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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 >> A (A child) (Female Genital Mutilation Protection Order Application) (Rev 1) [2020] EWHC 323 (Fam) (18 February 2020) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2020/323.html Cite as: [2020] EWHC 323 (Fam) |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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SUFFOLK COUNTY COUNCIL |
Applicant |
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R D |
First Respondent |
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A A |
Second Respondent |
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M A (through her Guardian) |
Third Respondent |
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Dr Charlotte Proudman (instructed by Duncan Lewis) for the First Respondent
Kathryn Cronin and Artis Kakonge (instructed by Miles and Partners) for the Third Respondent
Hearing dates: 9-11 December 2019
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Crown Copyright ©
Mr Justice Newton:
"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:
"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."
"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."
The Law – 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).
Female Genital Mutilation
"… 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".
And Lord Bingham in the same case said this at [8]:
"FGM has been condemned as cruel, discriminatory and degrading by a long series of international instruments, declarations, resolutions, pronouncements and recommendations. … Therefore, those cultural practices that involve "severe pain and suffering" for the woman or the girl child, those that do not respect the physical integrity of the female body, must receive maximum international scrutiny and agitation. It is imperative that practices such as female genital mutilation, honour killings, Sati or any other form of cultural practice that brutalizes the female body receive international attention, and international leverage should be used to ensure that these practices are curtailed and eliminated as quickly as possible".
"A failure to take reasonably available measures which could have had a real prospect of altering the outcome or mitigating the harm is sufficient to engage the responsibility of the state" (para.99).
"[31] The court will have to consider the degree of the risk of FGM (which, I would suggest, needs to be at least a real risk); the quality of available protective factors (which could include a broad range of matters including the court's assessment of the parents); and the nature and extent of the interference with family life which any proposed order would cause.
[32] The need for specific analysis balancing these and other relevant factors extends to any additional prohibitions or other terms the judge may be considering including in the FGMPO. This is because each term included within the FGMPO must be separately justified. In this exercise, although the nature of the harm would, self-evidently, be a breach of Article 3, it is the court's assessment of the degree or level of the risk which is central to the issue of proportionality and to the question of whether a less intrusive measure, which nevertheless does not unacceptably compromise the objective of protecting the child, might be the proportionate answer".
Type 1 – Clitoridectomy: partial or total removal of the clitoris (a small, sensitive and erectile part of the female genitals) and, in very rare cases, only the prepuce (the fold of skin surrounding the clitoris); this type is subdivided into type 1a: removal of the clitoral hood or prepuce only, and type 1b, removal of the clitoris with the prepuce;
Type 2 – Excision: partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora (the labia are the 'lips' that surround the vagina); when it is important to distinguish between the major variations that have been documented, the WHO propose three subdivisions: type 2a, removal of the labia minora only, type 2b partial or total removal of the clitoris and the labia minora, and type 2c, partial or total removal of the clitoris, the labia minora and the labia majora;
Type 3 – Infibulation: narrowing of the vaginal opening through the creation of a covering seal. The seal is formed by cutting and repositioning the inner, or outer, labia, with or without removal of the clitoris; type 3a describes the removal and apposition of the labia minora, and type 3b describes the removal and apposition of the labia majora; and
Type 4 – Other: all other harmful procedures to the female genitalia for non-medical purposes, e.g. pricking, piercing, incising, scraping and cauterising the genital area.
