Buckinghamshire County Council v MA & Anor

In proceedings concerning possible female genital mutilation, the court cannot give a fact-finding judgment that eliminates all future risk where the evidence makes that impossible. A fact-finding hearing should not be ordered merely to provide finality against possible future proceedings. A local authority’s duty and discretion to protect children must remain unfettered if a current risk later arises. Parents should give substantial advance notice of proposed travel to a country where risk arises, while the local authority should act promptly and avoid last-minute applications when sufficient notice has been given.

Buckinghamshire County Council applied to make three children wards of court and sought orders under the Female Genital Mutilation Act 2003. Two older daughters had previously undergone female genital mutilation in Somalia. The three younger daughters had travelled to Somalia with their mother but returned without evidence of genital mutilation.

The local authority assessed the current risk as low and sought an end to the proceedings. The parents sought a fact-finding hearing to determine future risk and reduce the prospect of repeated proceedings. The central issue was whether such a hearing could provide the finality sought and what guidance should accompany the conclusion of the proceedings.

1. Fact-finding hearing. The proceedings concerned future risk rather than essentially disputed past facts. Although the court could hear evidence about the parents’ attitudes and intentions, it could not responsibly rule out every future risk, given that two older daughters had been mutilated in Somalia. A fact-finding hearing could therefore not provide the requested finality and would involve further expenditure of court time and public money. Directions for such a hearing were refused.
2. Current assessment. The local authority was currently satisfied that the risk to the three younger daughters was low. On the evidence available, the court was not satisfied that either parent presented, or was likely to present, a risk of female genital mutilation, or would fail to prevent others from causing it.
3. Future duties and expectations. Any relevant local authority’s duty and discretion to protect the children must remain unfettered. If a current concern later arose, the authority would be under a high duty to take whatever protective steps appeared necessary and appropriate, and to seek a legal remedy without delay and, so far as possible, well before proposed travel.
4. Reciprocal conduct. The parents were expected to give the relevant local authority at least twelve clear weeks’ notice of any future trip by the children to Africa and to permit discussion of the risks with a social worker or similar professional. Conversely, once given adequate notice, a sufficiently concerned local authority should bring proceedings promptly rather than make a late or last-minute application.
5. The proceedings were brought to an end, with continuing orders discharged.

First-instance proceedings. No earlier appellate decision is stated in the judgment.