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Re Z (A Child) (FGMPO: Prevalence of FGM) [2017] EWHC 3566 (Fam)

High Court Female Genital Mutilation Protection ordered which will remain in force until the six and a half year old girl for whose benefit the order was sought attains her 17th birthday.

The court was concerned with Z, a girl aged 6 and a half. Her mother applied for a Prohibited Steps Order preventing the father from taking Z to Guinea and a Female Genital Mutilation Protection Order (FGMPO). Z was joined as a party during the proceedings.

Two of the relevant background features were:

• Extensive previous litigation since December 2013, during which the court made findings of domestic abuse against the father. He was directed to attend a DVIP course which he did not complete satisfactorily. DVIP concluded any future decisions regarding Z's welfare should take "serious account of the difficulty F has in separating out his interests from those of Z and the potential for ongoing emotional abuse and financially controlling behaviour, given that these will carry negative consequences for Z's emotional and physical wellbeing" [8]

• The father was born in Guinea and came to the UK in 2004 as a student. The father said that since his father died, he became "head of the family", a position he said of some authority.

During proceedings a referral was made to Bromley Social Services, who undertook a section 47 assessment to address FGM, abduction risk, safeguarding issues and support services. Bromley confirmed they would consider issuing proceedings if the father was allowed to travel with Z.

Further, Z was referred to CAMHS as a result of her witnessing domestic abuse and the continued conflict between the parents. CAMHS expressed the view that the parents need to co-parent effectively before any travel abroad with the father could be considered.

Permission was given to instruct an expert witness, Dr Schroven, a Social Anthropologist at the Max Planck Institute for Social Anthropology in Halle-Saale, Germany, an expert on Guinea in general and on ethnic relations in particular. The father refused to have the expert comment on his family and their community or ethnic group.

The two applications before the Court at the final hearing were the mother's applications for a PSO and a FGMPO, both on the central issue of whether the father should be forbidden from taking Z abroad, specifically to Guinea to protect her from FGM.

The court specifically recognized that the mother was the victim of domestic abuse, and that her treatment was at the hands of the father which left her feeling anxious and unable to trust him. The Judge admonished the Cafcass Officer's evidence in respect of the parents, for laying the blame for the animosity between them at both parents' feet. The Judge held it was "antipathetic to the need to recognize the long-term impacts of domestic abuse and controlling and coercive behaviour to use terms and language that overlooks the effects on the victim of abuse and the child"[53]. The Judge held the Guardian came "parlously close to blaming the victim" [54]

The Judge considered section 1(1) Children Act 1989, and the United Nations Convention on the Rights of the Child and each child's right and need for a relationship with both parents (ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 at [23].

Her Ladyship considered the far-reaching and irreversible consequences, both physical and psychological of FGM, and that the harm is not the risk from the father himself, but from the wider community to which he belonged in Guinea.

Russell J set out the legislative framework for FGMPO [36] by which the court is given the power to make a FGMPO for the purpose of protecting a girl against the commission of a FGM offence, or protecting a girl against whom such an offence had been committed. FGMPOs are made under the Female Genital Mutilation Act 2003 (which introduced into the law of England and Wales various offences concerning FGM) by virtue of section 73 of the Serious Crime Act 2015. Under schedule 2 paragraph 1(2) the court is required to have regard to all the circumstances, including the need to secure the health, safety and wellbeing of the girl to be protected. The scope of a FGMPO is wide, as is the pool of possible respondents to the order and in what respects they are prohibited from acting.

Section 3A of the FGMA 2003 creates the offence of failing to protect a girl from risk of FGM, and F would be such a person as he has parental responsibility for her. He would not benefit from the defence that he could not reasonably have been expected to be aware there would be such as risk to Z as:
• There was unequivocal expert evidence that there is almost universal prevalence of FGM in Guinea.
• The father refused to allow the expert to consider his family so she could not comment on his assertion his family had have taken the almost unique stance against FGM either within their particular community or Guinean society in general (as in Re E (Female Genital Mutilation and Permission to Remove) [2016] EWHC 1052.

FGMPOs can include (Sch. 2 para 1(3)(a) and (b)) prohibitions, restrictions and requirements and such other terms appropriate for the purposes of the order. This can include that a person surrender their passport.

The court concluded that the father recognized that there was a risk of FGM to Z in Guinea by advocating that his family posed no such risk. His claim that his family rejected FGM is a stance so unusual in Guinea that the contrary is likely to be true on the balance of probabilities. Further, the father's suggestion that he was someone with high status made it more likely that he may feel under a greater obligation to adhere to cultural norms to maintain his status.

The court accepted the evidence of Dr Schroven, who confirmed there is a trend that girls undergo FGM at an earlier age in more discrete settings; that the vast majority of men and women of all ages in Guinea agree that FGM should continue to be practised; that although Z's dual heritage may offer some protection; the age bracket for most FGM to take place is 5-9 years; there is a almost total lack of protective measures that could be put in place through the judicial system.

The father had not provided any evidence to support his assertions about his family, nor his sister's assertion that she (or her other sisters) had not been subject to FGM.

Her Ladyship balanced the loss to Z of being able to visit Guinea and the loss of direct contact with the father's heritage and culture, against the risk of FGM and took into account that the father had chosen to make his home in England which is where he still lives.

Ms. Justice Russell held that as the central issue is FGM, an FGMPO should be made, and that during the time Z spends with her father his passport will be lodged with the mother's solicitors. The order is in place under Z's 17th birthday.

Summary by Sarah Tyler, barrister, Coram Chambers

______________________

THE HONOURABLE MS JUSTICE RUSSELL
This judgment was delivered in private.   The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with.   Failure to do so will be a contempt of court.

