AB v AN & Anor

In an application for a Female Genital Mutilation Protection Order, the Family Court must conduct its own assessment of risk. It is not bound by, or required to adopt as its starting point, an earlier immigration tribunal assessment. An order should not be made merely because it might do no harm or could theoretically assist with immigration proceedings. The court must identify an evidential basis for a real risk of FGM, while recognising that the threshold at an interim stage is not finally determined. Oral evidence may be required where the asserted risk depends substantially on the applicant’s credibility and ability to protect the child. Appointment of a guardian or experts is discretionary and must be necessary and proportionate to the issues the court must resolve.

The applicant sought a Female Genital Mutilation Protection Order preventing her husband and the child’s paternal grandmother from removing the child from the United Kingdom or subjecting her to FGM. The respondents, who were in Nigeria, did not participate. The Secretary of State for the Home Department intervened because the application overlapped with the applicant’s asylum and immigration history.

The applicant sought an order without oral evidence, appointment of a Children’s Guardian, and three experts. The central questions were whether an interim order could properly be made on the evidence then available, whether separate representation was necessary, and whether the proposed expert evidence was necessary to resolve the proceedings.

1. Interim FGM protection order. The application for an order without hearing the applicant’s oral evidence was refused. The asserted risk was minimal while the child remained in the United Kingdom and in the applicant’s care. The respondents were in Nigeria and there was no evidence that they intended to travel to the United Kingdom. The alleged risk depended substantially on the applicant’s account of the paternal family and on her ability to protect the child. The court therefore needed to test her evidence.
2. An FGM protection order is an important legal order. It should not be made merely because it might assist the child in a hypothetical future situation or because it might assist the applicant in resisting removal. The court must be satisfied that there is an evidential basis showing a real risk. The judge expressly left open the level of risk required at a final hearing.
3. Separate representation. There is no legal requirement to appoint a guardian in FGM protection proceedings. The decision is discretionary and is governed by necessity and proportionality, having regard to the overriding objective in FPR 1.1 and PD16A para 7. On these facts, the applicant’s and child’s interests were coterminous. If the applicant’s account was accepted, both sought protection; if it was rejected, there was no evidential basis for the order. The application under FPR 16.4 was refused.
4. Experts. The proposed independent social worker, country expert and psychiatric expert were not necessary under FPR 25. The case was focused on the alleged threats by the paternal family and the applicant’s evidence. The Secretary of State’s recent country information material was sufficient to address any generic Nigerian risk. The psychiatric evidence did not bear materially on the risk as the case was advanced. The Part 25 applications were refused.
5. The Secretary of State remained an intervenor. The matter was listed for a final hearing in early October.