aware of them.

We all know that individuals might wish to be anonymous for a number of reasons, whether because of media coverage, protection from an abusive partner or fear of retribution. The needs of the person who seeks protection from harm will always be at the heart of everything that I do, and that is unshakeable. I will be absolutely clear right now: the issue is not about people not having anonymity or my expressing in any way that I am against anonymity; it is about making laws that do not run counter to the Scottish justice system and the trust that we place in our courts.

My argument has always been that the courts already have powers at their disposal to make an order of anonymity. They take that matter seriously and courts are well capable of exercising that order-making power.

Oliver Mundell

Will the minister take an intervention?

Christina McKelvie

I want to make my argument first, if the member does not mind.

Although I believe that this long amendment lodged by Mr Mundell is unnecessary, the reason why I am opposed to it and why I strongly urge the committee to vote against it is that I believe that amendment 25 would be very damaging if it was passed. I will explain that further.

When amendment 25 was published, the Scottish Courts and Tribunals Service contacted my officials immediately to express its concern that amendment 25’s provisions would be unworkable. In particular, the SCTS noted that the amendment’s blanket approach would cause problems for authorities and third sector bodies providing support, as the anonymity would mean that they could not be advised of someone who was subject to an order. That seems ironic, considering that we have heard that, through amendment 23, Mr Mundell wants the courts to be prescriptive about providing for support. Amendment 25 would cut across that approach.

In my opinion, amendment 25’s provisions step clearly over a boundary into being overtly intrusive and could produce unexpected outcomes. Although I appreciate that amendment 25 provides for discretion in “exceptional circumstances”, it is not in any way clear what such exceptional circumstances would be. Amendment 25 provides that any person affected by the order could apply for anonymity; I am deeply concerned that that would cover perpetrators or potential perpetrators, because the court would be in no position to refuse a request for anonymity from such people.

Of course, the court currently has the power to anonymise a parent perpetrator if not doing so would identify the victim. However, if amendment 25 were agreed to, a perpetrator could rely on the provision to demand anonymity, even if revealing their identity would play no part in revealing the victim’s identity. Protecting the perpetrator is not an outcome that I can ever support, in any case. That outcome would run counter to one of the key innovations that we have introduced in the bill: FGM protection orders. They are solely perpetrator focused and will therefore reduce risk. However, amendment 25 would allow a perpetrator to demand anonymity even where there is no victim, which is absolutely unacceptable.

Alex Cole-Hamilton

Will the minister take an intervention?

Christina McKelvie

I want to continue my argument, because it is incredibly important.

In addition, amendment 25 is prescriptively focused on applications by protected persons or those who have permission of the court, so it would not apply to applications by local authorities, the police or even the Lord Advocate, which is a glaring omission. That is probably one of the reasons why Oliver Mundell agrees that amendment 25 needs work.

Given those outcomes, particularly in relation to the suggestion that the court be obliged to grant anonymity to a perpetrator or potential perpetrator of FGM, I am sure that none of us wants to pass such provisions into law. We all want to ensure that we deliver open and accessible justice, so we need to apply a consistent approach to doing that.

Amendment 25 also suffers from a lack of foresight in terms of the complexities that the court would have to consider. For example, how long would anonymity last? What would be the precise limits? Could it be applied for when an order was varied or extended? What would happen to anonymity when an order was discharged? Could a decision not to grant anonymity be appealed? Could the court grant anonymity on its own initiative? As far as I can see, all those questions have not been given sufficient consideration and no answers have been provided.

10:15  



Oliver Mundell might say that he will fix all those issues at stage 3, but amendment 25 is fundamentally flawed and damaging. Such a change does not require an amendment—it needs not to be part of Scottish law.

When we, as parliamentarians, approach the task of making law, we need to take serious care to avoid unintended consequences. With regard to the untried and untested approach that amendment 25 sets out, we simply do not know the answer to the questions that I have just posed—and neither does Mr Mundell, which is a real worry. The amendment does not stem from a recommendation by the committee; it has been drafted without any consultation—never mind any agreement—with the Scottish courts, or, it seems, with stakeholders.

The consequences could potentially cause harm to vulnerable girls, and members have noted in their contributions the issues raised by people who responded to the consultation. I draw to members’ attention two comments that the committee had from, respectively, an individual and a person who represents a group. Dr Ima Jackson said:

“communities welcome the Scottish Government not bringing forward legislation on anonymity of victims.”

Jan MacLeod from the Women’s Support Project said:

“On anonymity, our view was that it is not helpful to pick out FGM when we do not have similar legislation about child sexual abuse, incest, rape and sexual assault.”—[Official Report, Equalities and Human Rights Committee, 12 September 2019; c 6-7, 32.]

Those are compelling arguments from people who work in the field every single day of the week.

If we passed amendment 25, Parliament would be sending a message to our courts and our justice system that the current broad suite of powers that the courts have at their disposal is insufficient for the purposes of granting anonymity. The convener made that point well during the stage 1 debate. She said that anonymity was an issue that should be considered across the justice system and that, as Jan MacLeod has suggested, a whole-justice-system approach should be taken, rather than using protection orders. The deputy convener also positively acknowledged that view in his comments.

Finally, convener, I go back to my central point. It is acknowledged at the highest level, in judgments by the Court of Session and the Supreme Court respectively, that courts are already bound to withhold a person’s identity in circumstances where someone faces

“a threat to life and limb”,

and, further, that they will do so where it is

“in the interests of justice to protect a party to proceedings from the painful and humiliating disclosure of personal information ... where there was no public interest in”

doing so. That applies, in particular, where there is a threat that a person will not proceed with a case when there is a risk of such disclosure. FGM falls squarely in the category in which both those examples of court powers and duties would be fully engaged.

I draw the committee’s attention to a specific case from 2007—HMA v Mola—which concerned the use of the power to anonymise the alleged victim of someone who was accused of deliberately infecting the victim with HIV. The court set out its justification for both clearing the court using its powers and prohibiting the reporting of identifying details through the existing powers in the Contempt of Court Act 1981. That is a practical example of where a court has exercised existing and well-acknowledged powers.

In addition to the range of inherent common-law powers, there are clear and specific statutory protections in place for adults and children to support the courts in protecting and supporting vulnerable persons and preventing the disclosure of their identities. I have already provided the committee with detailed information on that point. It is vital that courts apply the law in discharging their functions, but they should have the discretion to consider all the particular facts and circumstances in coming to a decision. They can choose who is made anonymous; that can already include providing anonymity for parents where it is necessary to protect a child. They can also choose who is bound by anonymity to allow some information to be passed to key people who are involved in welfare and protection, in order to make support available—a provision that the committee has supported today in agreeing to amendment 23.

Amendment 25 would mean that courts would no longer have a choice in how they provide for anonymity in such cases. Perpetrators would be able to demand anonymity even where no victim was identified or where the victim was far removed from them. It would also risk limiting the court’s ability to share information with key people, thereby presenting a risk to the support available to victims and their families, which I do not think that any of us wants to see. That could undermine the wider actions of our public bodies when encountering this hidden and pernicious crime.

In amendment 23, Oliver Mundell asked us to trust the courts, but he asks us not to trust the courts in amendment 25. I cannot understand that dichotomy or where he is coming from. I am strongly against amendment 25 and its damaging consequences. I strongly urge the committee to vote against it.

Oliver Mundell

I intend to press amendment 25. As we have heard, the Government appears to be strongly opposed not just to the content of the amendment but, for a variety of reasons, to the principle of giving an automatic right to anonymity for victims of FGM as far as possible. Notwithstanding the very serious issues with the amendment, if it is not agreed to and the provision is not added to the bill, there will be no incentive for the Government to come up with something that is technically sound and addresses those issues at stage 3.

Alex Cole-Hamilton

In relation to what we just heard from the minister about her concerns about the unintended consequences of the right of anonymity for perpetrators, does the member agree that we have now heard from all parties represented on the committee that the Parliament has no will for that to happen and that that element would be resoundingly rejected at stage 3, should amendment 25 be agreed to this morning?

Does the member also agree that, although the minister said that amendment 25 had not been consulted on, stage 2 amendments are never subject to consultation, and that the amendment was lodged in response to the 75 per cent of people who felt that anonymity should be extended through the bill?

Finally, the minister cited stakeholder groups who said that we should not be extending the provision when anonymity is not provided for in other areas of child sexual abuse or exploitation, such as incest or rape. However, does the member agree that those of us who want to see anonymity extended to victims of such crimes, and who have been waiting for a wholesale change in the law, which has not been forthcoming, consider that amendment 25 could lead change incrementally, which would be a good start?

Oliver Mundell

I accept all those points. My understanding when looking at the work that the chamber desk did on my behalf to come up with a form of words for the amendment was that someone who is “subject to the order” means a person who is protected by the order. Following my conversation with the minister yesterday, I understand that there are issues, but that was the first that I had heard of it, because no one had proactively got in touch with me.

Alex Cole-Hamilton is right that amendments at stage 2 are not usually subject to wholesale consultation. Given how easy it is to contact me, as a parliamentarian, because my details are in the public domain, I find it unnerving that a body such as the Scottish Courts and Tribunals Service had specific concerns about my amendment but did not choose to share them with me directly and chose only to communicate with the Scottish Government. Given the line of accountability, I can understand that, but in the interests of making good legislation, perhaps the SCTS should be mindful of the need to work with members.

I have heard what the minister said. I am pleased that she is confident that anonymity is already provided for, but when I look at what the experts have to say, it worries me. The Law Society of Scotland, in response to the Government consultation, said:

“we have concerns that the current statutory provisions may not be adequate to ensure anonymity for all victims of FGM”.

It concluded, on balance, that some provision for anonymity is needed.

