Female Genital Mutilation in UK Law

I merely observe that cases such as this demonstrate the continuing need for a remedy which, despite its antiquity, has shown, is showing and must continue to show a remarkable adaptability to meet the ever emerging needs of an ever changing world. I add that the use of the jurisdiction in cases where the risk to a child is of harm of the type that would engage Articles 2 or 3 of the Convention – risk to life or risk of degrading or inhuman treatment – is surely unproblematic.

First, claims based on fear of FGM have been recognised or upheld in courts all round the world.

FGM may ensure a young woman's acceptance in Sierra Leonean society, but she is accepted on the basis of institutionalised inferiority. As I have said, FGM is an extreme expression of the discrimination to which all women in Sierra Leone are subject, as much those who have already undergone the process as those who have not. I find no difficulty in recognising women in Sierra Leone as a particular social group for purposes of article 1A(2).

Nor can the context be compared with male circumcision. As the UNICEF Innocenti Digest, Changing a Harmful Social Convention: Female Genital Mutilation/Cutting (2005) observes:

However, we are satisfied that the present case does not approach the very high threshold necessary to justify the exercise of the jurisdiction. The situation falls short of the exceptional gravity where it might indeed be necessary to consider the exercise of the inherent jurisdiction.

By October 2001 the appellant's boyfriend had joined the Mungiki and he was soon elected as its leader in the village, also near Nairobi, where she and he had set up home. Early in April 2002 he told her that she should also join the movement but, being a Christian, she refused. About three days later a group of Mungiki elders, including her boyfriend, confronted her at home.

I would also agree that, when deciding how to exercise its powers, the court must balance a number of factors. 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.