Re P (Inherent Jurisdiction Return: Allegations of Female Genital Mutilation and Domestic Abuse: Fact Finding)

In an application under the inherent jurisdiction for a child’s summary return to a foreign country, the child’s welfare remains paramount. The court may order summary return without a full merits investigation, but must first decide whether the evidence and proposed arrangements permit welfare to be assessed sufficiently. A family court must form its own assessment of FGM risk, independently of any immigration or asylum assessment. Risk should be evaluated by reference to both contextual factors, such as prevalence, law and safeguards, and individual family factors. In fact-finding proceedings, allegations are determined on the balance of probabilities by considering the evidence as a whole. Findings of controlling or coercive behaviour require attention to the statutory definitions and the behaviour’s harmful impact, without stereotypical assumptions about victims.

The father applied under the inherent jurisdiction for the summary return of P, a six-year-old Nigerian child, after the mother brought her to the United Kingdom in December 2019. The mother opposed return, alleging that the father had threatened to arrange FGM and had subjected her to domestic abuse and controlling behaviour. The father alleged that the mother had clandestinely abducted P, forged his consent to her visa application and fabricated the FGM allegations.

The court heard extensive oral, expert and documentary evidence concerning the alleged abduction, FGM risk, the parents’ relationship and the welfare consequences of return. The central questions were whether the allegations were proved and whether a return order could safely and properly be made before the mother’s asylum appeal was determined.

1. Inherent jurisdiction and return. The court applied the welfare principle and the guidance in Re J and In the Matter of NY. A summary return may be ordered, but the court must consider whether the evidence is sufficiently current, whether findings can be made to justify summary disposal, whether a welfare inquiry is required, the effect of domestic-abuse allegations, the proposed living arrangements and the availability of protective or mirror orders in the country of return.
2. FGM risk. The family court had to assess the risk independently of the Secretary of State’s or First-tier Tribunal’s asylum assessment, applying the approach in A and Re A. The assessment required consideration of macro factors, including prevalence, societal expectations, legality, enforcement and safeguards, together with micro factors concerning the family, parental attitudes, power and protective capacity, as identified in Re X.
3. The mother failed to establish, on the balance of probabilities, that the father had threatened FGM on 4 January 2020 or previously. The court nevertheless found that FGM was prevalent in relevant regions, that enforcement and protective measures were uncertain, and that the paternal family’s attitude was concerning. Those risks were materially reduced by the finding that the father had made no threat.
4. Fact-finding. Applying Re B-B, the court placed the burden on the alleging party and determined disputed facts on the balance of probabilities, considering the evidence on a broad canvas. Lies about some matters did not require wholesale rejection of a witness’s evidence, applying R v Lucas. The court assessed testimony by its content and consistency with other evidence rather than demeanour or stereotypical expectations, following SS (Sri Lanka).
5. The court found that the mother had clandestinely removed P without the father’s consent and had forged his signature on a purported letter of consent. It found several instances of controlling behaviour, one physical assault, and conduct which went beyond directive or selfish behaviour of the kind discussed in Re L. The court declined to find that the FGM allegations had been concocted.
6. A final return order was not made immediately. The court deferred the welfare decision pending the mother’s asylum appeal and further evidence giving substance to the proposed accommodation, schooling, financial support and possible mirror orders in Nigeria. The case was timetabled towards a final welfare resolution.