Re X (No. 2).
This mother has done absolutely nothing wrong and has not harmed H in any way connected with FGM.105.I turn to the macro-factors identified by Cobb J.The prevalence of FGM in The Gambia is high. There is pressure brought to bear particularly by senior women in the community for babies and young girls to be cut as part of their cultural identity and as part of the initiation into the community. It is high in Gambian Region 1. FGM has been illegal since 2015 with a punishment of up to 3 years for anyone engaging in FGM. There are some encouraging signs that police and immigration officers are being educated about FGM and a network of civil societies has grown up, including The Girls Agenda, the organisation headed by Ms Komma. I have also seen an email from Gamcotrap an advocacy group determined to eliminate FGM in The Gambia ran by Dr Isato Touray, a former vice-president of The Gambia which sets out the progress already made. In her evidence, Ms Komma commended Gamcotrap and Dr Touray as part of the general support network available to M. There is no extradition treaty between The Gambia and the UK. Plainly if H was cut and M returned to the UK she could face prosecution in this jurisdiction; but if she didn’t return, or was prevented from returning, there is unlikely to be any sanction in this jurisdiction. The formal safeguards may not be particularly strong – I note M’s reluctance to inform the police. However there are Ms Komma and civil agencies in the Gambia and, in this country, the children’s guardian (assuming I don’t end the proceedings prior to the visit). Most girls in the Gambia, including those in H’s family, were cut as babies up to 12 months old. 28% are cut in H’s current age range. In conclusion I consider the macro factors point to a risk which can be classified as medium to high and I note Professor Bradley agrees with this assessment.106.I turn now to the micro factors. In my judgment the need to avoid over-generalisation and even ethnic-stereotyping requires greater weight to be given in this case to these micro factors.107.I have no reason not to accept the family’s account of who has and who has not been subjected to FGM in the maternal family. The mother and her elder sisters were cut as babies. Two of H’s first cousins were also cut as babies; but three other first cousins were not. Both M and MA1 described the pain and suffering they experienced at giving birth and now fully appreciate this was caused by being cut as babies. They both strongly assert that they will not see their own daughters cut. I accept their evidence in this respect. I heed Professor Bradley’s warning that two generations of non-cutting is required before there can be confidence that the family has been abandoned. I am not convinced that the grandparents could have done nothing to prevent their own daughters being subjected to FGM at the behest of MGF’s own mother and I remain sceptical about their explanation/excuses. However I accept that that was a generation ago and even over one generation customs move on. The evidence suggests that FGM within this family is determined by grandmothers or women, rather than men. That chimes with the general practice of FGM in The Gambia. Most significantly, the important women in the family, H’s grandmother and eldest aunt have expressed strong opinions about FGM. Both MA1 and M have undergone FGM awareness courses. Whatever their position regarding their own children, I accept that the grandparents may have moved on in their thinking. If I am wrong about that, I accept that a combined axis of MA1 or M, together with the other safeguards including the involvement of Ms Komma, should be sufficient to protect H within the family environment. Unlike her aunts and cousins, H is a British citizen, lives in Britain and has been the subject of intensive and long court proceedings. I accept and commend M and the family for fully co-operating with all the suggestions made by the experts, the guardian and the court. They have accepted all of the safeguards that have been suggested. They are all necessary to protect H and I will set them all out at the end of this judgment. They are all robust, realistic, workable and necessary.108.There is no doubting that M is a loving and caring mother. She has demonstrated her capacity to produce a delightful and well-brought up girl. Her attitude to contact shows how committed she is to protect H. The professionals do not have a bad word to say about her parenting. I have commented about the potential for FGM abusers to love their victims, but I find it difficult to equate M’s love and devotion for H with an undisclosed intention to subject her to FGM.109.The specific feature of this case which has caused me greatest concern is that of paternity. F is not the biological father of H. Could M be lying about the existence of someone who she knows is the father and who is in The Gambia? Could it be that her ‘new’ boyfriend is in fact the father of H which is why she is with him now? A DNA test of the new boyfriend would quickly resolve