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Concerns about expertise at FGM trials

Published 12 December 2019 Associated Categories Featured, Legal
Worrying questions about expert evidence at FGM trials

A number of important questions were raised by this year’s ‘successful’ FGM prosecutions, one in London, UK and the second in Dublin, Ireland. In this piece I want to consider aspects that concern me, in particular clinical expertise, anatomical knowledge of girl’s genitals, differential diagnosis, and matters related to origins, race and religion. I will conclude by considering how much FGM awareness raising and moral crusading has led to the problems I outline and the damage caused.

This is a long read.

Is too much weight attached to clinical expertise?

A number of people are asked to provide an expert opinion at FGM trials and due to the nature of the practice, many are medical.  The clinicians who tend to specialise in FGM are predominantly midwives,obstetricians and gynaecologists, not paediatricians.  Yet it seems that paediatricians with a safeguarding responsibility are the first port of call in seeing children suspected of having undergone FGM. While they may well be competent in looking at particular aspects of girls’ genitals e.g hymen and anus, they may have little expertise in examining children in regard to FGM because of its rarity.

Two doctors, Professor Creighton and Dr Hodes wrote in 2014 FGM: What every paediatrician should know “The examiner should be trained in the genital assessment of children and the range of FGM findings. Use of the colposcope is essential to allow detection of Type 4 FGM and to take the DVD for peer review or to seek a second opinion from an expert. In addition, photo documentation for all Types of FGM will be required in the case of any subsequent legal proceedings.”

The authors are two of the UK’s acknowledged FGM experts. They set up and work in the only dedicated FGM clinic for under 18’s in the UK, at UCLH. They regularly act as expert witnesses in FGM-related trials and were, I believe, influential in persuading the juries in each trial that both children’s genitals were deliberately cut. 

The knowledge and expertise needed to become competent in examining babies and young girls genitals generally, and if suspected of FGM specifically, may be hard to acquire in clinical settings. As NHS Digital reports verify, a small number of children are seen in the NHS with FGM and this is predominantly of a historic nature. Or they may have had FGM Type 4 e.g. genital piercings.

But are some clinicians being called ‘experts’ solely on the basis of their qualifications? Is there an over-reliance on their findings? Was some expertise in both 2019 trials inadequate? 

In Dublin, three doctors gave evidence for the prosecution. Some was contradictory and some contested. The defence did not call expert witnesses. Maybe they tried but none was available? We don’t know.

A paediatric surgeon, Mr Paran had operated on the bleeding child. Mr O’Sullivan for the defence noted “there seems to be a fundamental inconsistency” between how Mr Paran and Dr Hodes described the female genitalia. Mr Paran said the labia minora and labia majora are both above the clitoris. Dr Hodes said that the labia is below the clitoris.

On being questioned, Dr Hodes agreed that there “seems to be” an inconsistency, but noted that “very little [academic] work” has been carried out on the anatomy of the clitoris. She added that the labia is “neither under or over the clitoris because [the lips] meet”.

Mr O’Sullivan also stated that Mr Paran had told the trial he noted a laceration on one side of the girl’s labia minora. He initially thought the labia minora “may be gone” too, although on later examination he and colleagues found it “was still there, but had been cut”.

Mr O’Sullivan recalled that Dr Sinéad Harty, a consultant paediatrician who examined the girl, said there was a query in her notes about a possible lesion on the labia minora. But ultimately had formed the view that there was no injury to them.

Mr O’Sullivan surmised this “lack of certainty” among the doctors extended to the possible presence of a cut on her labia. And reminded the jury that the prosecution had failed to present evidence about whom may have carried out FGM, if it had occurred, or any evidence about how the parents aided and abetted it taking place.

He advised there is “a particular need for the jury to be careful” when relying on expert evidence, adding “it is normal to put weight, and to accept almost without question” what an expert says, especially in regard to doctors.

Medical evidence at the London trial

In August 2017, a three-year-old recently bathed, knickerless girl, the daughter of an Ugandan mother and Ghanian father, was reported to have slipped and cut her genitals on the metal edge of a loose cupboard door. Bleeding heavily and fearing an ambulance might take too long, her parents took her to hospital by taxi. Neither parent were from FGM practising backgrounds and the mother had not undergone FGM.

Doctors doubted the explanation and suspected the girl had been coached to give her version of events. FGM was suspected by an A&E doctor and a diagnosis of Type 2 was made by an obstetric and gynaecology consultant after he had examined and treated the girl under general anaesthetic. The FGM diagnosis was later verified by the UCLH clinicians.

