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Re A (A Child: Female Genital Mutilation: Asylum [2019] EWHC 2475

Can the Family Court in FGM proceedings injunct the Secretary of State in the exercise of the asylum jurisdiction?

Background
A was a 10 year old girl whose parents were of Sudanese origin but held only Bahraini citizenship. She had arrived in the UK with her family on 18 August 2012 and had remained here with her mother and older brothers since then (the father had left the UK very shortly after their arrival and was believed to have been detained in a military prison in Bahrain). On 2 September 2015 the mother made an application for asylum on the primary basis that if they returned to Bahrain A would be subjected to female genital mutilation (FGM). That application was refused. Following exhaustion of the appeal process the mother and the children were due to be deported in September 2018.

In 2017 the relevant local authority had commissioned an assessment by Barnardo's which found that there was no risk of FGM to A whilst the family remained in the UK, but recommended that an application should be made for a Female Genital Mutilation Protection Order (FGMPO) if the family returned to Bahrain. By contrast, the First Tier Tribunal had found on 25 July 2017 that there were 'not substantial grounds for believing there is a real risk of her [A] being subjected to any form of FGM.'

On 27 September 2018 the Local Authority applied for an FGMPO. At the initial hearing on 1 October 2018 the Court: (a) prohibited the mother from leaving the jurisdiction with or in the company of A; (b) prohibited the Secretary of State for the Home Department (SSHD) or anyone acting on his behalf from removing, instructing, or encouraging any other person to remove A from the jurisdiction of England and Wales; (c) prohibited the SSHD or the mother from obtaining a passport or other travel documentation for A.

The matter then came before the President of the Family Division on the issue of whether or not the SSHD was bound by the terms of the FGMPO.

Submissions
The Local Authority accepted, relying on Re A (Care Proceedings: Asylum Seekers) [2003] EWHC 1086 (Fam), that the family court cannot deprive the Home Office of its powers of deportation or removal. The Secretary of State, who had agreed not to set any removal directions pending the outcome of this hearing, also relied upon the line of cases establishing that the family court does not have jurisdiction to injunct the SSHD in the exercise of the asylum jurisdiction, arguing that this applied to cases of FGM just as it did to any other family proceedings. The Children's Guardian's agreed (para. 40).

The mother on the other hand submitted that the line of authorities were confined to cases where the family court was exercising its jurisdiction under the Children Act 1989 or under the wardship or inherent jurisdiction, and sought to draw a distinction between those 'welfare' cases and FGM cases on the basis that FGM is highly likely to amount to a breach of Article 3 of the ECHR (prohibiting torture, inhuman or degrading treatment or punishment). She argued that FGM cases were therefore in a different category such that the family court when making an FGMPO does have the power to restrain the Secretary of State from removing a person from the jurisdiction of the UK.

Decision
The President accepted (as agreed by all parties) that an application for a FGMPO must be considered through the prism of Article 3 (para. 46).  He did not accept, however, that in contrast to all other family proceedings the family court in FGM proceedings had jurisdiction to injunct the Secretary of State.  He gave three main reasons for this: (1) even though in reality many asylum cases will also involve an alleged breach of Article 3, there is no suggestion in the decided case-law that there is an exception to the general prohibition on the family court granting orders against the SSHD where a risk of Article 3 treatment has been established; (2) if Parliament had intended to create such an exception the FGMA 2003 would have expressly provided for it; and (3) there is no evidence that without the family courts having the power to injunct the SSHD, the State in the exercise of its asylum and immigration jurisdiction would be in breach of its obligations under Article 3.

The President also noted the difference between risk assessment in a family case and risk assessment in the context of immigration and asylum claims. Contrary to the submissions of the SSHD that the family court should only depart from the assessment of risk undertaken by the First Tier Tribunal if there was good reason to do so, the family court was in fact under a duty imposed by Schedule 2, para. 1(2) of FGMA 2003 to form its own, unencumbered, assessment.

Of note, at para. 49 the judgment provides further clear authority for the fact that the jurisdictions operated by the Secretary of State and the family courts are separate and distinct, 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.'

Summary by Abigail Bond, Barrister, St Johns Chambers

Read the full judgment of Re A (A Child: Female Genital Mutilation: Asylum [2019] EWHC 2475 on BAILII