FGM – the law
47.The courts of England and Wales have described FGM as:-i)“an evil practice internationally condemned and in clear violation of article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950… A repulsive practice… Deleterious to women’s health.” (Auld LJ & Arden LJ (Fornah v Secretary of State for the Home Department [2005] EWCA Civ 680 [2005] 1 WLR 3773); when the same case reached the House of Lords [2007] 1 AC 412, Lord Bingham described the international and domestic consensus (paragraphs 8 and 26) while Baroness Hale observed that FGM “will almost inevitably amount either to torture or to other cruel, inhuman or degrading treatment within the meaning … of Article 3”: at 94ii)A “barbarous” practice which is “beyond the pale” (Munby LJ in Singh v Entrance Clearance Officer, New Delhi [2004] EWCA Civ 1075, [2005] QB 608iii)“a gross abuse of human rights and a form of domestic violence which dehumanises people in which no cultural imperative can extenuate and no pretended recourse to religious belief can justify” (Munby P in Re B and G (children) (No. 2) [2015] EWFC 3 [ 2015] 1 FLR 90548.In Re X (Female Genital Mutilation Protection Order. No. 2) [2019] EWHC 1990 (Fam), Cobb J at 14 described FGM as “a generic term for a range of procedures which involve the partial or total remove of the external female genitalia for non-medical reasons.” It is not necessary for me in this judgment to identify the 4 types of FGM which Cobb J then went on to categorise.49. The Female Genital Mutilation Act 2003 as amended makes provision under section 5A and Schedule 2 part 1 for the making of female genital mutilation orders. 50.The provisions for the “FGM protection orders” are provided within schedule 2 part 1 of the 2003 Act and are as follows:-“1Power 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, or(b) protecting a girl against whom any such offence has been committed.(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, restrictions 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;(b) respondents who are, or may become, involved in other respects as well as (or instead of) respondents who commit or attempt to commit, or may commit or attempt to commit, a genital mutilation offence against a girl;(c) other persons who are, or may become, involved in other respects as well as respondents of any kind.(5)For the purposes of sub-paragraph (4) examples of involvement in other respects are –(a) aiding, abetting, counselling, procuring, encouraging or assisting another person to commit, or attempt to commit, a genital mutilation offence against a girl;(b) conspiring to commit, or to attempt to commit, such an offence.(6)An FGM protection order may be made for a specified period or until varied or discharged (see paragraph 6).51.The court is therefore given a wide discretion to make orders for the protection of girls against FGM including restrictions on the ability of the girl’s parents to take a child abroad. I must have regard to the need to secure the health safety and well-being of the girl concerned.52.In the earlier appeal of Re X in which Cobb J was conducting a re-hearing, Re X (A Child) (FGMPO) [2018] EWCA Civ 1825, Moylan LJ made the following observations at paragraphs 31 and 32:“31.I would agree that, …, the rights engaged by both Article 3 and Article 8 of the European Convention on Human Rights will clearly will be relevant to the exercise by the court of its powers to make an FGMPO. 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 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.32.The need for specific analysis balancing these and other relevant factors extends to any additional prohibitions or other terms the judge may be considering including in the FGMPO. This is because each term included within the FGMPO must be separately justified. In this exercise, although the nature of the harm would, self-evidently, be a breach of Article 3, it is the court’s assessment of the degree or level of the risk which is central to the issue of proportionality and to the question of whether a less intrusive measure, which nevertheless, does not unacceptably compromise the objective of protecting the child, might be the proportionate answer. 47.In Re X (No 2) Cobb J analysed risk by considering ‘macro’ and ‘micro’ factors:Risk 91.In looking at risk of travel in the instant case, I have sought to separate out the ‘contextual’ factors relevant to the case (at the hearing these became known as the ‘macro-factors’) from the ‘individual’ and specific features (or ‘micro-factors’) applicable to this case alone. Both sets of factors are highly relevant to the determination of risk. In helping me to form a view, and it may be for others charged with a similar task, I have set out below a set of questions which I have found it helpful to ask, to tease out the risk factors:Contextual considerations / ‘Macro’ factors i)What is the prevalence of FGM in the country to which it is proposed that the child will be taken? ii)What are the societal expectations of FGM in the country?iii)If known, what is the prevalence of FGM in the specific region of the country to which it is proposed that the child will be taken? iv)Is FGM illegal in the country to which it is proposed that the child will be taken? v)If illegal, how effective are the authorities in the country in question in enforcing the prohibition on FGM? vi)Given the extra-territorial reach of the 2003 Act, and the fact that the act of carrying out FGM (and aiding and abetting, counselling or procuring the act) is a crime punishable on indictment to imprisonment not exceeding 14 years, is there an extradition treaty between the UK and the country to which the child will be taken (Egypt in the instant case) in the event that there is evidence of a breach of the order? vii)What formal safeguards are available in the country to which it is proposed to take the child to mitigate the risks (access to local tourist police, FCO representatives / consular assistance, NGO workers)? viii)At what age are girls commonly cut in the country to which it is proposed that the child will be taken? (how does this compare with the age of the subject child?). Individual considerations / ‘Micro’ factors ix)Is there a history of FGM in the child’s wider family, or in the family to which the child will be exposed abroad? x)If so, on which generation or generations of women has this been perpetrated? Specifically, what is the position in relation to the younger generation(s)? xi)What are the attitudes of the mother and/or father to FGM generally, and/or in relation to their daughter? xii)Is FGM / circumcision regarded as a woman’s issue or a man’s issue within the family? Where is the power-balance in the family? xiii)What are the attitudes of the wider family to female circumcision generally, and/or in relation to the subject child? xiv)What safeguards can the family themselves devise and impose to mitigate the risk? xv)How well have the family co-operated with the authorities? xvi)What is the professional assessment of family relationships and of the capabilities of the parents? xvii) Are there any other specific features of the case which make FGM more or less likely?”53.As both the FGM issue and the question of H’s contact with F concern the upbringing of H, her welfare will be the court’s paramount consideration under s1(1) of the Children Act 1989, although as pointed out by Cobb J at §34 of Re X (No.2) this may be of secondary importance as orders made in under the 2003 Act will be intended and designed to protect and promote H’s welfare. 54.I bear very much in mind what Cobb J says about the risk evaluation in the context of FGM at §106 of Re X (No.2). Risks dynamic, highly sensitive to changes in circumstances and requires regular re-assessment and constant review of all relevant safeguards and protections.55.There is no dispute that I should treat F as a father with parental responsibility: he remains registered as such on H’s birth certificate. So in respect of his application for a child arrangements order, I must presume, unless the contrary is shown, that the involvement of each of her parents in H’s life will further his welfare (s1(2A). “Involvement” includes both direct and indirect contact (s1(2B). I must have regard to each of the matters listed in the welfare check list (s1(3). These are: a.The ascertainable wishes and feelings of H, considered in the light of her age and understanding b.H’s physical, emotional and educational needs c.The likely effect on her of any change in his circumstances d.H’s age, sex, background and any characteristics of his which the court considers relevant e.Any harm which she has suffered or is at risk of suffering f.How capable each of her parents is of meeting his needs g.The range of powers available to me. 56.In considering whether to make any order for indirect contact I must not make any order unless I consider that doing so would be better for H than making no order at all (s1(5). 57.There is no real dispute as to the legal principles I should apply. 58.I will consider the evidence I have read and heard, but I do not attempt to catalogue every piece of that evidence but rather set out the detail I consider relevant to the decisions I have to make before adopting the framework described by Cobb J as a tool to analysing the risk to H in this case of permitting her to travel to The Gambia.