The Evidence
i) It is noted that FGM is highly prevalent in Sudan [86.6-97.7% prevalence rates].
ii) Whilst FGM is not prevalent in Bahrain, "it is likely that the practice is still observed by this community [Sudanese] either in Bahrain or by travelling back to Sudan".
iii) The father's ethnicity is a risk factor and he and his extended family have the authority to decide whether the child is cut.
iv) Anti-FGM criminal laws in Sudan are rarely enforced and FGM is still widely performed. There have been no convictions in Sudan or Bahrain for FGM.
v) "Given the inconsistency of the legal provision against FGM the realities of reduced funding and the ongoing political turbulence it is unlikely that the mother in this case would be able to draw on much support from civil and/or national support groups even though the end FGM campaigning has been ongoing for some time in Sudan."
vi) In Bahrain, "No NGOs actively campaign against FGM. The mother and her daughter in this case would not have an enabling environment to protect her. The mother would not be able to draw on support from civil society or national organisations. This is particularly the case given the lack of legal provision."
vii) "As detailed in this report a number of factors make the likelihood of the girl in this case being subjected to FGM/C extremely high… It is combined view of the experts behind this report that the girl is at extreme risk of being cut should she be deported to either Bahrain or Sudan."
i) the mother's family put pressure on the mother and she is not able to sustain that pressure.
ii) A would be at risk of FGM in Sudan or Bahrain due to extended family pressures leaving mother / siblings as A's only protection.
iii) Mother would struggle to manage family pressures and FGM is entrenched in her family.
iv) A is at risk of significant harm if returned to Sudan/Bahrain.
i) There is evidence indicating that the Bahraini authorities actively seek the return and prosecution of individual asylum seekers of Bahrani origin and a list of cases where this has occurred. This would accord with the evidence given by the mother (that her husband and eldest son are in prison in Bahrain). The expert notes that "this is legally possible". It is noted that, "it could still happen" (i.e. what the mother contends could well be correct).
ii) Furthermore, it is possible that they would be "deported" and deprived of their citizenship especially if there is a "political problem". If the husband has been stripped of his citizenship, the mother and her family would be stripped of their citizenship.
iii) Given the mother and the family have been absent from Bahrain for over five years, they would be liable for "removal of their citizenship and subsequent deportation".
iv) There is no central system that can identify prisoners in Bahrain.
v) It is unlikely that a FGMPO could be enforceable in Bahrain.
vi) Furthermore, the expert states that the mother and the children could be stripped of their Bahrain citizenship, "it is legally possible".
vii) The expert makes sweeping assertions that FGM is not performed in the Gulf states but no evidence is provided to reinforce this.
i) The mother suffers from a diagnosis of recurrent depression, anxiety and PTSD.
ii) The report provides helpful background information on the impact of the mother having suffered (Type three) FGM, forced marriage, coercive control during the marriage and sexual abuse as a child.
iii) The mother continues to suffer "adverse physical consequences of FGM and is fearful of her daughter having the same procedure".
iv) In the light of the mother's mental health and patriarchal hierarchal structures, the mother may struggle to "effectively protect A from FGM".
v) The mother requires consistent medication and therapy. However, the mother was reticent to engage with therapy in the past due to cultural and language barriers. The report notes that the mother will find it difficult to engage with therapy whilst proceedings are on-going.
vi) Importantly, Dr Ratnam notes that "depression can impact on concentration and recall of information, particularly as the mother is also anxious. It is important that questioning does not re-traumatise her after". The report recommends that the mother needed the benefit of an intermediary in court. Questioning of the mother will have to be considered and careful in light of the mother's status as a vulnerable witness.
vii) Dr Ratnam gave a bleak prognosis if the mother is returned to Bahrain/ Sudan. The mother would become a suicide risk.
"In seeking an FGMPO for A, the social worker has assessed A to be at risk of FGM if returned to Bahrain or Sudan; this position is supported by the assessments of Professor Bradley and colleague and the National FGM Centre. I support and share their view. Whilst the risk to A in Bahrain is deemed less than in Sudan, it is assessed a level of risk remains and it is not possible to be assured that the mother, A and her brothers would not be further deported from Bahrain to Sudan.
