Re X (A Child : FGMPO) (Rev 2)

Every prohibition, restriction or other term in a female genital mutilation protection order must be separately justified. The court must assess at least a real risk of FGM, the available protective factors and the nature and extent of any interference with family life.

Proportionality requires consideration of whether a less intrusive measure would protect the child without unacceptably compromising that objective. A worldwide travel ban therefore requires evidence and reasons addressing its geographical scope, duration and practical effect. A risk associated with travel to one country does not, without further findings and analysis, justify a worldwide ban.

The father appealed against part of a female genital mutilation protection order made by Russell J in [2017] EWHC 2898 (Fam) under the Female Genital Mutilation Act 2003. The order prohibited either parent from removing the young child from England and Wales until she was 16.

The judge had found that the child faced a very substantial risk of FGM if taken to Egypt. That finding and the need for an FGM protection order were not within the permitted scope of the appeal. The challenge concerned the evidence and reasons supporting the worldwide nature and duration of the travel ban, its proportionality and its effect on family life, particularly because the father lived in Egypt and had been unable to obtain a United Kingdom visit visa.

The central issue was whether the absolute travel ban was sufficiently supported, reasoned and proportionate.

1. Appeal allowed. The absolute travel ban could not stand. The order was set aside to the extent challenged, and the application was remitted for a full rehearing before a different judge (Moylan LJ, with whom Asplin and Irwin LJJ agreed).

2. The rights protected by articles 3 and 8 of the European Convention on Human Rights are relevant when the court exercises its powers to make an FGM protection order. The court must assess the degree of the risk of FGM, which needs to be at least a real risk; the quality of the available protective factors, including its assessment of the parents; and the nature and extent of the proposed interference with family life. The interference with article 8 rights must be limited to what is necessary to protect the child from article 3 harm.

3. Each additional prohibition, restriction or other term must be separately justified. Proportionality requires the court to consider whether a less intrusive measure could protect the child without unacceptably compromising that objective. The degree of risk is central both to that inquiry and to balancing the measure’s effects against its protective benefit.

4. The findings established a very substantial risk if the child travelled to Egypt, but contained no assessment of risk arising from travel elsewhere. Nor did the judge determine the father’s prospects of travelling to England or analyse the consequences for family life if he could not do so. The stated purpose of preventing onward travel to Egypt did not adequately justify a worldwide ban lasting throughout childhood, particularly given the favourable findings about the mother’s commitment to protecting the child.

5. The judgment therefore lacked both a sufficient evidential foundation and adequate reasons for the absolute ban. The possibility of a later variation application could not cure that defect because the original order first had to be justified.

6. The Court of Appeal could not determine suitable replacement terms without the information and assessment available to a trial judge. The issue could not fairly be severed from the findings and the remainder of the order. A different judge was therefore required to rehear the whole application and determine all prohibitions and terms afresh.

1. Court of Appeal (Civil Division): The appeal was allowed. The absolute travel ban was set aside, and the application was remitted for a full rehearing before a different judge: [2018] EWCA Civ 1825.

2. High Court, Family Division: Russell J made a female genital mutilation protection order under the Female Genital Mutilation Act 2003. It prohibited the child’s removal from England and Wales until she was 16: [2017] EWHC 2898 (Fam).