this question, but he is not going to accompany H on the proposed trip. He is not aware of any issue arising about H’s paternity. No party has seriously doubted M’s account and after considerable reflection I too am prepared accept her evidence on this issue. I should emphasise that my concern is because of the risk of H suffering torture or inhuman or degrading treatment or punishment which would violate her Art 3 rights and cause her lifelong pain, suffering and anguish if I am wrong110.I also weigh in my risk assessment H’s need and right under Art 8 to meet her maternal family and to know the country which plays a significant part in forming her cultural identify. I expect the trip will also be a lot of fun for her as she will no doubt be the centre of much love and attention from her grandparents, aunts and cousins. I remind myself that this type of factor can never outweigh an unmanageable risk of Art 3 harm to a child. 111.I will therefore i)vary the terms of the worldwide travel ban to permit H to leave England and Wales for a single trip between 29 March 2023 and 16 April 2023 on condition that she travels with M but no other person.ii)I will declare that H is a)habitually resident in England and Wales;b)a British citizen and not a national of The Gambia, andc) a passport holder of the UK not The Gambia. iii)I will order M to return with H to England and Wales no later than 23.59 on 16 April 2023. iv)I will continue the other FGM protection orders in their entirety. I will adjourn the application to a date to be fixed after H’s return to his jurisdiction.v)I will direct the Children’s Guardian to meet in person with H within a reasonable time following her return from The Gambia.vi)I will direct M’s solicitors to notify the appropriate British Consulate in The Gambia of H’s visit as soon as practical.vii)I will order M to make H available for video contact with F when she is in The Gambia for up to 1 hour on 31 March and 14 April or on other days as may be agreed and at times which shall be agreed prior to H leaving England.112.The order will be subject to the following conditionsi)The undertakings set out below are to be put in writing signed by M, personally given to me, filed in court no later than 17 February 2023 and complied with by her in full.ii)M shall provide to the other parties and to the Court an emergency number for the local Police.iii)The full details of the trip will be shared with Ms Matida Komma of the Girls’ Agenda.iv)The mother will contact an English speaking lawyer in Gambia Region so that contact has been establishing with a lawyer before the trip begins.v)During the trip, H and M shall reside at the family compound at Location, Gambia Town 1 Gambia Town 2, The Gambia and shall not reside anywhere else.vi)H shall not be permitted to have any unsupervised contact with anyone outside the maternal family.vii)No person outside the maternal family shall sleep in the accommodation in which M and H are residing and must leave that address in any event by 8.30pm in the evening.viii)M shall deliver up H’s passport to her solicitor no later than 48 hours after her return to the UK.113.The undertakings which I will accept from M are as follows:i)No later than 14 days before the departure from the United Kingdom, she shall provide all her travel details, including flight times, flight numbers, departure times, arrival times, any email address available in The Gambia and the telephone numbers of her parents, her sister Miss MA1 and her own numbers, to the Children’s Guardian and to Ms Komma.ii)To provide confirmation to her solicitor from the Girls’ Agenda of:a)their willingness to meet with her and H upon their arrival in The Gambia at the specified date and time; andb)if is not practical their confirmation that they shall meet with H and M no later than 12 hours following their arrival in the Gambia.iii)Not to force, attempt to force or otherwise instruct or encourage or permit any person to carry out female genital mutilation/female circumcision on H.iv)Not to instruct or otherwise encourage H to undergo any form of female genital mutilation/female circumcision.v)To take all necessary steps to prevent H from being subject to female genital mutilation/female circumcision from any other personvi)Not to take H out of the jurisdiction of England and Wales save for the purposes of the trip to the Gambia from 29 March 2023 to 16 April 2023.vii)Not to be accompanied by her boyfriend on the flight out to Gambia or at any time during her visit.viii)To ensure that she and H shall reside throughout their visit to The Gambia with the maternal grandparents at their family home in Location, Gambia Town 1 Gambia Town 2, The Gambia. ix)To ensure that she and H will sleep in the same bedroom for the duration of the proposed tripx)To ensure that H will be in her presence (within eyeshot and/or hearing shot) throughout the trip and to take all necessary steps to ensure that H will not be removed from her presence at all during the trip. xi)To comply with all the arrangements proposed or facilitated by