Serious Crime Bill [HL]

“12A          Protection of children from sexual communications and from
communications intended to elicit a sexual response

(1)     A person (“A”) commits an offence where A intentionally
communicates with another person (“B”) in the following
circumstances—

(a)   A is aged 18 or over,

(b)   either—

(i)   B is under 16 and A does not reasonably believe that
B is 16 or over, or

(ii)   B is under 13,

(c)   the content of the communication is sexual or intended to
elicit a response that is sexual,

(d)   subject to subsection (3) below, A’s purpose in sending the
communication or seeking a response is sexual.

(2)     The communication may be in any form including verbal, written
or pictorial (which may include still or moving images) and may be
conveyed by any means whatever.

(3)     A does not commit the offence in subsection (1) above where the
purpose of the communication is for the protection of the child to
which the communication is sent.

(4)     For the purposes of subsection (3), a person acts for the protection
of a child if he acts for the purpose of—

(a)   protecting the child from sexually transmitted infection,

(b)   protecting the physical safety of the child,

(c)   preventing the child from becoming pregnant, or

(d)   promoting the child’s emotional well-being by the giving of
advice and not for a sexual purpose.””

Female Genital Mutilation Protection Orders

63T          Female Genital Mutilation Protection Orders

(1)     The court may make an order for the purposes of protecting—

(a)   a girl or woman from being subjected to female genital
mutilation, or from any attempt to subject her to genital
mutilation; or

(b)   a girl or woman who has been subjected to female genital
mutilation.

(2)     In deciding whether to exercise its powers under this section and, if
so, in what manner, the court must have regard to all the
circumstances including the need to secure the health, safety and
well-being of the girl or woman to be protected.

(3)     A girl or woman is not subjected to female genital mutilation for the
purposes of subsection (4) if the procedure performed is—

(a)   a surgical operation on a girl or woman which is necessary
for her physical or mental health, or

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

and if the procedure is performed by an approved person.

(4)     The following are approved persons—

(a)   in relation to a procedure falling within subsection (3)(a), a
registered medical practitioner,

(b)   in relation to a procedure falling within subsection (3)(b), a
registered medical practitioner, a registered midwife or a
person undergoing a course of training with a view to
becoming such a practitioner or midwife.

(5)     For the purpose of determining whether an operation is necessary
for the mental health of a girl or woman, it is immaterial whether
she or any other person believes that the operation is required as a
matter of custom or ritual.

(6)     In this Part—

“female genital mutilation” refers to all procedures involving
partial or total removal of the external female genitalia or
other injury to the female genital organs for cultural or other
non-medical reasons including (but not limited to)—

(a)   clitoridectomy: partial or total removal of the clitoris
and, in very rare cases, only the prepuce (the fold of
skin surrounding the clitoris);

(b)   excision: partial or total removal of the clitoris and
the labia minora, with or without excision of the
labia majora;

(c)   infibulation: narrowing of the vaginal opening
through the creation of a covering seal, and the seal
is formed by cutting and repositioning the inner, or
outer, labia, with or without removal of the clitoris;

(d)   all other harmful procedures to the female genitalia
for non-medical purposes (including, but not
restricted to, re-infibulation);

“Female Genital Mutilation Protection Order” means an order
under this section.

63U          Contents of orders

(1)     A Female Genital Mutilation Protection Order may contain—

(a)   such prohibitions, restrictions or requirements; and

(b)   such other terms,

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

(2)     The terms of such orders may, in particular, relate to—

(a)   conduct outside England and Wales as well as (or instead
of) conduct within England and Wales;

(b)   respondents who are, or may become, involved in other
respects as well as (or instead of) respondents who arrange
or attempt to arrange for, a person to be subjected to female
genital mutilation;

(c)   other persons who are, or may become, involved in other
respects as well as respondents of any kind.

(3)     For the purposes of subsection (2), examples of involvement in
other respects include (but are not restricted to)—

(a)   aiding, abetting, counselling, procuring, encouraging,
inciting or otherwise assisting in any way another person to
subject a girl or woman to female genital mutilation;

(b)   conspiring to force, or attempting to force, a girl or woman
to be subjected to female genital mutilation.

63V          Applications and other occasions for making orders

(1)     The court may make a Female Genital Mutilation Protection
Order—

(a)   on an application being made to it; or

(b)   without an application being made to it but in the
circumstances mentioned in subsection (6).

(2)     An application may be made by—

(a)   the girl or woman who is to be protected by the order; or

(b)   a relevant third party.

(3)     An application may be made by any other person with the leave of
the court.

(4)     In deciding whether to grant leave, the court must have regard to
all the circumstances including—

(a)   the applicant’s connection with the girl or woman to be
protected;

(b)   the applicant’s knowledge of the circumstances of the girl or
woman to be protected; and

(c)   the wishes and feelings of the girl or woman to be protected
so far as they are reasonably ascertainable and so far as the
court considers it appropriate, in the light of her age and
understanding, to have regard to them.

