Re. E (children) (Female genital mutilation protection orders)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holman,Mr. Justice Holman |
| Judgment Date | 24 July 2015 |
| Neutral Citation | [2015] EWHC 2275 (Fam) |
| Date | 24 July 2015 |
| Court | Family Division |
| Docket Number | No. FD15FO7001 |
[2015] EWHC 2275 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Mr Justice Holman
(sitting in Public)
No. FD15FO7001
Mr Z. Samuel appeared on behalf of the applicant mother.
THE RESPONDENT FATHER did not attend and was not represented.
This application is for a Female Genital Mutilation Protection Order (FGMP0) pursuant to Schedule 2 to the Female Genital Mutilation Act 2003, which was inserted by s.73 of the Serious Crime Act 2015 and came into force last Friday, 17 th July 2015. This must be one of the earlier applications for an FGMPO pursuant to these new statutory provisions.
The essential factual background is as follows. The applicant is the mother of three daughters. They are currently aged 12, 9 1/2 and 6. The applicant was formerly married to, but is now divorced from, the father of those three girls. The ethnicity of both parents is Nigerian, and their country of origin and citizenship is Nigeria. Currently, it is understood that the father is in Nigeria although he visits England regularly. The mother has been living in England, together with her daughters, for several years, although her visa has now expired and she frankly admits to being an overstayer. However that may be, that is no reason, of course, for denying to these innocent young girls the protection of an FMGPO if one is otherwise required and is appropriate.
The mother and girls currently live in a council flat within London. In her statement signed on 22 nd July 2015, the mother describes that she met and married her former husband in Nigeria in 2001, when she herself was aged 20 and he was in his mid-thirties. She says that it was a forced marriage. Her statement continues:
"Just before the wedding, the respondent's family forced me to undergo genital circumcision. I underwent the Type 2 procedure and so my clitoris and labia were removed. I did not want the procedure but I had no choice. Since the procedure, I have suffered terrible pain from my injury. It has never properly healed. After sexual intercourse, the wound will usually open again."
There, in a few short sentences, is a description from first-hand experience of the terrible scourge and damage inflicted upon females by forced genital mutilation.
The mother continues in her statement to describe how the respondent, her former husband and the father of the girls, is physically abusive, both to her and to the children. She says that he beats her and the children, regularly using weapons, such as belts, and that she has scars all over her body. She says that he will often beat her and, whilst he is hitting her, will say to the children that he is going to kill her. She says that he regularly threatens to harm or kill her or the children. So, if there is any truth at all in what the mother says, there is a general background to this case and application of very serious violence and sadistic brutality.
The mother continues in her statement as follows:
"It has always been known to me that the respondent viewed the forced genital mutilation of our three daughters as inevitable and necessary. In February 2015, he sent the ceremonial robes from Nigeria in preparation for this. Now the school holiday is upon us he has told me, via messages, that he expects to see the children immediately. He has requested that the two elder girls be sent now. He is angry because the eldest is over ten years old and past the usual age for the procedure to happen … The respondent has requested the umbilical cords and first teeth of the children to be used as part of the ceremony. He is very serious about the preparations and carrying out the ceremony in the school holidays so that the children can heal before the new term starts."
I stress, of course, that at the moment this is simply the one-sided account of the mother, and the respondent father may in due course file and serve different and contradictory evidence. But clearly, if what the mother there says is true or substantially true, there is currently a very high risk indeed to one or more of these three vulnerable girls that they may be forced, just as their mother was, into undergoing some form of genital mutilation.
As I have mentioned, the new legislation to which I will shortly refer only came into force last Friday. With great speed after that, the mother or her lawyers first made an out-of-hours oral application by telephone to Hogg J two days ago, on 22 nd July 2015, for an ex parte FGMPO pursuant to paragraph 5 of Schedule 2 to the Act. Hogg J did make such an order, essentially in the standard form now prescribed. Appropriately, because that order had been made without any notice to the father, Hogg J provided for a further hearing in court here at the Royal Courts of Justice today, 24 th July 2015. This, therefore, is the return date that was fixed by Hogg J in that order.