The parents were referred to the police, who embarked on a 16-month investigation, culminating in the trial where three doctors testified for the prosecution. They confirmed that the straddle injury story didn’t ring true, and that the child had undergone FGM. A forensic pathologist agreed.

The defence did not call medical experts. We weren’t told why. The mother was found guilty and is serving a 13 year prison sentence. The father was acquitted.

The Bristol Trial

report about a 2018 TV documentary provides useful background to this trial. The six year old daughter of Somali parents was suspected of having undergone FGM in the UK although the parents denied it. Officials wanted her genitals examined, the schoolgirl’s permission was sought and she agreed. Accounts vary as to whether the child’s parents were told it would happen and their permission sought. And whether they were allowed to be present during their daughter’s examination.

We know from press reports that the examination was conducted by the designated safeguarding paediatrician, Dr Mackintosh, and that when the child was examined, equipment was used to take pictures of her genitals. The examiner found what she believed was ”a small lesion measuring no more than a couple of millimetres”. She was concerned she may have been pricked or had a small burn to her clitoris using a hot, sharp object resulting in a Type 4 FGM.

Photographs of the girl’s genitals were sent to Professor Creighton. While she thought they might indicate an injury, the quality was not good enough and she needed to carry out her own investigation to confirm whether an injury had occurred or not. She conducted a second examination of the child at UCLH and found the girl’s genitals intact, with no evidence of injury or FGM.

Nevertheless, the trial went ahead. When cross-examined by the defendant’s barrister, Dr Mackintosh admitted “The truth is I don’t know how it was caused but I was concerned about the appearance.”

Nicholas Morris, a consultant gynaecologist called by the defence told the jury that he also had examined the photographs taken by Dr Mackintosh. He said “I didn’t see any lesions in the photographs. I didn’t see anything that concerned me.”

Additionally, Judge Lambert questioned inconsistencies in the main witness statement and the evidence was described as “beginning to unravel”. He concluded on the basis of the existing evidence that he would direct the jury to acquit the defendant.

Gaining expertise

Little has been published that is publicly available about the dedicated UCLH clinic that opened in 2014 and where some clinicians gain expertise.

In 2015, I reviewed a report about it. Another is available here. Of the 38 referrals reported, just 18 were found to have undergone some form of FGM. And 11 of the 18 had undergone Type 4 (as classified by the World Health Organisation).

The same specialists in a 2014 report by the then Chief Medical Officer, wrote that where a small cut or prick is made on or lateral to the clitoris, it causes little tissue damage and little or no scarring, so may be impossible to distinguish confidently from tiny irregularities due to congenital variation.

Children’s genitals vary

Women have a wide range of genital dimensions and their size, shape and colour are unique to them. Growing children possess a variety also. But how experienced are clinicians generally in assessing and detecting normal variations on examination? How confident were the experts in these cases? The Dublin defence drew attention to ‘a lack of certainty’.

Dr Hodes told the Dublin court she’d seen an estimated 80 cases of mutilation. But one wonders how many of these were new? I’d wager the majority were historical. If new or recent genital cutting in under 18’s is being seen in the NHS, professionals have a legal duty to report them to the police and some, surely, would have resulted in prosecutions?

Following a Freedom of Information request in September 2018, a Mail on Sunday journalist reported the clinic at UCLH had seen just five girls in the past year. In total, the service had only treated 43 patients since opening in 2014.

Asked for more details, the trust said all the girls referred to the clinic had confirmed FGM although they would not say how many underwent the practice in the UK.

DVD images

In addition to seeing children at a monthly FGM clinic, the UCLH experts ‘offer a second opinion on DVD recordings of genital examinations from clinicians working in other safeguarding services where FGM is suspected’

Dr Hodes’ evidence in Dublin was based on DVD footage of three examinations of the girl’s genitals conducted in September and December 2016. She told the court: “There was a raw bleeding area where I would have expected to see the clitoris.” She noted that the view was “obscured somewhat by blood” but that she “couldn’t see the clitoral head”. She concluded that FGM Type 1 had been carried out because part of the girl’s clitoris had been removed.

I am not qualified to assess whether this is a reliable method of making a clinical diagnosis. Or whether the results should be admissible as evidence. But it’s worth asking whether every doctor examining children and/or wanting a second opinion in regard to FGM, have the necessary knowledge, expertise and equipment the experts say they should possess? The Dublin and Bristol cases seem to suggest not.

