A (A Child) (Rev 1)

When deciding whether and how to make an FGM protection order, the family court must have regard to all the circumstances, including the girl’s health, safety and well-being. A prior FtT (IAC) assessment of risk on return may be relevant, but its relevance and weight are for the family court to determine. The court must make its own assessment. The statutory duty creates no presumption or default starting point in favour of the tribunal’s conclusion. The jurisdictions perform different statutory functions and apply different approaches to risk. Evidence from the tribunal, and any need for further evidence, must be managed under the Family Procedure Rules 2010.

The Secretary of State appealed against the President of the Family Division’s decision in proceedings concerning an application by Suffolk County Council for an FGM protection order. The mother’s asylum appeal had previously been dismissed by the FtT (IAC), including her claim that the child faced a risk of FGM on return. The President held that the family court was not bound to adopt that assessment as a starting point. His decision is reported as Re A (A Child: Female Genital Mutilation: Asylum) [2019] EWHC 2475 (Fam). The central issue was whether judicial comity or proportionality required the family court to treat the earlier tribunal assessment as the default position when considering an FGM protection order.

Appeal dismissed. The court upheld the President’s conclusion that a family court is not required to treat a prior FtT (IAC) assessment of FGM risk as a starting point or default position.

1. FtT (IAC) proceedings are adversarial and in personam. Their conclusions bind the parties to that appeal, not others. Even between the same parties, an intermediate finding of fact, such as an assessment of risk, would not create judgment estoppel. An earlier assessment may nevertheless be relevant, with its relevance and weight depending on the similarity of the assessments, the available evidence and the applicable rules.
2. Schedule 2, paragraph 1(2) of the Female Genital Mutilation Act 2003 uses mandatory and unambiguous language. The family court must have regard to all the circumstances, including the need to secure the girl’s health, safety and well-being. That statutory duty neither requires nor permits a presumption, limitation or default position based on an earlier tribunal assessment.
3. The family court and the FtT (IAC) perform materially different statutory functions. Following Re H (A Child) [2016] EWCA Civ 988, risk assessment in a family case involves first finding facts on the balance of probabilities and then assessing whether those facts give rise to a risk of harm. An asylum or humanitarian protection claim assesses the material as a whole for a well-founded fear or substantial grounds for believing in a real risk, requiring a reasonable degree of likelihood. The distinction is reinforced by the different treatment of the child’s interests under section 55 of the Borders, Citizenship and Immigration Act 2009.
4. In its additional discussion, the court rejected the suggested application of judicial comity. Police Authority for Huddersfield v Watson [1947] K.B 842 concerned a different relationship between first-instance judges. A v A (FGMPOs: Immigration Appeals) [2018] EWHC 1754 (Fam) was distinguished on its urgent and premature facts and did not establish a comity rule between the jurisdictions. The court left open whether the family court and FtT are courts of coordinate jurisdiction.
5. Evidence is governed by the Family Procedure Rules 2010. Permission is required before evidence is filed and served, and expert evidence must be necessary to assist the court to resolve the proceedings under rule 25.4(3). The family court may examine the earlier tribunal’s findings and supporting evidence, and determine whether further evidence is necessary. No additional gloss is required.

The court also agreed with the unchallenged conclusion that a family court has no jurisdiction to make an FGM protection order against the Secretary of State to control immigration powers.

• Court of Appeal (Civil Division) — Appeal dismissed.
• Family Division of the High Court — The President held that the family court was not bound to treat an FtT (IAC) assessment of FGM risk as a starting point or default position in FGM protection order proceedings: Re A (A Child: Female Genital Mutilation: Asylum) [2019] EWHC 2475 (Fam).