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Immigration tribunal findings on FGM are not holy writ in the family courts
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Immigration tribunal findings on FGM are not holy writ in the family courts

In A (A Child) (Rev 1) [2020] EWCA Civ 731 the Court of Appeal has confirmed that decisions of the First-tier Tribunal are not the “starting point” when a family court is considering whether to make a protection¬†order under the Female Genital Mutilation Act 2003. The Home Office had tried to argue that, despite having completely different statutory frameworks, family judges should defer to earlier immigration determinations. The Court of Appeal disagreed, pointing out that the Act itself says that the family court must consider “all the circumstances”. Earlier immigration proceedings are just part of those circumstances:

When a family court comes to consider an issue upon which it is said a tribunal has already opined, including, for example, a tribunal’s specialist view about third country risk, the relevance of the tribunal’s conclusion, any intermediate findings of fact, and the nature and extent of the evidence upon which these are based will be examined as part of all the circumstances in accordance with paragraph 2 of schedule 2 of the FGMA 2003.

We covered the first instance decision in this case last year: Family courts have no power to prevent removal of children at risk of FGM abroad. That finding was not appealed.

Alexander Schymyck

Alex teaches Public Law at Queen Mary University of London and is due to start pupillage at Garden Court Chambers in October 2020

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