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Children case law update: Assessments of risk of FGM, and hybrid contested hearings

Georgina Dalton reviews recent childcare rulings in relation to the family courts and previous assessments of risk of FGM, and on competing Article 6 and Article 8 rights in a hybrid contested hearing.

A (A Child) (Rev 1) [2020] EWCA Civ 731

Court of Appeal: The Senior President of Tribunals, Lady Justice King and Lord Justice Hickinbottom

– A case which confirms that, when the Family Court is considering whether to make a female genital mutilation protection order, a previous assessment of risk undertaken by the Immigration Tribunals is not the starting point.

A was born in 2009. She is a Bahraini citizen of Sudanese origin who entered the UK as a visitor with her parents and four older brothers in 2012. In her asylum application, A’s mother claimed that A was at risk of female genital mutilation (“FGM”) on return. The application and subsequent appeal were dismissed. The Immigration and Asylum Chamber of the First-tier Tribunal (‘FtT (IAC)’) held there was not substantial grounds for believing that there was a real risk of A being subjected to FGM.

In September 2018, A’s school contacted the local authority with concerns that A and her mother were due to be removed to Bahrain the following day. The local authority sought advice from Barnardo’s who were of the view that there was a high risk of FGM if A was removed. The local authority issued an application in the family court for an FGM protection order on 27th September 2018.

On 1st October 2018, an order was made prohibiting A’s from leaving the jurisdiction with A and preventing the Secretary of State for the Home Department (“SSHD”) from removing A from the jurisdiction. The SSHD contended that this order was made in excess of jurisdiction and the injunctions should be discharged.

The President of the Family Division was required to determine the role of the Family Division in assessing the risk of a child being subjected to FGM in circumstances where the risk had been assessed by the Immigration and Asylum Tribunal (“FtT”) and dismissed as a basis for asylum with all appeal rights exhausted.

The President held that it is not possible for an FtT assessment to be taken as the starting point or default position in the family court. Although the family court will take note of such assessment, the exercise undertaken by the FtT is not compatible with that required in the family court, which has a duty to form its own assessment.

Subsequently, a final hearing then took place in December 2019 where an FGM protection order was made in relation to A.

The SSHD appealed the President’s decision submitting that the family court embarked upon a disproportionate and unwarranted inquiry and that the principle of comity applies between the FtT and the family courts.

In determining the appeal, the court considered three issues. Firstly, the conclusions of the FtT bind the parties to that appeal and no-one else. Although 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, 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.

Secondly, the court must have regard to all of the circumstances pursuant to the FGMA 2003. There is no starting point or default position save that provided by statute, namely that all the circumstances include “the need to secure the health, safety and well-being of the girl to be protected”.

Thirdly, there is no need for any additional test, alternative wording or any gloss on the test for admission of evidence before a family court, namely, whether the evidence is “necessary to assist the court to resolve the proceedings”.

At paragraph 40, the Court of Appeal held that “whether a person’s interests are a primary or paramount consideration can and sometimes does lead to a different decision on the same facts”. The statutory schemes had different focuses and functions.

The Court of Appeal concluded:

“When a family court comes to consider an issue upon which it is said a tribunal has already opined, including, for example, a tribunal’s specialist view about third country risk, the relevance of the tribunal’s conclusion, any intermediate findings of fact, and the nature and extent of the evidence upon which these are based will be examined as part of all the circumstances in accordance with paragraph 2 of schedule 2 of the FGMA 2003.”

Re C (Children) (Covid-19: Representation) [2020] EWCA Civ 734

Court of Appeal: Lady Justice King, Lord Justice Peter Jackson and Lady Justice Asplin

– A case concerning parties’ competing Article 6 and Article 8 rights in a hybrid contested hearing.

The appeal arose from a decision to continue a fact-finding hearing in care proceedings concerning four young children. The court had already heard a substantial amount of expert evidence remotely and decided, with the agreement of all parties, that the remaining lay evidence would be given live in court.

The mother applied for an adjournment to Autumn 2020 as her leading counsel could not be physically be present due to being required to shield against Coronavirus.

Williams J noted the court’s decision in Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583 and directed himself that all of the guidance given was intended to ensure that the parties’ Article 6 rights were not infringed. On 15th May, the application was dismissed, and the hearing was adjourned to June 2020 for reasons set out in paragraph 64, namely:

  • The issues on which the remaining evidence was to be given are not complex but of very considerable importance and may have profound implications for the family life of the parties and the children;
  • A considerable focus is placed on the oral evidence of the parties and whilst it can be tested remotely, the giving of evidence in a court setting has an advantage to both the party and the court;
  • The mother, the father and the paternal grandmother can attend a court hearing with a safe court environment in June 2020;
  • A balance has to be struck between interfering with the children’s rights to a fair hearing within a reasonable time and the mother’s right to a fair hearing within a reasonable time;
  • A delay of 3-4 months is a significant one and will cause harm to the children whereas the personal presence of leading counsel is a desirable but not essential part of the framework which contributes to a fair hearing.

The Mother appealed this decision on three grounds:

  1. The judge’s decision in adjourning the part-heard fact-finding hearing to a date at which the mother’s leading counsel was prevented from attending in person was wrong in law because it breached the mother’s Article 6 rights to a fair trial;
  2. The judge was wrong in failing to consider properly or at all whether unfairness in the trial process may involve a violation of the Article 8 rights of both the mother and the children; and
  3. The judge was wrong in failing to have carried out any proper judicial evaluation of the competing Article 6 rights of the parties.

The appeal was supported by the father but opposed by the other parties.

The Court, in dismissing the appeal, concluded, at paragraph 22 that “it is in the public interest and the interests of children and families that, wherever it can happen in a safe and fair manner, the work of the courts should continue.”

Jackson LJ, at paragraph 24, stated “the judge’s decision was not only plainly open to him but… correct”. His reasons were then set out as follows:

  • Although it is unfortunate that lead counsel cannot be physically present in court while the other advocates can, it will not prevent the mother from participating effectively in the hearing;
  • There will be no inequality of arms. Any disparity created by the physical absence of leading counsel from the courtroom is likely to be slight and cannot amount to a substantial disadvantage rendering the proceedings unfair;
  • The judge will keep the fairness of the proceedings under ongoing review and any valid complaint about the conclusions of the fact-finding hearing can be made to this court;
  • The judge gave clear reasoning and he did exactly what was required to do by making a survey of all the relevant considerations at each stage of the process;
  • A short and certain adjournment may sometimes be granted to secure the attendance of counsel where that is important to a party and the delay is not significant.

Georgina Dalton will be commencing pupillage at Spire Barristers in September 2020.

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