Neutral Citation Number: [2017] EWHC 3566 (Fam)

Case No: BR13P02186
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
IN THE MATTER OF THE CHILDREN ACT 1989
IN THE MATTER OF THE SENIOR COURTS ACT 1981
AND IN THE MATTER OF THE FEMALE GENITAL MUTILATION ACT 2003
AND IN THE MATTER OF Z (A Child) (born on 3rd March 2011)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 06/11/2017

Before:

MS JUSTICE RUSSELL
- - - - - - - - - - - - - - - - - - - - -
Between:


M
Applicant

and


F
1st Respondent
and
Z (A Child)
(by her guardian, Ms Jaqueline Roddy)     
2nd Respondent

Re Z (A Child) (FGMPO: Prevalence of FGM) [2017]

Mr Zimran Samuel (instructed by Direct Access) for the Applicant
F the 1st Respondent in person

Ms Mehvish Chaudhry (instructed by Cafcass Legal) for the child
Hearing dates: 3rd July to 7th July 2017
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

 

The Honourable Ms Justice Russell DBE:
Introduction

1. This case concerns Z, a little girl now six and a half, whose mother is the Applicant (M) and father is the 1st Respondent (F).  Her parents are separated and Z lives with her mother in South East England.  She is of dual heritage: her mother's background and heritage is white English Christian and her father's background and heritage is black African Muslim, from the Fulah community in Guinea, West Africa.  There have been proceedings in respect of the arrangements for this child since December 2013; indeed, for most of her life, beginning when she was only two and three quarters.  The case was originally issued by M, who made an application under the Family Law Act 1996 (FLA), in the Family Court at Bromley where, in May 2014, it was heard by District Judge Brooks who made findings of domestic abuse against F, as a result of which an occupation order was made in favour of M, who remained living in what had been the family home with Z.  Z has always lived with her mother.

2. The Children Act 1989 (CA) proceedings in respect of the arrangements for Z continued in the Family Court at Bromley: details of those proceedings are set out below. Central to the applications before me is the risk of Female Genital Mutilation (FGM) which was first raised in the proceedings in 2014; reference in the Cafcass analysis dated 24th July 2014.  F wants to take Z to Guinea to visit his family so that she can see where he comes from, this he says, is important because Z should be able to have direct experience of the cultural and ethnic background which is half of her heritage.  M resists his application and had already applied for a prohibited steps order (PSO) order forbidding him from taking Z to Guinea because of the very high prevalence of FGM in that country (around 96% according to the UN's analysis and the expert evidence) and the likelihood that F's family will want to have Z "cut" or mutilated as a female child of the family.  Z's Guardian supports there being restrictions on overseas travel with her father in place until Z reaches the age of sixteen.

Chronological history and background to the case
3. Z's mother, M, was born in South East England on 19th March 1974, she was 43 at the time this judgment was written.  Z's father F was born on 11th May 1978 in Conakry, Guinea, he is 39.  In 2004 F came to the UK as a student.  Z's parents met in 2006 through an online introduction website, and in May 2007 the parties married in Conakry, Guinea.  I have been told that F's father and mother did not attend the wedding. There is some dispute about the reason for this, M says that it was because F's father did not approve of the marriage, he, in turn says that was not the case but that his father could not return to the capital from the family's village for the wedding. F did not have a coherent or credible reason for the absence of his father as he later told me in evidence that his father lived in Conakry most of the time, while his mother lived in the family village. F apparently accepted that his mother did not approve of the marriage and he did not explain the reasons why his father absented himself when he himself lived in Conakry.  It remains unclear why F's father would not attend the wedding of his son, a son who, according to his own evidence has stepped into his late father's place and is now "head of the family".

4. M returned to the UK shortly after the marriage took place.  On 3rd March 2011 their only child Z was born in England.  According to M the marriage soon became marred by domestic abuse and controlling and coercive behaviour on the part of F, which became worse and more frequent after she became pregnant with Z.  It was M's evidence that when Z was only two months old F said that H should have her ears pierced in keeping with the cultural norms in Guinea.  M refused to allow it and was so worried for the baby so that she would not allow F to take Z out unaccompanied.  She became increasingly concerned by his behaviour and did not feel that she or Z were safe.  The parties separated in late 2013 at which time, on 19th December 2013 M issued an application in the County Court (as it then was) for a residence order under s8 Children Act (CA) 1989; as amended by the Children and Families Act (CFA) 2014.  The case came before the court on 7th February 2014 when M applied for injunctive relief and PSO and non-molestation orders were made by the district judge.

5. On 11th February 2014 there was a hearing before District Judge Brooks; a prohibited steps order (PSO), which had been in place to stop Z being removed from the jurisdiction by F, was discharged on the basis that F undertook to surrender his passports to his solicitor and not to apply for any further travel documents. Directions were given, which included an order that the parties file Scott Schedules in respect of the allegations of domestic abuse. On 14th May 2014 a fact-finding hearing concluded and as a result of the findings made, an occupation order was granted excluding F from the family home, along with a non-molestation injunction which was to remain in force until 17th February 2015.

6. The first Cafcass analysis was filed on 29th July 2014, having been completed on 24th April 3014.  The issue of FGM was raised specifically by M as were her concerns about Z travelling to Guinea more generally, in respect of poor sanitation and tropical and infectious diseases such as malaria.  F told the Cafcass officer that he did not "advocate [FGM] for females." The report recommended that F undertake a Domestic Violence Perpetrator Programme (DVPP) despite the fact that F "denies the findings that were made against him, showing no remorse or insight into the impact this has had on his daughter [Z] and [M]", as most such programmes require that the perpetrator accepts that domestic abuse has taken place.

7. At the hearing which took place on 12th September 2014, F undertook not to encourage or facilitate FGM in addition to the previous undertakings he had given. He was ordered to undertake DVPP. On 3rd October 2014 following a hearing before the district judge a child arrangements order was made providing that Z was to live wither mother and that her mother was to be permitted to take Z out of the jurisdiction for up to 14 days holiday at a time without F's consent. Z was to spend time with F alternative weekly patterns of between 5pm to 7pm on a Tuesday and 8am to 7pm on a Sunday and between 5pm to 7pm on a Tuesday and between Friday at 5pm and Sunday at 6pm.  A further hearing took place on 30th January 2015 at which a further child arrangements order provided that Z live with her mother, who was permitted to take her out of the jurisdiction for up to 30 days without F's consent.  Z was to continue to spend the same pattern of time with F.

