Case No. NE21FF08154

59.Professor Bradley provided a series of reports and replies to questions put to her by the parties, each one slightly updating the earlier one in response to more information becoming available. Her earlier reports deal mainly with the prevalence of FGM in The Gambia and other macro factors. Her later reports provide a more comprehensive risk assessment taking into account Ms Komma’s assessment of maternal family members in The Gambia and the support she can offer.60.She reported high prevalence of FGM. 73% of women and girls between 15 and 49 are thought to have undergone FGM type 1 or 2 in 2019, a slight reduction from 2013. The prevalence rate in Gambian Region 1 where M’s family live is 78% and one of the highest rates in The Gambia. Amongst the Maternal Ethnic Group, which is their ethnic group, prevalence is 98%. While most girls are cut below 5, 28% are cut between the age category 5-9, which is H’s current age. Among Muslims the rate of FGM is 77% while among Christians it is 21%. 61.There are many reasons for the practice including respect of tradition and initiation of girls into cohesive but secretive networks with elder female members of the community. It is to some extent still a marker of sexual purity and a religious requirement. FGM is seen as a community issue rather than one to be made just by the mother (of father) alone.62.Since 2015 the practice was outlawed by the passing of an amendment to the Women’s Act making carrying out FGM a crime punishable by up to 14 years’ imprisonment. While there have only been minor arrests, there have been attempts to educate police and immigration officers and various associations and groupings in civil society are committed to ending FGM. This has resulted in 97% of all FGM being performed by traditional practitioners rather than by medical professionals. 63.In her first report Professor Bradley unequivocally advised that the H was at high risk of undergoing FGM should she return to The Gambia. She recommended the mother underwent FGM awareness training. In an updated report she advised that an in-country expert was required to visit the maternal family and undertake a further risk assessment. She considered that if that assessment concluded that the family had abandoned the practice of FGM, the risk to H could be deemed as low; if not, the risk was medium to high and H and M would need to be accompanied by a trained advocate during the visit.64.I am very grateful to Professor Bradley for recommending Ms Komma as a suitable in-country expert. Ms Komma’s report and replies to questions is full, comprehensive and clear. She was able to interview MA1, MGF and MGM, who are respectively H’s maternal aunt, maternal grandfather and maternal grandmother. She provided a comprehensive record of her interviews with them. She also confirmed the information provided by Professor Bradley about the general practice and awareness of FGM in The Gambia, stressing that those who practice FGM is regarded it as part of their cultural identify, beliefs which control female sexuality and improve the marriage prospects. In her oral evidence she confirmed Professor Bradley’s view that it also played of a role of initiation of girls into important cultural networks. 65.Her conclusion based on her interviews and her first-hand information on the ground regarding FGM is clearly stated:“I am of the opinion that the family in question have heard knowledge on the illegality of FGM, the health implications FGM has on women and girls and through their personal experiences, have decided to do away with the practice of FGM on girls. The risk of H undergoing the practice of FGM should she visit the Gambia with her mother is very low and minimal.”66.She added that various civil society organisations could offer further protection and guidance to H and the mother should they visit The Gambia. She included an organisation which she co-founded, The Girls Agenda, and gladly offered their services. 67.She was subsequently informed of the results of the paternity testing. She explained that she was not aware of any unidentified paternal family member who might increase the risk to H in The Gambia. She stressed that most issues of FGM are women-related and mostly from the mother’s family. She repeated her assessment of the maternal family.68.Professor Bradley then advised:“I recommended a report based on interviews with the maternal family. I am content with the conclusions of Ms Komma. I stand by my recommendation that in-country advocacy would be needed should H travel to the Gambia and I note Ms Komma and her organisation have offered this. My recommendation is based on the biological father (who seems unknown) but could be a Gambian national) not being involved in the upbringing of his daughter. If he were to become involved, the paternal views on FGM and the risks to H linked to these, would need to form part of a revised risk assessment. 69.Professor Bradley advised, with detailed references from academic and research literature, that where there was history of FGM in a family, but it was now asserted that FGM was no longer observed in the family, this would have to be sustained for two generations before the risk of FGM was reduced. 70.Ms Komma confirmed in her oral evidence the monitoring and support which was set out in an email dated 23 January 2023. This included announced and unannounced weekly visits to M, direct contact via phone calls and WhatsApp and bi-weekly sessions with the family on the complications and consequences of FGM.The maternal family71.I heard from three members of the maternal family from their home in the Gambia Town 1, near Gambia Town 2 and the city of Gambian Region 1 in the western region of The Gambia. They gave evidence in a local Gambian language through the excellent interpreter, Mr Ndiaye. He enabled each of the maternal family members to communicate effectively with the court. I intend no disrespect when referring to each of them by their forename72.I first heard from MA1, H’s maternal aunt. I found her an impressive and reassuring witness. I then heard from the maternal grandmother, MGM, followed by the paternal grandfather, MGF. While at times their evidence was a little confused (about the names of the girls in the family who had been subjected to FGM), they did not contradict MA1’s evidence. I accept that they found giving evidence to me stressful. 