I highlight that the Equality and Human Rights Commission supports the proposal to provide anonymity to victims of FGM. Indeed, the minister herself said in a letter to the committee at the start of the bill process—and it is also in the Government’s consultation analysis—that the Government is willing to listen to what the committee and Parliament think. I hope that by agreeing to amendment 25—albeit that the amendment is poorly drafted—the committee will demonstrate that it believes that there should be as close to a right to anonymity as is possible.

I agree that there is a better path for doing such things, and in respect of amendment 24 on legal aid, I was happy to accept the guarantee that was made on the record. However, I did not hear in the minister’s remarks today a willingness to engage on the issue; instead, I heard simply that the Government does not support the principle.

Angela Constance

I hear Mr Mundell’s concerns and worries. Does he accept that some of us also have a worry that, even for the short period of time between stage 2 and stage 3, the Parliament, in a bill, might set out for perpetrators of FGM the ability to apply for anonymity, and the courts would have nothing to do with it? I am concerned about the reputation of this place, and the message to survivors and women’s groups.

There will indeed be an opportunity at stage 3 to come back to the issue of anonymity, but does Oliver Mundell accept that, if his amendment is passed today as it is worded, that would give out the wrong message? The Parliament’s legislation should not advance the rights of perpetrators, notwithstanding that the issue would be rectified at stage 3.

Oliver Mundell

We are not passing legislation today, we are amending a bill that has not yet been passed; there is another stage to come. It is on the record today that anonymity for perpetrators is absolutely not my intention. We have it on record from members of all parties on this committee that the provision would be changed at stage 3.

My problem is that the better path is not available on this occasion, because the Government does not support the principle of providing anonymity to victims; it wants to leave that decision to the court in each individual circumstance. I think that the balance should be the other way. As we said in the committee’s stage 1 report, there should be an expectation up front—almost a presumption—that it would be the other way round.

Christina McKelvie

I ask Oliver Mundell to be absolutely clear here that he is happy for the Parliament to send that message about perpetrators being protected.

On his other point, is he also happy with the idea of using stage 2 as a pilot scheme to change legislation across the board? I have grave concerns about that.

I also have grave concerns about sending the message that, although the courts can be trusted to deliver a detailed care package, as is provided for in amendment 23, they cannot be trusted to deliver anonymity for people who are at risk. That cannot be rectified unless Mr Mundell changes position from amendment to amendment. His whole approach is completely inconsistent.

Oliver Mundell

I will answer the last point first, as it is really very simple. Amendments 23 and 25 do two different things. One is about the court stepping in to put provisions in place on behalf of the victim. The other is about the rights of the victim. I do not see that as a lack of trust in the court; I see it as a symbolic statement in the legislation, so that people know for sure that, subject to exceptional circumstances—“exceptional” is a word that is well known to the Scottish courts—they are entitled to anonymity. It is not about not trusting the courts; it is about identifying the right person to make the decision. When it comes to something as intimate as FGM, that is the person who is affected. They should not have to go round applying to people for anonymity.

The minister has not answered my point about the concerns of the Law Society. She did not intervene to clarify what conversations she has had with the society about its concerns over the current statutory provisions. It just seems that arguments have been cherry-picked.

I absolutely do not accept the point that the minister made at the start. I have said it three times and I will say it a fourth time: I do not think that perpetrators should have the right to automatic anonymity.

10:30  



I accept that there are some difficulties with the drafting of amendment 25, but anonymity for victims is so important in FGM cases that I really want to see it delivered and I want the Government to work with me on it. Given the lack of support for the principle that anonymity should be as close to automatic as possible, stage 2 is the chance to make sure that the provision is at least in the bill—the stage 2 process is how we get the Government to move on issues and work at making them workable. If I withdraw amendment 25 and come back with another amendment at stage 3, it might be subject to the same technical difficulties. The advantage of the provision being in the bill is that the Government will be more likely to work with me to fix the concerns.

I do not have a problem with FGM being a pilot area for such a provision. This would be a good opportunity to test some of the points that Alex Cole-Hamilton made, because it is likely to apply to a relatively small number of people. There would also be plenty of opportunity to review how it works in practice.

We need to do more for victims. We need to make sure that they are put at the heart of our justice system and, when it comes to protecting very intimate details about their private lives, it is reasonable to expect that to be delivered.

The Convener

I put on record my grave concern about something leaving our committee that has the potential to give anonymity to perpetrators. If we think about the practical implications for victims, does that mean, for example, that if somebody is in another jurisdiction, their conviction would not show up on a protection of vulnerable groups check?

I know that none of the justice spokespeople have ever put forward a case for anonymity for alleged perpetrators of sexual crime, but if the bill leaves the committee with that provision in it, it is then open to the rest of the Parliament to do that. As strongly as you feel about anonymity for victims—which I have huge sympathy for—it is really hard to get past the point about perpetrators. There is a risk in that regard if the bill leaves the committee with your proposed provision in it.

Oliver Mundell

With all due respect, there is only a risk if you do not trust that the rest of the Parliament shares the views of the committee. If that is the case, it would be open to other members of the Parliament to lodge all sorts of odd, unusual and perverse amendments to the bill at stage 3. If you do not think that there is a majority of members to tidy up my amendment at stage 3, maybe there is a bigger problem.

The Convener

I do not want us to get into a to-and-fro, but I wonder why you do not just come back at stage 3 with a really tight amendment that does exactly what you want it to do and does not include that risk. It is open to you to do so, as it is to all members.

Oliver Mundell

I acknowledged, when I made my opening remarks about amendment 25, that it is a very complicated area. The issue of anonymity has been addressed elsewhere in the United Kingdom under a different proposal and in other jurisdictions, and anonymity operates in some sense in the Scottish legal system, so it is not a new concept.

Provided that the committee agrees with the principal driver behind my amendment, the issue would be better addressed by there being a provision that deals with anonymity for FGM cases. I would want the drafting help and support of the Government, and if the provision is on the face of the bill because the committee has demonstrated support for it, there will be an incentive for the Government to work with me.

Fulton MacGregor

Will the member take an intervention?

Oliver Mundell

We are hearing about a better path: I would have preferred it if the minister had said that she took my views on board and was going to come forward with a proposal. That is not what we heard, however. We heard that this is not an area that the minister wants to go into, because she does not think that FGM should be used as a pilot for this type of right. I disagree.

I will take an intervention from Alex Cole-Hamilton.

Alex Cole-Hamilton

Oliver Mundell makes the point that amendment 25 is complex, which it is. It is a complex and very sensitive area of law. Does he agree with me that the parliamentary process for passing legislation affords that stage 2 is the point at which principle is established, and that Opposition members, who might not have had the support of the Government in producing amendments, can get things into the bill as a point of principle?

This meeting is not in camera—there are people all over the country watching this—and we can clearly state our intent. Had Oliver Mundell not made his assurances to the committee at the start, and had his proposal just been to have a blanket extension of anonymity to perpetrators, I would not have been able to support amendment 25. However, I know Oliver Mundell and his values, and he would never want to do that.

The risk of our withdrawing such a technical amendment now is that similar provisions might be beset by other technical difficulties at stage 3 and might not make it into the bill at all. For those of us who support the principle of extended anonymity to victims, that would be something of a defeat and a missed opportunity.

Oliver Mundell

I understand that Fulton MacGregor also wanted to come in. In the interests of politeness, I will allow him in now.

Fulton MacGregor

I thank Oliver Mundell for that. I thought that he had forgotten me.

My point follows on from what Alex Cole-Hamilton said. I think that Oliver Mundell is saying that he recognises two risks. He has bravely recognised that there is a risk in amendment 25, and he does not want its provisions to pass at stage 3, because they could lead to perpetrators being granted anonymity, which I know is not his intention—I have grave concerns about putting the provisions in the bill at all. That is weighed against the risk that the Government might not go with him if he lodges a similar amendment at stage 3. I suppose that I am asking Oliver Mundell which of the two things is more important—and that was not a direct question to other members who might be thinking about supporting amendment 25, although they could perhaps think about it.

I cannot believe that we are even talking about this—it is an absolute no-brainer. We cannot agree to something if, at stage 3, the Parliament might pass legislation under which a perpetrator could potentially seek anonymity. Of the two risks, which is more important?

Oliver Mundell

To give a simple answer to Fulton MacGregor’s point, by doing some basic arithmetic, if everyone in the Government party plus the Opposition members at the committee today supported the amendment, that would be enough to ensure that the provisions could be taken out of the bill. I am happy to give that commitment.

Alex Cole-Hamilton

Could I make a further intervention?

Oliver Mundell

I will take a brief intervention, convener—

The Convener

I think we are coming to a natural end at this point—but yes.

Alex Cole-Hamilton

This is a democratic institution. If, at stage 3, Parliament makes a decision, regardless of how bizarre it is, that will be the will of the Parliament. We talk about risk, but all the political parties that make up the Parliament have expressed a view at this table—I know that I speak for my party when I say that we do not want to have blanket anonymity for perpetrators, which I think is true of every party represented at this table. Were we made up of parties that had a policy of extending anonymity to perpetrators, that would be the democratic will of the Parliament. I do not think that we should talk about the risk of handing the matter over to the full Parliament for further amendment at stage 3. That is not a risk; it is an opportunity to improve, enhance and polish the bill. That is why the process of legislation is as it is.

Oliver Mundell

I thank the member for that intervention. I think I have said everything that I have to say. Amendment 25 is not about perpetrators; it is about victims. I hope that members will feel able to support that principle and to use the parliamentary processes available to ensure that that is what comes out when the bill in its final form is passed into legislation and becomes the law of this country.

The Convener

The question is, that amendment 25 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Wells, Annie (Glasgow) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Fee, Mary (West Scotland) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)

Against

Maguire, Ruth (Cunninghame South) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Constance, Angela (Almond Valley) (SNP)

The Convener

The result of the division is: For 4, Against 3, Abstentions 0.

Amendment 25 agreed to.

The Convener

Amendment 2, in the name of the minister, has already been debated with amendment 1.

Christina McKelvie

I thought that we were moving on to group 5, convener.

