Serious Crime Bill (HL Bill 50)

(3) For the purposes of the definitions of “domestic service provider”
and “non-UK service provider” in sub-paragraph (1)—

(a) a service provider is established in a particular part of the
United Kingdom, or in a particular EEA state, if the service
5provider—

(i) effectively pursues an economic activity using a fixed
establishment in that part of the United Kingdom, or
that EEA state, for an indefinite period, and

(ii) is a national of an EEA state or a company or firm
10mentioned in Article 54 of the Treaty on the
Functioning of the European Union;

(b) the presence or use in a particular place of equipment or
other technical means of providing an information society
service does not, of itself, constitute the establishment of a
15service provider;

(c) where it cannot be determined from which of a number of
establishments a given information society service is
provided, that service is to be regarded as provided from the
establishment at the centre of the service provider’s activities
20relating to that service.”

(3) The Prohibition of Female Genital Mutilation (Scotland) Act 2005 is amended
as follows—

(a) in section 3 (aiding and abetting female genital mutilation), in
subsections (1)(c) and (2) omit “permanent”;

(b) 25in section 4 (extension of sections 1 and 3 to extra-territorial acts), in
subsection (1) omit “permanent”;

(c) in section 6 (definitions), for the definition of “permanent United
Kingdom resident” substitute—

• ““United Kingdom resident” is an individual who is
  30habitually resident in the United Kingdom.”

68 Offence of failing to protect girl from risk of genital mutilation

(1) The Female Genital Mutilation Act 2003 is amended as follows.

(2) After section 3 insert—

“3A Offence of failing to protect girl from risk of genital mutilation

(1) 35If a genital mutilation offence is committed against a girl under the age
of 16, each person who is responsible for the girl at the relevant time is
guilty of an offence.

This is subject to subsection (5).

This is subject to subsection (5).

(2) 40For the purposes of this section a person is “responsible” for a girl in the
following two cases.

(3) The first case is where the person—

(a) has parental responsibility for the girl, and

(b) has frequent contact with her.

(4) 45The second case is where the person—

(a) is aged 18 or over, and

(b) has assumed (and not relinquished) responsibility for caring for
the girl in the manner of a parent.

(5) It is a defence for the defendant to show that—

(a) at the relevant time, the defendant did not think that there was
5a significant risk of a genital mutilation offence being
committed against the girl, and could not reasonably have been
expected to be aware that there was any such risk, or

(b) the defendant took such steps as he or she could reasonably
have been expected to take to protect the girl from being the
10victim of a genital mutilation offence.

(6) A person is taken to have shown the fact mentioned in subsection (5)(a)
or (b) if—

(a) sufficient evidence of the fact is adduced to raise an issue with
respect to it, and

(b) 15the contrary is not proved beyond reasonable doubt.

(7) For the purposes of subsection (3)(b), where a person has frequent
contact with a girl which is interrupted by her going to stay somewhere
temporarily, that contact is treated as continuing during her stay there.

(8) In this section—

• 20“genital mutilation offence” means an offence under section 1, 2 or
  3 (and for the purposes of subsection (1) the prosecution does
  not have to prove which section it is);

• “parental responsibility”—

  (a)

  in England Wales, has the same meaning as in the
  25Children Act 1989;

  (b)

  in Northern Ireland, has the same meaning as in the
  Children (Northern Ireland) Order 1995 (S.I. 1995/755S.I. 1995/755
  (N.I. 2));

• “the relevant time” means the time when the mutilation takes
  30place.”

(3) In section 4 (extension of sections 1 to 3 to extra-territorial acts)—

(a) in the heading, for “3” substitute “3A” and after “acts” insert “or
omissions”;

(b) after subsection (1) insert—

“(1A) 35An offence under section 3A can be committed wholly or partly
outside the United Kingdom by a person who is a United
Kingdom national or a United Kingdom resident.”

(4) In section 5 (penalties for offences)—

(a) for “A person guilty of an offence under this Act” substitute—

“(1) 40A person guilty of an offence under section 1, 2 or 3”;

(b) at the end insert—

“(2) A person guilty of an offence under section 3A is liable—

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

(b) 45on summary conviction in England and Wales, to
imprisonment for a term not exceeding 12 months or a
fine (or both),

(c) on summary conviction in Northern Ireland, to
imprisonment for a term not exceeding 6 months or a
fine not exceeding the statutory maximum (or both).”

