A leading international expert in female genital mutilation (FGM) has criticised the State's handling of Ireland’s first and only landmark case under FGM legislation.
Speaking publicly for the first time as part of a joint investigation between RTÉ Investigates and RTÉ Documentary on One, Professor of International Maternal and Reproductive Health at Uppsala University in Sweden, Professor Birgitta Essén, told RTÉ that her examinations show no evidence FGM ever took place.
Professor Essén, who is also a consultant obstetrician and gynaecologist, reviewed footage and later carried out her own examination of the child at the centre of the case. She said she found "an intact genitalia, no signs of [a] cut, no scar, and it was a normal anatomy. No signs of FGM."
The case dates back to September 2016, when a young African couple presented their 21-month-old daughter to CHI Crumlin after she suffered an injury to her genital area. They told hospital staff they thought their daughter had suffered the injury when she fell onto a toy.
This explanation was rejected by hospital staff who felt it was consistent with a non-accidental injury – specifically, FGM.
Once CHI Crumlin instigated the non-accidental injury protocol, the Child and Family Agency, Tusla and An Garda Síochána became involved.
By the end of 2017, the parents were charged with committing FGM and an offence of child cruelty and neglect.
In 2019, they were put on trial, and a jury found them both guilty. The man was sentenced to five and a half years' imprisonment and the woman to four years and nine months.
The couple later obtained new legal teams and successfully appealed their conviction in 2021.
Solicitor James MacGuill represented the father in the appeal, while the mother was represented by Hanahoe Solicitors.
Mr MacGuill sought a new medical expert for the couple’s appeal to determine whether FGM had actually taken place and Prof Essén was contacted.
"If you bring your child to the hospital with a problem and if it ends up that you are put in jail, there will be a problem in the society and trust," Prof Essén told RTÉ.
Despite Essen’s findings that the crime of FGM never took place, the conflict remains in sharp focus to this day as the Director of Public Prosecutions (DPP) continues to rely on the original opinions of the treating doctors in CHI Crumlin, none of whom were experts in the field of FGM.
The DPP’s original medical expert, UK-based Dr Deborah Hodes, removed herself from the prosecution after the couple’s second trial in 2023, following their appeal which introduced a contradictory report by Prof Essén.
Background
To fully understand what happened in this case and whether a crime actually took place, RTÉ Documentary on One and RTÉ Investigates have collaborated on First Conviction - a six-part podcast series and one-off television documentary that airs tonight on RTÉ One at 9.35pm.
This investigation is the first time that the couple have spoken publicly about what happened to their family. All names have been changed to protect the family’s anonymity.
Prof Essén specialises in obstetrics and gynaecology and is a senior consultant. She has over 25 years of experience studying and diagnosing victims of FGM from newborn to adulthood and is considered a preeminent global expert in this field.
For her initial assessment, she was provided with materials that included examination footage of the child’s injured area in 2016, as well as a recording of an examination that took place several years after the incident, by one of the CHI consultants, who was a witness for the DPP.
The footage of the this examination was not shown during the original trial. It was this evidence that further convinced Prof Essén that FGM had not taken place.
"I first saw the videos, and then I saw the video that was not shown in the first trial. And then I was even more convinced because the clitoris was there," she said.
But Prof Essén wanted to ensure her opinion could be stood over and felt a physical examination was the best way to demonstrate that.
"I always stated that I have seen the videos, but I have not done the clinical examination by myself. I stress that that is not the best option. The best practice is to do both an inspection and the palpation. And palpation, I mean, you touch - a classic examination with the hands."
The defence teams applied to the Court of Appeal to order the physical examination of the young girl at the centre of this case, but it was opposed by the DPP.
The court stated the exam would only cause her further distress.
Because the parents were still incarcerated, they did not have the same custody rights to make medical decisions for their children.
Prof Essén took issue with this logic. "What is more traumatising for a child?" she asked.
"If you're separated from your parents for five years and losing the custody and being without your mother and father in a very important period of your life, that is more trauma than meeting doctors that are very trained to talk and discuss and do examination of children."
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Expert testimony
In 2011, TD and now Labour Party leader Ivana Bacik introduced legislation here to criminalise the practice of FGM, carrying a maximum sentence of 14 years.
While the couple was serving out their sentences, their conviction was raised in the Dáil as part of a push to encourage agencies to help stamp out FGM.
This case was the first and to date the last time the legislation was used.
Despite this alleged incident having taken place four years after the legislation was enacted, there were no doctors with an expertise in identifying FGM in children to examine the young girl.
In this instance, several Irish treating doctors suggested that FGM had taken place; their finding was backed up by the opinion of the UK expert Dr Deborah Hodes.
The child protection lead at CHI Crumlin and Consultant in General Paediatrics, Dr Sinead Harty, gave evidence for the State at the trial and agreed that the injury was consistent with type 1 female genital mutilation - where there is partial or total removal of the clitoris.
In the initial days after the injury, she examined the child in front of two other consultants and confirmed that while the clitoral hood was intact, underneath the hood, she could not see the head of the clitoris.
This opinion was supported by the consultant who was on call in CHI Crumlin the day the incident occurred, Dr Sri Paran.
Dr Paran said during the trial that he had never seen an injury of this kind before.