The Convener

I will suspend the meeting briefly while we check that for you.

10:40 Meeting suspended.  



10:40 On resuming—  



The Convener

I welcome members back. We will dispose of amendments 2 and 3 before we move to group 5.

Amendments 2 and 3 moved—[Christina McKelvie]—and agreed to.

The Convener

Amendment 4, in the name of the minister, is grouped with amendments 16 and 17. I call Christina McKelvie to move amendment 4 and to speak to all the amendments in the group.

Christina McKelvie

Thank you, convener. You threw me a bit there, but we are back on track.

Group 5 contains minor technical amendments that tidy up the bill in relation to amendments 16 and 17. They amend proposed new section 5M of the 2005 act, which requires the court to advise the police and the relevant local authority when it is dealing with a matter relating to an FGM protection order. The bill sets out that, when an application to vary or discharge an order is made under proposed new section 5J(1) of the 2005 act, the court must notify the relevant persons of its decision.

Amendment 16 clarifies that, where the court makes such a decision without having received an application, it must also issue a notification.

Amendment 17 similarly amends the bill’s provisions in the case of a decision to extend a protection order.

I move amendment 4.

The Convener

As no member wishes to contribute to the debate, I ask the minister whether she needs to wind up.

Christina McKelvie

I think that the amendments in the group speak for themselves, convener.

Amendment 4 agreed to.

The Convener

Amendment 5, in the name of the minister, is grouped with amendments 6 and 7.

Christina McKelvie

Since the bill was introduced, my officials have had further discussions with the Scottish Courts and Tribunals Service on the workings of FGM protection orders. Proposed new section 5G of the 2005 act provides criminal courts with the power to make FGM protection orders on sentencing relative to an FGM criminal conviction. The bill also provides that an order that is made under that section is to be treated for all purposes thereafter as if it was made in civil proceedings.

We took that approach because FGM protection orders are designed to be living orders that can be varied or extended or have parts discharged as the protective need for which they were made changes. For example, an order that bans foreign travel may be varied for a family holiday that appears to pose no threat to the girl in question. We deliberately aimed to provide that, in such cases, the change would be made through the civil courts, even if the order was granted by a criminal court. That was done not only to avoid, as far as possible, the criminalisation of the process, but because a sheriff or summary sheriff will be far more accessible than the High Court, which is the court that is most likely to deal with FGM offences.

However, transferring all aspects to the civil court would mean that, if the convicted person was to appeal against the making of the order, that would also be treated as a matter for the civil courts. That could result in both an appeal against the order in the civil court and a separate appeal against the criminal conviction or sentence in the criminal court. Such twin appeals would, as an unintended result, bring to the system the potential for confusion and increased costs and the possibility of conflict between competing court judgments.

We lodged amendments 5 to 7 to ensure that orders for an FGM conviction that are granted by a criminal court under proposed new section 5G of the 2005 act may, for the purpose of appeal by the convicted person or the Crown, go through the criminal court system along with the rest of the sentence. Such appeals will involve neither the protected person nor their family members. For the reasons that I set out to do with accessibility and the need to avoid criminalising the process, there will be no change to the treatment of applications for variation, discharge or extension of such an order, which will remain within the civil system. I hope that that remedies an issue that we all thought about at stage 1.

I move amendment 5.

The Convener

As no member wishes to speak, I ask the minister to wind up.

Christina McKelvie

Again, the amendments speak for themselves.

10:45  



Amendment 5 agreed to.

Amendments 6 and 7 moved—[Christina McKelvie]—and agreed to.

The Convener

Amendment 8, in the name of the minister, is grouped with amendments 9 to 11.

Christina McKelvie

Amendments 8 to 11 are also technical in nature. They clarify the bill’s provisions in respect of two situations: first, when the period of effect of an FGM protection order has been varied, and, secondly, when an order did not originally specify a period of effect but is subsequently varied to do so.

Amendments 8 to 10 will put beyond doubt that, where an order has only one time period that relates to a condition, together with another condition that is not subject to a time period, the order remains in effect until it is discharged. Amendment 11 clarifies the way in which the provisions in the bill that relate to the duration of an order interact with the order when it is varied, extended or discharged.

I move amendment 8.

Amendment 8 agreed to.

Amendments 9 to 11 moved—[Christina McKelvie]—and agreed to.

The Convener

Amendment 12, in the name of the minister, is grouped with amendments 13 to 15.

Christina McKelvie

Amendments 12 to 15 are, again, technical in nature.

Proposed new subsections 5A(4) and (5) require the court, in making an FGM protection order, to take into account the views of the person whom the order would protect. Proposed new section 5L makes clear that the court must also go through that process in considering whether to vary, extend or discharge an order and in considering whether to vary or extend an interim order.

Amendments 12, 13 and 15 tweak the language of the bill to ensure that, when the court is considering the variation, extension or discharge of an FGM protection order, any reference to a person who would be protected is read as including a person who is already protected. Amendment 14 does the same in relation to the court’s consideration of whether to vary or extend an interim order.

I move amendment 12.

Amendment 12 agreed to.

Amendments 13 to 18 moved—[Christina McKelvie]—and agreed to.

Section 1, as amended, agreed to.

Sections 2 to 7 agreed to.

Section 8—Amendment of the Children’s Hearings (Scotland) Act 2011

The Convener

Amendment 19, in the name of the minister, is grouped with amendments 20 and 21.

Christina McKelvie

The bill, at section 8, already amends the Children’s Hearings (Scotland) Act 2011 to enable the court to refer a matter to the principal reporter if it thinks that a ground for referral has arisen during consideration of an FGM protection order.

Amendments 19 to 21 extend that power to include cases in which the order is varied, discharged or extended by the court of its own volition, bringing it into line with the court’s powers in cases where a variation, extension or discharge has occurred by way of an application.

The amendments put it beyond doubt that the courts can, if they think that a ground for referral has arisen, refer the matter to the principal reporter whenever the circumstances of an order have changed, and they also address an issue that was raised at stage 1.

I move amendment 19.

Amendment 19 agreed to.

Amendments 20 and 21 moved—[Christina McKelvie]—and agreed to.

Section 8, as amended, agreed to.

After section 8

The Convener

Amendment 22, in the name of the minister, is in a group on its own.

Christina McKelvie

Amendment 22 adds FGM protection orders and interim orders to the list of civil proceedings, as set out in the Courts Reform (Scotland) Act 2014, for which the summary sheriff has competence. Summary sheriffs were introduced by the 2014 act as part of the wide-ranging reforms to the courts that were recommended by the former Lord President, Lord Gill. One of the key aims of the reform of the court system was to bring justice as close to the public as possible with the introduction of a third tier of the judiciary.

Empowering summary sheriffs in that way does not remove the powers of the sheriff in such cases. It simply means that the sheriff principal for a sheriffdom will be able to move quickly and flexibly in deploying the full range of judiciary to deal with matters relating to an FGM protection order or interim order.

The amendment brings the treatment of FGM protection orders into line with the civil courts’ treatment of forced marriage protection orders and proceedings relating to domestic abuse, adoption, children’s hearings and family law, all of which can be dealt with by a summary sheriff, and opens up another avenue of justice for the public.

I move amendment 22.

Amendment 22 agreed to.

Sections 9 to 11 agreed to.

Long title agreed to.

The Convener

That ends stage 2 consideration of the bill, which will be reprinted as amended at stage 2 and published at 8.30 am tomorrow. Stage 3 amendments can then be lodged with the clerks in the legislation team at any time. The Parliament has not yet determined when stage 3 will be. When that is confirmed, members will be advised of the deadline for lodging stage 3 amendments.

I thank the minister and her officials for their attendance. The committee will next meet on Thursday 6 February, when it will consider its approach to the race equality, employment and skills inquiry.

Meeting closed at 10:53.  



Female Genital Mutilation (Protection and Guidance) (Scotland) Bill with Stage 2 amendments

Additional related information from the Scottish Government on the Bill

Stage 3 - Final amendments and vote

MSPs can propose further amendments to the Bill and then vote on each of these. Finally, they vote on whether the Bill should become law

Debate on the proposed amendments

MSPs get the chance to present their proposed amendments to the Chamber. They vote on whether each amendment should be added to the Bill.

Documents with the amendments considered at the meeting held on 19 March 2020:

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Debate on proposed amendments transcript

The Presiding Officer (Ken Macintosh)

We turn to stage 3 of the Female Genital Mutilation (Protection and Guidance) (Scotland) Bill. Members should have the bill as amended at stage 2, the marshalled list and the groupings of amendments.

I remind members that the division bell will sound for the first division of the afternoon, for which there will be a 30-second vote. Thereafter, there will be a one-minute vote should there be a division following a debate on a group. Any member who wishes to speak to an amendment should press their request-to-speak button immediately after I call the group that contains that amendment. Members should now refer to the marshalled list.

Section 1—Female genital mutilation protection orders

The Presiding Officer

The first group is on the provision of practical support. Amendment 1, in the name of Christina McKelvie, is grouped with amendments 2, 3 and 5 to 10. I remind members that, if amendment 1 is agreed to, I will be unable to call amendments 2 and 3 due to pre-emption.

The Minister for Older People and Equalities (Christina McKelvie)

At stage 2, I said that I would lodge amendments at stage 3 to ensure that the bill reflected the importance of ensuring that women and girls who seek a female genital mutilation protection order receive appropriate and necessary support from front-line bodies. My amendments are intended to meet the spirit of the Equalities and Human Rights Committee’s work and the view that it expressed at both stage 1 and stage 2.

Since stage 2, I have had discussions with front-line third sector providers and statutory bodies about the bill as amended. Several third sector bodies submitted a joint letter, and Social Work Scotland has written a letter, too. I hope that members have had a chance to read those.