69 Female genital mutilation protection orders

(1) 5After section 5 of the Female Genital Mutilation Act 2003 insert—

“5A Female genital mutilation protection orders

(1) Schedule 2 provides for the making of female genital mutilation
protection orders.

(2) In that Schedule—

(a) 10Part 1 makes provision about powers of courts in England and
Wales to make female genital mutilation protection orders;

(b) Part 2 makes provision about powers of courts in Northern
Ireland to make such orders.”

(2) After Schedule 1 to that Act (inserted by section 67(2)) insert—

“Schedule 2 15Female genital mutilation protection orders

Part 1 England and Wales

Power to make FGM protection order

1 (1) The court in England and Wales may make an order (an “FGM
20protection order”) for the purposes of—

(a) protecting a girl against the commission of a genital
mutilation offence, or

(b) protecting a girl against whom any such offence has been
committed.

(2) 25In deciding whether to exercise its powers under this paragraph 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 to be protected.

(3) An FGM protection order may contain—

(a) 30such prohibitions, restrictions or requirements, and

(b) such other terms,

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

(4) The terms of an FGM protection order may, in particular, relate to—

(a) conduct outside England and Wales as well as (or instead of)
35conduct within England and Wales;

(b) respondents who are, or may become, involved in other
respects as well as (or instead of) respondents who commit or
attempt to commit, or may commit or attempt to commit, a
genital mutilation offence against a girl;

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

(5) For the purposes of sub-paragraph (4) examples of involvement in
other respects are—

(a) 5aiding, abetting, counselling, procuring, encouraging or
assisting another person to commit, or attempt to commit, a
genital mutilation offence against a girl;

(b) conspiring to commit, or to attempt to commit, such an
offence.

(6) 10An FGM protection order may be made for a specified period or until
varied or discharged (see paragraph 6).

Applications and other occasions for making orders

2 (1) The court may make an FGM protection order—

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

(b) 15without an application being made to it but in the
circumstances mentioned in sub-paragraph (6).

(2) An application may be made by—

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

(b) a relevant third party.

(3) 20An 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 to be protected;

(b) 25the applicant’s knowledge of the circumstances of the girl.

(5) An application under this paragraph 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
30application being made are where—

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

(b) the court considers that an FGM protection order should be
made to protect a girl (whether or not a party to the
35proceedings), and

(c) a person who would be a respondent to any proceedings for
an FGM protection order is a party to the current
proceedings.

(7) In this paragraph—

• 40“family proceedings” has the same meaning as in Part 4 of the
  Family Law Act 1996 (see section 63(1) and (2) of that Act),
  but also includes—

  (a)

  proceedings under the inherent jurisdiction of the
  High Court in relation to adults,

  Serious Crime BillPage 64

  (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),
  5and

  (c)

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

• “relevant third party” means a person specified, or falling
  10within a description of persons specified, by regulations
  made by the Lord Chancellor (and such regulations may, in
  particular, specify the Secretary of State).

(8) Regulations under sub-paragraph (7) are to be made by statutory
instrument, and any such instrument is subject to annulment in
15pursuance of a resolution of either House of Parliament.

Power to make order in criminal proceedings

3 The court before which there are criminal proceedings in England
and Wales for a genital mutilation offence may make an FGM
protection order (without an application being made to it) if—

(a) 20the court considers that an FGM protection order should be
made to protect a girl (whether or not the victim of the
offence in relation to the criminal proceedings), and

(b) a person who would be a respondent to any proceedings for
an FGM protection order is a defendant in the criminal
25proceedings.

Offence of breaching order

4 (1) A person who without reasonable excuse does anything that the
person is prohibited from doing by an FGM protection order is guilty
of an offence.

(2) 30In the case of an FGM protection order made by virtue of paragraph
5(1), a person can be guilty of an offence under this paragraph only
in respect of conduct engaged in at a time when the person was
aware of the existence of the order.

(3) Where a person is convicted of an offence under this paragraph in
35respect of any conduct, the conduct is not punishable as a contempt
of court.

(4) A person cannot be convicted of an offence under this paragraph in
respect of any conduct which has been punished as a contempt of
court.

(5) 40A person guilty of an offence under this paragraph is liable—

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

(b) on summary conviction, to imprisonment for a term not
exceeding 12 months, or a fine, or both.