The DDP’s expert witness Dr Hodes never examined the then toddler and made her assessment based on materials including images and video footage taken of the child in the aftermath of her injury by staff at CHI Crumlin.
She testified to this effect in the original 2019 trial. The ultimate outcome of this trial saw the father in this case sentenced to five and a half years' imprisonment and the mother to four years and nine months.
The medical expert used by the couple’s original defence team in the first trial also admitted he had no particular expertise in the area of FGM and formed the view that FGM had taken place.
Hung jury
While the successful 2021 appeal was originally brought on two grounds: medical grounds and that of poor interpretation, the Court of Appeal, ruled only on the interpretation problem which they considered serious enough to overturn the convictions.
This appeal was successful. The judgment handed down by the three-judge panel remarked that the "appellants trial was concerned it must be regarded as having been unsafe and unsatisfactory" and they were released from prison.
WATCH: A couple who had convictions for FGM overturned, recount life in separate Irish prisons
In 2023, there was a second trial or re-trial, but the jury's decision was inconclusive. After the hung jury in the second trial, the DPP requested a date for a third trial to take place in 2024.
In preparation for a potential third trial, the defence finally arranged for the child to be examined in person by Prof Essén, as the parents once again had custody of their child.
In December 2023, the girl, who was then nine years old, was examined at the Mater Hospital by Prof Essén. She noted that the exam was straightforward as the child was "very relaxed".
The DPP was invited to participate in this examination, but during this time its key witness, Dr Hodes, was no longer willing or able to give evidence, therefore the DPP had no expert at that time to attend.
The DPP wanted to defer the physical examination until they found a new expert witness on FGM.
Prof Essén’s examination was filmed to document the findings – findings that would ultimately turn this case on its head.
"It was the last piece of evidence that was now given. It was complete. That was a last step," Prof Essén told RTÉ, adding that she found "an intact genitalia, no signs of [a] cut, no scar, and it was a normal anatomy. No signs of FGM." And confirmed the view she had held having viewed the initial videos.
"The skin was soft, and it was flexible. There were no signs of scars. The external clitoris just opened there under the prepuce. That's the sign of not having type 1 or type 2 of the classification. It was an intact genitalium."
Unlike most injuries around trauma or sexual abuse, where speed is crucial for evidence gathering, with FGM, you have more time, she explained.
"As the name said, the mutilation, if you're cut, you're cut. If you cut the finger, it doesn't start growing, right? If you cut the inner labia, it will not grow out, okay? You have the time."
Prof Essén said she touched the tissue, and despite what has happened throughout this case, it is not a question of a different opinion.
"It's important also to stress that it's a form of being trained, what you have in your hands. The longer you work, the better hands you get. We can feel the difference of scar. I can feel the difference of scar. I can feel the difference of the different tissue, if it's connected tissue, fat, skin, etc., mucosa."
New DPP expert witness
In March 2024, having lost its original expert witness, the DPP appointed another international specialist, Stockholm-based gynaecologist and anti-FGM activist Professor Cecilia Berger.
She was provided with materials, including footage of the physical exam conducted by Professor Essén.
Having reviewed the material, Prof Berger — who has examined hundreds of FGM cases — issued a report to the DPP rejecting its claim that FGM had taken place.
RTÉ investigates has seen this report, in which Prof Berger added that it was unlikely that FGM had even been attempted on the child.
"It seems unlikely that the occurrence of the visible injury should have been caused by an attempt to perform such procedure," she wrote.
RTÉ discovered that Prof Berger also issued a second report, four months later, after being given further materials about the case.
In this report, she doubled down on her findings, stating: "Our expert opinion is in line with Prof Essén…that the injuries are not compatible with FGM."
In a statement to RTÉ Documentary On One and RTÉ Investigates, CHI Crumlin said: "Our clinicians make medical decisions every day, based on their professional clinical judgment, acting in the best interests of our patients."
RTÉ asked the DPP to comment on whether there should be a re-examination of how prosecutions under the Criminal Justice (Female Genital Mutilation) Act 2012 are approached.
In a statement, the DPP said: "It is important to note that, as with any offence, decisions to prosecute for an offence under that Act are taken in accordance with the Guidelines for Prosecutors.
"These decisions are based on a careful assessment of whether there is sufficient evidence to prosecute, whether there is a reasonable prospect of a conviction, and whether, in all the circumstances, a prosecution is in the public interest."
Despite the experts’ findings, the DPP did not grant the couple a full acquittal, instead entering a Nolle prosequi in July 2024, effectively meaning the DPP was no longer pursuing the prosecution.
In total, the husband and wife each spent over 720 days behind bars.
The couple's legal teams subsequently applied to the Court of Appeal in January last for a certificate of miscarriage of justice.
Their certificate of miscarriage of justice application is based on what they consider a newly discovered fact that the best evidence was not available until Prof Essén's physical exam took place.
However in an affidavit the DPP has stated "… the expert opinion of a medical witness does not constitute a 'fact’ in the context of the definition of a ‘newly discovered fact’, the disagreement between the various medical/expert witnesses in the case as to the nature and cause of the injury to (this child) has not been resolved."
This application will now be heard on the 22 and 23 of January 2026.
Additional reporting from Anna Joyce.
RTÉ Investigates: First Conviction is broadcast tonight, 12 November at 9:35 on RTÉ One and RTÉ Player. Documentary produced/directed by Philip Gallagher.