8. An interim DVIP report was filed on 17th April 2015 which reported, amongst other matters, that F "is invested in presenting himself as a victim of the situation…He has been observed to project his sense of injustice on to [Z], stating that [Z] is suffering, when in fact, it is he who feels wronged, disrespected or disregarded by his ex-partner's actions."  On 20th May 2015 the final DVIP report was filed.  While F had admitted pushing M against a wall or the floor of 6 to 10 occasions and having "hurt her sexually" on 3 to 5 occasions he did not consider this to be violence; it was reported that F "continued to take this attitude – despite the material covered in the programme – that this did not constitute violence.  All of the facilitators who worked with [F] noted how he brought even unrelated matters back to the issue of finances, effectively portraying himself as a victim."  He remained unable to accept accountability for his abuse and violence as having been brought about by his own behaviour.  The report concluded that in respect of any decisions regarding future contact arrangements between F and Z should take "serious account of the difficulty [F] has in separating out his interests from those of [Z], and the potential for ongoing emotional abuse and financially controlling behaviour, given that these will carry negative consequences for [Z's] emotional and physical wellbeing."

9. On 15th October 2015  a second Cafcass report was filed, which expressed the cautious view that F could travel to Guinea with Z, but that the time Z spent with F should be reduced to take into account the DVIP report and the continuing conflict.  It recommended that M contact her local Women's Safety officer or GP for additional support.  A referral was made to Bromley Social Services because of safeguarding concerns and that F should provide undertakings in event of travel to Guinea.  On 6th November 2015 the court directed that there should be an All Ports Warning on basis of abduction risk and risk of FGM pending social services investigation.  Bromley Social Services were invited to prepare a Section 47 assessment which was to address (i) risk of FGM; (ii) any risk of abduction risk; (iii) any other safeguarding issues; (iv) and the identification of any support services.  The time Z was to spend with F was reduced to every third weekend between 3pm on Friday until Monday when she would be returned to school; however contact continued every Tuesday and Sunday although this was not in the order, in addition to which there would be direct phone/Skype contact every Sunday at 9am. A PSO prohibited F obtaining passports for Z.

10. On 5th January 2016 the social work assessment was filed. Its recommendations were limited by the outstanding work yet to be done which included that on F's views on FGM and how he would be able to protect his daughter and direct work with Z herself.  It was recommended that the case progress to full assessment and that PSO remain in place until 2017 and F be permitted to travel to countries other than Guinea.  On 18th February 2016 M filed an application to vacate final hearing listed for 8th March 2016 and that the proceedings should be transferred to be heard in the High Court.

11. The case was transferred to be heard in the High Court on 23rd February 2016 on M's application. A Child and Adolescent Mental Health Services (CAMHS) assessment filed on 26th February 2016; dated 18th February 2016, it set out concerns about Z's presentation.  Z had been referred to CAMHS by the DVIP because of concerns about the impact on her of witnessing domestic abuse and the continuing conflict between her parents.  She was considered to be over-compliant and affected by the levels of animus and distrust between her parents.  The effects on Z which had been observed by her teachers included those of a child nervous or overly anxious about making mistakes who cannot recover easily if something goes wrong.  She was considered to be child who hid her vulnerabilities and anxieties while having more tantrums at home with her mother (where she probably felt safest).  She regularly suffers night-time enuresis, has long standing constipation and reports having nightmares.  Although Z was discharged because it was felt that the work needed to be done with the parents in the first instance, it was reported that the impact on Z of the continuing conflict could not be overestimated.

12. The report read "She is a young child and any lengthy separations from the main carer (mother in this instance) can be difficult for a child, not least a child in [Z's] position.  It might be very stressful for [Z] to travel abroad with her father if she is not able to feel that it is fully supported by her mother.  In my opinion, her parents need to show they can co-parent effectively as things stand at the moment, before any travel abroad can be considered.  It is acknowledged that this will feel frustrating and annoying for [F]."

13. On 29th February 2016 the third Cafcass report in this case was filed which recommended that fortnightly weekend contact resumed and that PSO remains in place until 2017 when it can be further reviewed by the Court.  An addendum s 47 report from Bromley Social Services, was filed dated 2nd March 2016 (the author being Keith Warren a social work Group Manager) which disagreed, in terms, with the previous recommendation that F be allowed to travel abroad with Z as F could travel to Guinea through a third country. The local authority would, the court was informed, consider issuing proceedings if a trip to Guinea was planned. It is would seem that there are no direct flights to Guinea-Conakry from the UK in any event.  The social work recommendation that was no travel abroad with F should be permitted and that instead members of F's family travel to the UK to meet and visit Z.

14. On 30th March 2016 the case first came before me, no changes were made to the existing orders or child arrangements and permission given to instruct an expert witness, Dr. Schroven (there was no Part 25 application issued until 8th April 2016, but the expert had been identified).  The case transferred to Cafcass High Court team. In the meanwhile the case was reviewed by the local authority, at F's request. The review was carried out by Susan Philips (Head of Service, Referral and Assessment) and resulted in a letter dated 17th April 2016 in which she endorsed Keith Williams' assessment, and pointed out the very high prevalence of FGM in Guinea and that the major concern was about the risk to Z from Fulani [sic] community as a whole rather than from F himself.

15. There was then a delay of several months during which no letter of instruction was agreed nor was the expert instructed.  On 23rd August 2016 F issued an application to resolve the dispute regarding the letter of instruction. This dispute was compromised by agreement, and as a result no specific information setting information about F's family in Guinea was included in the instructions sent to the expert; this had been something that M wanted to be included but to which F did not agree.  It is unfortunate that F insisted that Dr Schroven was not given the information about F's family as it would have assisted the court by providing an opinion which was more specific to Z's family background.  In any event, the report was not received or filed until 22nd November 2016. The reasons for this delay that remain as opaque as do te reasons for F's refusal to have the expert comment on his family and their community or ethnic group. 

16. On 9th February 2017 the case came before me.  Both parties were represented by experienced counsel and listed for directions.  Z was joined as a party to the proceedings, Ms Jaqueline Roddy of the Cafcass High Court Team continued as her appointed Guardian.  Ms Roddy had, as directed, filed her analysis on 25th November 2016 in which she recommended that Z be made a party to the proceedings as she considered that Z's voice was "getting lost in the midst of parental conflict."