The mother has expressed her commitment to protecting A from being subject to FGM and has been able to ensure A has been protected whilst in the UK. The negative impact on the mother's mental health if the family were to be removed to either Bahrain or Sudan would render her less able to provide protection for A, particularly in the context of the family and cultural expectations and the patriarchal hierarchy in Bahrain and Sudan. This is supported by the assessment of Dr Ratnam, who assessed the mother to be suffering from depression, anxiety and PTSD, which will not be amenable to treatment until the mother is in a stable situation. The mother reports also suffering poor physical health, which will be further impacted by the stress and anxiety she is currently experiencing. From my own observations of the mother at the early stage of these proceedings and interviewing her recently, I observed her emotional presentation to have deteriorated. Dr Ratnam concluded there would be a further negative impact upon the mother if deported, which in turn would impact on the care and protection she could provide to A and her other children,
The mother's expressed her concerns the paternal family will attempt to "take the children off her" and believes they will be successful in doing so, A then being at a high risk of being subject to FGM. As The mother may have no recourse to funds if returned and considering her emotional fragility, she would be unlikely to be able to seek work and may have no alternative but to turn to family for support.
There has been no concern raised by the local authority as to the mother's ability to provide basic care to the children, which must be challenging as the mother is in receipt of limited funds. All the children have presented as polite, well-behaved young people when I have visited and from my last visit it was evident M and his partner are a support to the family and a protective factor. Discussions have taken place with M as to the risks to A of FGM and he has expressed he would protect his sister. Should The mother and the children be returned to Bahrain, this protection would not be available, and it cannot be expected A's younger brothers could provide the same level of support and would be experiencing their own distress and anxieties as to their futures. As noted, A is a quiet young girl, who presents as compliant and non-challenging, such characteristics heightening the risks for her.
A has no recollection of living in Bahrain. She has very limited knowledge of her African heritage and has been raised within British culture and norms. A does not speak or understand Arabic. The lack of ability to communicate in Arabic exposes A to a heightened risk if removed from the UK as she would not readily be able to seek help. Had A been raised in a community and culture where FGM is the norm and celebrated, she would have been raised with the expectation she would be subjected to being cut. Whilst such expectation and knowledge does not eradicate the psychological and physical distress and pain associated with FGM, A has been positively supported by her social workers and Barnardo's workers to have an expectation "her body is her own" and the assault of FGM could be additionally traumatic for her.
Considering whether the father would be a protective factor should the family return to Bahrain or Sudan, as his whereabouts are unknown it is difficult to fully assess his impact on the risks posed. Whilst The mother has not been able to produce evidence to corroborate the father was imprisoned and remains in prison, from speaking to A and the other children, they all confirmed there has been no recent contact with their father and A has spoken at school about missing him. If the father remains in custody, he cannot be a protective factor for A against the risks of being subject to FGM. If no longer in custody, but has not sought contact with his family, it would not indicate he is prioritising the needs of his children or be a protective factor. The mother stated the paternal family blame her for the father's imprisonment, and she does not feel supported by any of the maternal or paternal family and as noted, the mother would not have the emotional strength to challenge or oppose family members if returned to Bahrain or Sudan".
Risk
Contextual considerations / 'Macro' factors
i) What is the prevalence of FGM in the country to which it is proposed that the child will be taken?
ii) What are the societal expectations of FGM in the country?
iii) If known, what is the prevalence of FGM in the specific region of the country to which it is proposed that the child will be taken?
iv) Is FGM illegal in the country to which it is proposed that the child will be taken?
v) If illegal, how effective are the authorities in the country in question in enforcing the prohibition on FGM?
vi) Given the extra-territorial reach of the 2003 Act, and the fact that the act of carrying out FGM (and aiding and abetting, counselling or procuring the act) is a crime punishable on indictment to imprisonment not exceeding 14 years, is there an extradition treaty between the UK and the country to which the child will be taken (Bahrain or Sudan in the instant case) in the event that there is evidence of a breach of the order?
vii) What formal safeguards are available in the country to which it is proposed to take the child to mitigate the risks (access to local tourist police, FCO representatives / consular assistance, NGO workers)?
viii) At what age are girls commonly cut in the country to which it is proposed that the child will be taken? (how does this compare with the age of the subject child?).
