FGM protection order in child’s best interests – Court of Appeal
13 July 2020
This was an appeal by the secretary of state against a decision of the President of the Family Division concerning the exercise of the family court’s jurisdiction to make a female genital mutilation protection order (FGMPO) under the Female Genital Mutilation Act 2003 Sch.2 Pt 1 para.1. The child concerned (“A”), was under imminent threat of deportation to Bahrain or potentially Sudan. The original FGM protection order in relation to A was made by Newton J in December 2019. He said that
It is difficult to think of a clear or more serious case where the risk to A of FGM is so high.
Section 2 of the Female Genital Mutliation Act establishes the offence of assisting a girl to mutilate her own genitalia, where a person
aids, abets, counsels or procures a girl to excise, infibulate or otherwise mutilate the whole or any part of her own labia majora, labia minora or clitoris.
Section 3 extends this to “assisting a non-UK person to mutilate overseas a girl’s genitalia”.
FGMPOS offer a legal means to protect and safeguard victims and potential victims of FGM. They are granted by the family court and are unique to each case. They contain conditions to protect a victim or potential victim from FGM, including, for example, surrendering a passport to prevent the person at risk from being taken abroad for FGM or requirements that no one arranges for FGM to be performed on the person being protected.
After the order is issued, the police receive a copy, together with a statement showing that the respondents and any other persons directed by the court have been served with the order or informed of its terms.
In this case the President of the Family Division had held that in exercising its discretion about making an FGM protection order, a family court was not bound to take into account, even as a starting point, a previous assessment of risk of FGM made by the Immigration and Asylum Chamber of the First-tier Tribunal in determining an asylum application based upon the risk of FGM upon return.
The secretary of state submitted that the assessment of risk undertaken by the specialist tribunal was to be taken as the starting point or default position in any subsequent assessment of risk by the family court when considering whether to make an FGM protection order.
Issues before the Court of Appeal
First, proceedings before the tribunal were adversarial and not in rem (para 27). Conclusions of the tribunal bound the parties to that appeal and no one else. An assessment of risk made by one court or tribunal might be a relevant consideration for a subsequent assessment by a different court or tribunal, but its relevance and the weight to be given to it were matters for the subsequent court or tribunal. That would depend on matters such as the degree of similarity or difference between the precise assessment in which each court or tribunal was involved, the available relevant evidence, and any particular rules which applied.
Secondl, the FGMA 2003 describes how the court’s powers in respect of an FGM protection order are to be exercised. The family court had to have regard to all the circumstances. While a prior assessment of risk may be such a circumstance, that statutory language neither requires nor permits any limitation, presumption or assumption in the task to be performed. There is no starting point or default position save that provided by the statute, namely that all the circumstances include “the need to secure the health, safety and well-being of the girl to be protected”. As a matter of statutory construction, that provides a substantive answer to the Secretary of State’s challenge.the 2003 Act described how the court’s powers in respect of an FGM protection order were to be exercised. (para 28)
The third issue was procedural. The admission of evidence before a family court is governed by the Family Procedure Rules 2010. There is no right to file and serve evidence without the court’s permission. There is a specific test in r.25.4(3) which family courts must apply relating to the admission of expert evidence. That test is whether the evidence was “necessary to assist the court to resolve the proceedings”. That might require a family court exercising its power to make an FGM protection order to consider, in the light of a prior finding by a tribunal in a different context, the nature and extent of the evidence upon which that earlier finding was made and whether further evidence was required. However, there was no need for any additional test, alternative wording or any gloss on the rule (para 29).
The above provided sufficient grounds to dismiss the appeal. Nevertheless the Court of Appeal considered the following additional matters:
1) Comity: The principle of judicial comity does not prescribe that the family court should take the tribunal’s assessment of the risk of FGM as its starting point and only embark on a further enquiry if compelling or exceptional reasons demanded it. There can be be overlap between the issues and evidence that family courts and tribunals had to consider. However, the exercises performed in the family courts versus the immigration and asylum tribunals are largely distinct and separate, as indicated by the authorities: see Mohan v Secretary of State for the Home Department  EWCA Civ 1363,  1 WLR 922 approving the Upper Tribunal in RS (immigration and family court proceedings) India  UKUT 218 (IAC) per McFarlane LJ, Blake J. (President) and Upper Tribunal Judge Martin.
The interests of a child are not paramount when the tribunal is considering a case under the Borders, Citizenship and Immigration Act 2009 s.55. That of itself necessarily constrains the tribunal from understanding questions of risk in the same way as the family court where a child’s welfare is paramount.
2) Proportionality – The secretary of state submitted that the President’s decision risked litigation taking place on largely the same factual issue in both the tribunal and the family court, risking uncertainty, delay and waste of public expenditure. However, that submission missed the point because the context and nature of the decision-making process was materially different. A child or young person in proceedings in the family court for an FGM protection order would be separately represented and would have her own voice. That was not the case in the tribunal where a young person might not be making her own asylum application but was the dependent of an adult who was. The question of whether a person’s interests were a primary or paramount consideration could and sometimes did lead to a different decision on the same facts (para.40).