X (Female Genital Mutilation Protection Order No.2), Re

When deciding whether to impose or maintain a Female Genital Mutilation Protection Order, the court must assess the real risk of FGM and separately justify each prohibition or restriction. It must consider all the circumstances, including the child’s health, safety and well-being, and balance protection from Article 3 harm against proportionate respect for Article 8 family life.

Risk assessment should distinguish contextual factors, such as prevalence, social expectations, enforcement and available safeguards, from individual factors concerning the child and family. Risk is dynamic and requires regular reassessment as circumstances change, particularly as the child approaches the age at which FGM commonly occurs. A short foreign trip may therefore be permitted where carefully defined safeguards sufficiently manage the risk, while a wider travel ban remains necessary.

The local authority applied under section 5A and Schedule 2 of the Female Genital Mutilation Act 2003 for protection orders concerning X, a young girl whose mother wished to take her from England to Egypt to visit her father.

A previous worldwide travel ban had been imposed by Russell J. The Court of Appeal, in Re X (A Child)(FGMPO) [2018] EWCA Civ 1825, allowed an appeal concerning the absolute ban and directed a full rehearing and fresh assessment of risk. The central issue was whether X could safely make a short, carefully managed trip to Egypt while retaining protection against FGM.

1. Outcome. The court continued the FGM protection order and the worldwide travel ban, but permitted one return trip to Hurghada for no more than one week, subject to detailed undertakings and safeguards. Further travel was to be reviewed after the trip.
2. Under Schedule 2 para.1(2) of the Female Genital Mutilation Act 2003, the court must have regard to all the circumstances, including the need to secure the girl’s health, safety and well-being. The provision does not require certainty or a guarantee. The court must manage risk reasonably and proportionately, having regard to the gravity and irreversibility of FGM.
3. Each proposed prohibition or term must be separately justified. The relevant assessment includes the degree of risk, the quality of protective factors and the nature and extent of the interference with family life. The court must balance X’s Article 3 rights against the Article 8 rights of X and her parents.
4. The court assessed contextual or “macro” factors, including Egypt’s high prevalence of FGM, societal expectations, regional prevalence, the age at which girls are commonly cut, the effectiveness of enforcement, extradition and recognition of English orders, and available official or NGO safeguards. It also assessed individual or “micro” factors, including the family history, the parents’ attitudes, the distribution of power within the family, cooperation with professionals, family safeguards and professional assessments.
5. Risk is dynamic rather than static. The court must regularly reassess both the likelihood and impact of harm and review whether safeguards remain effective. X’s risk was likely to increase as she approached the usual age for cutting.
6. On the evidence, the contextual risks remained substantial and justified the continuing general travel ban. However, X’s young age, the opposition of both parents and the maternal grandfather, the paternal grandmother’s traumatic experience of FGM, the father’s wish to live in England, the maternal grandfather’s constant supervision, local NGO assistance, consular support and other undertakings sufficiently reduced the risk for one carefully controlled trip.
7. The trip was restricted to Hurghada and was not to include contact with the wider paternal family. The passport was to remain with the court except for tightly limited release. The court declined to order a routine medical examination on return, but reserved the power to reconsider if specific cause arose.

• Court of Appeal: In Re X (A Child)(FGMPO) [2018] EWCA Civ 1825, the appeal concerning the absolute worldwide travel ban was allowed and the matter was remitted for a full rehearing and fresh risk assessment.
• High Court (Family Division): The present court conducted the rehearing, continued the protection order and general travel ban, and authorised one carefully controlled trip to Egypt.