(5)     An application under this section may be made in other family
proceedings or without any other family proceedings being
instituted.

(6)     The circumstances in which the court may make an order without
an application being made are where—

(a)   any other family proceedings are before the court (“the
current proceedings”);

(b)   the court considers that a Female Genital Mutilation
Protection Order should be made to protect a girl or woman
(whether or not a party to the current proceedings); and

(c)   a person who would be a respondent to any such
proceedings for a Female Genital Mutilation Protection
Order is a party to the current proceedings.

(7)     In this section—

“family proceedings” has the same meaning as in Part 4 of the
Family Law Act 1996 (2) but also includes—

(a)   proceedings under the inherent jurisdiction of the
High Court in relation to adults;

(b)   proceedings in which the court has made an
emergency protection order under section 44 of the
Children Act 1989 which includes an exclusion
requirement (as defined in section 44A(3) of that
Act); and

(c)   proceedings in which the court has made an order
under section 50 of the Act of 1989 (recovery of
abducted children etc.); and

“relevant third party” means a person specified, or falling
within a description of persons specified, by order of the
Lord Chancellor.

(8)     An order of the Lord Chancellor under subsection (7) may, in
particular, specify the Secretary of State.

Further provision about orders

63W          Ex parte orders

(1)     The court may, in any case where it considers that it is just and
convenient to do so, make a Female Genital Mutilation Protection
Order even though the respondent has not been given such notice
of the proceedings as would otherwise be required by rules of court.

(2)     In deciding whether to exercise its powers under subsection (1), the
court must have regard to all the circumstances including—

(a)   any risk of significant harm to the girl or woman to be
protected or another person if the order is not made
immediately;

(b)   whether it is likely that an applicant will be deterred or
prevented from pursuing an application if an order is not
made immediately; and

(c)   whether there is reason to believe that—

(i)   the respondent is aware of the proceedings but is
deliberately evading service; and

(ii)   the delay involved in effecting substituted service
will cause serious prejudice to the girl or woman to
be protected or (if a different person) an applicant.

(3)     The court must give the respondent an opportunity to make
representations about any order made by virtue of subsection (1).

(4)     The opportunity must be—

(a)   as soon as just and convenient; and

(b)   at a hearing of which notice has been given to all the parties
in accordance with rules of court.

63X          Undertakings instead of orders

(1)     The court may, subject to subsection (3), accept an undertaking
from the respondent to proceedings for a Female Genital Mutilation
Protection Order if it has power to make such an order.

(2)     No power of arrest may be attached to an undertaking given under
subsection (1).

(3)     The court may not accept an undertaking under subsection (1)
instead of making an order if a power of arrest would otherwise
have been attached to the order.

(4)     An undertaking given to the court under subsection (1) is
enforceable as if the court had made the order in terms
corresponding to those of the undertaking.

(5)     This section is without prejudice to the powers of the court apart
from this section.

63Y          Duration of orders

A Female Genital Mutilation Protection Order may be made for a
specified period or until varied or discharged.

63Z          Variation of orders and their discharge

(1)     The court may vary or discharge a Female Genital Mutilation
Protection Order on an application by—

(a)   any party to the proceedings for the order;

(b)   the girl or woman being protected by the order (if not a
party to the proceedings for the order); or

(c)   any girl or woman affected by the order.

(2)     In addition, the court may vary or discharge a Female Genital
Mutilation Protection Order made by virtue of section 63T even
though no application under subsection (1) above has been made to
the court.

(3)     Section 63W applies to a variation of a Female Genital Mutilation
Protection Order as it applies to the making of such an order.

(4)     Section 63X applies to proceedings for a variation of a Female
Genital Mutilation Protection Order as it applies to proceedings for
the making of such an order.

(5)     Subsection (6) applies if a power of arrest has been attached to
provisions of a Female Genital Mutilation Protection Order.

(6)     The court may vary or discharge the order under this section so far
as it confers a power of arrest (whether or not there is a variation or
discharge of any other provision of the order).

Arrest for breach of orders

63AA           Attachment of powers of arrest to orders

(1)     Subsection (2) applies if the court—

(a)   intends to make a Female Genital Mutilation Protection
Order otherwise than by virtue of section 63W; and

(b)   considers that the respondent has used or threatened
violence or the use of female genital mutilation against the
girl or woman being protected or otherwise in connection
with the matters being dealt with by the order.

(2)     The court must attach a power of arrest to one or more provisions
of the order unless it considers that, in all the circumstances of the
case, there will be adequate protection without such a power.

(3)     Subsection (4) applies if the court—

(a)   intends to make a Female Genital Mutilation Protection
Order by virtue of section 63D; and

(b)   considers that the respondent has used or threatened
violence against the girl or woman being protected or
otherwise in connection with the matters being dealt with
by the order.

(4)     The court may attach a power of arrest to one or more provisions of
the order if it considers that there is a risk of significant harm to a
girl or woman, attributable to conduct of the respondent, if the
power of arrest is not attached to the provisions immediately.

