Prohibition of Female Genital Mutilation (Scotland) Act 2005

Offence of female genital mutilation

1

• (1) A person who performs an action mentioned in subsection (2) in relation to the whole or any part of the labia majora, labia minora, prepuce of the clitoris, clitoris or vagina of another person is guilty of an offence.

• (2) Those actions are—

• (a) excising it;

• (b) infibulating it; or

• (c) otherwise mutilating it.

• (3) No offence under subsection (1) is committed by an approved person who performs an action mentioned in subsection (4).

• (4) Those actions are—

• (a) a surgical operation on another person which is necessary for that other person's physical or mental health; or

• (b) a surgical operation on another person who is in any stage of labour or has just given birth, for purposes connected with the labour or birth.

• (5) The following are, for the purposes of this Act, approved persons—

• (a) in relation to an action falling within paragraph (a) of subsection (4), a registered medical practitioner;

• (b) in relation to an action falling within paragraph (b) of that subsection, a registered medical practitioner, a registered midwife or a person undergoing a course of training with a view to becoming such a practitioner or midwife.

• (6) For the purposes of determining whether an operation is necessary for the mental health of a person, it is immaterial whether that or any other person believes that the operation is required as a matter of custom or ritual.

Modification of section 1

2

• (1) The Scottish Ministers may by order modify section 1 so as to—

• (a) add or remove an action to or from those actions for the time being listed in subsection (2) of that section;

• (b) vary an action for the time being listed in that subsection;

• (c) add an action to those for the time being listed in subsection (4) of that section and, in relation to that action, define “approved persons”;

• (d) remove an action added under paragraph (c) and any related definition of “approved persons”; or

• (e) vary—

• (i) an action added under paragraph (c); or

• (ii) any related definition of “approved persons”.

• (2) An order under this section is to be made by statutory instrument.

• (3) No such order is to be made unless a draft of it has been laid before and approved by a resolution of the Scottish Parliament.

Aiding and abetting female genital mutilation

3

• (1) A person who aids, abets, counsels, procures or incites—

• (a) a person to commit an offence under section 1;

• (b) another person to perform an action mentioned in section 1(2) in relation to the whole or any part of that other person's own labia majora, labia minora, prepuce of the clitoris, clitoris or vagina; or

• (c) a person who is not a United Kingdom national or ... United Kingdom resident to do a relevant act of genital mutilation outside the United Kingdom,

commits an offence.

• (2) An act is a relevant act of genital mutilation if it would, if done by a United Kingdom national or ... United Kingdom resident, constitute an offence under section 1.

• (3) No offence under subsection (1)(c) is committed if the relevant act of genital mutilation—

• (a) is an action mentioned in section 1(4); and

• (b) is performed by a person who, in relation to the action, is an approved person or provides services corresponding to those of an approved person.

Extension of sections 1 and 3 to extra-territorial acts

4

• (1) Sections 1 and 3 extend to any act done outside the United Kingdom by a United Kingdom national or ... United Kingdom resident.

• (2) No offence under section 1 is committed by a person who—

• (a) outside the United Kingdom, performs an action mentioned in subsection (4) of that section; and

• (b) in relation to the action, provides services corresponding to those of an approved person.

• (3) If an offence under this Act is committed outside the United Kingdom—

• (a) it may be treated as having been committed in any place in Scotland; and

• (b) proceedings may be taken accordingly.

Penalties for offences

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A person guilty of an offence under this Act is liable—

• (a) on conviction on indictment, to imprisonment for a term not exceeding 14 years or a fine (or both);

• (b) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum (or both).

Definitions

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In this Act—

• “United Kingdom national” is an individual who is—a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen;a person who under the British Nationality Act 1981 (c. 61) is a British subject; ora British protected person within the meaning of that Act;

• “United Kingdom resident” is an individual who is habitually resident in the United Kingdom.

Amendment and repeal

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• (1) In Schedule 1 to the Criminal Procedure (Scotland) Act 1995 (c. 46) (offences against children under 17 to which special provisions apply), after paragraph 2 there is inserted—

(2A) Any offence under the Prohibition of Female Genital Mutilation (Scotland) Act 2005 where the person mutilated or, as the case may be, proposed to be mutilated, is a child under the age of 17 years.

.

• (2) The Prohibition of Female Circumcision Act 1985 (c. 38) is repealed.