I pay tribute to the important work that the Equalities and Human Rights Committee has done throughout the process to ensure that we will have the best possible legislation that will protect women and girls and prevent FGM from happening in the first place. Although I disagreed with Oliver Mundell’s amendments at stage 2, I completely understood what he was trying to achieve in pressing them, and I understand the committee’s strong desire to ensure that women and girls receive appropriate support and that their identities are not disclosed, given the particularly sensitive and personal issues that arise in relation to FGM and the importance of ensuring that they are protected. I thank Oliver Mundell for engaging with the issue. I am sorry that he cannot be here today to speak to his amendments, but I hope that I will do justice to the spirit of what he was trying to do.

At stage 2, I said that I would lodge amendments to deliver on the committee’s aspiration in a sensible and balanced way. In doing so, I have sought to address stakeholder concerns that court-designed and directed support within FGM protection orders would be so precise and directive that it could risk removing the benefits of the professional assessment of need and tailored support. The assessment is best carried out by those who provide complex support packages daily. My amendments therefore place the responsibility for determining appropriate support in the hands of front-line professional experts.

That will provide for a more balanced and sensible approach that starts from the basis that public bodies—in partnership with third sector organisations, and with the needs of the individual at the heart of the process—are best placed to identify and deliver the necessary package of support. My amendments will allow the court to require a public body to consider carefully what support is needed and then to provide that support appropriately and when it is reasonably practicable to do so. They will ensure that vulnerable women and girls will not have to attend court repeatedly to have their support requirements varied. I am sure that everyone agrees that that would not be desirable.

Oliver Mundell’s amendments provide for a power for ministers to issue guidance to the courts in carrying out their duties in a case. However, ministers would never do that, as it would run counter to the independence of the judiciary. Our amendments respect the proper role of the courts and their judicial independence from ministers.

Oliver Mundell’s amendments also provide for the court to name an appointed person to oversee the order. I understand that the reason for that might be to prevent repeated court trips to vary the order as support needs change. However, I hope I can assure members, including Ms Davidson, who will speak to Oliver Mundell’s amendments, that repeated court trips to tweak support packages will also be ruled out by my approach.

I have looked carefully at Mr Mundell’s proposals, and I worry that they could cause confusion and tension between the protected person and the public body that is supporting them. That would mean that, despite mandating someone to be the appointed person, the court would continue to have to step in and resolve any issues. I hope that we can all trust our public bodies to make the right decisions and to provide support that has the needs of the protected person at its heart.

To be clear, the bill will provide guidance on appropriate support. Our statutory guidance at sections 2 and 3 will spell that out clearly to the public body, which must have regard to the seriousness of the order and the steps that it should take in complying with it.

In the light of what I have said, it should be noted that our guidance is expressly prevented from applying to the courts. Mr Mundell has acknowledged that through his proposal to modify, by regulation, proposed new section 5A of the Prohibition of Female Genital Mutilation (Scotland) Act 2005. However, we have an opportunity to get the bill right today, and I respectfully submit that my amendments are a better way forward.

Our proposals meet the spirit behind the amendments that Oliver Mundell lodged at stage 2—and the committee’s majority support for them—in reinforcing the provision of support in a sensible and balanced way, ensuring that vulnerable women and girls who require support can access the right support in the right way and that their needs are at the very heart of the process. Once the court has done its job, our public services will be freed to do theirs.

As I said at stage 2, we all agree on the importance of supporting women and girls and their families when there is a current or future risk of FGM. It is certainly right that those who need support should have access to it. As members know, my entire approach to tackling FGM through our strategy, our preventative work in communities and the 2005 act is to support vulnerable girls by taking a person-centred approach. Members will all agree that I am utterly committed to that. All that we want to do is ensure that we have good and competent legislation. That is our collective aspiration for any legislation that is passed by Parliament.

I move amendment 1.

Ruth Davidson (Edinburgh Central) (Con)

The amendments that have been lodged in the name of my colleague Oliver Mundell are designed to address a number of practical and technical concerns that were raised at stage 2, when an amendment on the provision of direct practical support to those protected by an FGM order was agreed to by a majority of committee members.

At the outset, we acknowledge that the Government has lodged alternative amendments, and we recognise that, if they are agreed to, they will improve the bill. Although my colleague believes that the Government’s amendments do not give everything that the committee members were looking for, he acknowledges that they might be more practical for exactly the reasons that the minister has just outlined. Nevertheless, we are still keen to explain to Parliament the reasons for the amendments that have been lodged by my colleague, to thank all those who came to give evidence to the committee and to demonstrate that the points that were raised at committee, particularly by Scottish National Party members, have been listened to.

Amendment 1 clarifies that any direction from the courts would be limited to public bodies as defined under the Scotland Act 1998. At stage 2, concerns were raised that unfair or unreasonable burdens could be placed on third sector organisations, which was not the intention.

Amendment 3 makes it clear that any support outlined may be “immediate or ongoing”, and amendment 5 would allow the courts to appoint a suitable individual to take charge of arrangements moving forward and a mechanism for any support to be reviewed without returning to court. Again, that responds to a specific concern that was raised at stage 2.

I know that our colleague across the chamber, Mary Fee, was keen to see in the bill more detailed examples of what such support might include. That is covered in amendment 6, which focuses on health, housing, “financial support” and education as a starting point.

Amendments 7, 8 and 9 speak to the protections that we seek for the individual who is at the heart of any decision, offering direction to the court and giving scope to ministers to issue guidance.

That was the rationale behind the amendments being lodged. However, we recognise that the minister has taken on board a great number of the concerns that were raised at stage 2. We thank her for that and, to that end, I will not move the amendments in the name of Oliver Mundell. We will support the Government’s amendments in their stead.

John Finnie (Highlands and Islands) (Green)

The Scottish Green Party is not represented on the Equalities and Human Rights Committee, but we are very grateful for the work that it does. We have monitored it closely and are supportive of the Government’s bill.

I was involved with this issue through my previous involvement in the Equal Opportunities Committee and the Justice Committee; therefore, I am aware of the sensitivities around it and the perniciousness of the practice. On each of the occasions on which I was previously involved, we called on the expertise of many people. I understand that the bill is about strengthening protections, and there is no doubt that that is what everyone has sought to do.

I should declare my interest as a member of the cross-party group on men’s violence against women and children. The role that Scottish Women’s Aid has played in informing previous discussions on the matter is important, as are the views of various other groups, such as Engender, Amina—the Muslim Women’s Resource Centre, Saheliya and Shakti Women’s Aid. The minister has already referred to the letter from Social Work Scotland.

We ignore at our peril the wisdom of the practitioners on the issue. The letter to the committee from Scottish Women’s Aid, which was signed by some of the groups that I have mentioned and many others, including many academics, talks about

“unforeseen consequences which undermine the efficacy of the Bill and will prove harmful to victims and survivors.”

I think that we have to pay heed to that statement. Given Ms Davidson’s comments, I do not propose to say any more than that. We are entirely supportive of the minister’s amendment 1.

Angela Constance (Almond Valley) (SNP)

I speak in support of amendments 1 and 10, in the name of the minister. I am a member of the Equalities and Human Rights Committee, and the amendments seek to address some of the difficulties that were caused by some earlier amendments, as Ruth Davidson discussed with regard to what happened at stage 2.

It is fair to say that the committee was united in agreeing that endeavours to include practical support in FGM protection orders to reduce on-going risk and harm were based on the very best of intentions, but we were divided on the practical effect and impact of Mr Mundell’s proposition. Nonetheless, I welcome the position that Ruth Davidson has taken today on behalf of Oliver Mundell. Oliver Mundell was a very diligent member of the Equalities and Human Rights Committee who cared deeply about the bill. Despite our differences, he genuinely sought to make it the best possible legislation.

I come to the bill as someone who has many years of front-line experience in assessing vulnerable people, those who are at risk and those who present a risk. I have made many applications and recommendations to courts, tribunals and parole boards. Admittedly, that front-line experience is somewhat old now—it is from more than a decade ago—but those of us with such experience will have wrestled with the very delicate balance between the responsibilities, competencies and expertise of the courts on the one hand and service providers on the other. The minister’s amendments try to ensure that, when the courts impose duties, they will be based on assessed need and professional judgment.

John Finnie has already drawn the chamber’s attention to the correspondence that the committee received from Scottish Women’s Aid, which was signed by other organisations including Shakti Women’s Aid, Multi-Cultural Family Base, Dundee International Women’s Centre, Saheliya and Amina—the Muslim Women’s Resource Centre. As he and other members have said, we will do well to pay heed to those services and workers who have current front-line experience of trying to protect women and girls who are at risk of FGM.

16:00  



Alex Cole-Hamilton (Edinburgh Western) (LD)

I echo what other members have said about the intent of Oliver Mundell’s amendments at stage 2, which I was happy to support—imperfect as they were, as he admitted. However, the Scottish Government has done a great deal of work to bring parties together to discuss Opposition plans to alleviate the concerns that we had at stage 2, and I am happy to support the Government’s amendments on that basis.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I do not have a lot to add to what my colleagues have already said. In particular, Angela Constance summed it up well.

I support amendments 1 and 10, in the name of the minister. I also welcome Ruth Davidson’s approach today. She summed up where Oliver Mundell was coming from and the fact that the Government’s amendments have captured where he was trying to go. Along with other committee members, I shared concerns at stage 2 about the risk of the support being so precise and directed that it could minimise the benefits of professional assessment and a tailored approach, as well as the complex support packages that are in place. In the spirit of the current climate, I welcome the Conservatives’ approach to the amendments today.

Christina McKelvie

I thank Oliver Mundell and Ruth Davidson for the position that they have taken today. When we work together like this, it is incredibly helpful. Everyone in the chamber has drawn attention to the letter that was sent to the committee from all the organisations that do the day-to-day work in these complex situations. I reiterate my commitment that, when we formulate the statutory guidance for the bill, we will be open to the same collegiate approach that we have taken with the committee, stakeholders and members from across the chamber.