As does this worrying example from Leeds in 2014. It illustrates how inexperienced and dangerous some ‘experts’ can be.

Social workers at Leeds City Council claimed that a three-year-old girl from a Muslim family had been subjected to FGM. Because of this they wanted to have the child and her brother adopted. The brothers’ circumcision was not an issue.

In his summary, Judge Munby drew particular attention to ways in which experts were shown to differ in their expertise and experience and elaborated about each of the experts who gave evidence before him.

The first, Dr Alison Share, an experienced consultant community paediatrician “had candidly admitted that her initial findings were wrong and that she had changed her mind after the second examination.”

The second, Comfort Momoh, a midwife with an honorary doctorate, came in for harsh criticism. “Her expertise in relation to young children was extremely limited. Her inability in the witness box to provide explanations for matters that cried out for explanation was striking. Her report was a remarkably shoddy piece of work. A report that says, without further explanation or elaboration, and this is all it said, “It appears that [G] has been subjected to some form of FGM as her vulva does not appear normal”, is worse than useless. In my judgment her report and her oral evidence were well below the standard required of an expert witness. She was not a reliable witness. Her oral evidence was exceedingly unsatisfactory”.

In contrast, “Professor Creighton was the only one of the three with real experience of FGM in a paediatric context. Her evidence, both written and oral, was clear and measured; it did not change; it was delivered with authority; it carried conviction.”

He concluded that the local authority was unable to establish that the child has been or is at risk of being subjected to any form of FGM.

Since then, additional concerns have been raised about the (now retired) midwife’s role in examining children for FGM on at least five occasions, despite not having the relevant qualifications.

What expertise is needed?

Brigitta EssénProfessor of International Maternal & Reproductive Health and Senior Consultant ObGyn at Uppsala University, Sweden (in private correspondence) recommends a multidisciplinary team, comprising an experienced ObGyn (with clinical exposure to FGC), a paediatric urologist, a paediatrician with forensic experience of child abuse and an anthropologist with an expert focus on FGC.  Note: she uses the term FGC instead of FGM.

But because FGC is a rare form of trauma compared with other types of child abuse, that expertise is rarely available. After 20 years in the field she believes that too many are interested in being “wannabe experts”.

FGM, straddle injuries and differential diagnosis

The parents in both of this year’s FGM convictions claimed their daughters had sustained straddle injuries. The first, as previously mentioned, was a three year old, freshly bathed and not wearing underwear. She was said to have slipped and cut her genitals on the metal edge of a cupboard door.

The doctors at the London trial agreed that while the damage could have been caused by her falling onto the cupboard door, and that one “could never say never”, none believed she had fallen as described. They all thought she had been cut because the tissue was not jagged. That a “straddle injury” – falling onto the door with her legs on either side, would have caused different injuries as well as bruising, and that cuts in three different places from one fall were highly unlikely. They also said there was no visible bruising, which would be expected. Only the paediatric forensic pathologist had not seen a labial FGM-type cut. The others said they had.

In Dublin, the nappyless toddler had tripped and fallen on a toy. The toy was described as an activity centre with a steering wheel and other protruding objects but without sharp edges. Dr Hodes said “It’s not possible that falling back onto this type would cause this degree of damage,” adding “It’s my opinion that there’s nothing sharp there.”

The defence recalled that Dr Sinéad Harty, a paediatrician who examined the girl told the court there was a “lack of external bruising”.

Distinguishing between what was a straddle and a non-accidental injury in both trials was an important factor in determining whether the girls’ genitals had been deliberately cut. In neither did the experts consider the parents explanation plausible and the juries returned guilty verdicts, possibly convinced by the experts’ opinions.

Again my lack of expertise in this area makes informed comment difficult. But an online medical search about straddle injuries identified a number of useful studies in regard to cause, frequency and severity. The following are illustrative:

1. The Indian Journal of Paediatrics detailed research into straddle injuries in female children and adolescents. They were documented in 91 girls ranging in age from 1 to 15 years. Falls and sports were major causes of straddle injuries with a peak at the age of 6. Lacerations were the most common injuries and many required surgical management.

2. In Japan, a retrospective chart review was conducted of 179 children aged 15 years or younger who visited the emergency department for genital injuries between March 2010 and November 2014. Girls comprised 71% of the subject pool. The median age was 6 years. Straddle injuries were the most common form of injury (56%). Products associated with paediatric genital injuries were furniture (21%), exercise equipment (17%), and bicycles (15%). Thirty-two patients were examined by a surgeon, gynaecologist, or urologist. The labia were the most commonly injured organs (60%) in girls. Most (93%) were treated at the emergency department and discharged.