73.All 3 witness confirmed what they had told Ms Komma about their abhorrence of FGM. Both MA1 and M (H’s mother) had been cut at the insistence of their paternal grandmother who is now deceased. The grandparents each told me that they felt powerless to intervene: MGF told me that with both his baby daughters he was at work and only found out after it had happened on his return. MGM told me subjecting her daughters to FGM was the biggest mistake of her life.74.MA explained that she insisted on her daughters being cut because of the enormous pain she had suffered from giving birth. I found this aspect of her evidence compelling and credible. She told me that nobody (including her husband or members of her paternal family) had suggested her daughters should be cut and that none of her friends have had their children subjected to FGM. She confirmed she had done some anti-FGM training online. She told me that she spent most of her time at the compound.75.Relying mainly on MA1’s evidence and on a family tree provided by M’s legal team. I am satisfied on the evidence I have read or heard that the position is as follows. MGF and MGM had 5 daughters and one son (MU). The older 4 daughters, MA1, MA2 (aka MA2), MA3 (aka MA3) and M were all subjected to FGM. MA4, the youngest daughter, has not been cut, but I have not been told the reasons why not. MA1 lives with her 4 children in a separate two bedroom property in the family compound. MGM and MGF lived in a separate 6-bedroom property. None of MA1’s daughters, MC1 (12), MC2 (7) and (MC3) have been cut. MA2 and her husband live separately from the family. They have one daughter, MC4 (aka MC4) was subjected to FGM as a baby at the insistence, I was told of her paternal grandmother. MA3 lives in the family compound with her son and daughter, MC5 (19). MC5 was subjected to FGM as a baby also at the insistence of her paternal grandmother. Both MA1’s and MA3’s husbands work and live abroad but travel back to visit their families in The Gambia.76.I have no corroborative evidence of what I am told about which girls in the family have or have not been cut. Equally I have received no credible evidence to contradict what is asserted: no party before me has challenged this account. The account I was given was consistent with their written statements, what M has written (and then told me) and with what is reported by Ms Komma in her interviews with the family members. I remain a little troubled that the same reason is given for why all the girls subjected to FGM in M’s and H’s generation were cut: it was the insistence of the paternal grandmother. I heard little evidence that any female family member had confronted the person who had caused girls in the family being cut; but when I probed, I was told that the paternal grandmothers were either dead or had no contact with the family. MGF told me that he told his mother that she had done a bad thing but that he had forgiven her.77.All family members confirmed that all of the protective measures being put forward on M’s behalf would be accepted. They would not only comply with all of the rules but would report any family member who contravened them. All family members stated, with passion, how much they loved H, how much they wanted to see her and M, how much they missed her and how they would protect her and ensure she was not subjected to FGM. I wonder whether the paternal grandmothers who it is said were responsible for the historic FGM would also say they loved their grandchildren and were doing the best for them by having them cut.F78.I heard next from F. I have absolutely no doubt that he deeply loves H and will treat her as if she were his daughter. He told me the paternity results would make no difference. It was obvious to me that they have deeply upset him. He told me that his recent remote contact had gone extremely well. He had spent 30 minutes on a video call on 17 December 2022, 1 hour on 23 December and 1 hour on 20 January 2023. H was her normal happy self.79.He accepted that H should not be told anything about her paternity for the time being. He told me that she should not be told until she is a young adult but he accepted that he would abide by the recommendations of the experts on this issue.80.F told me that he is working as a hodcarrier and lives alone. He appeared anxious that his statements contained multiple spelling and grammatical mistakes. I reassured him that while his statements were plainly not written by a lawyer, I had fully understood what he was communicating.81.He told me that he saw no way of repairing his relationship with his older daughters PHS2 and PHS3. I hope he can find a way. His youngest daughter, PHS1 is currently in England but is very keen to return to Thailand. She does know about the paternity results but he has told her not to tell anyone about it. He knew PHS2 and PHS3 loved H and treated as her sister. He accepted that H stayed regularly round at PHS2’s and that PHS2 was a great support to both H and M. I could detect no bitterness or even jealousy in his replies.82.He told some detail about how his relationship with M started, which as it was not challenged, I have set out above. He spoke with genuine affection about how beautiful M was in her red dress when he first saw her in person. He told me he was ‘head over heels in love’. He met her family during his time in The Gambia and nothing he noticed or heard gave him any cause for concern about them. He only found out about M’s FGM on their wedding night. Having seen the pain and suffering, she endured during child birth, he has no doubt that she would not want H to go through the same pain and suffering. He told me that having learnt about FGM, he was dead against it.83.His main concern was that H’s father was in The Gambia and he would, using Sharia law, take over custody of H, retain her in The Gambia and then subject her to FGM. He accepted that if she could, M would return to England which was her home and where she had a brilliant life. She had nothing in The Gambia.84.Speaking about the future, he saw no reason why his time with H had to be supervised or why there had been any video sessions, given that he has had 3 successful and happy contact sessions with her by video. They have a great relationship and there was no way he was going to harm her. He would not tell her that he was not her father. He thought he was being punished for what had found against him which he found very unfair because he had never raped M or abused her in the way found by HHJ Smith. He