Children Act 1989 (Amendment) (Female Genital Mutilation) Bill [HL]

Explanatory Notes

Compatibility with the European Convention on Human Rights

23. The Bill could potentially engage Convention rights, particularly Article 8 (the right to respect for private and family life) and Article 6 (the right to a fair trial) but, to the extent that those rights are engaged, the Government does not consider that they are interfered with by the Bill. 

24. The Bill defines proceedings for Female Genital Mutilation Protection Orders as "family proceedings" for the purposes of the 1989 Act. This means that an application for a care or supervision order in relation to a child at risk of significant harm, could be made during those proceedings. This would avoid potential delay. Other powers of the Family Court, including powers to make, for example, an interim care order, a prohibited steps order, special guardianship order or family assistance order, would also be available in FGMPO proceedings.  

 Article 8 ECHR 

25.  A care order places the child with respect to whom the application is made in the care of a designated local authority and a supervision order puts the child under the supervision of a designated local authority.  

26.  The placement of a child in local authority care, or under the supervision of a local authority, engages the Article 8 rights of both the child and their parents or guardians. However, any interference with these rights is considered to be justified. Such a decision would be in accordance with the law and is considered necessary in a democratic society in the interests of protecting the health and rights and freedoms of the child. Under section 31(2) of the 1989 Act, a court can only make a care order or supervision order (or interim orders) if it is satisfied that the child concerned is suffering, or is likely to suffer, significant harm and that the harm, or likelihood of harm, is attributable to the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him.  

27. The powers to make care and supervision orders in cases involving female genital mutilation already exist. This Bill enables applications for such orders to be made in the same set of proceedings and widens the powers of the court, reducing the potential for delay. It is therefore the Government’s view that the provisions of the Bill have a minimal impact on the Article 8 rights of the parties and, in any event, is justified by the legitimate aim of reducing delay and inefficiency in the system to the benefit to the child concerned.

Article 6 ECHR 

28. Defining FGMPO proceedings as "family proceedings" for the purpose of the 1989 Act does not, in itself, result in the determination of a civil right or obligation and, in any event, any decision to make a care order or a supervision order will be made by the court in Article 6 compliant proceedings.  

29. The Bill is, therefore, assessed to be compatible with the ECHR. 

 

Prepared 26th March 2019