The hearing was specifically timed to begin at or after 2 pm English time today. I have been supplied with a statement of service by a process server, Paul Gilchrist, signed today, 24 th July 2015, in which he says,
"That I did on Friday 24 th July 2015 at 11.30 am serve the respondent by phone conversation, after he verbally identified himself, followed by sending camera phone pictures of the following documents to his mobile phone, which are now listed below …"
namely, the notice of proceedings and the orders made by Hogg J on 22 nd July 2015.
I have been told that, currently, there is no time difference between here in England and Nigeria, where the father currently is. In other words, it was at 11.30 am also in Nigeria today that the father was first served with any of the documents in this case or, I assume, first had any knowledge of it.
The relevance of that is that paragraph 5 of Schedule 2 to the Act makes provision for ex parte orders, that is, orders made without any notice to the proposed respondent, followed by a return date or opportunity for the respondent to make representations. Realistically, so short a time (namely less than three hours) elapsed between the father being served with the orders made last Wednesday and the start of this hearing, that fairness and justice to him require that I treat this as a further hearing for an ex parte order. I must, as I will, fix a further return date at which, of course, the father can be present or represented and heard.
With that background explanation, I briefly refer to the material parts of the legislation. Section 73 of the Serious Crime Act 2015 added a section 5A to the Female Genital Mutilation Act 2003. Section 5A is headed "Female genital mutilation protection orders" and provides that Schedule 2, as added to the 2003 Act, provides for the making of female mutilation protection orders.
One turns, therefore, to Schedule 2 to the Female Genital Mutilation Act 2003 which was added by section 73 of the Serious Crime Act 2015. So far as is material, that provides as follows:
"1. Power to make FGM protection order
(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 …
(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, restriction 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 …"
Pausing there, the court in England and Wales means the High Court or the Family Court, so this is a matter in relation to which I have jurisdiction. I have to have regard to all the circumstances, including the need to secure the health, safety and well-being of the girl, or in this case girls, to be protected. As I have said, those short sentences from the statement of the mother in this case are sufficient to illustrate the scourge of female genital mutilation and how profoundly damaging that it may be, not only in the short term, but in the long term to the health and well-being of the person affected. The mother underwent this procedure about 14 years ago. She describes how she has suffered terrible pain from it, it has never properly healed, and even now, after sexual intercourse, the wound will usually open again.
It is clear, on the basis of the mother's statement, that there is, potentially, a very high risk indeed of this procedure being inflicted on one or more of these girls if they are not protected and made safe to the maximum extent possible.
In my view, having regard to all the circumstances and the background of this particular case, and the need to secure the health, safety and well-being of these girls, this is a case in which an FGMPO requires to be made. It is clear from paragraph 1(3) of the schedule that appropriate additional prohibitions, restrictions or requirements can be attached to an FGM protection order, but they must always be "for the purposes of the order".
Moving on, paragraph 2 of Schedule 2 makes provision as to the categories of people who may apply for an FGMPO. The primary categories under paragraph 2(2) are the girl who is to be protected by the order or "a relevant third party"....
To continue reading
Request your trial
-
Re Z (a child) (FGMPO/prevalence of FGM)
...UKHL 35, [2008] 2 FCR 339, [2009] 1 AC 11, [2008] 3 WLR 1, [2008] 4 All ER 1, [2008] 2 FLR 141. E (children) (FGM protection orders), Re[2016] 1 FCR 207, [2015] 2 FLR E (female genital mutilation and permission to remove), Re[2016] EWHC 1052 (Fam), [2017] 1 FLR 1255. S-B (children), Re[2009......
-
‘Should I Stay or Should I Go Now? If I Go There will be Trouble and if I Stay it will be Double’: An Examination into the Present and Future of Protective Orders Regulating the Family Home in England and Wales
...No.2) [2019] EWHC 1990 (Fam); Re K (Forced Marriage: Passport Order) 2020 EWCA Civ 190.91. Re E (Children) (FGM Protection Orders) [2015] EWHC 2275 (Fam); Re C (Female Genital Mutilation and Forced MarriageFact Finding) [2019] EWHC 3449 (Fam).92. Domestic Abuse Act 2021, s 28(2)(b).93. Home......