AB v an
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lieven,Mrs Justice Lieven DBE |
| Judgment Date | 28 July 2020 |
| Neutral Citation | [2020] EWHC 2048 (Fam) |
| Date | 28 July 2020 |
| Docket Number | Case No: FD19F07012 |
| Court | Family Division |
[2020] EWHC 2048 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lieven
Case No: FD19F07012
and
and
Dr Charlotte Proudman (instructed by Duncan Lewis) for the Applicant
The First Respondent did not attend and was unrepresented
The Second Respondent did not attend and was unrepresented
Mr Rob Harland (instructed by the Government Legal Department) for the Intervenor
Hearing dates: 10 July 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This case concerns an application by the Applicant for a Female Genital Mutilation Protection Order (the FGMPO) against her husband, the First Respondent, and the paternal grandmother, the Second Respondent. The application is for an order that the Respondents do not remove the child, EO, from the UK and they do not perform FGM on EO.
The Applicant was represented before me by Dr Proudman and the Intervenor, the Secretary of State for the Home Department, by Mr Harland. The First and Second Respondents are in Nigeria and have taken no part in this litigation having declined to attend the hearing remotely or file evidence.
The applications made by Dr Proudman at this hearing are that either I should grant the FGMPO now without hearing and assessing the evidence of the Applicant and without findings being made; or I should appoint a Children's Guardian and appoint three experts; an expert on FGM in Nigeria, an independent social worker and a psychiatrist to assess the Applicant. Dr Proudman also argues that the SSHD has no continuing role in this case and therefore should not be allowed to continue to intervene.
Given that the interface between the Family Court's powers to grant FGMPOs and the immigration system has become a complex one with a number of recent cases, and that I am not going to accede to Dr Proudman's applications, I reserved judgment.
Factual Background
The Applicant and the other members of the family are all from Nigeria. The Applicant arrived in the UK on 7 November 2017 on a visit visa valid for 2 years. She gave birth to a son on 17 January 2018 and applied for asylum the following day. Her application was refused on 9 August 2018 and she appealed to the First Tier Tribunal (FTT). Her asylum application was principally based on an alleged fear that she would be at risk in Nigeria because she had had an affair and her husband (the First Respondent) would refuse to accept her back and her mother-in-law (the Second Respondent) would harm her if she returned. The FTT rejected her appeal, in part because her husband had applied with her for a visa when she was pregnant. There were a number of adverse credibility findings made against her. On 17 January 2019 the Applicant again applied for asylum and this was again refused.
In July 2019 the First Respondent travelled to the UK with the couple's two older children, including EO, and left them with the Applicant. In August 2019 the Applicant made further representations to the SSHD which were refused on 22 January 2020 on the basis that the documents produced by the Applicant were not believed. The Applicant could have challenged that refusal by way of judicial review but did not do so.
On 31 October 2019 she made the application for an FGMPO in respect of risk to EO. The matter first came before me in the urgent applications list on 19 November when Dr Proudman asked me to make an FGMPO on an urgent ex parte basis. I declined to do so because, in my view, there was no risk to EO at that time, she being in the UK and the Respondents both being in Nigeria, with no reason to believe that they would come to the UK and try to forcibly remove her from her Mother. I ordered that the SSHD be served and various immigration decisions be produced to me.
The Applicant has filed two witness statements in this matter. In the first statement she explains that she was subject to FGM when she was 5 years old. She says that her sister died as a result of FGM. She sets out the relationship with her husband's family and that the Second Respondent is strongly in favour of FGM. She says that when her husband came to the UK and gave her the two children he also gave her two letters from his family asking him to return EO to them so that she could be circumcised. Her husband told her he was not comfortable with EO being circumcised and thought that the children would be safe with her. She said that she did not trust her husband in this regard and he might change his mind if EO was returned to Nigeria.
The first letter from the husband's family states;
“Dear [AN],
I am directed by the head of the family to formally write to you to present your daughter [EO] for circumcision in line with the culture and tradition of the family of [X] land. Despite series of calls and efforts by your Mother to [unclear] her for this crucial genital mutilation of which you know the importance and the consequence of not performing it to our family, you turned a deaf ear.
