Re A (A Child : Female Genital Mutilation : Asylum) (Rev 1)

A family court may make a female genital mutilation protection order to protect a child, including where removal would expose the child to risk. But it has no jurisdiction to restrain the Secretary of State’s exercise of immigration or asylum powers. The family and immigration jurisdictions are separate, although complementary.

Where an immigration tribunal has previously assessed the risk, the family court must conduct its own assessment under Female Genital Mutilation Act 2003, Schedule 2, paragraph 1(2). It must consider all relevant evidence, determine facts on the balance of probabilities, and then assess risk. The tribunal’s assessment is relevant but is not a mandatory starting point or default position.

The mother, a Bahraini citizen of Sudanese origin, applied for asylum on the basis that her daughter would face female genital mutilation if returned. The asylum application and appeal were refused, and the appeal rights were exhausted. Shortly before removal, Suffolk County Council issued proceedings for a female genital mutilation protection order.

The Family Court made interim orders restraining the mother and the Secretary of State from removing the child. The Secretary of State challenged the order against her, arguing that it exceeded the family court’s jurisdiction. The central issues were whether the family court could restrain immigration powers, how it should assess risk after an immigration tribunal decision, and whether the local authority had acted lawfully.

1. Jurisdiction. The family court has no power, when exercising its jurisdiction under the Female Genital Mutilation Act 2003, to injunct the Secretary of State or control the exercise of immigration and asylum powers. The established separation between the family and immigration jurisdictions applies equally to FGM protection proceedings. Article 3 of the Convention does not create an exception. Parliament would have been expected to provide expressly for such an exception if that had been intended.
2. The State’s Article 3 obligations are assessed by reference to the operation of its protective scheme as a whole. The family and immigration jurisdictions are complementary. A family court’s risk assessment may be considered by the Secretary of State or the tribunals, and, where the immigration process has already concluded, may be considered under paragraph 353 of the Immigration Rules. An injunction would only be justified if clear evidence established that it was essential to prevent a breach of Article 3.
3. Risk assessment. Under Schedule 2, paragraph 1(2), the family court must have regard to all the circumstances and consider the relevant evidence. It must make factual findings on the balance of probabilities and then assess the risk of FGM and the need for an order. An earlier First-tier Tribunal assessment is relevant, but the family court must form its own assessment. The immigration tribunal’s process is materially different and cannot be treated as the starting point or default position.
4. Local authority duties and order. The local authority acted properly under Children Act 1989, sections 17 and 47, by investigating and issuing proceedings. Clauses 2 and 3 of the order of 1 October 2018, which restrained the Secretary of State, were discharged. They were replaced by a request that enforcement be restrained until the FGM proceedings concluded and that the immigration decision then be reconsidered in light of the family court’s assessment.

First-instance judgment. The proceedings had been transferred from the Family Court to the Family Division by HHJ Richards. Newton J continued the interim arrangements and identified the issues for determination. This judgment determined the jurisdictional and related questions.