W v BBW (Female Genital Mutilation Protection Order)

An expired Female Genital Mutilation Protection Order cannot be extended under the statutory power to vary or discharge an order. The court must instead treat a properly framed application as one for a fresh order. A woman may apply for such an order without leave. The court may make the order without notice where that is just and convenient, including where notice could increase the applicant’s risk. The court may protect against conduct occurring outside England and Wales and against persons who assist, encourage or procure the commission of a genital mutilation offence.

GW, aged 21, applied for an extension of a Female Genital Mutilation Protection Order previously made by Jackson J and expressed to expire when she reached 21. The order had expired before the application was heard. GW remained concerned about pressure from her stepmother’s family to undergo female genital mutilation, particularly if she were required to return to Sierra Leone.

The issue was whether the expired order could be extended and, if not, whether a fresh order should be made without notice for GW’s protection.

1. Extension of expired order. The application to extend the 2016 order was misconceived. The order had lapsed when GW reached 21, and the statutory regime contained no provision allowing an expired order to be extended. The powers to vary or discharge an order applied only to an order remaining in force when the application was made.
2. Fresh order. The court had jurisdiction to consider GW’s application afresh as an application for a further Female Genital Mutilation Protection Order. Under Female Genital Mutilation Act 2003, Schedule 2, section 2(2)(a), GW could make the application without leave. The continuing risk factors, including the unresolved possibility of return to Sierra Leone and the absence of reliable protection there, made a further order necessary and proportionate to protect her health, safety and wellbeing.
3. Territorial and personal scope. The statutory power covers conduct outside England and Wales and extends to respondents who commit or attempt to commit an offence, or who aid, abet, counsel, procure, encourage or assist its commission, or conspire to commit or attempt it.
4. Without-notice order. Under section 5(1), the court could make the order without notice where that was just and convenient. In the circumstances, notifying BBW could place GW at increased risk. The court nevertheless directed service through Facebook or WhatsApp and listed a return hearing at which BBW could attend.
5. Order. A further Female Genital Mutilation Protection Order was made for two years without notice to BBW.

This was a first-instance application. A previous Female Genital Mutilation Protection Order made by Jackson J had expired on 9 December 2018. The present court declined to extend that expired order and made a fresh order.