John Finnie raised a few points from the letter. He said that the stakeholders who do that work every day are the experts and that we should always remember that.

Angela Constance talked about getting the balance right between the competencies of the court and those of the statutory bodies. When the courts impose duties, they must be based on assessed need.

Alex Cole-Hamilton and Fulton MacGregor spoke from the position of wanting to ensure that the complex needs of the person are at the heart of the bill.

The core of this bill is about ensuring that those little girls—or their sisters or mums—who have been victims or who could be at risk are protected. We do ourselves proud in agreeing to this amendment and in moving forward with the bill.

Amendment 1 agreed to.

Amendments 5 to 9 not moved.

The Presiding Officer

Group 2 is entitled “Extra-territorial jurisdiction”. Amendment 4, in the name of the minister, is the only amendment in the group.

Christina McKelvie

Amendment 4 is a technical amendment to make it clear that an FGM protection order is not to be used to regulate matters that are unconnected to Scotland. Although the bill currently reiterates the powers of the sheriff to decline jurisdiction in such an instance, I consider it to be prudent to put the matter beyond any doubt.

Technical amendment 4 will make it clear that FGM protection orders, which cover individuals who are “ordinarily resident in Scotland”, irrespective of their immigration status or whether they are a UK national, will also cover any person within Scotland. It will ensure that an FGM protection order can be sought to protect even the most transient visitors.

By way of example, if Police Scotland were to receive credible intelligence that a non-UK national girl who was due to visit Scotland could be subjected to FGM when she goes home, our bill will operate so as to allow Police Scotland, while the girl is here, to seek an FGM protection order and, in turn, to protect that girl from future harm. Amendment 4 will not change that, but will put it beyond doubt that an FGM protection order cannot be used in relation to circumstances in which there is no connection to Scotland.

That is because it is important that we take a proportionate approach, and that jurisdiction should not be extended to interfere unduly in the affairs of sovereign nations and their citizens. We would not want a Scottish sheriff to issue an FGM protection order in relation to a woman or girl—or, indeed, in relation to a potential perpetrator—who has never set foot in Scotland, who has no connection to this country, and who has never had any intention of coming here. It is not for us to interfere in the role of a state in keeping that woman or girl safe, or in holding to account that potential perpetrator of FGM.

However, the bill remains deliberately drafted to provide robust protection of girls who might be taken from Scotland to be abused. Furthermore, the bill is equally robust in tackling non-Scottish perpetrators who might come here to carry out that form of abuse, irrespective of whether a potential victim has been identified. Amendment 4 will make no difference to that comprehensive approach.

I move amendment 4.

Ruth Davidson

Amendment 4 is a technical amendment. We have no particular comments to make on it, other than to say that we support the Government’s approach, which seems to be sensible and will, we think, strengthen the existing provisions.

Amendment 4 agreed to.

Amendment 10 moved—[Christina McKelvie]—and agreed to.

The Presiding Officer

We turn to our last group—group 3—which is on provision for anonymity. Amendment 11, in the name of the minister, is grouped with amendments 12 to 18. I remind members that, if amendment 11 is agreed to, I cannot call amendments 12 to 16, as they will be pre-empted.

Christina McKelvie

As the Equalities and Human Rights Committee and I acknowledged at stage 2, we all know that individuals may wish to be made anonymous for a number of reasons, and the needs of the person who is seeking protection from harm will always be at the heart of what we are trying to do. In the context of an FGM protection order, it is absolutely right that the court should consider that carefully and act in the best interests of the protected person.

At stage 2, the committee was sympathetic to undoubtedly well-intentioned amendments from Oliver Mundell. However, I was concerned about the workability of those amendments and that they in effect granted automatic anonymity for perpetrators. I explained that the courts already have powers at their disposal to grant anonymity, that there is no evidence to suggest that they do not take their duties in that regard seriously and that they are well placed to decide how best to exercise such powers in a given case. However, the committee was sympathetic to the spirit of the amendments and voted to amend the bill at stage 2 by inserting Oliver Mundell’s provisions. As I said, I understand why it did so.

My focus was then, and remains now, on ensuring that we have good, workable law that the courts are able to exercise, that works well for those whom it is designed to protect and that does not have any unintended consequences. I welcome the fact that Oliver Mundell has sought to fix some of the issues that were highlighted at stage 2. As with group 1, I have lodged what I think are balanced and sensible amendments to strengthen the bill in that area, and I hope that Parliament as a whole can get behind them.

We are fortunate in this country to have a highly skilled and professional judiciary that is well used to ensuring the effective delivery of justice and the protection of persons’ rights within that process. That is one of the reasons why we entrust those decisions of enormous personal importance not to individuals, but to courts. As part of that, we need to allow the courts to act justly and to react to the facts of the case that is before them. I continue to believe that the courts have sufficient powers at their disposal and that they are well capable of exercising them and do so seriously. However, I have also listened carefully to the views of the committee and I note—again—the spirit and good intentions that were behind the original amendments. I have therefore lodged an amendment that will insert into the Prohibition of Female Genital Mutilation (Scotland) Act 2005 new sections 5FA, 5FB, and 5FC, which meet that spirit and provide workable law that will meet the purpose of the bill.

Together, those new sections will require the court to consider using the new power to make an anonymity order. That requirement will arise not only when the court receives an application for an FGM protection order but when the need for one arises in other civil proceedings. My amendments do not set out the detail of the measures that are to be used; rather, they set out the effect that is to be achieved.

My amendments are more expansive than Oliver Mundell’s approach, in that they require the court to properly consider the whole issue of anonymity. Oliver Mundell’s amendments are still a bit too narrow and could constrain the court’s thinking and the actions that it can take. My amendments also leave the existing powers of the court untouched in order to guard against any unforeseen circumstances that may arise that are outwith the ambit, allowing the court to fall back on the existing powers if need be.

The briefing by Scottish Women’s Aid and Engender raised a specific concern in relation to the Government’s amendments, about whether the courts would use the provision to grant anonymity for perpetrators or potential perpetrators of FGM. Those organisations sought reassurances from the Government on how the provisions are intended to apply in practice, and I am happy to give those reassurances now. There are sometimes occasions when the court has to consider whether to make a perpetrator anonymous. However, the courts are clear that they will do that only in order to protect the victim.

The crime can often take place in small, close-knit communities and families. In such situations, naming the perpetrator will automatically mean identifying the victim, their sibling or perhaps even a brave mother who has taken a stand in seeking protection for her daughter. Journalists call that the jigsaw identification process. That is why our amendments require the court, in considering whether to make anyone anonymous, to keep in mind the key test of the health, safety and wellbeing of the protected person, and only the protected person. That is a critical point.

In extreme circumstances, anonymity can be granted to a perpetrator, but only where to do otherwise would harm the victim or where there is a chance that the case to protect the victim may not proceed at all. If we do not allow the courts to do that, we may inhibit at-risk women and girls from coming forward if they think that a family member could be identified publicly, even when that family member is a potential perpetrator.

As part of the implementation of the bill, we will work closely with the Judicial Institute for Scotland to ensure that the courts understand the particular dynamics of FGM and respond appropriately. That is the right balance—it focuses on building the capacity of the whole system to respond effectively while respecting the fundamental independence and wisdom of the judiciary. We will of course continue to work with front-line experts and communities to shape the approach.

In general, my amendments tidy up a number of technical issues relating to who can make an application, how the protected person’s views should be taken into account and how the court deals with issues such as variation. If Parliament supports the amendments, those changes will make the final bill better law. That is reflective of the complexity of the process. We have tested our thinking with the Scottish Courts and Tribunals Service, the Faculty of Advocates, the Family Law Association and JustRight Scotland, which is a group of specialist human rights lawyers who act with potential victims of FGM on a day-to-day basis. Yesterday, the Law Society of Scotland made a submission supporting our approach. I will ensure that the court’s decision making continues to be underpinned by the needs of the protected person—that should be beyond any doubt—and in a way that is right for the protected person.

I urge members to support our sensible and balanced amendments and to delete proposed new section 5CA of the 2005 act from the bill.

I move amendment 11.

Ruth Davidson

Amendments 12 to 16 in the name of Oliver Mundell aim to simplify the amendment on victim anonymity that was made at stage 2. In particular, we felt that amendments 12 to 16 more accurately captured what victims and survivors were asking for. Often, they are looking for support and help, but they want to ensure that their details and those relating to an order do not make it into the public domain, which is not quite the same thing as anonymity. We believed that the proposed new wording provided the necessary privacy and dignity that people were looking for and that it was self-evidently simpler and clearer than the Scottish Government’s alternative.

However, we recognise the minister’s amendments in the group, which go further than she was willing to go at stage 2. We welcome the fact that, crucially, the Government’s amendments will move the issue of anonymity into the bill.

As all speakers today have recognised, every member, official and minister who has been involved has sought in good faith to act on behalf of some of Scotland’s most vulnerable women and to give them the best protection under the law that is within our power. There are perhaps different methods of doing that, but we have the same motivation and commitment. Given the assurances that we have just heard from the minister on anonymity, I am content not to move the amendments in Oliver Mundell’s name.

16:15  



John Finnie

The aim of the bill is to

“strengthen the existing legal protection for those at risk of female genital mutilation.”

The bill lays out how that will be done. The very clear point that has been made by practitioners is that the courts already have the power to grant anonymity. We are all familiar with people wanting things on the face of the bill for particular reasons, but, as an organisation told the committee, one of the unintended consequences of that would be

“the potential for promising perpetrators they will not be named.”

That would be decidedly unhelpful. It is equally unhelpful when such organisations conclude that

“the potential for criminalising support efforts and organisations is particularly alarming.”

Therefore, I am grateful for the amendments that the minister has lodged. They strike the right balance and the Greens will support them.

