A Local Authority v M & N (Female Genital Mutilation Protection Order - FGMPO)

An FGM protection order may restrict a child’s removal from England and Wales where there is a real risk of female genital mutilation abroad. The court must assess all the circumstances, including the child’s health, safety and wellbeing, through the prism of article 3 of the European Convention on Human Rights.

Article 3 imposes an absolute protective duty, although the measures required against ill-treatment by private individuals are those that are reasonable and effective in the circumstances. Where the risk is real and immediate, protection must have a real prospect of preventing the harm. The child’s article 8 and family interests must be limited only so far as necessary to secure article 3 protection.

The local authority applied for an FGM protection order preventing N, an infant, from travelling with her mother to Sudan. N’s mother had been born in Sudan, had previously experienced FGM, and wished to reunite the family in the United Kingdom. The father and the older children remained in Sudan, where the mother feared that the wider family might arrange FGM.

The central issues were whether N faced a real and immediate risk of treatment contrary to article 3 of the European Convention on Human Rights, whether the mother could adequately protect her abroad, and whether restricting travel was a proportionate interference with N’s article 8 and family-life rights.

1. Application granted. The court made an FGM protection order prohibiting N’s removal from England and Wales.
2. Schedule 2 to the Female Genital Mutilation Act 2003 required the court to consider all the circumstances, including N’s health, safety and wellbeing. The statutory discretion had to be exercised through the prism of article 3, which protects physical integrity and dignity and is an absolute right.
3. The State’s positive obligation under article 3 includes taking reasonable and effective measures to protect a child from a real and immediate risk of inhuman or degrading treatment by private individuals. The obligation does not require the State to avert every conceivable risk or impose an unduly burdensome obligation, but the protection adopted must have a real prospect of preventing the identified harm.
4. The risk was real rather than speculative. Relevant factors included the high prevalence and age profile of FGM in Sudan, the mother’s past experience, the father’s controlling conduct, the family’s previous disregard of the mother’s wishes in relation to the children, and the uncertainty of the mother’s ability to leave Sudan with N in the future.
5. The mother was strongly motivated to protect N, but her determination could not overcome the cultural and practical constraints demonstrated by the family history. Entrusting protection solely to her would not provide adequate protection.
6. N’s article 8 rights, including relationships with her father, brothers and extended family, required consideration. They could not be treated as equivalent to article 3 rights. Any interference with article 8 had to be kept to the minimum required to protect N from the identified article 3 risk.
7. The court rejected the submission that the statutory failure-to-protect offence created strict liability. That issue did not determine the application. Article 2 was not engaged because the statistical possibility of death did not establish sufficient immediacy, and the point had little practical impact on the order.