Short title and commencement

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• (1) This Act may be cited as the Prohibition of Female Genital Mutilation (Scotland) Act 2005.

• (2) This Act comes into force at the end of the period of two months beginning with the date of Royal Assent.

Modification of section 1

Short title and commencement

Editorial notes

[^key-891d326185e58cb250f363fe495df7fa]: Word in s. 3(1)(c) omitted (3.5.2015) by virtue of Serious Crime Act 2015 (c. 9), ss. 70(2)(a), 88(4) (with s. 86(10))

[^key-965e6c73acab0cc168311584dd01a7b1]: Word in s. 3(2) omitted (3.5.2015) by virtue of Serious Crime Act 2015 (c. 9), ss. 70(2)(a), 88(4) (with s. 86(10))

[^key-6add012f160e86e5170ad41905cf853f]: Word in s. 4(1) omitted (3.5.2015) by virtue of Serious Crime Act 2015 (c. 9), ss. 70(2)(b), 88(4) (with s. 86(10))

[^key-ea4817e44c9f1e80c441623910287d05]: Words in s. 6 substituted (3.5.2015) by Serious Crime Act 2015 (c. 9), ss. 70(2)(c), 88(4) (with s. 86(10))

[^key-dd10fed4969ef4fda0b6177baed6b02b]: Ss. 5A-5R inserted (25.4.2020 but only for the insertion of s. 5R(4)(b)(ii) for the purposes of making regulations and otherwise prosp.) by Female Genital Mutilation (Protection and Guidance) (Scotland) Act 2020 (asp 9), ss. 1, 11(1)(a)

5A

• (1) In this Act, a “female genital mutilation protection order” is an order made for one or more of the purposes mentioned in subsection (2).

• (2) The purposes are—

• (a) to prevent, or reduce the likelihood of, an act of genital mutilation being performed on—

• (i) a person identified in the order, or

• (ii) any person falling within a description specified in the order,

• (b) to protect a person, identified in the order, on whom such an act has been performed,

• (c) to otherwise prevent, or reduce the likelihood of, an offence under section 1 or section 3 being committed.

• (3) A female genital mutilation protection order may be made—

• (a) on an application made to a court under section 5C,

• (b) in civil proceedings before a court by virtue of section 5E(1),

• (c) in criminal proceedings before a court by virtue of section 5J(2).

• (4) In deciding, under or by virtue of a provision mentioned in subsection (3), whether to make a female genital mutilation protection order and, if so, what order to make, the court must have regard to all the circumstances including the need to secure the health, safety and well-being of any person who would be a protected person were the order made.

• (5) In ascertaining the well-being of such a person, the court must, in particular, have regard to the person's wishes and feelings (so far as reasonably ascertainable) to such extent as the court considers appropriate, taking into account the person's age and understanding.

• (6) Subsection (7) applies where a person who would be a protected person were a female genital mutilation protection order made is not ordinarily resident in Scotland.

• (7) The court may make a female genital mutilation protection order under or by virtue of a provision mentioned in subsection (3) in relation to a person mentioned in subsection (6) only where the person is in Scotland when the order is applied for or, as the case may be, made.

• (8) In this Act—

• “an act of genital mutilation”—means an action mentioned in section 1(2) performed in relation to the whole or any part of a person's genitals mentioned in section 1(1), other than an action mentioned in section 1(4)—performed by an approved person, orperformed outside the United Kingdom by an approved person or by a person who provides services corresponding to those of an approved person,includes an action mentioned in section 1(2) performed by a person in relation to the whole or any part of that person's own genitals mentioned in section 1(1) but only in the circumstances mentioned in section 3(1)(b),

• “protected person” means a person identified in the order as mentioned in subsection (2)(a)(i) or (b).

5B

• (1) A female genital mutilation protection order may contain such—

• (a) prohibitions, restrictions or requirements, and

• (b) other provisions,

as the court considers appropriate for the purposes of the order.

• (2) The terms of such an order may, in particular, relate to—

• (a) conduct outside (as well as, or instead of, conduct within) Scotland,

• (b) persons who have committed, or may attempt to commit, an offence under section 1 or section 3,

• (c) persons who are, or may become, involved in the commission of an offence under section 1 or section 3 in other respects.