Angela Constance

It is worth reminding the chamber that, on the issue of anonymity, the committee concluded in its stage 1 report that it

“strongly supports the principle that the views and wishes of victims and survivors should be paramount and central to court considerations. The Committee believes that anonymity on request is a reasonable expectation for victims of FGM and asks the Scottish Government how this can be given.”

The spirit of that is best reflected in the minister’s amendments 11, 17 and 18.

One discrete bill will never be the vehicle for wholesale legal change to our justice system and it is problematic to try to carve out a separate set of arrangements for one particular set of victims and survivors. I am pleased that the minister has taken that recommendation forward as far as she can, and that she has consulted an extensive range of stakeholders, including JustRight Scotland, which acts for potential victims of FGM, day-in, day-out.

John Finnie reflected on the correspondence that the committee received from practitioners in the field. It is important to point out that courts must already withhold a person’s identity in circumstances in which that person faces a threat to life or limb and, further, in which it is

“in the interests of justice to protect a party to proceedings from painful and humiliating disclosures of personal information where there is no public interest”

in doing so. Those circumstances are a good description of FGM cases, and the approach offers significant protections already.

I listened carefully to the minister speak to her amendment 17, which includes provision allowing the court to consider making anyone anonymous—for example, a sibling. That is important. Crucially, as the minister said, the court can grant anonymity to someone who is not a protected person, but only if it has the health, safety and wellbeing of the protected person at the heart of its considerations. I listened carefully to the minister’s explanation that her amendments will indeed remove the prospect of perpetrators being granted anonymity.

Alex Cole-Hamilton

I echo a lot of what has been said by other members on this group of amendments. I was one of the committee members who supported Oliver Mundell’s original attempt to get anonymity into the bill. He did so for very important reasons. By definition, we are talking about communities in which FGM is an issue of massive cultural sensitivity, and the fear of being named or identified might act as an inhibitor to those who are victims or might become victims of female genital mutilation. During stage 2, we all recognised the imperfections in his amendments—problems that the amendments that he lodged at stage 3 were designed to rectify. However, I salute the Government for moving a great distance once again to recognise the need for provision for anonymity in the bill. It has got the balance right and the Liberal Democrats will therefore support its amendments.

Fulton MacGregor

I pressed my request-to-speak button to keep the list of speakers the same as it was for group 1 as much as anything else, because I do not have a lot to add to what my colleagues have already said.

Anonymity was probably the most pressing, and the key, issue at stages 1 and 2. Witnesses told us about various approaches that could be taken. I was concerned about some of the amendments that were agreed to at stage 2, but I think that Oliver Mundell and others who voted for them agreed that they were not the finished article. I welcome the minister’s approach, and I think that Oliver Mundell, who is obviously not here today, can be very happy with what he has achieved.

I welcome the Conservatives’ approach to the amendments before us today.

The Presiding Officer

I invite the minister to wind up.

Christina McKelvie

I thank Ruth Davidson and Oliver Mundell for shifting so far. I reiterate that I got the spirit of where Oliver Mundell wanted to go, and I hope that that is reflected in the work that we have done.

John Finnie made a key point about the issue of not criminalising charitable and third sector organisations. That was a key part of the work that we needed to do. I wanted to put that absolutely beyond doubt, because we will need stakeholders such as charities and third sector providers to do this detailed and expert work.

Angela Constance talked about the need for the views and wishes of the victim to be put at the heart of the process. I cannot reiterate enough that that is what we have attempted to do through the actions that we have taken. She is absolutely right—it is not just the law that will make the difference here; the work that we do with stakeholders and the work that we do through guidance and our FGM action plan will also be important. She is right that it is important that the scope of what we propose is broad enough to allow for a sibling, and maybe a mother or a grandmother, to be protected, too.

Alex Cole-Hamilton gave a clear explanation of why this is such a sensitive and complex issue, which is to do with the fear of being named in a community. That was raised with me—and, I know, with the committee—repeatedly by communities and stakeholders, and we wanted to make sure that we gave a commitment on that. In his comments, Fulton MacGregor backed up our position.

The bill is about the protection of women and girls, and I think that we have done a good job by putting them at the heart of the process. Ensuring that siblings and others are protected, too, is a key aspect of what we want to do.

I thank everyone for their contributions.

Amendment 11 agreed to.

The Presiding Officer

As I indicated earlier, that means that amendments 12 to 16 are pre-empted.

Amendment 17 moved—[ Christina McKelvie]—and agreed to.

Section 5—Definitions of expressions in the 2005 Act

Amendment 18 moved—[Christina McKelvie]—and agreed to.

The Presiding Officer

That ends formal consideration of the amendments.

As members will be aware, at this stage in proceedings, I am required under standing orders to decide whether, in my view, any provision of the bill relates to a protected subject matter—that is, whether it modifies the electoral system or the franchise for Scottish Parliament elections. As the bill does no such thing, it does not require a supermajority to be passed at stage 3.

Final debate on the Bill

Once they've debated the amendments, the MSPs discuss the final version of the Bill.

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Final debate transcript

The Deputy Presiding Officer (Linda Fabiani)

The next item of business is a debate on motion S5M-21279, in the name of Christina McKelvie, on the Female Genital Mutilation (Protection and Guidance) (Scotland) Bill at stage 3.

16:25  



The Minister for Older People and Equalities (Christina McKelvie)

I am delighted to open this stage 3 debate on the Female Genital Mutilation (Protection and Guidance) (Scotland) bill. It is an important bill that will make a real difference to women and girls who are at risk of, or who have experienced, the abhorrent practice of FGM.

Although we have had some debate today on the provisions of the bill, there is broad consensus across the chamber that it is the right thing to do.

Like other forms of gender-based violence, FGM is a manifestation of power and a means of controlling the sexuality of women and girls. It is a form of violence against women and girls. As the minister with responsibility for the Scottish Government’s work in this area, I am committed to preventing FGM in Scotland and to ensuring that girls and women who are at risk of FGM are protected from harm. FGM has been illegal since 1985. The Female Genital Mutilation (Protection and Guidance) (Scotland) Bill seeks to add to existing protections and to improve the system response to women and girls who are at risk of harm.

It is estimated that around 200 million girls and women across 30 countries have been subject to FGM. The prevalence of FGM in Scotland is difficult to estimate because of the hidden nature of the crime. A Scottish Refugee Council report in 2014 found that there are communities that may be affected by FGM in every local authority area in Scotland, with the largest affected communities being in Glasgow, Aberdeen, Edinburgh and Dundee.

So, FGM is not a new issue and this Government has been taking action. In 2016 we published “Scotland’s National Action Plan to Prevent and Eradicate Female Genital Mutilation (FGM)”. I pay tribute to my colleague Angela Constance, who started this journey. I am merely finishing her first steps. The purpose of the national action plan is to foster an environment of prevention in Scotland and to improve the welfare and quality of life of FGM survivors. We are taking steps to engage with communities, to raise awareness and to improve the response of front-line services.

The bill meets our commitment to strengthen legal protections for those who are at risk of FGM. The new protection order that it will make available means that our public services and our courts will be able to focus on the need to protect those persons at risk or those who have already suffered from FGM being carried out on them. Building on experience in other jurisdictions in the UK, and reflecting on the support in our consultation, this is an effective and proven approach to reducing risk to potential victims.

To support those new protection orders, the bill places a duty on ministers to issue statutory guidance on the protection orders, and also provides a power to issue guidance on FGM more generally. We intend to focus our efforts on ensuring that that guidance is developed with community input at every step, and that we are guided by what women and girls need from their public services. That is critical for me: the approach is “nothing about us without us.” I often use that term, and I mean it.

On that note, I thank those both within and outwith the chamber who have worked closely with the Government over the past 18 months to help get us to this point.

I thank the Equalities and Human Rights Committee, under the leadership of Ruth Maguire, which undertook significant detailed and thoughtful scrutiny. That included working closely with community members with lived experience to allow them to tell their stories. I know that every member of that committee was touched by the stories that they heard. They visited front-line services to understand how protecting women and girls from FGM happens on the ground and they took evidence from a range of experts and organisations. It was expert, detailed and valuable scrutiny. I commend the convener and members of the committee for their thoughtful and considered work, which has undoubtedly helped to ensure that we have the strongest possible legislation.

Above all, I thank those organisations and experts who have taken the time to share their deep expertise with me and with this Parliament. They included JustRight Scotland, Multi-Cultural Family Base, Shakti Women’s Aid, Saheliya, Community InfoSource, Amina—the Muslim Women’s Resource Centre, Kenyan Women in Scotland Association and Dundee International Women’s Centre, as well as Dr Ima Jackson, and Judy Wasige of Glasgow Caledonian University who work hard to ensure that the voices of women and girls are better heard in policy making.

I would especially like to thank Neneh Bojang, a courageous survivor of FGM and community activist, who stood with me outside Parliament less than a year ago as we launched the bill. She said at the time that if just one person did not have to experience what she had had to, the bill would be worth it.

I am confident that, if the Parliament votes to pass the bill today, we will be protecting more women and girls than we were yesterday and that we will be one step further towards our goal of ultimately preventing and eradicating female genital mutilation.

I move,

That the Parliament agrees that the Female Genital Mutilation (Protection and Guidance) (Scotland) Bill be passed.

The Deputy Presiding Officer

I remind those who are down to speak to press their request-to-speak buttons, please. We have a few minutes in hand, so if anyone wants to intervene, I can allow that.

16:30  



Michelle Ballantyne (South Scotland) (Con)

I am pleased to speak on behalf of the Scottish Conservatives as we bring proceedings on the bill to a close and, I hope, push it through Parliament at the end of the day.

I have spoken previously in this chamber about my experience as a nurse of having to hand over a baby who was being taken out of the country for the purposes of FGM. That has preyed on me for most of my life and, for that reason alone, I welcome the bill. I hope that it will prevent that from ever happening to anybody again.

