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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Re A (A Child : Female Genital Mutilation : Asylum) (Rev 1) [2019] EWHC 2475 (Fam) (25 September 2019) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2019/2475.html Cite as: [2019] EWHC 2475 (Fam), [2020] 1 FLR 253 |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
President of the Family Division
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Re A (A Child: Female Genital Mutilation: Asylum) |
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Karon Monaghan QC and Dr Charlotte Proudman
(instructed by Duncan Lewis) for the Respondent Mother
John McKendrick QC and Claire van Overdijk (instructed by Government Legal Service) for the Secretary of State for the Home Department
Kathryn Cronin and Artis Kakonge (instructed by Miles & Partners LLP) for the Respondent Child
Hearing dates: 30th January 2019
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Crown Copyright ©
Sir Andrew McFarlane P:
"1. The First Respondent is prohibited from leaving the jurisdiction of England and Wales with or in the company of [A].
2. The Secretary of State for the Home Department or anyone acting on his behalf are prohibited from removing, instructing or encouraging any other person to remove [A] from the jurisdiction of England and Wales.
3. The Secretary of State for the Home Department or the First Respondent are prohibited from obtaining a Passport or any other Travel Document for [A], if one has not already been obtained."
The order of HHJ Richards also includes the following recitals:
"A) UPON the Court being satisfied that on the following information having been provided to the court, there is a risk of Female Genital Mutilation to [A]:
a. An assessment has been undertaken by Barnardo's which has concluded that if [A] was to remain in the United Kingdom there is low risk of FGM but that this would need to be reassessed if [A] was to be removed from the United Kingdom;
b. That it is likely if the Mother is removed to Bahrain that she would be then removed to Sudan, where there is a high prevalence of Female Genital Mutilation;
c. The Mother has undergone a medical examination which has established that she has been subjected to FGM and that her two sisters have died from such a procedure; and
d. The Father is currently in military prison in Bahrain and is therefore unable to protect [A] from any risk of Female Genital Mutilation.
…
C) AND UPON the Court being of the view that this application is not a device to circumvent any immigration orders, as such application has been brought by the Local Authority on the advice of Barnardo's who are respected and recognised, for their expertise in relation to Female Genital Mutilation.
…
E) AND UPON the Court accepting the below order does restrict the Secretary of State for the Home Department's discretion, but the Family Courts primary consideration is the welfare of [A] and that further evidence is required, namely the extent to which the issue of FGM was considered by the Secretary of State for the Home Department when dealing with this family's asylum application so the court maybe properly informed before exercising its discretion under this Act."
The Issues
(a) Whether a judge of the Family Division and/or the Family Court can lawfully injunct or restrain the exercise of the Secretary of State for the Home Department's immigration powers in relation to a mother and child by making an FGM protection order.
(b) The role of the Family Division in assessing the risk of a child being subjected to female genital mutilation (FGM) in circumstances where the risk has been assessed by the Immigration and Asylum Tribunal and dismissed as a basis for asylum with all appeal rights exhausted.
(c) The duty on the local authority in meeting its statutory obligations under the FGM Act 2003 in these circumstances.
(d) Whether the FGM protection order (dated 1 October 2018) should be continued or discharged.
Female Genital Mutilation Protection Orders
(1) The court in England and Wales may make an order (an "FGM protection order") for the purposes of—
(a) protecting a girl against the commission of a genital mutilation offence, or
(b) protecting a girl against whom any such offence has been committed.
(2) In deciding whether to exercise its powers under this paragraph and, if so, in what manner, the court must have regard to all the circumstances, including the need to secure the health, safety and well-being of the girl to be protected.
(3) An FGM protection order may contain—
(a) such prohibitions, restrictions or requirements, and
(b) such other terms,
as the court considers appropriate for the purposes of the order.
(4) The terms of an FGM protection order may, in particular, relate to—
(a) conduct outside England and Wales as well as (or instead of) conduct within England and Wales;
(b) respondents who are, or may become, involved in other respects as well as (or instead of) respondents who commit or attempt to commit, or may commit or attempt to commit, a genital mutilation offence against a girl;
(c) other persons who are, or may become, involved in other respects as well as respondents of any kind.
(5) For the purposes of sub-paragraph (4) examples of involvement in other respects are—
(a) aiding, abetting, counselling, procuring, encouraging or assisting another person to commit, or attempt to commit, a genital mutilation offence against a girl;
(b) conspiring to commit, or to attempt to commit, such an offence.
(6) An FGM protection order may be made for a specified period or until varied or discharged (see paragraph 6).
The Submissions of the Parties
R v Secretary of State for Home Department ex parte T [1995] 1 FLR 292; Re A (Care Proceedings: Asylum Seekers) [2003] EWHC 1086 (Fam)).
"(1) The court may entertain an application to invoke its wardship jurisdiction or powers under the Children Act 1989 made by or in respect of a person liable to removal or deportation.
(2) The jurisdiction will be exercised very sparingly because:
(a) a wardship or Children Act order cannot deprive the Secretary of State of the power conferred by the Immigration Act 1971 to remove or deport the child or any other party to the proceedings, although it may be something to which the Secretary of State should have regard in deciding whether to exercise the power; and
(b) in cases in which there is, apart from immigration questions, no genuine dispute concerning the child, the court will not allow itself to be used as a means of influencing the decision of the Secretary of State."
"The judge hearing an application in wardship or under the Children Act is not entitled to have regard to immigration policy. Even if the Secretary of State has been joined as a party to the application, the judge must be guided solely by the interests of the child. It would therefore make no sense for his decision to prevent the Secretary of State from exercising a power based on altogether different considerations."
