A (A child) (Female Genital Mutilation Protection Order Application) (Rev 1)

When deciding whether to make a Female Genital Mutilation Protection Order, the family court must conduct its own assessment of risk. It must consider all relevant evidence, determine facts on the balance of probabilities, and then assess whether those facts create a risk requiring protection. An immigration or asylum risk assessment is materially different and cannot be treated as the starting point or default position.

Risk is dynamic and must be kept under review. The court should assess both contextual factors, such as prevalence, social expectations and available safeguards, and individual factors, including family history, parental attitudes, family pressure and protective capacity. Each prohibition or requirement in an order must be separately justified and proportionate to the protection of the child’s Article 3 rights.

Suffolk County Council applied under section 5A and Schedule 2 to the Female Genital Mutilation Act 2003 for a Female Genital Mutilation Protection Order concerning a ten-year-old girl. The proposed risk arose principally from possible removal to Bahrain or Sudan, where the court heard evidence of family and community pressure to subject the child to FGM.

The application followed interim orders made by HHJ Richards and subsequent questions concerning the Family Court’s jurisdiction, the relevance of an earlier asylum assessment, and the local authority’s investigative duty. The President of the Family Division had determined those questions in Re A (A child) Female Genital Mutilation: Asylum [2019] EWHC 2475 (Fam). The central issue was whether the evidence established a sufficiently serious risk to justify the order sought.

1. Independent family-law assessment. The court was required by Schedule 2, paragraph 1(2) to have regard to all the circumstances, including the child’s health, safety and well-being. It had to form its own assessment of risk. The First-tier Tribunal’s asylum assessment was reached through a materially different process and could not be treated as the starting point or default position. The family court must first determine relevant facts on the balance of probabilities and then assess the risk arising from those facts.
2. Risk assessment. Risk is dynamic rather than static. The court should remain alert to changes in evidence, circumstances and individual characteristics. Relevant contextual factors included prevalence, societal expectations, legality and enforcement, formal safeguards, and the age at which girls are commonly cut. Relevant individual factors included family history, the generation affected, parental attitudes, the distribution of power within the family, wider family pressure, available safeguards, cooperation with authorities, professional assessments and other case-specific features.
3. Proportionality and human rights. FGM engages Article 3 of the ECHR. Any interference with Article 8 family-life rights must be limited to what is necessary to protect the child from Article 3 harm. Each prohibition or other term of an FGMPO requires separate justification, with particular attention to the degree of risk, the quality of protective factors and the possibility of a less intrusive measure.
4. Application. The evidence established exceptionally high macro and micro risks. FGM was deeply embedded in both sides of the child’s family, family pressure was sustained, the mother lacked practical protection and support abroad, the father could not be treated as a protective factor, and the child would be isolated and unable readily to seek help. The court found an overwhelming risk of FGM.
5. Order. The FGMPO sought was made. The court recognised that the order would have no practical effect in Bahrain or Sudan and that the mother was unlikely to be able to secure compliance there, but those matters did not remove the domestic court’s protective jurisdiction.

The application was issued in the Family Court and transferred to the High Court. Interim protective orders were made by HHJ Richards on 1 October 2018. The President of the Family Division subsequently determined preliminary jurisdictional and risk-assessment questions in Re A (A child) Female Genital Mutilation: Asylum [2019] EWHC 2475 (Fam). The present court then determined the substantive FGMPO application.