17. F informed the court that he intended to make a Part 25 application for further expert evidence on the question of what legal safeguards could be put in place to protect Z in Guinea, but no expert had been identified.  At the same time he informed the court, through his counsel, that he intended to call his sisters to give evidence regarding the extent and practice of FGM in their family.  It was anticipated that they would give their evidence by video link.  There was to be a pre-trial review in early June; the final hearing was listed to start on 3rd July 2017. It was directed that if F wanted his sisters to give evidence arrangements should be made with the court and the dates they were to give evidence was to be confirmed with the court and other parties by 2nd June 2017.

18. In April 2017 F's mother, Z's paternal grandmother, died in Guinea.  The case was returned to court on 6th June 2017 for pre-trial review as had been directed in February.  M's solicitor's offices had closed and she was now a litigant instructing counsel by direct access. F was similarly represented, and he applied for an adjournment of the final hearing the basis of which was the fact that his mother had died in April.  This application was refused as in the child's best interests it was necessary for the case to be determined without further delay.  As recorded on the order, F informed the court, through his counsel that he no longer intended to call his sisters to give evidence by video link but he would seek to rely on their statements in due course; he was told, and it was ordered, that if he changed his mind, again, and wanted his sisters to give evidence he must inform the court and ensure appropriate arrangements were in place.

19. The directions made on 9th February had not been complied with despite attempts by M to ensure that the directions were followed; as could be seen from the numerous emails she had sent to F's solicitors and to Cafcass.  The case was re-timetabled; further questions to be put to Dr Schroven (the expert on FGM) were agreed and subsequently approved by the court and provision was made for the parties to file their final evidence. As he no longer instructed solicitors F's passports were transferred to be held by Cafcass Legal.

20. On the 7th June 2017 F issued an application to instruct expert in Guinean law.  This was followed by an email from F, on 12th June 2017, informing all parties that he had changed his mind again and now wanted two of his sisters to give oral evidence.  On the 18th June 2017, Dr Schroven's addendum report, dealing with further questions she had been asked, was filed with the court.  The case returned to court on short notice on 21st June 2017 to hear the Part 25 application at which F was represented by counsel. The court heard oral submissions from all parties and the Part 25 application was refused. The documents filed in respect of the application revealed that the "expert" F wanted permission to instruct was a very recently qualified lawyer with no expertise in international law nor any expertise or training in respect of FGM law, its application or enforcement in Guinea.  On 21st June F filed his final statement and on 26th June 2017 M filed her statement.

21. When the case came to trial in July 2017 both the child and M were represented by counsel. F had dispensed with legal representation and appeared in person.  F conducted his case with some skill and was courteous to the court throughout the hearing.  

The Law
22. The applications.  The central issue in the case are the applications by M for orders forbidding F from taking Z abroad, and specifically to Guinea to protect her from genital mutilation. Whether that is by the court making PSOs under the Children Act (CA) 1989 or by making FGMPOs a matter which I have been asked to consider and do so below.  There is an additional dispute as to detail of the child arrangements order, specifically the extent of time that Z should spend with her father. Z will continue to live with her mother and has always done so. As can be seen in paragraph 10 above Z has been detrimentally affected by anxiety caused by her parents' relationship and her loyalties are torn as both her parents must seem to be, to Z, the victim of the other. As I have already mentioned in paragraph 8 above, it is the opinion of the author of the DVIP report that F continued to present himself as the victim of abuse (when he was, in fact, the abuser) and that there remains a potential continuing emotionally abusive behaviour.

23. The court recognises the fact it is M who has been the victim of domestic abuse; and that her treatment at the hands of F have left M feeling anxious and unable to trust him. It is F's behaviour that is the root cause of the conflict between the parties as has been evidenced by the findings made in the family court, to which reference has already been made and the report of the DVIP. F's evidence before this court which bears out the conclusions of the DVIP report and his continued antipathy towards M could be seen in his dismissive and disrespectful attitude towards her.  His inability to show insight into what Z needs in respect of child arrangements, , as opposed to what he wants, has been evident throughout the proceedings.

24. It is relevant to record that at the time M's applications were originally issued and considered by the Family Court, the law in respect of Female Genital Mutilation Protection Orders (FGMPO) had not come into force. It was inserted into the Female Genital Mutilation Act (FGMA) 2003 (which introduced into the law of England and Wales various offences concerning female genital mutilation) by virtue of s73 of the Serious Crime Act 2015.  Z's mother invites the court to consider making a FGMPO in respect of Z.  The use of the orders which can be made under Schedule 2 of the FGMA which are specifically aimed at protecting girls from genital mutilation, and, as in this case when that is a major concern would seem to be both logical and legally apposite.  M seeks continuing restrictions on F being in possession of his passport during contact as part of the protective measures for Z; the law in respect of this is considered further below.

25. The evidential burden is on the party bringing the case and standard of proof which I must apply is the ordinary civil standard, the balance of probabilities.  That standard applies in family cases as it does in all civil cases.  These are civil proceedings and as such the burden of proof falls on M as the applicant who brings this case seeking a prohibition on F travelling abroad with Z when she spends time with him.  The standard of proof is the civil standard; the balance of probabilities as set out in the seminal case of Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2008] 2 FLR 14, as set out by the House of Lords and confirmed by the Supreme Court in Re S-B (Children) [2009] UKSC 17.  It is not necessary for me to analyse the law in respect of the standard of proof in depth as it is not in issue before me.

26. The court is concerned with the welfare of Z. As the paramountcy principal as set out in s 1(1) of the Children Act (CA) 1989 applies to the applications before this court I must have in the forefront of my mind the welfare checklist contained in s 1(3).  In addition to the application for child arrangement orders (CAO) under s8 of the CA 1989 (as amended) I have been asked, to make a FGMPO pursuant to the FGMA.  The decisions in respect of CAO are governed by the CA 1989 and the CFA 2014.  Notwithstanding the amendment to section 8 of the CA and the amendment to section 1(2A) which includes the presumption that the involvement of a parent in the life of a child will further that child's welfare, that presumption is subject to the requirement that the parent concerned may be involved in the child's life only in a way that does not put the child at risk of suffering harm.  Section 1(2B) of the Act defines 'involvement' as meaning involvement of some kind, either direct or indirect, but not to any particular division of a child's time.

