Re X (A Child) (FGMPO)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lady Justice Asplin,Lord Justice Irwin |
| Judgment Date | 31 July 2018 |
| Neutral Citation | [2018] EWCA Civ 1825 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2017/3363 |
| Date | 31 July 2018 |
[2018] EWCA Civ 1825
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Ms JUSTICE RUSSELL
HIGH COURT OF JUSTICE
FAMILY DIVISION
FD16F07013
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Irwin
Lord Justice Moylan
and
Lady Justice Asplin
Case No: B4/2017/3363
Mr Hames QC, Mr PerkinsandMr Briddock (instructed by Dawson Cornwell Solicitors) for the Appellant Father
Ms Forster (instructed by Duncan Lewis Solicitors) for the Respondent Mother
Ms Markham QC and Mr Holmes (instructed by Hertfordshire County Council) for the Respondent Local Authority
Ms Green (instructed by Cafcass Legal) for the Guardian
Hearing date: 18 th July 2018
Judgment Approved
Introduction:
The father appeals from one aspect of the order made on 15 th November 2017 by Russell J under the Female Genital Mutilation Act 2003 (“the 2003 Act”). The order is a Female Genital Mutilation Protection Order (“FGMPO”) in respect of a young girl now aged nearly two who, adopting the letter used by the judge, I will call X.
The provisions of the FGMPO from which the father appeals are those which prohibit the parents and each of them from “(r)emoving, seeking to remove or instructing or encouraging any other person to remove (X) from the jurisdiction of England and Wales” until she has attained the age of 16. This is clearly a very broad order by virtue of its terms but its impact is significantly increased in this case because the father is an Egyptian national, who lives in Egypt and has currently been unable to obtain permission to visit the United Kingdom having been refused a “visit visa”, while the mother, a British national, and X are in England. With the child unable to travel outside England and Wales and absent the father being given permission to travel to the UK, the only means by which the father and child can currently develop a relationship is through electronic means.
I should make clear at the outset of this judgment that at the hearing before the judge neither parent sought to contest the making of an FGMPO which comprised provisions which, in simplified terms, prohibited X being subjected to any form of FGM.
The appeal from the provisions which effected, what was called during the hearing, an absolute “travel ban” (an expression I will adopt) was initially made by the mother. However, after I had given permission to appeal, the mother decided that she no longer wanted to pursue her appeal. I gave the father permission to become the appellant in her place. Following this, the father sought very significantly to extend the scope of the appeal by seeking to challenge the judge's findings in respect of the risk of FGM. I refused permission for him to do so. This appeal is, therefore, confined to a challenge to the absolute nature of the travel ban and its duration.
The Grounds of Appeal are as follows:
(i) The judgment contains no evidential basis for the decision to impose the travel ban;
(ii) The judge was wrong to conclude that X's family life with her father could be promoted, or sufficiently promoted, by the father travelling to the UK;
(iii) The judge failed to give any sufficient reasons for imposing the travel ban;
(iv) The travel ban was not necessary or proportionate to the risk to X of FGM and unnecessarily and unreasonably interferes with the family's Article 8 rights;
(v) The travel ban was wrong.
At this hearing the father was represented pro bono by both Mr Hames QC (who did not appear below) and Mr Perkins; the mother was represented, also pro bono, by Ms Forster (who did not appear below); the Local Authority was represented Ms Markham QC (who did not appear below) and Mr Holmes; and X was represented through her Guardian by Ms Green. I am grateful to all counsel for their submissions but particularly grateful to counsel and solicitors who have been acting pro bono.
At the conclusion of the hearing we informed the parties of our decision, namely that the appeal would be allowed and that the case would be remitted for a full rehearing before a different judge. We came to the conclusion that there had to be a full rehearing reluctantly because it would, clearly, have been preferable if we could have determined the proper outcome in this case without requiring the parties to have to go through this process again. However, we took the view that we had no other option. We did not consider that, having decided to set aside the travel ban, we were in a position to determine what, if any, alternative provisions should be included in the FGMPO. We also decided that it was necessary to have a full rehearing because we did not consider that the matter could be remitted to Russell J and because another judge dealing with the case would only be in a position properly to determine the terms of the FGMPO having heard the whole case and having made their own findings and their own assessment, in particular, of the parents. We directed that the matter be listed before McFarlane LJ for a case management hearing. This judgment sets out my reasons for deciding that the appeal should be allowed.
