E (Children) (Female Genital Mutilation Protection Orders), Re

The court may make a female genital mutilation protection order where, having regard to all the circumstances, protection is required for a girl’s health, safety or well-being. The order may include prohibitions, restrictions and requirements, including restrictions on conduct outside England and Wales, provided they serve the purposes of protecting the girl from genital mutilation. On an urgent without-notice application, the court must assess the statutory risk and fairness factors and give the respondent an opportunity to make representations as soon as just and convenient. Protective conditions may restrict the respondent’s proximity to the children’s home or school where that is necessary to protect the children, but the order must not be used principally as a remedy for violence against another person.

The mother of three girls applied for female genital mutilation protection orders under the newly commenced Schedule 2 to the Female Genital Mutilation Act 2003. She alleged that the girls’ father intended to arrange their circumcision in Nigeria during the school holidays and that he had a history of serious violence towards the family.

An ex parte order had been made two days earlier. The father was served only shortly before the hearing and did not attend or obtain representation. The issues were whether the mother had permission to apply, whether the order should continue without notice, and what protective terms were necessary.

1. The application was granted. The court continued the existing female genital mutilation protection order, prohibited removal of the children from England and Wales, extended prohibitions against violence, intimidation and harassment, and prohibited the father from coming within 100 metres of the children’s home and school. A further on-notice hearing was fixed.

2. Section 73 of the Serious Crime Act 2015 inserted section 5A into the Female Genital Mutilation Act 2003, which introduced Schedule 2. Under paragraph 1 of Schedule 2, the court may make an order to protect a girl against a genital mutilation offence. It must have regard to all the circumstances, including the need to secure her health, safety and well-being. The evidence of the mother disclosed a potentially very high risk and justified protection.

3. The court’s power to impose prohibitions, restrictions or requirements under paragraph 1(3) is wide, but every term must be for the purposes of the protection order. Although the mother also alleged domestic violence, any protection required by her personally would arise under the Family Law Act 1996. The restrictions concerning the home and school were justified only because they protected the girls from female genital mutilation.

4. The mother was entitled to permission to apply under paragraph 2(3). Her exceptionally close connection with the girls and intimate knowledge of their circumstances satisfied the considerations in paragraph 2(4).

5. Paragraph 5 permitted a without-notice order where it was just and convenient. The principal relevant consideration was the serious risk that the girls would become victims of a genital mutilation offence if protection was not given immediately. The father had to be given an opportunity to make representations as soon as just and convenient and at a hearing of which proper notice was given. Because he had received the papers only about two and a half hours before the hearing, the hearing remained ex parte and a short further period was allowed for representation.

First-instance decision. No appellate history was stated in the judgment.