27. Mindful of the United Nations Convention on the Rights of the Child, as well as the provisions of the CA 1989 and Part 16 the court has ordered the child to be joined as a party to ensure that her voice was heard, and I keep in mind, too, each child's right and need for a relationship with both of their parents as in this case.  In ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166.  Lady Hale in considering article 3(1) said that:

[23] …… In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.  This is a binding obligation in international law, and the spirit, if not the precise language, has also been translated into our national law. Section 11 of the Children Act 2004 places a duty upon a wide range of public bodies to carry out their functions having regard to the need to safeguard and promote the welfare of children.'

28. The emphasis in a case such as this involving the risk of FGM must be the need to protect the child from any such harm.  It may seem otiose to say so, but the consequences of FGM are far-reaching and irreversible.  If Z were to be subjected to such mutilation the effects, both physical and psychological, would remain with her for the rest of her life.  The physical harm done however it is carried out is inherently dangerous; the mutilation affects girls and women through puberty, maturity, pregnancy and child-birth and beyond.  The psychological effects are profound.  In this case, as has been observed already by the local authority, the concern is not the risk from F himself but from the wider community to which he belongs in Guinea.

29. Child Arrangement Orders.  In respect of the child arrangements and other orders under the CA 1989 I shall repeat that the court's paramount consideration is welfare of the child as provided for in s1 of that Act.  In this case, notwithstanding the application for continuation of protective orders, there is no dispute at all about Z continuing to spend a significant amount of time with her father.  Her Guardian recommends the regime set out in the paragraph immediately below; in addition, I am informed, that the parents agree to communicate by text message in the event that either is running late for pick up or drop off and that child arrangements will take place in accordance with the order of the court.

30. The Guardian's recommendations in relation to the Child Arrangements are that Z will continue to live with her mother and to spend every third weekend with her father.  I have decided, having listened to the parties, hearing their objections and considered the recommendation of the guardian, that the child arrangements are to be centred on Z and to allow time for her to develop her own interests and friendships outside the family and to have some "down time" of her own, as she grows up and gets older and more independent. It is intend that the orders made bey this court will bring an end to proceedings and allow for contact that can give Z her own space and time for herself. In future Z will spend time with her F during school term time as follows:

a. Every third weekend from Friday after school until the following Monday (drop off at school).

b. Every Tuesday evening from after school until 6pm (this is agreed by the parties but the agreed order will be amended to include) except on occasions when Z has other commitments or engagements such as and including a friend's birthday party, sporting events and school trips or events organised by her school or by her friends but NOT by her mother.

c. During the February, May and October half terms when the F's weekend falls during Z's half term, Z shall spend time with the Father as follows:

(i) If the F's weekend is the first weekend of half term collection is to take place from after school on Friday and return to M on the following Sunday (i.e. two days later) at 18:00;

(ii) If the F's weekend is the last weekend of half term the F is to collect Z at 18:00 on Friday and return on the following Sunday (i.e. two days later) at 15:00.

31. During the school holidays Z will spend time with F as follows:

a. Summer school holidays 2017: from 11:00 on Monday 24th July to 18:00 on Monday 31st July and 11:00 on Monday 7th August to 18:00 on Monday 14th August.

b. Summer Holiday 2018: from 11:00 on the 4th Monday of July (23rd July 2018) to the following Monday (30th July 2018) at 18:00 and the 1st Monday in August (6th August 2018) at 11:00 until 18:00 on following Monday (13th August 2018). 

c. Summer holiday 2019 and every school summer holiday thereafter: Z is to spend the 2nd and 3rd week of August with the F. Collection will take place at 11:00 on 2nd Monday of August and Z is to be dropped off at 11:00 on Monday two weeks later. 

d. Easter/Spring holiday: Z is spending the weekend which does not include the Easter bank holiday with the F; F is to collect from M's care at 11:00 on Sunday until 15:00 the following Sunday (this has been agreed between the parents).

e. Christmas/Winter holiday: 11:00 on 28th December until the day before school term commences at 15:00 ("school term" is to include inset days) (this has been agreed).

f. When collection/drop off is not outside Z's school it F is to collect/drop off Z from outside of her (mother's) home:  this has been agreed by the parents.

32. In addition Z is to continue to speak by telephone or by Skype to F every Sunday at 09:00.  It will be ordered that when she is staying with her father she is to telephone or Skype her mother at 09:00 every Sunday.  The parents may agree further or other visits by Z to her provided that there is prior agreement in writing.

33. As alluded to above I heard extensive evidence from both parents and the Guardian about the CAO.  There is no doubt, given the F's animus in respect of M and M's distrust of F, which is largely, if not entirely, as a result of his behaviour towards her that an order is needed.  F's insistence that contact should take place every other weekend is an example of his own needs taking precedence over Z's, and his lack of insight both as to the demands he places on his child and her need for autonomy and room to grow socially and become emotionally independent.  I accept the Guardian's assessment that weekend visits once every three weeks strikes the right balance in Z's best interests. Z is to continue to see F every Tuesday for a tea-time visit, but, as the Guardian observed as she grows she will start to have more demands and commitments on her time; it is for this reason that I include a proviso that Z is to be able to keep her own social and scholastic commitments should they occasionally fall on a Tuesday.

34. In the final submission filed on her behalf the Guardian said that she was of the view that two weeks in F's care this year (2017) was "likely to be too much of a leap for [Z], taking into account her age and also that she has not yet been away from her mother for this length of time.  By next summer [Z] will have spent [more time over the holidays] in her [F's] care … and will be ready, in the Guardian's assessment, to spend the more extended period of time in her F's care." I agree, but consider that the first full fortnight spent away from her mother, albeit with her father, should wait until she is eight and not when she is still only seven in 2018. 

35. This is because, from the evidence before me, it is clear that F has continued to involve Z in what he sees as a situation in which he is the aggrieved party.  By the time she is eight it is to be hoped that even if he continues to present himself as wronged and victimised Z will be more resilient because of her age.  The provision for half terms allows Z to spend some additional time with F when it falls on "his" weekend without disrupting the pattern of contact each 3rd weekend.  The order will not provide additional arrangements in relation to Z's birthday; that both parents will be able to celebrate with Z, in their own way, when they spend time with her, either on her birthday or very near to it. In making these orders I have considered the welfare checklist as set out in s1(3) of the CA 1989 and have made reference to specific element of that section in the body of this judgment. The welfare of the child has been my first and paramount concern.