(5)     The court may provide for a power of arrest attached to any
provisions of an order under subsection (4) to have effect for a
shorter period than the other provisions of the order.

(6)     Any period specified for the purposes of subsection (5) may be
extended by the court (on one or more occasions) on an application
to vary or discharge the order.

(7)     In this section “respondent” includes any person who is not a
respondent but to whom an order is directed.

63AB           Arrest under attached powers

(1)     Subsection (2) applies if a power of arrest is attached to provisions
of a Female Genital Mutilation Protection Order under section
63AA.

(2)     A constable may arrest without warrant a person whom the
constable has reasonable cause for suspecting to be in breach of any
such provision or otherwise in contempt of court in relation to the
order.

(3)     A person arrested under subsection (2) must be brought before the
relevant judge within the period of 24 hours beginning at the time
of the person’s arrest.

(4)     In calculating any period of 24 hours for the purposes of subsection
(3), Christmas Day, Good Friday and any Sunday are to be ignored.

63AC           Arrest under warrant

(1)     Subsection (2) applies if the court has made a Female Genital
Mutilation Protection Order but—

(a)   no power of arrest is attached to any provision of the order
under section 63AA;

(b)   such a power is attached only to certain provisions of the
order; or

(c)   such a power was attached for a shorter period than other
provisions of the order and that period has expired.

(2)     An interested party may apply to the relevant judge for the issue of
a warrant for the arrest of a person if the interested party considers
that the person has failed to comply with the order or is otherwise
in contempt of court in relation to the order.

(3)     The relevant judge must not issue a warrant on an application
under subsection (2) unless—

(a)   the application is substantiated on oath; and

(b)   the relevant judge has reasonable grounds for believing that
the person to be arrested has failed to comply with the order
or is otherwise in contempt of court in relation to the order.

(4)     In this section “interested party”, in relation to a Female Genital
Mutilation Protection Order, means—

(a)   the person being protected by the order;

(b)   (if a different person) the person who applied for the order;
or

(c)   any other person;

but no application may be made under subsection (2) by a person
falling within paragraph (c) without the leave of the relevant judge.

63AD           Remand: general

(1)     The court before which an arrested person is brought under section
63AB(3) or by virtue of a warrant issued under section 63AC may,
if the matter is not then disposed of immediately, remand the
person concerned.

(2)     The Secretary of State may by order set out the powers of the court
to remand a person by virtue of this section.

Jurisdiction and procedure

63AE           Jurisdiction of courts

(1)     For the purposes of this Part “the court” means the High Court or a
county court.

(2)     Subsection (1) is subject to any provision made by virtue of
subsections (3) and (4).

(3)     Section 57(3) to (12) (allocation of proceedings to courts etc.) apply
for the purposes of this Part as they apply for the purposes of Part
4 but as if the following modification were made.

(4)     The modification is that section 57(8) is to be read as if there were
substituted for it—

“(8)     For the purposes of subsections (3), (4) and (5), there are two
levels of court—

(a)   the High Court; and

(b)   any county court.”

63AF           Contempt proceedings

The powers of the court in relation to contempt of court arising out
of a person’s failure to comply with a Female Genital Mutilation
Protection Order or otherwise in connection with such an order
may be exercised by the relevant judge.

Supplementary

63AG            Application of this Part: extra-territorial effect

This Part applies for the purposes of protecting a girl or woman
who may be subjected, or has been subjected, to female genital
mutilation whether in England and Wales or overseas.

63AH           Guidance

(1)     The Secretary of State may from time to time prepare and publish
guidance to such descriptions of persons as the Secretary of State
considers appropriate about—

(a)   the effect of this Part or any provision of this Part; or

(b)   other matters relating to female genital mutilation.

(2)     A person exercising public functions to whom guidance is given
under this section must have regard to it in the exercise of those
functions.

(3)     Nothing in this section permits the Secretary of State to give
guidance to any court or tribunal.

63AI           Other protection or assistance against female genital mutilation

(1)     This Part does not affect any other protection or assistance available
to a girl or woman who—

(a)   is being, or may be, subjected to female genital mutilation or
subjected to an attempt to be subjected to female genital
mutilation; or

(b)   has been subjected to female genital mutilation.

(2)     In particular, it does not affect—

(a)   the inherent jurisdiction of the High Court;

(b)   any criminal liability;

(c)   any civil remedies under the Protection from Harassment
Act 1997 (c. 40);

(d)   any right to an occupation order or a non-molestation order
under Part 4 of this Act;

(e)   any protection or assistance under the Children Act 1989 (c. 
41);

(f)   any claim in tort; or

(g)   any claim under the Human Rights Act 1998.

63AJ           Interpretation of Part 4A

In this Part—

“the court” is to be read with section 63AF;

“the relevant judge”, in relation to any order under this Part,
means—

(a)   where the order was made by the High Court, a judge of
that court; and

(b)   where the order was made by a county court, a judge or
district judge of that or any other county court.””