The Family Court gave judgment on 27th September 2019 confirming that it has no powers to prevent the Secretary of State of the Home Department (SSHD) from deporting a vulnerable girl who is at risk of Female Genital Mutilation (FGM) if she is returned to Bahrain or Sudan.
The decision, announced by the President of the Family Division, comes following a Local Authority’s application for a Female Genital Mutilation Protection Order to prevent a girl being deported, on the basis that the social worker believes the child will be at risk of FGM if she is deported. The application was supported by the girl’s mother who instructed Duncan Lewis to represent her in the proceedings. The SSHD challenged the Family Court’s power to make such an order because the immigration courts had decided that the girl would not be at risk of FGM.
The parents of the child at the centre these proceedings are of Sudanese origin, but hold only Bahraini citizenship. The mother was born in Sudan and moved to Bahrain following her marriage to the father. As a child in Sudan she underwent FGM. She has reported that two of her sisters died as a result of the FGM procedures and that the practice continues in the family, with three of her nieces having already been subjected to FGM. The father is currently in military prison in Bahrain and is therefore unable to protect the girl from FGM. The parents have five children; four are older boys and the youngest, a girl, who is now 10 years old, is the subject of this decision.
The case highlights the different approaches taken by the Home Office and immigration courts compared to the family courts, in cases where an assessment of risk of FGM has to be undertaken.
Family courts focus primarily on the child’s best interest, which is always that they are to be protected from any risk of FGM. Our clients often inform us that local authorities decline to take action to protect girls who would be at risk of FGM until the family’s immigration cases are concluded because there is no risk to the girls whilst they are in the UK. Whilst this approach is understandable to some extent, cases such as this raise questions as to whether or not local authorities should take action sooner and in support of asylum claims where social workers believe that there is a genuine risk of FGM. That approach might prevent asylum claims being refused and prevent years of distress for mothers - who are often victims of FGM themselves - and their daughters.
The President of the Family Division agreed that the action taken by this Local Authority to issue the proceedings was entirely appropriate and the family court was obliged by Schedule 2, para. 1(2) of FGMA 2003 to form its own, impartial assessment. It is hoped that the judgment will encourage other local authorities to be more proactive in making such applications as soon as they become aware of any risk of FGM to girls in their area. Ultimately, local authorities have a duty to safeguard and promote the welfare of children in need. It is difficult to see how it could be argued that a girl who is at risk of FGM is not in need.
However, the President did not accept that in contrast to all other family proceedings, the family court in FGM proceedings had jurisdiction to direct the SSHD. He cited three main reasons for this and the Local Authority accepted, relying on Re A (Care Proceedings: Asylum Seekers)  EWHC 1086 (Fam), that the family court cannot deny the Home Office its powers of deportation or removal.
The judgment provides clear authority for the fact that the jurisdictions operated by the SSHD and the family courts are independent and unconnected, with '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 decision was reported by the press and commentary was provided by Counsel Dr Charlotte Proudman who represented our client at the hearing, led by Karon Monaghan QC.
The case continues in the Family Division on the High Court so that a family court judge can make a decision in relation to the risk of FGM posed to this young girl. However, in light of the court’s decision, any order made will be worthless in helping the mother protect her daughter if the Home Office decides to deport the family.
The Respondent Mother is represented by director Vanket Appalakondiah and solicitor Emily Reed of the Dalston and Manchester family law departments at Duncan Lewis respectively. Karon Monaghan QC of Matrix Chambers and Dr Charlotte Proudman of Goldsmith Chambers were instructed.