36. Female Genital Mutilation Protection Orders– the Legislative framework. FGMPO (Female Genital Mutilation Protection Orders) came into force by virtue of s73 of the Serious Crime Act 2015 which introduced a new Schedule 2 to the FGMA 2003.  The court was given power to make a FGMPO for the purpose of protecting a girl against the commission of a FGM offence (as defined by the FGMA 2003 s 1(1)) or protecting a girl against whom such an offence has been committed.  The government has taken a proactive stance against FGM as can be seen from the Statement opposing female genital mutilation, published by the Home Office, Department for Education, Department for International Development, Department of Health, Ministry of Justice, December 2016.  It is a matter of public policy that girls are to be protected against FGM and those that that carry out such mutilation or fail to protect a girl will be guilty of an offence under s 72 of the Serious Crime Act 2015.  In addition under s5 B inserted by s74 of the Serious Crime Act 2015 it has been mandatory since July 2015 for persons working in regulated professions to notify the police if it appears FGM has been carried out on a girl under the age of 18.  M is aware of this because of her own occupation.

37. A FGMPO may be made by the court in the exercise of its powers under the Act and in deciding whether to exercise the power the court is required under Schedule 2 paragraph 1 (2) to have regard to all the circumstances, including the need to secure the health, safety and wellbeing of the girl to be protected.  The scope of a FGMPO is wide, as is the pool of possible respondents to any order as it includes, any person who commits or may commit any genital mutilation offence anyone who is or may become "involved in other respects" as well as (or instead of) respondents provided in paragraph 1(4) (b) of Schedule 2, and other persons who are or may become involved in other respects as well as respondents of any kind.  "Other respects" are define at paragraph 5(a) of Schedule 2 includes "aiding, abetting, counselling, encouraging or assisting another person to commit or attempt to commit an offence."

38. It is important to note that s3A of the FGMA 2003 (as amended) creates the offence of failing to protect a girl from risk of FGM.  The offence occurs if a genital mutilation offence has taken place and the offender is a person responsible for the girl.  F is such a person as defined by s3A (3) (a) and (b) as he has parental responsibility and has frequent contact with her. S3A (5) (a) provides a defence where it can be shown that a defendant could not reasonably have been expected to be aware that there was any such risk was present; for the purposes of this case it would be difficult for F to suggest that defence could extend to him as the evidence of the expert witness was unequivocal about the almost universal prevalence of FGM in Guinea.  Moreover as he refused to allow the expert to consider his family she could not comment on his assertion that his own family have taken an almost unique stance against FGM either within their particular community or Guinean society in general (such as had been the case in Re E (Female Genital Mutilation and Permission to Remove) [2016] EWHC 1052). 

39. Surrender of Passports. The wide imposition of a FGMPO includes (under Schedule 2 paragraph 1 (3) (a) and (b)) such prohibitions, restrictions and requirements and such other terms as the court considers appropriate for the purpose of the order.  This as was considered in Re E (Children) (FGM Protection Orders) [2015] 2 FLR 997 and includes prohibition on a person removing a child from the jurisdiction and the requirement that person surrender their passport.  An FGMPO may be for a specified period or until varied or discharged (Schedule 2 paragraphs 1(6) and 6).  

Evidence
40. The court heard oral evidence from M (the applicant/mother), F (the 1st Respondent/father) and the 1st Respondent's youngest sister by a (very poor) video link from Conakry in Guinea, and from the guardian Ms Roddy.  The court heard the expert evidence of Dr Schroven, an academic and researcher specialising in FGM in Guinea and adjacent countries in West Africa.  The elder sister of the 1st Respondent was due to give evidence from the Ivory Coast where she lives with her husband and their family, but this did not take place as there was no video link available.  In addition I read the evidence filed by, and on behalf of, the parties.

41. M's (the Applicant) evidence.  M's evidence was given by her in an open manner and she did not appear to exaggerate events or detail.  M told the court that the issue of FGM first became known when she and F disagreed about Z having her ears pierced as a baby.  M objected to this happening when F said that it should and that it was the custom for baby girls to have their ears pierced in his culture.  It was then, she said, that the issue of FGM arose in their discussion, F saying that too was part of his culture.  F denies this conversation took place. M described how her understanding of FGM had become greater as time passed and increasingly she became aware of the extent and effect of FGM as a public awareness campaign took place and as a direct result of the introduction of mandatory reporting of FGM in 2015.

42. M described her experiences when she travelled to Guinea and of how she was not by welcomed or accepted by the wider paternal family in Guinea, particularly by F's father who did not attend their wedding.  She said that F had a status to maintain within his family, which had become particularly so following his own father's death.  As he was representing himself I allowed F to cross-examine M for a second time and she did not try to resist or instruct her counsel to resist on her behalf.  M did not demur and submitted to further cross examination remaining, if somewhat stoic, polite and direct in her answers. I was particularly struck by her evidence about Z which was child centred and empathetic to her child and that child's needs.

43. F's (the 1st Respondent) evidence.  When giving his evidence and presenting his case did so with care and courtesy; except, as I have already alluded to, when referring to the Applicant/mother.  His evidence about his family was based on his assertion and not on objective evidence; and was, as a result, largely self-serving.  He was unable to see the need for Z to have her own space and time for herself both to develop her own friendships and relationships outside the parental homes as she gets older, but also to alleviate the stress she feels brought about by the burden of trying to "please" both her parents.  The fact that F simply could not, or would not see this underscore the finding made by the professionals who have worked with him (such as on the DVIP course) that he is unable to separate Z's needs from his own; in short, he is not able to put her needs first.