Background
The background circumstances are set out extensively in Russell J's judgment: Re X (A Child) (Female Genital Mutilation Protection Order) (Restrictions on Travel) [2017] EWHC 2898 (Fam). It is, accordingly, unnecessary for me to set out other than a very brief summary.
The mother is British. The father is Egyptian. They met in Egypt where they were both working in the tourism industry in hotels. They married in Egypt on 25 th May 2014. On the evidence before the judge she was “not aware of the kind of marriage contracted” by the parents. We gave permission to the father to adduce further evidence comprising a copy of and a translation of the marriage certificate. These show that the marriage was: “Solemnized in Cairo by (a named official) in his capacity as a registrar of Cairo registry office”.
The parents lived together in Egypt until January 2016 when the mother travelled to England. She then discovered that she was pregnant and decided to remain in England to give birth. As set out in the judgment, following X's birth in England the mother raised the issue of FGM with a health visitor. The mother was intending to return to Egypt with X and, it would appear, wanted to discuss concerns she had about FGM. This led to the involvement of social services and the police and, about two weeks later, to an application for and an order under the 2003 Act. This prevented the mother from leaving England with X.
In some respects not surprisingly, given how matters developed, the mother's plans for the future have fluctuated. It is not necessary for me to explore this issue further save to record that Ms Forster told us during the hearing that the mother wants to be reunited with the father and wants X to have a proper relationship with him.
The Judgment
Russell J's judgment contains detailed sections addressing first the background and chronology and then the evidence. Again, because the judgment is reported, I only refer to a few elements.
In the course of dealing with the evidence the judge said: “There is nothing to stop (the father) applying for a visitor's visa at the very least, so that he can see his wife and daughter …” (paragraph 54).
In respect of the mother the judge found her “evidence to be, by and large, honest and open. I have absolutely no doubt whatsoever that (the mother) loves X very much and does not want to take any risk with her safety; that is why it was she who raised the question about FGM and travelling to Egypt at the outset, precipitating these proceedings” (paragraph 57). She was found that the mother was “quite genuine in her determination to protect X from FGM” but she was “concerned … about her naivety” in a number of respects (paragraph 60).
The judge was clearly not impressed with the father's evidence, which was given via video link. She was “left in little doubt that (the father) really sees little wrong with FGM at all” (paragraph 52). The judge concluded that “the potential risks to X of FGM in Egypt” “must remain high” because of the prevalence of its practice and because of her assessment of the paternal family (paragraph 60).
The judge was also dismissive of the father's attempts to obtain a visa to travel to the UK. She stated that there was “nothing to stop him applying for a visitor's visa”. The judge does not, however, make any findings or reach any conclusions as to the prospects of the father being able to travel to the UK in part, it appears, because this featured little in the evidence.
The judge accepted submissions made on behalf of both the father and X that, when “considering the making of a FGM Protection Order” the court must “consider the proportionality of making such an order in light of any risks assessed; and having regard to the Article 3 and Article 8 ECHR rights of the family members concerned” (paragraph 67). She also kept “in mind … each child's right and need for a relationship with both of their parents as in this case” (paragraph 68). Later the judge stated that any interference with the Article 8 rights of X and her parents had “to be balanced against the risk to X of FGM should she travel to Egypt” (paragraph 75).
The part of the judgment dealing with the judge's “Discussion and conclusions” is relatively brief.
The judge's factual conclusions are summarised as follows (paragraph 78):
“It is the evidence in this case that X would remain at very substantial risk of FGM should she travel to Egypt with her mother, who would be vulnerable and isolated, unable to understand what was being said or discussed around her and largely, if not wholly, unequipped to prevent FGM taking place if the family decided that it should. Moreover,...
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