This letter serves as a formal reminder to present [EO] on/before July 21 2019. Otherwise the family is left with no option than to come and take her
Yours sincerely
for the family”
At the hearing of 19 November I ordered that the Applicant serve a further witness statement explaining the genesis of this letter. In her second statement the Applicant explained that the writer of the letter is a paternal aunt. The Applicant said she had had no contact with the paternal family since she left Nigeria. She said she could not be sure that her husband would stand by her and protect EO if they returned to Nigeria.
On 8 January 2020 the paternal aunt sent an email on behalf of the family saying that they did not intend to become embroiled in the proceedings and were unable to attend by video link due to lack of infrastructure. She then said;
“At this point, against our family tradition and wish, [EO] had been taken away from our reach and she is now in the UK. We cannot oppose or consent to the British court to act in accordance with their laws. Unfortunately, we will not be able to attend the court proceeds even via video-link due to lack of infrastructure. So we hereby leave all the decisions to the court.”
For the purposes of the applications before me today, and the asserted risk of FGM to EO, it is important to note that these statements do not explain how the Respondents could find the Applicant and EO in the UK or in Nigeria. The Applicant explains how she is strongly opposed to FGM and says that she would never allow her daughter to go through it. Further, she says that when she was living with her husband's family she arranged for EO to be removed from that family and placed with her family who were opposed to FGM.
The Applicant's solicitors wrote to the London Borough of Havering to ask whether they intended to become involved in the proceedings. Havering responded saying that they had made efforts to speak to the Applicant but had failed and they intended to take no part in the proceedings. The Applicant says that Havering have not contacted her. The Applicant had apparently initially approached the London Borough of Redbridge, where she at that time lived, and the specialist FGM social worker had advised her to seek an FGMPO. That social worker is no longer working for Redbridge and that authority have taken no further steps.
The case law
The interrelationship between the FGMPO regime and that of immigration control has recently become a legally complex one, with a number of cases. In SSHD v Suffolk County Council [2020] EWCA Civ 731 the Court of Appeal upheld the decision of the President of the Family Division in Re A (A child): Female Genital Mutilation: Asylum (Rev 1) [2019] EWHC 2475 (Fam). The ratio of the case is that the court on an application for a FGMPO is not bound by, or required to take as its starting point, any decision of the FTT in respect of the alleged facts or risk assessment conducted by the FTT. Equally, the Family Court cannot bind the SSHD not to remove a person from the UK by making a FGMPO, Re A at [15].
What appears very clearly from both the decision of the President and the Court of Appeal is that the two statutory schemes are separate and are focused on different things, albeit there will in some cases be a considerable overlap in the factual scenario being raised. At [40] the Court of Appeal said;
40. The challenge of the Secretary of State on this question, with respect, misses the point. Even if the evidence presented to the court and the tribunal is the same (at least on the FGM issue) and even if on that issue their different methods of risk evaluation might benefit the appellant (about which we express no concluded opinion), the context and nature of the decision-making process is materially different. A child or young person in proceedings in the family court for a FGM protection order will be separately represented. She will have her own voice. That is not the case in the tribunal in a case like this where a young person is not making her own asylum application but, like A, is the dependent of an adult who is. As we have remarked, whether a person's interests are a primary or paramount consideration can and sometimes does lead to a different decision on the same facts. Furthermore, the assessments...
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Upper Tribunal (Immigration and asylum chamber), 2021-02-25, [2021] UKUT 108 (IAC) (GW (FGM and FGMPOs) (CG))
...might in such a case have accepted the superficially attractive submission which was made (and rejected by Lieven J) in AB v AN & BN [2020] EWHC 2048 (Fam): that there is no harm in granting such an order. The weight which can properly be afforded to such an order is necessarily very limite......
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Upper Tribunal (Immigration and asylum chamber), 2021-02-25, PA/11738/2017 & PA/00957/2018
...might in such a case have accepted the superficially attractive submission which was made (and rejected by Lieven J) in AB v AN & BN [2020] EWHC 2048 (Fam): that there is no harm in granting such an order. The weight which can properly be afforded to such an order is necessarily very limite......