44. This will undoubtedly put a burden on Z, but is also of concern in the consideration of FGM as it raises questions about F being able to withstand pressure from within his family and the Fulah community to which they belong for FGM to take place should Z accompany him to Guinea on a visit.  Where that all that may not amount to sufficient evidence to put an FGMPO in place; but is not.  There is no objective evidence that supports F's assertions that his family do not practice and disapprove of FGM.  There is no independent or other evidence that his sisters have not been mutilated themselves.  There is no evidence to support F assertions about his father's standing and role in his community prior to his death and the family's position generally and specifically within the Fulah either in their own locale or within the larger Peul society in Guinea.  When looked within the context of the expert evidence of the almost universal practice of FGM in Guinea the risk to Z of FGM when in Guinea remains high; and was assessed as such by her guardian.

45. Some allowance may be made for the fact that the F was in person and did not have the benefit of a professional advice, but I keep in mind too, that this was a choice that he made having been previously represented.  F explicitly recognised that there was a risk of FGM to Z in Guinea by presenting a case that his family posed no such risk; indeed he did not seek to deny the fact that FGM is practised in Guinea.  Nonetheless he sought to play down the extent of FGM in Guinea as a whole, and his claim that his family do not either carry out or condone the practice of FGM was not supported by any independent evidence. On the evidence before me including the independent expert evidence (which I shall set out below) his claim about his family's rejection of FGM, is a stance so unusual in Guinea that the contrary is likely to be true on the balance of probabilities.

46. Furthermore I do not accept his evidence that this has always been his position.  He has not, at any point accepted the findings made against him and continues to present himself as the victim in the marriage.  He struggled and was unable to explain what he had learnt from DVIP courses showed little if any remorse, or even regret, for his actions.  He remains angry with M (something he does not or cannot hide from Z) which he demonstrated by calling the M a liar in front of the principal of Z's school, just days before the hearing.

47. I accept the evidence of M that he wanted to have Z ears pierced when she was a baby and that he spoke about FGM taking place at that stage.  Even if he has changed his mind his suggestion as someone with high status in the family (about which I have no evidence other than his words) that would be sufficient to protect Z and ensure her safety betrayed a lack of insight and understanding about the prevalence of FGM in Guinea as explained by Dr Schroven, the expert witness. It is equally likely, if not more likely that someone of standing in the community may feel under a greater obligation to adhere to cultural norms to maintain his status.

48. The evidence of Dr Schroven.  The evidence of the expert witness was measured and convincing.  It is not often that the court has the opportunity to hear from an expert who has carried out research over 14 months in the country which the court is concerned.  Dr Schroven has lived and worked in Guinea and adjacent countries in West Africa and her first-hand knowledge is extensive and difficult to gainsay.  She is a Social Anthropologist who works at the internationally renowned Max Planck Institute for Social Anthropology in Halle-Saale, Germany and is an expert on Guinea in general and on ethnic relations in particular.  Her opinion on Z's case is based on her scientific research and field research in Guinea and sub-Saharan West Africa.

49. Dr Schroven told this court that recent publicity campaigns against FGM, such as the poster campaign which took place in 2016 after the Ebola outbreak should not mask the larger trend which is that girls undergo FGM at an earlier age in more discrete settings, including in public health clinics.  Part of the so-called medicalisation of FGM the mutilation by health professionals takes place under more sterile and less (medically) hazardous circumstances.  The current research indicates that the vast majority of men and women of all age groups in Guinea agree that FGM should continue to be practiced.

50. While Z's dual heritage may afford her some protection, as Dr Schroven explained Guinean there is a large level of tolerance and acceptance between religions, nationality and ethnic group, it also adds another variable to a complex situation.  The risk of FGM rises with age, within the Peul the age bracket for most FGM to take place is 5 – 9 years (at almost 60%); the figures point to Z being in the age group that under goes the most FGM in Guinea.  As Dr Schroven pointed out Z's dual heritage may offer some protection but it also adds to the complexity of her particular situation; added to which is the paucity or almost total lack of protective measures that could be put in place through the judicial system.  FGM would be considered a family matter and not a matter for the police; a dispute (between F and the elders in his family for example) would be settled by mediation authorities of religion, village or local or family elders.  As most people believe FGM should continue this system would provide little or no protection for Z.

51. The evidence of F's sisters.  Only one of F's sisters (K) gave evidence which was difficult to hear initially and interrupted several times, because of the inadequacy of the video link.  Despite the fact that F had himself accepted that the general prevalence of FGM was high in Guinea, K did not.  K said the practice of FGM had ceased outside of her family and that she said that many of her friends had not been mutilated although some had; this is in direct conflict with the independent expert evidence.  It is, of course, very intrusive to provide evidence that mutilation has not occurred but the fact that K did not provide any such evidence means that her assertion she has not been "cut" is unsupported.  Moreover she told the court that F had never even discussed the idea of being examined with her.  F had a considerable amount of time to arrange for independent medical evidence, and was aware that such evidence has been presented in other cases before the courts.  It was he who raised the evidence of his sisters in the first instance and during the months that followed he was still represented.  The only reason that his sisters' evidence was to be introduced was as proof that FGM had not occurred in his immediate family thus reducing any risk to Z.

52. The first directions about the evidence of his sisters were given on 9th February 2017 when it was directed that if the F's sisters wished to give evidence then arrangements should be made with the Court.  Then on 6th June 2017 he (F) told the court through his counsel that he no longer sought to call his sisters to give evidence by video link but he did seek to rely on their statements.  He was told that would limit the evidentiary weight of what his sisters statements and if he changed his mind about the video link that he must inform the Court.  On 12th June 2017 F did indeed changed his mind and emailed all parties to say so.  Only K gave evidence; I do not attach any weight to the statement of his other sister other than that I accept she wishes to support her brother in his application, but she does not even live in Guinea.  Of K's evidence regarding the fact that she had not undergone FGM, there is no conclusive evidence before the court and I am unable to reach a conclusion that it has not on the balance of probabilities, and I am unable to rely her evidence as proof that the family are, exceptionally, opposed to FGM.