Individual considerations / 'Micro' factors
ix) ix) Is there a history of FGM in the child's wider family or in the family to which the child will be exposed abroad?
x) x) If so, on which generation or generations of women has this been perpetrated? Specifically, what is the position in relation to the younger generation(s)?
xi) xi) What are the attitudes of the mother and/or father to FGM generally, and/or in relation to their daughter?
xii) xii) Is FGM / circumcision regarded as a woman's issue or a man's issue within the family? Where is the power-balance in the family?
xiii) What are the attitudes of the wider family to female circumcision generally, and/or in relation to the subject child?
xiv) What safeguards can the family themselves devise and impose to mitigate the risk?
xv) How well have the family co-operated with the authorities?
xvi) What is the professional assessment of family relationships and of the capabilities of the parents?
xvii) Are there any other specific features of the case which make FGM more or less likely?
i) What is the prevalence of FGM in the country to which it is proposed that the child will be taken?
In Bahrain the practice of FGM appears uncommon; Bahrain does not appear on any global risk list. However, the significant Sudanese minority there is likely, probably highly likely, to observe the practice ether in Bahrain or by travelling back to Sudan.
In Sudan the prevalence of FGM in the North Kordofan State (the home areas of both families) is 97.7%. In Khaston State (where the parents lived and their extended families continue to live) is 87%.
ii) What are the societal expectations of FGM in those countries or communities and the regional prevalence, what is the effectiveness of enforcement?
Whilst FGM is illegal in Bahrain, there are no NGO's actively campaigning against FGM, and the mother would be unable to draw on any practical support. Within the diaspora Sudanese community different social forces in any event apply. In Sudan there is no law banning FGM, in Khartoum State, and no legal protection. In Kordofan State (where FGM is almost universal) there are banning laws, but as the figures underline, only one (pending) prosecution where a child died, she bled to death consequent upon the FGM.
(iii), (iv) and (v)
(vi) Any order made here will be of no effect either in Bahrain or Sudan.
(vii) and (viii) There are no formal safeguards.
(ix) There is a history of FGM in A's family. The mother was subjected to Type 3 mutilation, the most serious form, from which she has suffered lifelong serious consequences. Both her mother and grandmother were cut. Within the current family, two of the mother's sisters died directly from being cut. Another sister and all 3 of her daughters have been cut, another sister has had her son and daughter cut, the youngest is planned to be cut next March, her remaining sister has had her children cut. Prevalence in the father's family is similar.
(xi) The mother has consistently been opposed to FGM. It is clear that her actions in coming to the UK in 2012 were motivated by her overwhelming desire to protect A from FGM. The father's position is unknown, he has expressed differing views.
(xii) The current activities of the wider family exert significance influence. Both the mother's and father's families have actively endeavoured to place pressure on both parents to carry out FGM, and that is continuing.
(xiv) Safeguards. It is highly unlikely that the mother would be able to withstand the family pressures. Notwithstanding her evidenced sustained determination to protect A, on the evidence she would a) not be able to withstand familial pressure and b) be unable to access any assistance in Bahrain. In Sudan the position would be hopeless. The decision would be taken out of her hands. The father (as evidenced by his ambivalence) would not be a protective factor.
(xvii) There is the additional risk factor of repatriation. Whilst I have looked at Bahrain and the Sudan, Dr D advises that it is possible that the mother's nationality could be revoked, if she has not obtained permission to remain abroad for more than 5 years (she has been here and did not obtain permission). There is no clarity about the father's position. It is not known why he is imprisoned. It may be politically motivated. The family status in Bahrain is in any event dependant on the father. It is likely that he and consequently the family will be required to leave Bahrain. Thus, I conclude that it is more likely than not that A is unlikely to remain in Bahrain, and would ultimately finish up in Sudan.