AS v London Borough of Waltham Forest

Protective orders against the risk of female genital mutilation must be based on an individualised, current and evidence-based assessment of risk. The assessment must properly account for cultural and familial context, protective factors, the child’s age, maturity, insight and capacity to self-protect. The court must also balance protection under Article 3 against competing rights under Articles 8 and 9, including travel, family life, autonomy and religious freedom. Highly interventionist orders should be focused, targeted and proportionate. Indefinite orders should be reserved for exceptional cases and ordinarily contain a time limit or review mechanism.

The mother applied to discharge an indefinite Prohibited Steps Order made under the Children Act 1989. The order prevented the parents from obtaining travel documents for M and from removing her from England and Wales. It had been imposed in 2012 following concerns that M might be subjected to female genital mutilation, after her three older sisters underwent the procedure while in the care of their maternal grandmother.

M, then aged 17, supported discharge and described the order’s substantial effect on her education, employment, family life, travel and religious obligations. The local authority opposed discharge, relying on historical events and its assessment that risk remained high outside the jurisdiction. The central issue was whether the order remained necessary and proportionate in light of the current evidence.

1. The Prohibited Steps Order was discharged. Under section 1 of the Children Act 1989, M’s welfare was paramount.
2. Female genital mutilation engages Article 3 of the Convention. Its seriousness does not relieve public authorities of the duty to assess the individual and current risk carefully. Protective measures must remain necessary and proportionate, having regard to competing Convention rights.
3. The local authority’s assessment was fundamentally flawed. It relied on historic events, unsupported assumptions and an insufficient understanding of Somali culture. It failed to engage with the dynamic nature of risk, cultural change, educational work, M’s age and maturity, her clear opposition to FGM, her capacity to self-protect, and the protective qualities of her family relationships.
4. The independent social worker’s culturally competent assessment was thorough, cogent and persuasive. It concluded that the risk was non-existent, including if M travelled to Somalia. The court found no proper basis to depart from that evidence.
5. The order caused a significant interference with M’s Article 8 rights and a significant breach of her Article 9 religious freedoms. It also undermined her developing autonomy and decision-making capacity. There was no evidence of ongoing risk sufficient to justify the continuing restrictions.
6. More generally, applications concerning protection from FGM should ordinarily be made under the Female Genital Mutilation Act 2003. Orders should be focused, targeted and proportionate. Indefinite orders are highly draconian and should be exceptional; time limits or built-in review mechanisms should ordinarily be used. Local authorities should retain responsibility for support, direct work and properly informed risk assessment while an order remains in force.

First-instance decision in the High Court (Family Division). The judgment records an earlier unsuccessful application to discharge the order in 2016, but no citation for that decision is provided.