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Female Genital Mutilation (Protection and Guidance) (Scotland) Act 2020

Inserted section 5C: Power to make orders on application

22.Subsection (1) provides that a court may make a female genital mutilation protection order when an application has been made to it.

23.Subsection (2) sets out the persons who can apply to the court for a female genital mutilation protection order: a person at risk of being subject to an act of FGM, a person who has been subjected to an act of FGM, the Lord Advocate, a relevant local authority (see paragraph 23 to 25 below), the Chief Constable of Police Scotland, or any other person with the permission of the court.

24.Subsection (3) provides that any person who may apply for a female genital mutilation protection order can also, with the court’s agreement, join in proceedings relating to an application made by another person mentioned in subsection (2).

25.Subsection (4) provides that in deciding whether to grant permission to a person to make an application, the court must have regard to all the circumstances including the applicant’s connection with and knowledge of the person to be protected, the wishes and feelings of that person and any reason why the application is being made by the applicant and not by the person to be protected.

26.Subsection (5) provides that the court need only consider the wishes and feelings of the person to be protected to such an extent as the court considers appropriate, taking into account the person’s age and understanding.

27.Subsection (6) defines a “relevant local authority” for the Act as a whole (except for inserted section 5P) and does so in terms of an application for a new order and in terms of applications relating to an existing order (such as applications under section 5M (to vary or discharge an order)).

28.In the case of a potential “protected person” if an order were to be made, or in the case of an existing “protected person” under an existing order, the relevant local authority is the authority for the area where that person is present.

29.In the case of an order relating to a person potentially falling within a specified description of persons if the order were to be made, or in the case of an existing order, a person actually falling within a specified description of persons, the “relevant local authority” is any of the local authorities for the area where any of those persons are present. This means that where persons potentially or actually falling within the description live in different local authority areas, then any of those local authorities can be a “relevant local authority” in respect of that order.

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