The Girls’ Agenda team, to include but not be limited to:a)weekly visits to the family to check on their stay and any other risks that they might notice from anyone regarding the protection of H against FGM,b)direct contact with her by telephone calls or WhatsApp in which she will give them information regarding H’s safety and wellbeingc) and, bi-weekly sessions with her and the maternal family on complications and consequences of FGM on the girl child and the laws that protect the child in the Gambia against FGM.xii)To cooperate with any further measure that The Girls’ Agenda team consider to be appropriate for H’s protection. xiii)To keep the workers at The Girls’ Agenda team informed of the progress of the trip at least every 48 hours by text or WhatsApp.xiv)To return H to the jurisdiction of the court at the end of the trip.xv)To immediately notify the Children’s Guardian and her own solicitors by email when she arrives back in the UK.xvi)To make H available for any safeguarding visit by the Children’s Guardian or any other agency upon her return from the proposed authorised trip. xvii)To have a working mobile phone, charger and plug adapter with her at all times when she is on the trip and will have saved on the telephone the numbers for The Girls’ Agenda, the local police and British Consulate assistance.xviii)To use British passports for herself and H on departing and entering the UK and the Gambia.xix)Not to apply for any passport or travel document from The Gambia for herself or for H.114.I will not make directions to this effect but I would be grateful if the solicitors for the child would kindly inform F by a short email both of H’s safe arrival in The Gambia and arrival back in England.115.I have considered directing M’s boyfriend to undergo DNA tests but this has not been the subject of any submissions and given he is not going to accompany H on this trip, I have concluded it is not a necessary reassurance. If, as M hopes, the relationship blossoms, it may become appropriate for him to be assessed as to his attitude to FGM and if necessary for paternity tests undertaken. That is for another time. 116.I have considered whether I should direct that on her return to England, I should require M to submit H for a paediatric test. However no-one has sought this and I have concluded that it would be an unnecessary and disproportionate intrusion on H without better cause. No doubt if the children’s guardian has any concerns on her post-trip meeting with H she will alert the court appropriately. 117.In respect of H’s contact with F the issues are comparatively narrow. I consider it necessary to make an order in H’s best interests. Contact has for whatever reason, not happened in the past and it is wholly contrary to her best interests for it to break down yet again. I will keep judicial oversight until the next hearing. M shall make H available for one further video contact with F. She shall make H available for a visit over the weekend of 10th/11th February 2023 for 2 hours at a time to be agreed and thereafter every fortnight at a time to be agreed for up to 4 hours. MU shall on behalf of M be present during handovers and may remain for up to 5 minutes to ensure H has happily passed into F’s care. I do not envisage MU going anywhere with F but he may, for example, see her safely fastened into F’s car or see them walking away. I expect F to behave appropriately to ensure H is not exposed to any disagreement between MU and himself. F is not to take H to his home or any other person’s private residence. He is not to be accompanied by any other person during contact. I will review these arrangements and restrictions at the next hearing. If for any reason MU is not available for the handovers, M shall arrange for another person to facilitate to contact. It could be PHS’ mother, the ex-partner of F, if no other suitable person can be identified. It will be extremely damaging to H if contact is missed, particularly if it is simply because the adults cannot agree who should manage the handover. There is nothing preventing F providing suitable age-appropriate parenting presents. I direct him not to discuss the historic breakdowns of his contact or to make any criticism of M in front of H. All handovers are to be at Location 2 unless written agreement is reached at least 24 hours before of any different handover venue. I expect both parties to make use of a suitable parenting app to be able to communicate with each other as recommended by the guardian. I expect MU and F to exchange contact details. I was told that this was agreed. 118.I will by consent make an order against both M and F restraining them by themselves or by encouraging or instructing others from informing H that F is not her father. I will also require them to tell anyone who they have told or may tell in the future to ask them not to tell H because the court considers it would be extremely emotional harmful to her to be told by them.119.A date should be fixed after H’s safe return to England for a further hearing.120.That concludes my judgment.