The bill’s intentions are admirable, and it is a symbol of the things that this Parliament can achieve when all parties come together. However, the bill on its own will not be enough. It is important that awareness of the bill is raised, to ensure that it has effect. As Police Scotland remarked in its submission, for the

“broad spectrum of individuals or organisations ... it is imperative that clear guidance and processes must be put in place ... in order that any potential breach of the conditions is effectively policed.”

The same point applies to ensuring a strong level of communication with communities in which there have previously been cases of FGM. If people are to report the crime of FGM, it is vital that they understand the implications of the protection orders and where the law now stands on this issue. Without that key effort, all the legislation in the world will not have any effect in bringing more cases to court or ensuring that prosecutions are successful, or, perhaps more important, in preventing things from even getting to that stage in the first place. I know that the Scottish Government has been active on this issue through the group implementing the national action plan, but it is worth repeating that that is the only way in which we will succeed in eradicating this vile practice.

I want to mention the Scottish Conservatives’ amendments to the bill. The Conservatives have always been highly supportive of the bill, although, as my colleague Ruth Davidson just outlined, we had some concerns about the practical and technical considerations involved.

I pay tribute to my colleague Oliver Mundell, who sadly was not able to be here to speak to his amendments. He put in a lot of work in trying to represent the views and experiences of those who gave evidence, which of course they did very bravely, on a subject that is very difficult to talk about. He was very keen that those views should inform the bill and be incorporated into it, so that it would provide the kind of support that those people had asked for.

We accept, as Ruth Davidson said during discussion of the amendments, that the Government has implemented in principle the changes that we sought to make. Although the amended bill is not perfect, I am glad that it will provide for greater support than was originally planned.

At the end of the day, support and communication are key to the bill, if it is to be successful. I hope that the Government will expand its activities in this area so that it keeps pace with the requirements of the legislation. Not only do women who go through FGM need a vast amount of personal support, in terms of managing their lives, but, if we are going to take people to court and prosecute them as a result of the bill, those women will need an inordinate amount of support and protection so that they can continue to live in their communities.

I want to raise the subject of preventative offences. In its evidence to the Equalities and Human Rights Committee, Police Scotland said that there is

“a potential gap in the legislation”

regarding

“additional ‘preventative offences’ ... where persons have in their possessions items indicative of intending to carry out FGM.”

Although I recognise that in some cases it may be hard to discern whether such items might be used to carry out FGM, particularly in ceremonies of a more ritualistic kind, that will probably make it clear that the potential offender intends to commit a crime, much as the carrying of drug paraphernalia suggests another type of behaviour.

It would be worth exploring those issues in the FGM guidance that will issued to the police, other organisations and the public, so that people can recognise equipment indicative of FGM whenever they see it, and understand that there are reporting mechanisms available. Whether a full provision was needed in the bill was, perhaps, a different question. However, until we have stronger data on the way in which FGM is conducted, it would probably have been unwise to include a potentially far-reaching amendment that could be liable to abuse.

In its briefing for today, the Law Society of Scotland asked how the bill’s success and effectiveness will be measured once it has been implemented, particularly given how low conviction rates have been in the past. A robust way of collecting that information will be useful not only to improve reporting procedures, but to demonstrate the bill’s efficacy. That will be an important consideration, and I urge the minister to look at that and report back to Parliament on it in due course.

The Scottish Conservatives are fully supportive of the bill, and we support the direction that has been taken by the Scottish Government. As my colleagues and I have said, this needs to be a strong, comprehensive piece of legislation that is supported by the right training and guidance, and it needs to have the resources to back that up. Ultimately, we must support the victims and those who are under threat from this terrible crime. Many of us have never experienced it ourselves or within our families, but it is absolutely life destroying for those who do.

I thank the Scottish Government for bringing the bill forward. I presume and hope that the bill will be passed tonight, and I hope that it will make a big difference to those women out there.

The Deputy Presiding Officer

Before I call Pauline McNeill, I want to let Parliament know that we have fewer members wishing to speak than expected. Therefore, it is likely that decision time will be a bit earlier. I call Pauline McNeill.

16:36  



Pauline McNeill (Glasgow) (Lab)

I am delighted to speak for Scottish Labour.

I thank Oliver Mundell, Ruth Maguire, Mary Fee and the members of the Equalities and Human Rights Committee for being excellent parliamentarians, and for doing work that—although expected—is of high quality. I also want to record my thanks to Angela Constance for the work that she did in her previous ministerial role, and to Christina McKelvie, who has taken the bill through so ably.

Protection of women and girls is of universal concern. I have not been involved in the debate previously, but I have followed it from its outset. An estimated one in 20 girls and women in the world has undergone some form of FGM, according to figures from the United Nations. In 2020 alone, 4.1 million girls around the world are at risk of undergoing FGM. The UN is, rightly, calling for a complete ban on FGM and wants the practice to be ended worldwide by 2030. However, it strikes me that that is another 10 years of this brutal crime. I hope that the UN might be able to bring that date forward.

FGM is nearly always carried out on minors and is a violation of the rights of girls. FGM has absolutely no health benefits: rather, it harms girls and women, because it interferes with the natural functions of their bodies. There is a ban on it in Scotland, and it is also illegal to help someone to commit FGM or to take someone out of the country to undergo it. The legislation will be vital, because it will provide increased protections for girls who are at increased risk of being put under pressure to undergo the abhorrent and dangerous practice.

I have carefully followed the amendments this afternoon, as they were dealt with by the minister. The question of anonymity is an absolutely vital aspect of the legislation, because it protects women and girls from future harm. The bill will allow a court to make a protection order to protect a person who is at risk of being subjected to FGM. Labour is delighted to support the principles of the bill and will vote for it at stage 3.

Doctors in Scotland treated victims of FGM on more than 230 occasions during 2017 and 2018. NHS Greater Glasgow and Clyde said that it had identified women with FGM on at least 138 occasions over that period. NHS Lothian, which covers Edinburgh, said that there were 93 occasions on which it was notified. It is quite shocking that we still face that in Scotland. Dr Duncan McCormick, who is a consultant in public health medicine at NHS Lothian, pointed out that

“It is a form of abuse and gender-based violence that has serious short and long term physical and psychological consequences”.

All FGM survivors have appalling stories and members have shared those horrible stories in Parliament. I will finish with one such story. Lesha said:

“I was sent to Guinea for the summer. I was mutilated along with my baby sister. She was 9, and I was 11. After the circumcision, I don't know what happened exactly, but she died. She was my best friend.

After the ritual, I was placed in a room with other girls, and men were not allowed to see us. I remember not seeing my family for days—I can't remember exactly how long.

When I finally returned home and saw my family, they were happy and proud. I was finally a woman.

Sex is painful, and I hate it. I hate being touched. It feels like rape every time. I cry inside, I cry out loud, and my husband does not care. It does not hurt him.

I had Type-3 FGM, and I was reopened after we were married.”

That kind of pain is typical for a survivor of FGM, and her story shows that some girls even die from the procedure.

I am delighted that the Scottish Government has accepted the recommendation of the Equalities and Human Rights Committee that

“statutory guidance should be supported by appropriate professional training”,

so that FGM protection orders are used appropriately and implemented effectively.

Michelle Ballantyne made an important point about the education that is required to accompany the protection order and the crime that we will now have in Scots law.

The enhanced protection will be vital in helping to protect vulnerable girls from the life-changing and life-threatening practice of FGM. I am delighted that Scottish Labour will vote for the bill at decision time.

FGM is a global issue; it is an issue all around the world. Scotland has done the right thing and we can say that we have done everything in our power to protect girls here. However, we know that we need to champion the issue around the globe.

16:41  



Alex Cole-Hamilton (Edinburgh Western) (LD)

As deputy convener of the Equalities and Human Rights Committee, I offer my sincere thanks to the clerks, witnesses and organisations that took us through this sensitive and important bill.

The bill is a monument to the strength of our democracy. It comes in the teeth of the worst of international crises, but the business of public policy and Government must continue. It is an example of a bill that might affect only an extremely small number of our fellow citizens, but by their nature, they are a vulnerable few.

It is an indictment of our efforts to realise gender equality and the rights of women that we have to pass an act such as this in Scotland in 2020. The cultural practice of female genital mutilation typifies men’s attempts to exert power and control over women. It has occurred for aeons and it is time that we finally stamped it out. With the bill, we extend a layer of protection to many existing layers of protection, but it is a vital layer.

In the minister’s opening remarks, she was quite right to say that FGM is a hidden practice. However, that does not mean that it does not exist. We should not look at the culture in our country and think that we have got it right. Such acts of savagery or barbarism—I would like to withdraw that word; it is a terrible word to use—happen in our country, which is in no way appropriate. We have statistics on that. Globally, in any given year, 3 million girls are affected, and in Scotland each year, 350 baby girls are born to mothers from countries where female genital mutilation takes place and is the cultural norm.

The FGM protection order will provide the teeth of the legislation. In the words of Leethen Bartholomew from the National FGM Centre, it will give a woman

“the agency and the power not only to take a stance and protect herself but to also protect her child.” —[Official Report, Equalities and Human Rights Committee, 7 November 2019; c 7.]

Those words struck home with me as we heard them in evidence. We have heard several times in debates on the bill that the order will give agency and power to women. It will reverse what the practice of FGM has sought to do in the millennia in which it has been practised, by giving women the power to defend themselves against the brutality of men.

Until this point in our history, there has been no real legal impediment to the practice of FGM. We have not been able to prevent babies or children from being taken overseas, or to prevent the practice from happening to them at home. It is such a hidden and sensitive practice that people go to great lengths to cover it up.

I welcome the distance that the Government has gone on anonymity, as I said during the debate on stage 3 amendments. It is vital that girls and young women in affected cultures are allowed anonymity when they come forward. By their nature, they are vulnerable. They might have a great sense of shame about putting their hands up and saying that they do not want FGM to happen to them, and they might fear being ostracised if their names become known in their wider communities. I think that we have reached the point at which the bill will protect such women.