(6) 45A reference in any enactment to proceedings under this Part of this
Schedule, or to an order under this Part of this Schedule, does not

include a reference to proceedings for an offence under this
paragraph or to an order made in proceedings for such an offence.

(7) “Enactment” includes an enactment contained in subordinate
legislation within the meaning of the Interpretation Act 1978.

5Ex parte orders

5 (1) The court may, in any case where it is just and convenient to do so,
make an FGM 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) 10In deciding whether to exercise its powers under sub-paragraph (1),
the court must have regard to all the circumstances including—

(a) the risk to the girl, or to another person, of becoming a victim
of a genital mutilation offence if the order is not made
immediately,

(b) 15whether 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
20deliberately evading service, and

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

(3) The court must give the respondent an opportunity to make
25representations about an order made by virtue of sub-paragraph (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.

30Variation and discharge of orders

6 (1) The court may vary or discharge an FGM protection order on an
application by—

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

(b) the girl being protected by the order (if not a party to the
35proceedings for the order), or

(c) any person affected by the order.

(2) In the case of an order made in criminal proceedings under
paragraph 3, the reference in sub-paragraph (1)(a) to a party to the
proceedings for the order is to be read as a reference to the
40prosecution and the defendant.

(3) In addition, the court may vary or discharge an FGM protection
order made by virtue of paragraph 2(1)(b) or 3 even though no
application under sub-paragraph (1) above has been made to the
court.

(4) Paragraph 5 applies to a variation of an FGM protection order as it
applies to the making of such an order (and references in that
paragraph to the making of an FGM protection order are to be read
accordingly).

5Arrest under warrant

7 (1) 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 an FGM protection order
or is otherwise in contempt of court in relation to such an order.

(2) 10The relevant judge must not issue a warrant on an application under
sub-paragraph (1) 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
15or is otherwise in contempt of court in relation to the order.

(3) In this paragraph “interested party”, in relation to an FGM protection
order, means—

(a) the girl being protected by the order,

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

(c) 20any other person;

but no application may be made under sub-paragraph (1) by a
person falling within paragraph (c) without leave of the relevant
judge.

Remand: general

8 (1) 25The court before which an arrested person is brought by virtue of a
warrant under paragraph 7 may, if the matter is not then disposed of
immediately, remand the person concerned.

(2) Paragraphs 9 to 14 contain further provision about the powers of a
court to remand under this paragraph.

(3) 30Sub-paragraph (4) applies if a person remanded under this
paragraph is granted bail under paragraphs 10 to 14.

(4) The person may be required by the relevant judge to comply, before
release on bail or later, with such requirements as appear to the judge
to be necessary to secure that the person does not interfere with
35witnesses or otherwise obstruct the course of justice.

Remand: medical examination and report

9 (1) Any power to remand a person under paragraph 8(1) may be
exercised for the purpose of enabling a medical examination and
report to be made if the relevant judge has reason to consider that a
40medical report will be required.

(2) If such a power is so exercised, the adjournment must not be for more
than four weeks at a time unless the relevant judge remands the
accused in custody.

(3) If the relevant judge remands the accused in custody, the
adjournment must not be for more than three weeks at a time.

(4) Sub-paragraph (5) applies if there is reason to suspect that a person
who has been arrested under a warrant issued on an application
5under paragraph 7(1) is suffering from mental disorder within the
meaning of the Mental Health Act 1983.

(5) The relevant judge has the same power to make an order under
section 35 of the Mental Health Act 1983 (remand for report on
accused’s mental condition) as the Crown Court has under section 35
10of that Act in the case of an accused person within the meaning of
that section.

Remand: further provision

10 (1) Where a court has power to remand a person under paragraph 8, the
court may remand the person in custody or on bail.

(2) 15If remanded in custody, the person is to be committed to custody to
be brought before the court—

(a) at the end of the period of remand, or

(b) at such earlier time as the court may require.

(3) The court may remand a person on bail—

(a) 20by taking from the person a recognizance (with or without
sureties) conditioned as provided in paragraph 11, or

(b) by fixing the amount of the recognizances with a view to their
being taken subsequently in accordance with paragraph 14
and, in the meantime, committing the person to custody as
25mentioned in sub-paragraph (2) above.

(4) Where a person is brought before the court after remand the court
may further remand the person.

(5) In this paragraph and in paragraphs 11 to 14, references to “the
court” includes a reference to a judge of the court or, in the case of
30proceedings in a magistrates’ court, a justice of the peace.

