F and X (Children), Re

Children unlawfully retained abroad must be returned as quickly as possible where the court has jurisdiction and the circumstances require it. The risk of female genital mutilation may justify urgent protective orders and directions securing the children’s return. A parent’s compliance with those directions and undertakings may materially affect the court’s approach to subsequent committal proceedings. Continued non-compliance may aggravate the original breach and attract a serious response.

Kent County Council applied under the inherent jurisdiction and the Female Genital Mutilation Act 2003 concerning two children retained in Sudan by their mother after a holiday. The mother had returned to England and accepted that the children had been unlawfully retained. The court was also satisfied that the older child, F, faced a real risk of female genital mutilation if she remained in Sudan.

At an earlier hearing, the children were made wards of court and a Female Genital Mutilation Protection Order was made. The mother was directed to arrange their return but failed to do so. The central issues were the urgent arrangements required for the children’s safe return and the significance of the mother’s continuing non-compliance.

1. Urgency and return. The mother accepted that the children had been unlawfully retained in Sudan. They therefore had to be returned to this jurisdiction as quickly as possible. The court regarded the risk of female genital mutilation to F as a further and compelling reason for urgent protective action.
2. Protective jurisdiction. The court had already made the children wards of court and made a Female Genital Mutilation Protection Order in standard terms under the Female Genital Mutilation Act 2003. The court continued to treat the children’s safe return as a matter of the utmost urgency.
3. Practical directions. The court made further orders and accepted undertakings involving the local authority and both parents. They addressed visas, flights, practical travel arrangements and attendance at the Sudanese Embassy to provide written consent to the children’s return.
4. Committal consequences. The local authority intended to issue committal proceedings because of the mother’s admitted breach of the earlier order. Her compliance with the new order and undertakings was likely to lead to a lenient view at the committal hearing, although the court could not predict the outcome. Further non-compliance would compound the earlier breach and was likely to be treated very seriously.
5. Order. The court made the order proposed by counsel and listed the matter again in two weeks. The children were subsequently returned to England on 2 October 2015.