3. In France, unintentional paediatric female genital trauma was frequent in the daily practice of emergency wards.

Straddle injuries appear to be common and seem to need particular consideration where FGM is being alleged. Does bruising always have to be a factor or be evident in straddle injuries? Would other possible causes have been considered in the London and Dublin trials had the children not been of African descent?

Restraint or sedation

In FGM folklore, children are always forcibly held down while somebody hacks away at their genitals with rusty equipment. But in the London and Dublin trials the prosecution were unable to demonstrate when, by whom and how the girls’ genitals were cut.

In Dublin, the prosecutor, noted that Mr Paran, who carried out surgery to stop the girl bleeding, told the court that when the toddler presented at the hospital, he concluded that her injuries occurred about four hours beforehand, when she was in the custody of her parents, saying “They permitted [FGM] to be done to their daughter.”

Doctors had confirmed that a child would generally have to be restrained or sedated in order for FGM to be carried out. “If this was an act of FGM done on the child, it required her to either be restrained or sedated. Dr Harty was quite clear there was no evidence to suggest restraint at all.”

The defence noted that the CCTV footage seen in court showed the girl to be alert and playing while in the hospital waiting room. “That indicates no restraint and no sedation, there is no evidence to support that at all, in fact the evidence is contrary,” he said.

The Judge summarised ”The State is not arguing that the couple carried out FGM on their daughter, rather that they are secondary participants and “intended to aid, abet, counsel or procure” the procedure. Nobody was able to explain “the riddle” of how the child was cut.

In the London trial, Judge Whipple recounted that the offence was committed within a period of 12 hours before the girl was taken to surgery.

She summarised ‘there is much which remains unknown about the circumstances of your offending. We do not know whether you cut R by your own hand or whether you held R down while the cutting was done by the “witch-lady” about whom R spoke in her recorded police interview. We do not know precisely how R was cut beyond knowing that a sharp instrument was used – a knife, scissors or scalpel. We do not know whether R was given any local anaesthetic to dull the pain.”

Medical precedents for inaccurate diagnosis

Parents are not always believed when attending hospital with their children and many still fear being accused of abusing them and having them taken into care following genuine incidents and accidents.

During my early career in the NHS, brittle bone disease (osteogenesis imperfecta) used to be difficult to differentiate from non-accidental injuries. I remember that parents who presented with bruising or unexplained fractures in children were often viewed with suspicion. The children were sometimes considered abused before the condition become better understood and more accurately diagnosed.

Reflex anal dilatation (RAD) was once thought a definitive marker for sexual abuse of children. Two NHS doctors believed the new diagnostic RAD test indicated abuse had taken place. The test was later discredited but not before 121 Teesside children were taken from their families and placed in care, in 1987.

Let’s hope questions will soon be asked about the reliability of the FGM diagnosis that led to both of these convictions.

Were issues of race, religion and ethnicity at play in the FGM trials?

A perceptive piece in thejournal.ie explored this aspect. The accused parents had expressed the view that these may have been part of the reason they were charged with carrying out FGM.

The mother in the Dublin trial, an Irish citizen, did not take the stand during the trial but the content of police interviews with her in December 2016 were read in court.

In one exchange, the woman told the police she believed she was charged with allowing FGM to happen “because I am Muslim, I am black, and in my country they do that”. She added that she did not think she would have been charged if she was a christian.

While the mother admitted to having undergone it as a child, she insisted that her daughter had not been cut. Neither she nor her husband had any intention of doing this.

When giving evidence the father said the presumption that he carried out FGM was “based on preconceived ideas because I’m a Muslim from [the country in question]”.

These concerns appeared to have been on the mind of the mother’s Barrister also when he said “it would be an insult to suggest to the jury that his client and her husband would be treated differently if they were John and Mary Murphy whose family had been living here for 300 years.’’ 

He added: “The concept that one might attach a motive to [my client] on account of her origin would be reprehensible and, of course, the prosecution hasn’t done it. I’m not surprised that they haven’t done it because it would be odious if they had.”

But had the parents in both convictions not had African backgrounds, would the FGM diagnosis have been applied so readily and stuck, unchallenged, so quickly? Might explanations other than FGM been considered? Maybe some children really are treated differently?

