The Court of Appeal has refused to order the re-examination of a child whose parents have challenged a medical finding that she was subjected to female genital mutilation (FGM).
Mr Justice John Edwards at the three-judge court said the examination called for by lawyers acting for the parents is "disproportionate" and would cause further distress to the child.
The girl's parents are serving prison sentences having been convicted in 2020 of carrying out the FGM procedure on their then one-year-old daughter and of child cruelty. Their lawyers told the appeal court earlier this year that Professor Birgitta Essen, a Swedish expert in FGM, had reviewed the evidence, including a video recording of an examination that was not known about during the trial, and found that the girl's clitoris was still intact.
Doctors who gave evidence at the trial have maintained that the clitoris was removed and that the video confirms their finding.
Video
Lawyers for the parents had asked the Court of Appeal to order the child to be reexamined to resolve the conflict between the experts, but Mr Justice Edwards on Monday refused to make the order.
He will, however, allow Professor Essen to testify at an appeal hearing to assess whether her testimony should be admitted as new evidence.
Mr Justice Edwards said a new medical examination of the child is "not warranted" and would cause further distress. He added: "It would be a disproportionate intervention in circumstances where she has already been physically examined several times."
The recording of the latest examination, undertaken in 2019, is of "very good quality," the judge said, and can be used by experts for both sides.
Unanimous verdict
The couple both pleaded not guilty at Dublin Circuit Criminal Court in November 2019 to one count of carrying out an act of FGM on their then one-year-old daughter at an address in Dublin on September 16, 2016.
The 38-year-old man and 28-year-old woman also pleaded not (NOT) guilty to one count of child cruelty on the same day. They are both originally from an African nation but cannot be named to protect the identity of the child.
On the eighth day of the trial, the jury returned unanimous verdicts of guilty on all counts after almost three hours of deliberations.
Passing sentence in January 2020 Judge Elma Sheahan sentenced the man to five and a half years imprisonment and the woman to four years and nine months imprisonment.
At an earlier sentencing hearing, Detective Inspector Dany Kelly told Shane Costelloe SC, prosecuting, that on the date in question, the accused man attended at a hospital with his daughter who was bleeding from her perineal region.
Det Insp Kelly said the accused man gave an explanation that the child had sustained the injury by falling backwards onto a toy. Medical professionals were of the view that this explanation was not credible and that the injuries were not accidental, counsel said.
Gardaí were notified and carried out a search of the accused's family home. They seized the toy claimed to be responsible for inflicting the injury and no blood was found on the item following a forensic analysis.
Dr Sinead Harty gave evidence during the trial that in her professional opinion, the injury sustained was not consistent with falling on a toy. She said the head and glans of the victim's clitoris had been completely removed.
In interview with gardaí, both accused denied that FGM had been carried out on their daughter. The victim's father said he did not agree with the practice. His wife said she had been a victim of a different form of FGM herself.