Implementation of the bill will be critical, if we are to get the approach right; a bill is only as good as its implementation phase. I very much welcome the efforts that the Government is making to plan focus groups in affected communities in order to shape pathways and structures around the legislation.

I again thank everyone who participated in development of the bill—not least, Saheliya, for example, which is becoming more and more involved with Parliament’s work in helping us to help marginalised groups.

I commend the bill to Parliament.

16:45  



Christina McKelvie

I am pleased to close the stage 3 debate on the bill.

Alex Cole-Hamilton said that FGM is a hidden practice. However, we know that it happens and we should not think that it does not; we heard the stories from Michelle Ballantyne and Pauline McNeill. Michelle Ballantyne talked about having to hand back a baby girl who she knew was at risk. The bill will protect babies such as that, and it will protect professionals such as Michelle in their roles.

Pauline McNeill talked about that wee girl’s story. Some wee girls are taken to a birthday party or on an outing by an auntie or a granny, and they do not know what is coming. The practice might be hidden, but we know the stories and they are the reason why we are doing what we are doing.

In key parts of their speeches, members asked for more information. Michelle Ballantyne asked about data collection. We are taking the issue on board and I have committed to develop a data collection strand of work through the FGM national action plan work, in partnership with health and other relevant organisations.

Michelle Ballantyne also asked about FGM equipment. The issue was raised with me at the beginning of this process and we did some work with Police Scotland on the matter. We do not need a new offence, because the matter is already caught by the law: it will be an offence to attempt to break an FGM protection order, including by carrying equipment for FGM. Police Scotland has powers.

Michelle Ballantyne

May I ask for clarification on that? My understanding is that if someone is stopped and found to be in possession of equipment, they cannot be prosecuted for that. They have to have done something—may I just check that?

Christina McKelvie

If the bill is passed today, given the purpose of an FGM protection order, if we know that a person is using the equipment to carry out or attempt to carry out FGM, they may be subject to a criminal conviction. We have that covered off. I hope that that reassures the member; we can talk more about it if she wants to do so.

Many members asked about guidance, and I want to reassure members about what we want to do in that regard. I draw members’ attention to “Scotland’s National Action Plan to Prevent and Eradicate Female Genital Mutilation (FGM)—Year Three Progress Report”. On page 12, we say:

“Both sets of guidance will set out the policy and legal context for work on FGM. The Guidance on Protection Orders will describe the order, set out roles and responsibilities and cover relevant matters such as application process, costs and access to legal aid”.

I want to say something about legal aid. At stage 2, the issue was raised and we considered how a person who is accessing an FGM protection order might be able to access legal aid. I inform members that I implemented the regulatory change to the legal aid list to ensure that FGM protection orders are covered, which means that people have access to legal aid.

The year 3 report goes on to say:

“The guidance on FGM generally will provide a comprehensive summary of the issues around FGM and set out actions for Chief Executives, Directors and senior managers to whom the guidance will apply. Both sets of guidance will be shaped through close community engagement and work with key stakeholders, utilising the expertise of members of the FGM National Implementation Group.”

That work will commence immediately following royal assent.

All today’s speakers have raised incredibly important issues about implementation. Following royal assent, the work will be complemented later in 2020 by the formal consultation on the draft guidance that will cover the FGM protection orders and FGM generally, should we have the space to do that, given the current climate that we are all facing right now.

It is our intention to do that formal consultation and to give stakeholders and parliamentarians another chance to voice their opinions, to ensure that the implementation of the orders and the guidance matches what we want to be done.

To assist with the effective operation of future statutory guidance on FGM, we will work with stakeholders to ensure that the core training adequately reflects the position on FGM, including the updated legislation. In progressing that work, we will engage with communities at the outset, to ensure that the guidance in particular reflects the needs of women and girls.

A question was asked about legal aid and whether that would usually be subject to the income of the parents. That would be the case only where it would not be unjust and inequitable to do so. Given that FGM protection orders would often—but not always—involve the consideration of restrictions on parents, we think it highly likely that such means testing would always be unjust and inequitable. In those circumstances, legal aid would be granted.

At stage 2, I indicated that I had instructed the preparation of the regulations because of the urgency of the matter. The regulations will proceed as part of the bill’s implementation process.

It is vital to emphasise that the bill is one part of our overall holistic approach to preventing and eradicating FGM. I know that everyone who spoke wanted to make sure that we take that approach. Michelle Ballantyne in particular said that legislation is not enough. We know that. We can use the legislation to prevent FGM and to protect women and girls, but culture change, understanding, support and working with stakeholders and communities are the main ways by which we want to protect women and girls. We have been doing that through our national implementation and action plan, and we want to make sure that we continue that work.

Last month, we published our year three progress report on our action plan to prevent and eradicate FGM. I am pleased to highlight that we are making good progress. I hope that people will take a look at the report—it makes for good reading and shows us all the direction that we want to go in.

I pay tribute to and recognise the hard work and dedication of our third sector partners in helping to drive that progress. Those organisations are doing vital work to raise awareness, challenge attitudes and support women and girls, and, alongside the legislative measures that we will take, will make the change that we all want.

I commend front-line workers—in the police and the health and social work sectors—who are all supporting women and girls. We will continue to work together with stakeholders and communities in making every effort to build a Scotland where women and girls at risk of harm can be equally safe. That means that wee girl who Pauline McNeill spoke about; it means that baby who Michelle Ballantyne spoke about. That is who all this is about.

As I have said, abhorrent gender-based violence has impacted on nearly 200 million women and girls worldwide. We know that there are those in Scotland who have been subject to it and that there are those who are at risk of it.

One of the things that I want to do in issuing statutory guidance to bodies is to make sure that a person-centred approach is at the heart of everything that we do. As a Government and as a Parliament we must send a very strong message that FGM in Scotland will not be tolerated; that women and girls will be believed; that they will be supported; that they will be listened to; and that we will look after and protect them.

We need to take practical action to build on existing protections, so that the risk of FGM taking place at all is reduced. The Female Genital Mutilation (Protection and Guidance) (Scotland) Bill does that. In future, girls and women can be better protected from harm and, importantly, FGM protection orders can be used to stop potential perpetrators of FGM in their tracks.

I launched the bill outside the Parliament, just short of a year ago, with a woman called Neneh Bojang. If you have not heard her story—actually, you do not want to hear it, because it is absolutely horrifying. At every step of the way in my work on the bill, I have had her front and foremost in my mind—like Michelle Ballantyne with that baby, like Pauline McNeill with that wee girl, and like the conversation that I had with John Finnie about the parties that wee girls sometimes think they are going to, and how abhorrent that is. Those are the people at the front of our minds; they are our Scottish citizens; they are our wee girls. The bill that we have passed into law today will protect them all.

The Presiding Officer (Ken Macintosh)

That concludes our stage 3 debate on the Female Genital Mutilation (Protection and Guidance) (Scotland) Bill.

Final vote on the Bill

After the final discussion of the Bill, MSPs vote on whether they think it should become law.

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Final vote transcript

The Presiding Officer (Ken Macintosh)

There is one question to be put as a result of today’s business. The question is, that motion S5M-21279, in the name of Christina McKelvie, on the Female Genital Mutilation (Protection and Guidance) (Scotland) Bill, be agreed to. As this is a final vote on a bill at stage 3, we will move straight to a division.

For

Yousaf, Humza (Glasgow Pollok) (SNP)
Wightman, Andy (Lothian) (Green)
Whittle, Brian (South Scotland) (Con)
Wheelhouse, Paul (South Scotland) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Tomkins, Adam (Glasgow) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Smith, Liz (Mid Scotland and Fife) (Con)
Simpson, Graham (Central Scotland) (Con)
Sarwar, Anas (Glasgow) (Lab)
Russell, Michael (Argyll and Bute) (SNP)
Robison, Shona (Dundee City East) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Mountain, Edward (Highlands and Islands) (Con)
McNeill, Pauline (Glasgow) (Lab)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McDonald, Mark (Aberdeen Donside) (Ind)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Lochhead, Richard (Moray) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Leonard, Richard (Central Scotland) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Lamont, Johann (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Kelly, James (Glasgow) (Lab)
Johnstone, Alison (Lothian) (Green)
Hyslop, Fiona (Linlithgow) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Greer, Ross (West Scotland) (Green)
Greene, Jamie (West Scotland) (Con)
Gray, Iain (East Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Golden, Maurice (West Scotland) (Con)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Finnie, John (Highlands and Islands) (Green)
Findlay, Neil (Lothian) (Lab)
Fabiani, Linda (East Kilbride) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dey, Graeme (Angus South) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Corry, Maurice (West Scotland) (Con)
Constance, Angela (Almond Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Cameron, Donald (Highlands and Islands) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Briggs, Miles (Lothian) (Con)
Boyack, Sarah (Lothian) (Lab)
Bowman, Bill (North East Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Ballantyne, Michelle (South Scotland) (Con)
Balfour, Jeremy (Lothian) (Con)
Baker, Claire (Mid Scotland and Fife) (Lab)
Arthur, Tom (Renfrewshire South) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

The Presiding Officer

The result of the division is: For 84, Against 0, Abstentions 0.

The motion is therefore agreed to unanimously and the Female Genital Mutilation (Protection and Guidance) (Scotland) Bill is passed. [Applause.]

Motion agreed to,

That the Parliament agrees that the Female Genital Mutilation (Protection and Guidance) (Scotland) Bill be passed.

Meeting closed at 17:00.  



Female Genital Mutilation (Protection and Guidance) (Scotland) Bill as passed

Female Genital Mutilation (Protection and Guidance) (Scotland) Bill printing changes after Bill as passed

Printing changes are changes to the text of a Bill. It will not change the legal effect of the Bill.

This Bill was passed on 19 March 2020 and became an Act on 24 April 2020 
Find the Female Genital Mutilation (Protection and Guidance) (Scotland) Act 2020 on legislation.gov.uk

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