"48. As the authorities show, and the point perhaps requires emphasis, exactly the same fundamental principles apply whether the court is exercising its private law powers under Part II of the 1989 Act, its public law powers under Part IV of the 1989 Act, the wardship jurisdiction, or its inherent jurisdiction in relation to children recognised and to an extent regulated by section 100 of the 1989 Act. Proceedings under the Adoption Act 1976 apart, whatever jurisdiction he may be exercising a judge of the Family Division can no more than a judge of the County Court or a Family Proceedings Court make an order which has the effect of depriving the Secretary of State of his power to remove a child or any other party to the proceedings."
Munby J went on to make the following further observations:
"53. So much for the authorities. The law, as I have said, is clear and I do not propose to add to the jurisprudence on this topic. I simply make the following points by way of emphasis:
i) The functions of the court under the 1989 Act and of the Secretary of State under the Immigration Act 1971 and related legislation are, by and large, separate and distinct. The court and the Secretary of State are performing different functions.
ii) The court when exercising its powers under the 1989 Act is not entitled to have regard to immigration policy. It must be guided by the interests of the child.
iii) The court when exercising its powers under the 1989 Act necessarily has to apply a different test from the test that the Secretary of State applies:
a) So far as concerns the Secretary of State the child's interests are not paramount. There is a balancing exercise in which the scales start even.
b) In contrast (and assuming that threshold is established in those cases where there is a threshold to be met) the court has to apply the principle that the child's welfare is the paramount consideration.
iv) Where the proceedings under the 1989 Act relate to a child who is liable to removal or deportation the jurisdiction should be exercised very sparingly.
v) If, apart from immigration questions, there is no genuine dispute concerning the child, then the court must not allow itself to be used as a means of influencing the decision of the Secretary of State. Indeed, the use of the court's jurisdiction merely to attempt to influence the Secretary of State is an abuse of process."
Having considered the arguments in Re A, Munby J had no hesitation in discharging the care proceedings in order to allow the immigration process to take its course.
"[94] Hence, it is a human rights issue, not only because of the unequal treatment of men and women, but also because the procedure will almost inevitably amount either to torture or to other cruel, inhuman or degrading treatment within the meaning, not only of article 3 of the European Convention on Human Rights, but also of article 1 or 16 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, article 7 of the International Covenant on Civil and Political Rights, and article 37(a) of the Convention on the Rights of the Child."
As Hayden J has rightly held in A Local Authority v M [2018] EWHC 870 (Fam), an application for an FGM order must therefore be evaluated through the prism of Art 3.
"33... A judge of the Family Division cannot in the exercise of his family jurisdiction grant an injunction to restrain the Secretary of State removing from the jurisdiction a child who is subject to immigration control – even if the child is a ward of court. The wardship judge cannot restrain the exercise by the Secretary of State for the Home Department of his power to remove or deport a child who is subject to immigration control…
34 This does not mean that the family court cannot make a residence order in respect of a child who is subject to immigration control or cannot make such a child a ward of court. Nor does it mean that the family court cannot make a care order in respect of such a child. What it does mean, however, and this is the important point, is that neither the existence of a care order, nor the existence of a residence order, nor even the fact that the child is a ward of court, can limit or confine the exercise by the Secretary of State of his powers in relation to a child who is subject to immigration control'.
"48. It should go without saying, but I fear there is need to spell out what ought to be obvious: exactly the same principle now applies in relation to child arrangement orders as applied previously in relation to residence orders.
49. So far as I am aware, none of these principles have ever been challenged or doubted. Is it too much to demand that people pay more attention to them?
50. The fact that, in law, the Secretary of State is not bound by an order of the Family Court, as it now is, or of the Family Division, does not, of course, mean that she can simply ignore it. As Hoffmann LJ said in ex p T, 297,
"Clearly, any order made or views expressed by the [family] court would be a matter to be taken into account by the Secretary of State in the exercise of his powers. If he simply paid no attention to such an order, he would run the risk of his decision being reviewed on the ground that he had failed to take all relevant matters into consideration."
51. Be that as it may, the fact is – the law is – that the Secretary of State when exercising her powers of removal or deportation is not bound by any order of the Family Court or of the Family Division and that the Secretary of State, if she wishes to remove or deport a child or the child's parent, does not have to apply for the discharge or variation of any order of the Family Court of Family Division which provides for the child or parent to remain here."
"25. In approaching an asylum/humanitarian protection claim, the Home Office looks to see whether the person concerned has a well-founded fear of persecution or is at real risk of serious harm for a non-Convention reason. The approach to risk is not the same as that taken in a family case. In a family case, establishing risk is a two-stage process. First, the court considers what facts are established on the balance of probabilities; then it proceeds to consider whether those facts give rise to a risk of harm, see Re J (Children) [2013] UKSC 9. In contrast, in an asylum/humanitarian protection claim, the material presented by the claimant is looked at as a whole with a view to determining whether there is a well-founded fear of persecution or substantial grounds for believing that a person would face a real risk of serious harm, a reasonable degree of likelihood of serious harm being what is required. There is no comparable process of searching for facts which are established on the balance of probabilities."
'353. When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.
This paragraph does not apply to claims made overseas.'
"The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority."
Ms Cronin submitted that an examination of the case law identified principles and guidance suggesting that, in intersecting cases, each jurisdiction should undertake enquiries and make their own determinations and findings.
Discussion and conclusion
(a) FGM court's power to injunct Secretary of State?
(b) Relevance of previous FTT evaluation in Family Court risk assessment
(c) The duty of a local authority to investigate
Outcome