Reported Case

The family court accepted an application for a Female Genital Mutilation Protection Order (FGMPO) brought by the local authority and supported by our client, to protect her ten year old daughter A from undergoing the procedure.


Background

A has lived in the UK from the age of three. If she is removed to Bahrain or Sudan, she will be isolated and unsupported. She is unable to speak Arabic fluently, limiting her ability to communicate freely with her mother and seek help independently. Additionally, A has no recollection of living in Bahrain and has very limited knowledge of her African heritage as she has been raised with British culture and norms.

A is unaware of the practice of Female Genital Mutilation (FGM) or that she is at risk of this procedure. The father has played no role in the family for several years. He is currently believed to be in military prison in Bahrain and is stated to support the practice of FGM. The mother reported that it was the father’s intention to take A to Sudan to undergo the procedure and that he last mentioned this to her in 2015. As such the father cannot be considered a protective factor against the risk of FGM.

Our client, the mother, suffers from disabling PTSD and is very fearful of returning to Bahrain or Sudan. She does not have the resolve to protect A from family pressure surrounding FGM. The negative impact on our client’s mental health if the family were to be removed would render her less able to provide protection for A, particularly in the context of family and cultural expectations as well as the patriarchal hierarchy in Bahrain and Sudan.



Case Summary

Despite our client and her children being at risk of removal from the UK due to failed asylum claims, and an earlier order from the President of the Family Division that a FGMPO cannot prevent the Home Office removing the family from the UK, the High Court determined that a FGMPO is necessary to protect A.

The court found that on 31 August 2012, the mother applied for asylum citing her risk of harm due to her conversion to Shia Islam and A’s risk of being subjected to FGM. Her claim was rejected and the Secretary of State’s refusal was upheld on appeal by the First-tier and Upper Tribunals. A was a dependant - not a claimant or an appellant in the asylum process.

The prevalence of FGM in the North Kordofan – the home of the maternal and paternal families - is 97.7% and the prevalence in Omdurman - the extended family’s place of residence - is at 87%. Campaigning efforts by UN and NGO agencies are assessed to have brought ‘very little change or impact in terms of reducing the prevalence rates of FGM in Sudan.’



Outcome

In regards to this matter, Mr Justice Newton stated:

“It is difficult to think of a clearer or more serious case where the risk to A of FGM is so high. I find without hesitation overwhelmingly that there is a high risk of FGM to A, and I accordingly make the order sought.”

In relation to the order (relating to conduct outside the jurisdiction), the mother is most unlikely to be in a position to ensure that the order is adhered to because of her own vulnerabilities and the wider sustained family pressure. Secondly, the order will have no real effect either in Bahrain or Sudan.

As the application was brought by the local authority due to their concerns that was at risk of FGM should she be removed from the UK, the court confirmed that this was indeed the correct course of action for the authority to take in discharging their duties.

We hope that in light of this judgment more authorities will act in the same way to protect children at risk of FGM regardless of their immigration status.

Our client’s struggle to protect her daughter from FGM is however far from over and she must now navigate the immigration processes necessary for her to secure leave to remain in the UK where she can protect her daughter.



Legal Principles

On 25 September 2019 the President of the Family Division handed down judgment on the three questions:

Firstly, in line with clearly established authority, the President ruled that in relation to the court’s power to injunct the Secretary of State, there is no power for a court to make an injunction pursuant to an FGMPO against the Secretary of State, to control the exercise of jurisdiction with respect to matters of immigration and asylum.

The extent of the family court’s jurisdiction extends only to respectfully invite the Secretary of State to take the order into account, and for relevant tribunals to consider any determinations made by the Court in FGMPO proceedings.

Secondly, the President specifically rejected the Secretary of State’s submission that a First-tier Tribunal assessment must be the starting point and the court should only deviate from that assessment if there is good reason to do so. He relied on Re H (A Child) [2016 EWCA Civ 988] to state that “…in approaching an asylum/humanitarian protection claim, the Home Office looks to see whether the person concerned has a well- founded fear of persecution or is at real risk of serious harm for a non-Convention reason. The approach to risk is not the same as that taken in a family court case.

“In a family court case, establishing risk is a two-stage process. First, the court considers what facts are established on the balance of probabilities; then it proceeds to consider whether those facts give rise to a risk of harm, see Re J (Children) [2013] UKSC 9.

“In contrast, in an asylum/humanitarian protection claim, the material presented by the claimant is looked at as a whole, with a view to determining whether there is a well-founded fear of persecution or substantial grounds for believing that a person would face a real risk of serious harm - a reasonable degree of likelihood of serious harm being what is required. There is no comparable process of searching for facts which are established on the balance of probabilities."

Thirdly, he ruled that the question surrounding the duty of the local authority to investigate, was clear. They have a duty to safeguard and promote the welfare of children in their area under ss.17 and 22.47 of the Children Act 1989. The local authority was found to have done everything it should have done, not only within this application, but generally in fulfilling its statutory responsibilities to the fullest extent.



Representation

The mother was represented by family director Vanket Appalakondiah and solicitor Emily Reed of the Dalston and Manchester offices respectively. Counsel Dr Charlotte Proudman of Goldsmith Chambers was instructed.

Find full details of this case on Bailii’s website here.