E (Female Genital Mutilation and Permission to Remove)

An application for a female genital mutilation protection order requires an assessment of risk having regard to all the circumstances, including the girl’s health, safety and well-being. Relevant cultural or historical risk factors may be substantially mitigated by the evidence in the particular case. Permanent removal of a child under Children Act 1989 s 13 is determined by the child’s best interests, with welfare remaining paramount. There is no presumption in favour of either outcome. The court must evaluate each option in sufficient detail, compare the options side by side, scrutinise the proposed arrangements and assess any interference with family life proportionately.

The mother obtained without-notice female genital mutilation protection orders concerning the parties’ three children after alleging that the father intended to take them from England to Nigeria for FGM. The father denied the allegations and applied under Children Act 1989 s 13 for permission to remove the children permanently to Nigeria. The local authority became involved because of concerns about the mother’s care of the children.

Following a contested final hearing, the central issues were whether there was an appreciable risk of FGM if the children returned to their father in Nigeria and whether their best interests required that they live with their father there or remain with their mother in England.

1. FGM protection order. The application to continue the orders was dismissed. The court considered the statutory test under Schedule 2 to the Female Genital Mutilation Act 2003, including the need to secure the children’s health, safety and well-being. Cultural and familial risk indicators existed, but they were substantially mitigated by the evidence. The court found no appreciable risk that the children would be subjected to FGM in the father’s care. The mother’s allegations were rejected as materially dishonest and unsupported.
2. Fact-finding. Findings were made on the balance of probabilities. The court assessed the evidence as a whole, taking account of inherent probabilities and the wider social and emotional context. A finding that a witness had lied on one issue did not require rejection of all of that witness’s evidence.
3. Permission to remove. The children’s welfare was paramount. Applying Re F (International Relocation Case) [2015] EWCA Civ 882, the court evaluated each option on its own merits and comparatively. It considered the children’s physical, emotional and educational needs, their security and legal status, their relationships, cultural identity, the proposed care arrangements in Nigeria and the harm arising from remaining in the mother’s care.
4. The father’s proposals were realistic and sufficiently supported by the evidence. The children would return to familiar surroundings and established family relationships, with their educational and welfare needs better met. The interference with the mother’s and children’s family life was proportionate to the imperative need for safe, secure and consistent care.
5. Orders were made that the children live with the father and that he have permission to remove them permanently to Nigeria. The mother was granted contact, with the precise terms to be discussed. The court intended the children to move to the father’s care immediately.

This was a first-instance decision. The judgment records that interim FGM protection orders were initially made by Hogg J and renewed by Holman J in Re E (Children) (Female Genital Mutilation Protection Orders) [2015] EWHC 2275 (Fam). At the final hearing, the interim protection was not continued.