X (A Child) (Female Genital Mutilation Protection Order : Restrictions on Travel)

A female genital mutilation protection order may be made where, on the balance of probabilities, a girl faces a substantial risk of FGM outside England and Wales. The court must consider all the circumstances, including the need to secure her health, safety and well-being, and must assess proportionality in light of the family’s rights under articles 3 and 8 of the ECHR. The order may contain wide restrictions on travel, including passport requirements, where necessary to prevent onward travel to the place of risk. The absence of enforceable protective measures in the foreign country is a material consideration. The order should remain in force for as long as necessary to protect the girl, subject to variation or discharge.

Hertfordshire County Council applied for female genital mutilation protection orders concerning X, an infant whose Egyptian father lived in Egypt. The application followed concerns that X might be subjected to FGM if taken there by her mother. The parents opposed continuation of the orders. The evidence concerned the prevalence of FGM in Egypt, the father’s and paternal family’s attitudes, the mother’s ability to protect X, and the absence of effective enforcement of English orders or undertakings in Egypt. The central issue was whether X faced a sufficient risk to justify restrictions preventing her mother from travelling outside the United Kingdom with her.

1. Application granted. A female genital mutilation protection order was continued until 22 August 2032. The mother was prohibited from travelling outside the jurisdiction or the United Kingdom with X. X’s passport was retained, and no person could apply for a passport or travel document for her without permission.
2. The local authority bore the burden of proof. The applicable standard was the balance of probabilities. Under Schedule 2 to the Female Genital Mutilation Act 2003, the court could make an order for the purpose of protecting X against the commission of a genital mutilation offence. The power extended to conduct outside England and Wales and permitted prohibitions, restrictions and requirements appropriate for that purpose.
3. The court had to consider the risk on the facts of the individual case, have regard to all the circumstances, including X’s health, safety and well-being, and assess the proportionality of the order. X’s and her parents’ article 8 rights had to be balanced against the risk of treatment contrary to article 3.
4. The risk was substantial. FGM remained highly prevalent in Egypt, the paternal family’s evidence was unreliable, and the father continued to show limited understanding of the physical and psychological consequences of FGM. The mother was isolated, did not speak Egyptian Arabic, and could not reliably understand or respond to discussions within the paternal family.
5. English orders, parental undertakings and notarised agreements were not enforceable in Egypt. There was no equivalent Egyptian protection order or reliable mechanism ensuring that X could leave Egypt with her mother. Those matters materially increased the protective need for an order preventing travel.
6. The order did not prevent contact between X and her father or paternal family. The court encouraged contact in England and Wales and permitted disclosure of the order to relevant governmental and consular authorities. The order remained subject to variation or discharge under Schedule 2.

Not an appeal. The judgment was a first-instance determination of the local authority’s application.