In September 2019 we reported the outcome of a hearing before the President of the Family Division in respect of an application brought by the Local Authority to protect a young girl who was at risk of Female Genital Mutilation (FGM) if removed from the UK, as the Home Office had intended following refusal of her mother’s asylum claim.
We reported that the President of the Family Division determined that there was 'simply no jurisdictional space in the structure that has been created by parliament in which the family court can reach across and directly interfere in the exercise by the Secretary of State's exclusive powers with respect to the control of immigration and asylum.' The Family Court therefore could not make a FGM Protection Order (FGMPO) preventing the Home Office from removing the girl from the UK despite the risk of FGM.
The President of the Family Division also determined that this did not prevent the Family Court from dealing with applications for FGMPOs and carrying out their own assessment of the risk of FGM when determining whether or not a FGMPO should be made to protect a girl or woman. On that point the President determined that ‘Although the family court will necessarily take note of any FTT risk assessment, the exercise undertaken by a FTT is not compatible with that required in the family court… The family court has a duty to form its own assessment, unencumbered by having to afford priority or precedence to the outcome of a similarly labelled, but materially different, process in the immigration jurisdiction.’
The proceedings in respect of this young girl therefore continued and we reported in March 2020 that the High Court determined that a FGMPO is necessary to protect the child. The judge at that final hearing commented that ‘It is difficult to think of a clearer or more serious case where the risk to A of FGM is so high. I find without hesitation overwhelmingly that there is a high risk of FGM to A, and I accordingly make the order sought.’
As we enter into Refugee Week a further judgment in respect of this matter has been handed down, this time by the Court of Appeal. This most recent judgment confirms the outcome of the Secretary of State’s appeal to the decision of the President set out about in respect of the relationship between these two distinct jurisdictions and, in particular, the overlap which it is said may exist when the risk of FGM is assessed for the purposes of a decision in each of those jurisdictions.
As set out above the President of the Family Division held, in September 2019, that ‘Although the family court will necessarily take note of any FTT risk assessment, the exercise undertaken by a FTT is not compatible with that required in the family court…The family court has a duty to form its own assessment, unencumbered by having to afford priority or precedence to the outcome of a similarly labelled, but materially different, process in the immigration jurisdiction’.
This decision was subject to an appeal by the SSHD who argued that the assessment of risk undertaken by the First–Tier Tribunal should be taken as the starting point or default position in any subsequent assessment of risk by the family court in considering whether to make a protection order.
The Court of Appeal upheld the decision of the President of the Family Division, the Family Court can make its own assessment of risk of FGM and have to adopt the Home Office or Immigration Court risk assessment.
The importance of this case and the use of FGMPOs to protect girls, who are overwhelmingly also at threat of being removed from the UK, cannot be understated. FGMPOs are an essential tool to protect girls but there is still too much uncertainty about when they should be obtained and who should make the applications particularly where the family concerned do not have secure Immigration status.
The three judgments already handed down in this matter provide essential guidance on the overlaps between the family and immigration jurisdictions and will help those trying to protect girls and women, particularly those with insecure immigration status, from FGM abroad as well as in the UK.
What this means for girls, their parents, and professionals is that where there is a concern that a girl might be subjected to FGM but that risk has not been accepted by the Home Office or immigration courts an application can still be made to the Family Court seeking further assessment of risk, and ultimately and order to protect the girl from FGM.
It is important to remember though that even if a FGMPO is made by the Family Court because the judge in that jurisdiction is satisfied that such an order is required to protect a girl, she will not necessary be afforded a right to remain in the UK even if the risk found by the Family Court is in the country she would be returned to despite the judge’s comments and the FMGPO being in place this client’s struggle to protect her daughter from FGM is still far from over. She must now navigate the immigration processes to, hopefully, secure leave to remain in the UK where she can protect her daughter.
Solicitors Emily Reed and Vanket Appalakondiah of the family departments in the Manchester and Dalston offices respectively represent the Respondent Mother. Counsel Karon Monaghan QC of Matrix Chambers and Dr Charlotte Proudman of Goldsmith Chambers instructed.