Z (A Child) (FGMPO : Prevalence of FGM)

In determining whether protective orders are required against the risk of female genital mutilation, the court must apply the civil standard of proof and treat the child’s welfare as paramount. A Female Genital Mutilation Protection Order may impose wide prohibitions, restrictions and requirements, including restrictions on overseas travel and passport surrender, where necessary to protect a girl from the risk of an offence. The court must balance the child’s cultural and familial interests against the seriousness, irreversibility and likelihood of the harm. Risk may arise from the wider family or community, and need not arise from the proposed travelling parent personally.

The proceedings concerned a six-year-old girl whose separated parents disputed whether the father should be permitted to take her to Guinea to visit his family. The mother alleged a substantial risk that the child would undergo female genital mutilation, given the prevalence of the practice in Guinea and the father’s family and community background. The father denied that his family posed such a risk and sought overseas contact. The child’s guardian supported protective restrictions. The court also had to determine the child arrangements and whether to make a Female Genital Mutilation Protection Order.

1. The mother bore the evidential burden. The applicable standard was the balance of probabilities, as stated in Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35 and confirmed in Re S-B (Children) [2009] UKSC 17.
2. The child’s welfare was paramount under section 1 of the Children Act 1989. The statutory presumption that parental involvement furthers welfare was subject to the requirement that involvement must not expose the child to a risk of harm.
3. The statutory scheme permitted a Female Genital Mutilation Protection Order directed against persons who might commit, assist, encourage or otherwise become involved in an offence. The court could impose travel prohibitions, passport surrender and other requirements where appropriate. The approach in Re E (Children) (FGM Protection Orders) [2015] 2 FLR 997 supported such measures.
4. The relevant risk was not confined to conduct by the father. The evidence of the very high prevalence and social acceptance of FGM in Guinea, together with the absence of objective evidence about the paternal family and the father’s susceptibility to family and community pressure, established a significant risk on the balance of probabilities. The comparison with Re E (Female Genital Mutilation and Permission to Remove) [2016] EWHC 1052 did not assist the father because the evidential position differed.
5. The risk and lifelong consequences of FGM outweighed the benefits of travel to Guinea and direct contact with the father’s heritage. A FGMPO was therefore made until the child’s seventeenth birthday. During periods when the child stayed with him, the father was required to surrender his passport. The child arrangements were also structured around her welfare, including residence with the mother and contact with the father generally every third weekend.

The judgment describes earlier proceedings in the Family Court at Bromley, including domestic-abuse findings and interim protective and child-arrangements orders. The proceedings were transferred to the High Court on 23 February 2016. No appeal from the present judgment is stated.