M (Female Genital Mutilation Protection Order: No Order on Application), Re

An FGM protection order should be made only where it is necessary and proportionate to protect a girl from a real and immediate risk of female genital mutilation. The court must consider all the circumstances, with the girl’s health, safety and wellbeing as its first and paramount consideration. Article 3 of the European Convention on Human Rights requires reasonable and effective protective measures, assessed case by case. General cultural prevalence and societal pressure are relevant, but parental opposition may reduce the risk where the evidence shows that the parents and wider family can withstand those pressures. Where the evidence establishes that the child can be adequately protected without an order, the application should conclude with no order.

The local authority applied without notice for an FGM protection order concerning an eight-year-old girl of Somali origin, together with restrictions on her travel and passport. The application followed concerns arising from a child-protection investigation and the family’s proposed travel to Kenya via Egypt. The order was continued pending assessments.

By the final hearing, medical evidence confirmed that the girl had not undergone FGM. A positive independent social-work assessment concluded that both parents and the paternal family opposed FGM and that the girl could be safeguarded in her parents’ care. The local authority therefore invited the court to discharge the order and make no order on its application. The central issue was whether continued protection was necessary and proportionate.

1. Legal framework. Article 3 of the European Convention on Human Rights required the State to take reasonable and effective measures to protect a child from a real and immediate risk of torture or inhuman or degrading treatment by non-State actors. The adequacy of protection had to be assessed case by case. The court adopted the analysis in A Local Authority v M & N [2018] EWHC 870 (Fam) and the approach to positive and negative obligations explained in E v Chief Constable of the Royal Ulster Constabulary [2008] UKHL 66.
2. Statutory test. Under paragraph 1 of Schedule 2 to the Female Genital Mutilation Act 2003, the court had to consider all the circumstances, including the need to secure the girl’s health, safety and wellbeing. Viewed through Article 3, those matters were the first and paramount consideration.
3. Risk assessment. The prevalence of FGM and strong societal pressures identified in the Somalia country guidance, including AMM and others, were relevant. They did not determine the outcome. The court had to assess the particular family’s ability to resist those pressures, including the parents’ conduct, their opposition to FGM, the position of the wider family, and the available safeguarding arrangements.
4. Application and outcome. The medical and social-work evidence showed that the girl had not been subjected to FGM and could be protected in her parents’ care. The order was neither necessary nor proportionate. The FGM protection order, passport order and travel restrictions were discharged, and no order was made on the local authority’s application. The judge observed that FGM of a child under 18 would constitute child abuse and, if attributable to parental behaviour, could amount to significant physical harm for the purposes of section 31(2) of the Children Act 1989.

First-instance decision. The judgment does not state any prior appellate decision.