• (3) A female genital mutilation protection order may, among other things, require a person—

• (a) to take the protected person to a place of safety designated in the order,

• (b) to bring the protected person to a court at such time and place as the court making the order may specify,

• (c) to bring the protected person to any other place at such time and for such purpose as the court making the order may specify,

• (d) to refrain from violent, threatening or intimidating conduct (whether against the protected person or any other person),

• (e) who is a person such as is mentioned in subsection (2)(b) or (c), to appear in court,

• (f) to disclose, if known, the whereabouts of such a person or the protected person,

• (g) to refrain from taking the protected person from, or to, such place as the court may specify,

• (h) to facilitate or otherwise enable the protected person or another person to return or go to such place as the court may specify within such period as may be so specified,

• (i) to submit to the court such documents (including passports, birth certificates or other documents identifying the person and travel documents) as the court may specify,

• (j) to provide the court with such other information as it may specify.

• (4) A female genital mutilation protection order may, among other things, also require a Scottish public authority to consider what support and assistance the authority may be able, in exercise of its functions, to provide to the protected person or another person.

• (5) But a requirement mentioned in subsection (4) may be included in the female genital mutilation protection order only where a person—

• (a) who is a party to the proceedings for the order, or

• (b) who, in the case of such an order made by virtue of section 5E or 5F, would have been a party to such proceedings,

requests the court to do so.

• (6) Where a requirement mentioned in subsection (4) is included in a female genital mutilation protection order, the Scottish public authority to whom the requirement applies must, so far as reasonably practicable, provide such support and assistance as the authority considers appropriate.

• (7) For the purposes of subsection (2)(c), examples of involvement in other respects are—

• (a) conspiring to commit an offence under section 1 or section 3,

• (b) aiding, abetting, counselling, procuring or inciting another person to commit an offence under section 3.

5C

• (1) The court may, on an application to it under this section, make a female genital mutilation protection order.

• (2) The following persons may apply to the court for a female genital mutilation protection order—

• (a) a person on whom there is a risk of an act of genital mutilation being performed,

• (b) a person on whom such an act has been performed,

• (c) the Lord Advocate,

• (d) a relevant local authority,

• (e) the chief constable,

• (f) with the leave of the court only, any other person.

• (3) The court may permit a person mentioned in subsection (2) to be a party to proceedings relating to an application made by another person mentioned in subsection (2).

• (4) In deciding whether to grant a person (“the applicant”) leave as referred to in subsection (2)(f) or, as the case may be, to allow the applicant to be a party to proceedings relating to an application made by another person, the court must have regard to all the circumstances including (where applicable)—

• (a) the applicant's connection with a person who would be a protected person were the order made,

• (b) the applicant's knowledge of such a person and the person's circumstances,

• (c) the wishes and feelings of such a person so far as they are reasonably ascertainable,

• (d) in a case where leave to apply is being sought, any reason why the application is being made by the applicant and not such a person.

• (5) The court need only have regard to a person's wishes and feelings as mentioned in subsection (4)(c) so far as it considers it appropriate, on the basis of the person's age and understanding, to do so.

• (6) In this Act, a “relevant local authority” is—

• (a) in the case of an application for a female genital mutilation protection order, the local authority in whose area—

• (i) a person, who would be a protected person were such an order made, is present, or

• (ii) a person, who would be a person falling within a description specified in such an order (as mentioned in section 5A(2)(a)(ii)) were the order made, is present or is likely to be present,

• (b) in any other case, the local authority in whose area—

• (i) a protected person is present, or

• (ii) a person falling within a description specified in such an order (as mentioned in section 5A(2)(a)(ii)) is present or is likely to be present.

5D

• (1) The court to which an application for a female genital mutilation protection order is to be made is to be determined in accordance with this section.

• (2) The application may be made to the sheriff in whose sheriffdom any person, who would be a protected person were the order made, is ordinarily resident.

• (3) Where no person would be a protected person were the order made—

• (a) the application may be made to the sheriff in whose sheriffdom any person, on whom prohibitions, restrictions or requirements would be imposed by the order were it made, is ordinarily resident,

• (b) where the application is made by a relevant local authority, it may be made to that sheriff or to the sheriff in whose sheriffdom the local authority is situated.

• (4) In any other case, the application may be made to the sheriff of the sheriffdom of Lothian and Borders at Edinburgh.