There is no jurisdiction for a family court to make a FGM (female genital mutilation) protection order against the Home Secretary to control the exercise of her jurisdiction with respect to matters of immigration and asylum, the President of the Family Division has concluded.
In A (A Child: Female Genital Mutilation: Asylum)  EWHC 2475 (Fam) Sir Andrew McFarlane said the extent of the family court's jurisdiction in such matters was to invite the Secretary of State and/or the relevant tribunals to consider any determinations made by the court in FGMA proceedings.
The parents of the 10-year-old child (A) at the centre of proceedings were of Sudanese origin, but they now hold only Bahraini citizenship.
The mother was born in Sudan and moved to Bahrain following her marriage to the father. As a child in Sudan she underwent FGM. She reported that two of her sisters died as a result of the FGM procedure and that the practice continues in the family with three of her nieces having already been subjected to FGM.
The mother was a Sunni Muslim, who converted to Shia before subsequently converting back to Sunni. The parents have five children in all.
The family travelled to the UK on 18 August 2012. The father left again on 30 August 2012 and has not returned. He is now believed to have been detained in a military prison in Bahrain.
On 31 August 2012 the mother made her first application for asylum in the UK. She withdrew this in early 2013 and applied for Assisted Voluntary Removal. She later also withdrew that application in January 2014.
On 2 September 2015, the mother made a fresh application for asylum on the basis that, if removed to Bahrain, A would be subjected to FGM and the mother would be mistreated as a result of converting from Sunni to Shia Muslim.
That application was refused by the Home Office on 16 December 2016. The mother's appeal against that decision was dismissed by the First Tier Tribunal on 25 July 2017.
A number of determinations were made by the FTT, including that: 'in respect of [A] there are not substantial grounds for believing that there is a real risk of her being subjected to any form of FGM'.
Permission to appeal was refused by both the FTT and the Upper Tribunal and on 14 May 2018, Holman J refused the mother's application for leave to apply for judicial review of the UT decision. Appeal rights were thereby exhausted, and the mother and children were due to be deported in late September 2018.
The relevant local authority, Suffolk County Council, had been previously involved with the family due to concerns about the risk of FGM.
An assessment had been undertaken by Barnardo's in 2017 which recommended the making of an FGM protection order under the Female Genital Mutilation Act 2003 if the family returned to Bahrain. There was however considered to be no risk of FGM whilst the family remained in the UK and the local authority therefore closed its file at that stage.
On 26 September 2018, the local authority was contacted by A's school as A had informed them that she was due to be deported to Bahrain on 27 September. The mother believed they would be deported further from Bahrain to Sudan due to new rules removing citizenship from nationals who had been away from Bahrain for five years.
Barnardo's reiterated their advice that there was a high risk of FGM and therefore the local authority issued an application for an FGM protection order on 27 September 2018.
The matter came before HHJ Richards on 1 October 2018. The judge transferred the matter to the Family Division of the High Court and invited the Secretary of State for the Home Department to be joined as an intervener and to attend the next hearing.
A number of orders were also made including that the Home Secretary be prohibited from removing, instructing or encouraging any other person to remove A from the jurisdiction of England and Wales. The Home Secretary and the mother were also prohibited from obtaining a passport or any other travel document for A, if one had not already been obtained.
A further hearing took place on 31 October 2018 before Newton J, who transferred the case to Sir Andrew as President of the Family Division for hearing on 30 and 31 January.
Sir Andrew apologised to the parties “for the inordinate delay that has preceded the handing down of this judgment; the delay has been caused by the pressure of other work in the intervening period”.
However he added that during the interim period, with the agreement of all parties, the FGMA proceedings had continued before Newton J and had not been held up by the determination of the point of law he was to address.
These issues were:
(a) Whether a judge of the Family Division and/or the Family Court can lawfully injunct or restrain the exercise of the Secretary of State for the Home Department's immigration powers in relation to a mother and child by making an FGM protection order.
(b) The role of the Family Division in assessing the risk of a child being subjected to FGM in circumstances where the risk has been assessed by the Immigration and Asylum Tribunal and dismissed as a basis for asylum with all appeal rights exhausted.
(c) The duty on the local authority in meeting its statutory obligations under the FGM Act 2003 in these circumstances.
(d) Whether the FGM protection order (dated 1 October 2018) should be continued or discharged.
Sir Andrew concluded that:
- There is no jurisdiction for a family court to make a FGM protection order against the Secretary of State for the Home Department to control the exercise of her jurisdiction with respect to matters of immigration and asylum. The extent of the family court's jurisdiction in such matters is to invite the Secretary of State and/or the relevant tribunals to consider any determinations made by the court in FGMA proceedings.
- The family court has a duty by FGMA 2003, Schedule 2, paragraph 1(2) to 'have regard to all the circumstances' and, to discharge that duty, the court must consider all the relevant available evidence before deciding any facts on the balance of probability and then moving on to assess the risk and the need for an FGM protection order. "Although the family court will necessarily take note of any FTT risk assessment, the exercise undertaken by a FTT is not a compatible process with that required in the family court. It is not therefore possible for an FTT assessment to be taken as the starting point or default position in the family court. The family court has a duty to form its own assessment, unencumbered by having to afford priority or precedence to the outcome of a similarly labelled, but materially different, process in the immigration jurisdiction."
- A local authority has duties to safeguard and promote the welfare of children in its area who are in need under the Children Act 1989, s 17(1) and s 47(1)+(3) [in England] and the Social Services and Well-being (Wales) Act 2014, s 21 [in Wales]. If, on investigation, the authority determines that a FGM protection order is necessary, it will issue an application. “The local authority in the present case acted entirely properly in the investigation and instigation of proceedings. Indeed, given the tight timetable that they were told of, they acted with commendable and appropriate speed.”
The Family President said it followed that the clauses in the order made on 1 October 2018, which sought to injunct the Secretary of State in the exercise of her powers with respect to immigration and asylum, must be discharged.
“They will be replaced with a request to the Secretary of State to restrain enforcement of the immigration decisions in this case until the conclusion of the FGMA application and thereafter to re-consider the immigration determination in the light of any risk assessment undertaken by the family court,” he said.