Court of Appeal upholds broad discretion of family courts in FGM cases

The Home Secretary has lost an appeal over a ruling that in the exercise of the family court's jurisdiction to make a female genital mutilation (FGM) protection order, the family court is not bound to take a previous assessment or determination of risk of FGM made by the Immigration and Asylum Chamber of the First-tier Tribunal in its determination of an asylum application based upon the risk of FGM on return.

In his ruling in Re A (A Child : Female Genital Mutilation : Asylum) (Rev 1) [2019] EWHC 2475 (Fam) (25 September 2019) the President of the Family Division, Sir Andrew McFarlane, had concluded that the family court has a duty by FMGA 2003, Schedule 2, paragraph 1(2) to “have regard to all the circumstances”.

The President said that 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,” he said.

“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.”

The Home Secretary appealed but this appeal has been dismissed by the Court of Appeal.

In A (A Child) (Rev 1) [2020] EWCA Civ 731 Sir Ernest Ryder, Senior President of Tribunals, said the appeal raised an issue of importance concerning the relationship between these two distinct jurisdictions and, in particular, the overlap which it is said may exist when the risk of FGM is assessed for the purposes of a decision in each of those jurisdictions.

The Home Secretary challenged Sir Andrew’s conclusion and submitted that the assessment of risk undertaken by the FtT (IAC) was to be taken as the starting point or default position in any subsequent assessment of risk by the family court in considering whether to make a protection order.

Sir Ernest said three matters provided a complete answer to the appeal:

27. First, proceedings before the FtT (IAC) are adversarial, and not in rem: the conclusions of the FtT (IAC) bind the parties to that appeal (in this case, A's mother and the Secretary of State) and no-one else. Mr McKendrick [counsel for the Home Seccretary] did not suggest otherwise. Even if it could be argued that the tribunal proceedings might create some form of judgment estoppel as between the same parties, this would not apply to an intermediate finding of fact (such as a finding of risk). Again, Mr McKendrick did not suggest otherwise. We accept that an assessment of risk made by one court or tribunal may be a relevant consideration for a subsequent assessment by a different court or tribunal: but, whether it is relevant at all and, if so, the weight to be given to the earlier assessment, are matters for the subsequent court or tribunal. They will depend upon (among other things) the degree of similarity/difference between the precise assessment in which each court or tribunal is involved, the available relevant evidence and any particular rules (evidential or otherwise) that apply.

28. Second, the FGMA 2003 describes how the court's powers in respect of an FGM protection order are to be exercised. In language that is unambiguous, plain and in mandatory form, in deciding whether to exercise its powers and, if so, how, the family court must (our emphasis) have regard to all the circumstances. While, as we have described, 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.

29. The third issue is procedural. The admission of evidence before a family court is governed by the Family Procedure Rules 2010. The admission of evidence is considered by a judge during case management. There is no right to file and serve evidence without the family court's permission (see, for example, rule 25.4(2)). Quite apart from the application to that exercise of the overriding objective in rules 1.1, 1.2 and 1.3 and the active case management principles in rules 1.4 and 4.1, which are mirrored and described in detailed practice directions, there is a specific and simple test which family courts must apply relating to the admission of expert evidence which can be found in part 25 at rule 25.4(3). That test is whether the evidence is "necessary to assist the court to resolve the proceedings". We accept that may require a family court exercising its power to make a 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 (and, if so, what) further evidence is required. However, there is no need for any additional test, alternative wording or any gloss on the rule that is applicable to the circumstances of this case, as the Secretary of State suggests.

Sir Ernest said these three issues were, in the Court of Appeal’s view, sufficient to determine the appeal.