11 (1) Where a person is remanded on bail, the court may direct that the
person’s recognizance be conditioned for his or her appearance—

(a) before the court at the end of the period of remand, or

(b) at every time and place to which during the course of the
35proceedings the hearing may from time to time be adjourned.

(2) Where a recognizance is conditioned for a person’s appearance as
mentioned in sub-paragraph (1), the fixing of any time for the person
next to appear is to be treated as a remand.

(3) Nothing in this paragraph deprives the court of power at any
40subsequent hearing to remand a person afresh.

12 (1) The court may not remand a person for a period exceeding 8 clear
days unless—

(a) the court adjourns a case under paragraph 9(1), or

(b) the person is remanded on bail and both that person and the
other party to the proceedings (or, in the case of criminal
proceedings, the prosecution) consent.

(2) If sub-paragraph (1)(a) applies, the person may be remanded for the
5period of the adjournment.

(3) Where the court has power to remand a person in custody, the
person may be committed to the custody of a constable if the remand
is for a period not exceeding 3 clear days.

13 (1) If the court is satisfied that a person who has been remanded is
10unable by reason of illness or accident to appear before the court at
the end of the period of remand, the court may further remand the
person in his or her absence.

(2) The power in sub-paragraph (1) may, in the case of a person who was
remanded on bail, be exercised by enlarging the person’s
15recognizance and those of any sureties to a later time.

(3) Where a person remanded on bail is bound to appear before the
court at any time and the court has no power to remand the person
under sub-paragraph (1), the court may, in the person’s absence,
enlarge the person’s recognizance and those of any sureties for the
20person to a later time.

(4) The enlargement of a person’s recognizance is to be treated as a
further remand.

(5) Paragraph 12(1) (limit of remand) does not apply to the exercise of
the powers conferred by this paragraph.

14 (1) 25This paragraph applies where under paragraph 10(3)(b) the court
fixes the amount in which the principal and the sureties (if any) are
to be bound.

(2) The recognizance may afterwards be taken by a person prescribed by
rules of court (with the same consequences as if it had been entered
30into before the court).

Contempt proceedings

15 The powers of the court in relation to contempt of court arising out
of a person’s failure to comply with an FGM protection order, or
otherwise in connection with such an order, may be exercised by the
35relevant judge.

Other protection or assistance against female genital mutilation

16 (1) Nothing in this Part of this Schedule affects any other protection or
assistance available to a girl who is or may become the victim of a
genital mutilation offence.

(2) 40In 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;

(d) any right to an occupation order or a non-molestation order
under Part 4 of the Family Law Act 1996;

(e) any right to a forced marriage protection order under Part 4A
of that Act;

(f) 5any protection or assistance under the Children Act 1989;

(g) any claim in tort.

Interpretation

17 (1) In this Part of this Schedule—

• “the court”, except as provided in sub-paragraph (2), means the
  10High Court, or the family court, in England and Wales;

• “FGM protection order” means an order under paragraph 1;

• “genital mutilation offence” means an offence under section 1, 2
  or 3;

• “the relevant judge”, in relation to an FGM protection order,
  15means—

  (a)

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

  (b)

  where the order was made by the family court, a
  judge of that court;

  (c)

  20where the order was made by a court in criminal
  proceedings under paragraph 3—

  (i)

  a judge of that court, or

  (ii)

  a judge of the High Court or of the family
  court.

(2) 25Where the power to make an FGM protection order is exercisable by
a court in criminal proceedings under paragraph 3, references in this
Part of this Schedule to “the court” (other than in paragraph 2) are to
be read as references to that court.

(3) In paragraph (c)(i) of the definition of “relevant judge” in sub-
30paragraph (1), the reference to a judge of the court that made the
order includes, in the case of criminal proceedings in a magistrates’
court, a reference to a justice of the peace.

Part 2 Northern Ireland

35Power to make FGM protection order

18 (1) The court in Northern Ireland may make an order (an “FGM
protection order”) for the purposes of—

(a) protecting a girl against the commission of a genital
mutilation offence, or

(b) 40protecting a girl against whom any such offence has been
committed.

(2) In deciding whether to exercise its powers under this paragraph and,
if so, in what manner, the court must have regard to all the
circumstances, including the need to secure the health, safety and
45well-being of the girl to be protected.