thought M should be responsible for handovers because H knew her and she was her mother.85.His position moved during cross examination from Mr Donnelly. He accepted there were difficulties with the potential supervisors/monitors he had put forward and reluctantly accepted that MU would be more suitable, given he lived in the same house as H and had impressed the guardian with his good sense and maturity. He wouldn’t mind him remaining with them for a few minutes to reassure M but questioned how the arrangements would work in practice. He suggested he and MU should swap contact details and put forward a venue near UK City (where he lives) for handovers. He did not object to contact remaining in the community (as opposed to being in his home) but understood the plan was it to be reviewed by me in the future.M86.My impression of M was always going to be a key ingredient of my risk assessment.87.Consistent with her witness statements she insisted that she would never subject H to FGM. Her reason was the extreme pain and suffering she had suffered in child birth. She movingly told me that she had been the victim of FGM and she was not going to put her daughter through something which had impacted on her all of her life. She accepted all of the recommendations of Ms Komma and of the guardian. She understood the nature of undertakings and would keep to her promises. She would fully co-operate with whatever safeguards I considered necessary to protect H. She said that if she became worried that someone was trying to take H away or have her cut, she would not call the police but Ms Komma.88.She told me that H was British and she herself was now British. They live in this country where H will have a better education than she ever had in The Gambia. She has a better life here than in The Gambia. She told me no-one was going to take her away in The Gambia. There was no-one in The Gambia who might be H’s father who is going to take her away. She is not in contact with H’s father in The Gambia.89.She told me that she had truly believed F to be H’s father and was shocked by the first paternity test. She thought it was a mistake. Even with the second test, she was confused and doubted herself. She denied knowing H’s biological father or being in contact with him. She explained that under Islamic law F had paid her father’s older brother a dowry. She denied that she had paid this money to H’s father. 90.She explained that she hadn’t told her maternal family about the paternity tests – this included MU. When the reasons for this was explored she became so distressed that she needed a break from her evidence. I can well understand the complex cultural reasons for this distress. She told me that if the family knew that H had been born out of wedlock, they might see H differently. She thought that in some way it might even increase the risk of her being cut. but the issue for me is whether all of this impacts on my risk assessment of FGM. 91.She did tell me that she was desperate to see her family again having not visited them since 2016, initially because of lack of money but then because of the court order. She told me she now had sufficient funds from her savings. She said she would like to visit her family every year for up to three weeks.92.She told me about the support that PHS2 and PHS3 gave her. She had discussed the paternity results with them but they were adamant that it would make no difference to them. They had agreed not to tell H anything about her paternity. She explained that PHS2 had a boyfriend who was also from The Gambia. They were planning to visit his family there at the same time that H would be in The Gambia and they all hoped to meet up. She explained that PHS2’s boyfriend would not present any risk to H because he was not part of the family and had no right to her. PHS2 hadn’t told him about H’s paternity. I accept her evidence on this issue.93.M agrees that H should not be told yet, and would welcome professional guidance as to how and when this should happen.94.In cross examination by Mr Donnelly M revealed that she had a boyfriend. She had met him in the UK in 2020 and had been his girlfriend for around 2 years. She has introduced him to H about 2 years ago. She calls him by his name not dad. He was born in The Gambia but has Portuguese citizenship. He now lives in England. She denied he was H’s father. She said she had discussed FGM with him and he was against it. She explained that he came from a different tribal group and spoke a different language: he is Ethnic Group 2 whereas she is Maternal Ethnic Group. She told me his tribe did not do FGM which was at variance with Professor Bradley’s evidence . While she told me that she hoped that their relationship would develop, even to marriage, she also told me that she hadn’t told him about H’s paternity because it was private and she didn’t want him to discuss H with him. She told me that she was not intending to travel to The Gambia with him. 95.M accepted that H and F know each other but she was clearly anxious about contact. She wanted more video calls first and wanted someone to be there to supervise. When pressed, she expressed concern that he may say something negative about herself and she wanted reassurance. She accepted that F was not going to harm H. She then moved her position to accepting that MU should not supervise the entire visit but should be present for up to 10 minutes to make sure H was settled.96.I was generally impressed with M’s evidence. I have no doubt she loves H and wants to protect her from the harm she suffered as a baby which caused such pain at childbirth. I accept she genuinely wants to visit her family in The Gambia and is intelligent enough to know that she will have to agree with whatever protective measures are put forward by the professionals and the court. I accept she is likely to return home to England if not prevented from doing so. Given the findings made by Her Honour Judge Smith, I understand her misgivings about allowing unrestricted contact to F and wishes to have nothing to do with him. 97.I continued to harbour lingering doubts about the impact of H’s paternity tests and the potential risk. This was heightened by the late disclosure of a boyfriend who hailed from The Gambia. I will have to consider whether I can accept that M is being truthful about the complete absence of any male in Gambia who as a father may present a risk to H both of FGM or retention pursuant to local law.