53. The Guardian's evidence.  The Guardian gave evidence on 30th August while I found her evidence regarding the child arrangements order to be child-centred and very helpful as I have set out above, I found her evidence about the role of the parents to be less so.  Perhaps in an effort to be even handed and by concentrating on the immediate perceptions of this still young child the Guardian laid the blame for the animosity between the parents at the feet both M and F.  It is antipathetic to the need to recognise the long-term effects of domestic abuse and controlling and coercive behaviour to use terms and language that overlooks the effects on the victim of abuse and the child or children.  Thus saying, as the Guardian did in her report that both parents need to do better, is inappropriate in cases of domestic abuse. It is difficult for M to come to terms with having been abused and "deal" with it effectively without being able to move on and away from the relationship itself, something she cannot do while F remains in her life because of Z. Moreover F is still angry with M, and, at times abusive. He is certainly unsympathetic and unapologetic so that it is difficult to see, objectively, how M can disentangle her feelings of distrust and vulnerability from the need to communicate with F in an constructive way about Z, particularly when he has shown no inclination to himself.

54. I find that to suggest that M, as the victim of domestic abuse, needs to "move on from [her] respective prism of injustice" as the guardian did in her report, moves parlously close to blaming the victim. The long-term effects of domestic abuse on children is well known, as is the fact that it can, and often does, affects their ability to enter into healthy relationships throughout their lives.  No child should be totally shielded from knowledge that domestic abuse has occurred, or who the perpetrator was, because they need to know to be able to develop their own understanding and self-awareness of what are appropriate and healthy relationships as children and into adulthood. They need to learn and be told in an age appropriate way that the bullying or emotionally coercive behaviour of a parent is inappropriate and unacceptable, whether that behaviour is aimed at the other parent or the child. 

55. There is some evidence before the court that F has blamed M for matters out with her control and letting Z know that he blames her mother.  The fact that Z could not visit her grandmother in Guinea before she died was because of a court order put in place to protect her and was not her mother's fault; she needs to know that and why she was being protected and from what, and be told about it sooner rather than later so she can develop the ability to protect herself.  The time has come for Z should be provided with sufficient information to start learning how to protect herself in the future; from FGM should she travel to Guinea as a young person or young woman and from abusive, coercive and controlling behaviour as she enters relationships of her own.

Discussion and analysis
56. Having set out the evidence and the conclusions reached by this court in respect of the evidence I now apply the relevant legal principles, but before I do so it should be recorded in this Judgment that it is understood that Z has a loving relationship with her father and enjoys spending time with him.  This can be seen from what the child herself told her Guardian (and is included in the Guardian's report).  There is no dispute about Z continuing to spend time with her father in the UK and she will continue to do so.  Nor is there any reason why her extended paternal family cannot visit the UK and meet her here.  While it is self-evidently in any child's interests that her parents communicate and are able to work together there is little point in hoping that by saying so this will be the case.  M needs support in dealing with F assertively and to overcome her distrust by learning how to deal with him; but, the behaviour of F is at the root of this problem and unless and until he learns the lessons he should have learned from the DVIP and treats M with courtesy and respect they cannot "work together."

57. The central issue in this case regarding the protection of Z is centred on FGM thus a FGMPO is the appropriate order to make in this case as it is tailored to protect against the risk of FGM.  There is no suggestion that F would seek to have FGM carried out in the UK; the risk arises if Z is taken abroad.  As all travel to Guinea takes place through a third country and there are no direct flights to Conakry from the UK the order made by the court will to extend to travel within Europe and elsewhere.  The independent expert evidence before the court is that prevalence of FGM in Guinea is ubiquitously high and the acceptance as is the approval of its continued practice so that it is more likely than not that FGM would be carried out on any girl in Guinea who is of Guinean parentage.

58. As there is no objective or independent evidence before the court about the paternal family so that it is difficult to assess what F's position is either within his own family or within the wider extended family. There is no evidence as the extent to which FGM has occurred within his immediate and wider family or as to the views in respect of the practice of FGM in his family as a whole, including other relatives of status and standing, within his immediate family, or the wider extended family or within the context of the wider community. I have had to rely on the most objective evidence before the court, namely the expert evidence, and have to conclude from that expert evidence that regarding the practice of FGM the pressure or influence of other members of F's wider family, including influential elders or leaders within the Fulah, is more likely than not to be brought to bear on F if Z accompanied him to Guinea. Based on the evidence of the widespread practice of FGM in Guinea it is more likely than not that that the pressure on F would be to have Z mutilated. 

59. Moreover it is obvious to this court, from his oral evidence, that F is very conscious, if not jealous, of his position within his family which makes it more likely that he would succumb to pressure from those who may have authority over him (because of their higher standing or status within the Fulah) in order to maintain his position and respect within his community.  While I am limited in my ability to assess these or other matters because of the lack of evidence before me brought by F, the evidence is that, in Guinea, FGM continues to be omnipresent and is approved of by the vast majority of the population.  The risks to Z must be very significant and the consequences so profound that the balance clearly falls on the side of protection.

60. I have taken into account the desirability of Z being able to visit Guinea and the loss to her of being able to have direct contact with her father's heritage and culture which forms part of her own.  Against that I must balance the risk to her of FGM and the life-long effects that she would suffer physical, emotional and social.  It must be kept in mind that F has chosen to emigrate to the UK and that this is now his home where he lives and works.  He intends to remain here and so Z is the child of an immigrant who is living in his adopted country rather than a child who has two home countries.  In any case her ability to have relationship, and spend time, with F is not compromised or reduced. 

61. An FGMPO will be made and remain in force until Z's seventeenth birthday, by which time it is hope she will be in a position to protect herself. Permission will be given to Z to apply to the court prior to her seventeenth birthday should she wish to travel elsewhere with her father in her teens. During school holidays and at all other times when Z is staying with F he is to surrender his passport to be held by solicitors for M. M has agreed to meet the cost of this.

62. The court is well aware that this is a restriction on F's freedom of movement and places an additional burden on F, nonetheless, this too is a question of balance. The restriction is permitted in law by virtue of the FGMA 2003. It is intended that this order will strike a balance between protecting Z the risks to her of mutilation inherent in being taken to Guinea and restricting F's ability to travel to Guinea, or anywhere else he may wish to travel, either on his own or in the company of third parties. It is intended that the restriction on F's freedom to travel will apply only when when Z is with him.  Additionally, F will be able to travel within the UK with Z for holidays provided he has surrendered his passport and given M's details of where they will be going and where they will be staying.  Z is free to travel abroad with M but not to Guinea.

63. This is my Judgment.