This seems to be borne out in this anecdotal example. A young, white, teenage girl was recently admitted to hospital having fallen onto the sharp edge of a cupboard whilst dancing. Her labia were badly cut. Her explanation wasn’t viewed with suspicion however and FGM was never raised as a possible cause of her genital injury. That’s despite NHS clinicians being advised to consider FGM in all patients, not just the ‘usual suspects’.

Prejudicial evidence

In Dublin, Judge Sheahan heard arguments in the absence of the jury for and against allowing certain sections of a report written by Dr Hodes to be presented to them and submitted as evidence. This included medical as well as socio-cultural information. A full account can be accessed here.

In response, the judge said the medical evidence due to be given by Dr Hodes was fair to include, describing her as “an appropriate expert” who has “the necessary expertise”. She concluded that Dr Hodes “is in a position to provide the jury with evidence which is qualitatively in a different category from previous witnesses” and as such her evidence is “directly relevant and admissible”.

In response to concerns about the inclusion of the cultural reasons for carrying out FGM, Judge Sheahan told the court she was “persuaded by the defence that the prejudicial issue would outweigh the probative value” of such evidence and as such should not be submitted.

She stated that certain sections of Dr Hodes’ evidence “doesn’t or couldn’t speak to the personal knowledge or other state of understanding of the accused [of FGM]”. And that references to the prevalence of FGM in the country in question should not be presented to the jury. And concluded the “probative force or weight” of Dr Hodes’ evidence was “ultimately a matter for the jury to decide”.

In the London trial, evidence was produced to demonstrate that the mother used spells to fend off perceived danger. She admitted this and said she’d found them on-line. The defence asked that this should be inadmissible but the judge refused.

Witchcraft

An expert witness for the prosecution in the London trial (not present in court), claimed in writing that FGM is associated with witchcraft in Africa. Although a counter witness (also not in court), challenged this, and the mother denied that she practiced witchcraft, the seeds of doubt were sown and may well have negatively influenced the jury.

In her summary, the judge said “We do not know why you did this: you do not come from a culture where FGM is practised; there were suggestions during the trial that your crime was connected with witchcraft or that you cut R to cleanse her in some way – these suggestions derived from witchcraft objects found at your home and various messages found on your phone – but they are no more than possibilities.”

In Dublin, the police took the opportunity to introduce the topic after the guilty verdict had been delivered. They suspected the mutilation was carried out by a ‘witch doctor’; that an older woman known to the couple and the child performed the mutilation. But that she had returned to Africa before she could be interviewed by detectives and hasn’t returned to Ireland since. How they had reached this conclusion was not explained.

Buoyed by this exposure, the UK’s National FGM Centre now links FGM with witchcraft despite it being based entirely on hearsay.

Awareness raising

Morally licensed, public awareness-raising campaigns about FGM have been an important feature of our lives for a number of years now. Anybody who dares to challenge the intentions, understanding or interpretation of the ‘barbaric’ practice are labelled or dismissed as child abusers, supporters, apologists, deniers, cultural imperialists, racists and a whole lot more. So attempts to have e.g. social media accounts closed, attendance at meetings barred, reputations slandered, jobs put at risk are all considered legitimate. That’s because as child saviours they are applauded for indulging in such behaviour irrespective of the damage they cause.

It’s not surprising therefore that not enough critical engagement has occurred in regard to the practice and this may have spilt over into courtrooms, possibly influencing juries and legal representatives.

In addition to the curtailment of freedom which ensues from convictions, the humiliation, distress, financial loss, victimisation, sense of disempowerment and sheer inconvenience caused to families and communities as a consequences of the obsession with FGM is enormous. Bristol families have had first hand experience of this, as outlined in this research.

But those with a moral license will no doubt justify their actions believing they maybe helped prevent other children from being cut. That a single child being safeguarded makes it all worthwhile. But does it? Surely we can do so much better? Making sure that the ‘expert witnesses’ really are that might be a good first step in helping to prevent the miscarriages of justice I think we’ve seen this year.

An account of Ireland’s FGM trial can be accessed here. And London’s here.

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About the Author -

Bríd is a retired health professional. She started her career as a (volunteer) nurse and midwife in Africa, in Ethiopia and Botswana, where she worked for almost four years. She encountered FGM/C in Ethiopia. She then moved to London where she worked in the National Health Service as a midwife, community nurse, health visitor, reproductive and sexual health nurse and manager over a period of 30 years. She did not encounter FGM/C during that time despite working with immigrant communities who are reported to practice it still. She is puzzled by the current reported prevalence of the practice, the official response and associated activism. And is worried that they might cause more harm than good.

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