The President of the Family Division has decided that the family courts have no jurisdiction to interfere with immigration control, even if they think it is necessary to protect a girl from female genital mutilation (FGM). The most they can do is to ask the Home Office to refrain from removing the child and to reconsider the removal decision in light of the family court’s determination.

In response to media pressure in this case — reported as A (A Child: Female Genital Mutilation: Asylum) [2019] EWHC 2475 (Fam) — the Home Office has agreed to wait until the family court proceedings have finished. That is better than nothing, although granting the family immigration status would be the best way to endure the child’s protection. The judgment also highlights a worrying gap in the legislation designed to protect girls and women from FGM.

Family court intervention to protect girl at risk of FGM

The subject of this application is a ten year old girl, known as A, who was due to be removed to Bahrain with her mother. The mother is originally from Sudan, where she was subject to FGM as a child. There is a risk that both mother and daughter could be removed a second time from Bahrain to Sudan, where there is a high risk that A will be subject to FGM.

Suffolk County Council became aware of this risk through A’s school. The council immediately applied for an order under Schedule 2 of the Female Genital Mutilation Act 2003 preventing anyone from taking A outside the United Kingdom. A family judge issued an order preventing the Home Office from removing her.

The issue when the case came before the President of the Family Division was whether the judge had the power to make such an order.

Confirmed: family judges have no power over the Home Office

Sir Andrew McFarlane concluded that the order was made without jurisdiction and must be set aside. His reasons are based on the long-standing principle that the family courts cannot use their powers to interfere with immigration control because immigration decisions are made under a different statutory regime with different criteria. 

McFarlane P rejected the argument that FGM orders are different to other aspects of the family court’s jurisdiction because allowing FGM to take place would amount to torture and breach Article 3 of the European Convention on Human Rights:

although by focusing on one specific behaviour which is very likely to engage Art 3, FGM has to be seen in that context, it is the case that many, possibly very many, asylum cases will also involve an alleged risk of behaviour which may also fall within Art 3. There is, however, no suggestion in any of the authoritative judgments on this issue to the effect that there is an exception to the blanket prohibition on the family court granting orders against the Secretary of State where a risk of Art 3 treatment has been established by findings in the family court. On the contrary, the words of Lord Scarman in Re W, of Hoffmann LJ in ex parte T and of Sir James Munby in Re A, R (Anton) and GD (Ghana) are firmly couched in terms of structure and principle, with no contemplation of any exception.

The President of the Family Division also noted that, if Parliament had intended to create an exceptional power in the FGM Act 2003 allowing the family courts to issue injunctions against the Home Office, it would have done so explicitly.

On a positive note, the President applied the same logic to reject the Home Office argument that the family courts should use immigration tribunal determinations as a starting point when considering whether to grant an FGM order:

Although the family court will necessarily take note of any FTT risk assessment, the exercise undertaken by a FTT is not a compatible process with that required in the family court. It is not therefore possible for an FTT assessment to be taken as the starting point or default position in the family court. The family court has a duty to form its own assessment, unencumbered by having to afford priority or precedence to the outcome of a similarly labelled, but materially different, process in the immigration jurisdiction.

The overall decision in this case is disappointing, but McFarlane P can hardly be blamed for following authority. Instead, the judgment illustrates a gap in the FGM legislation. Parliament should have included a power for the family courts to issue injunctions against the Home Office where necessary to protect girls from FGM. In a week when the political parties have agreed to focus on non-contentious bills during the Tory party conference, this is an ideal time for opposition parties to raise this issue in the Commons and start the process of amending the Act to ensure it is effective.