Re X (A Child : FGMPO) (Rev 2)

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:

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.

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.

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, there is no legal mechanism to put in place enforceable protective measures; or even to ensure that X would be free to return to the United Kingdom with her mother if F decided that she should remain in Egypt.”

In the following paragraph, the judge repeated her assessment that X was “at a substantial risk” of FGM “in Egypt” which risk would “rise with age”. She then stated her conclusion that “any order will have to remain in place throughout her childhood … to provide her with protection” (my emphasis).

The judge next added that: “It is not intended that X should not be able to see her father or members of the paternal family and the court would encourage F and his family to visit X here in England”. This would impact on “X’s visits to her father as the trips will have to be one way only but the risk to X is so great and the consequences of FGM for her are so fundamental a breach of her rights that the balance must come down in favour of an order protecting her from mutilation” (paragraph 80).

I set out in full the paragraphs in the judgment which deal with the absolute travel ban:

“81.

There will be a FGMPO in force until … 2032. (The mother’s) passport is to be returned to her possession but there will be an order forbidding her from travelling anywhere outside the jurisdiction, or the United Kingdom, with X until … 2032 to prevent onward travel to Egypt. This is to permit (the mother) with personal freedom of movement and to us her passport for identification purposes …

82.

X's passport will continue to be held by the court until its expiration at which time it is to be destroyed. (The mother) is forbidden to apply for a passport or any travel documents on behalf of or in the name of X; this extends to all other persons including (the father). A copy of the FGMPO is to be served on the relevant unit within the Home Office, the Her Majesty's Passport Office, the FCO and the Egyptian Embassy. These orders do not affect the right of either X and (the mother) to make an application under paragraph 6 of Schedule 2 Part 1 FGMA 2003 to vary or discharge the FGMPO.”

The judgment below contains a summary of the relevant provisions in the 2003 Act. The power of the court to make a FGMPO is set out in s.5A and Schedule 2. Schedule 2 provides that:

“1(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.

…

(6)

An FGM protection order may be made for a specified period or until varied or discharged …”.

The offence of genital mutilation is defined in s.1(1).

It can be seen that the 2003 Act is very broad and provides no real guidance as to the approach the court should take when determining whether and, if so, in what manner to exercise its powers.

When I gave permission to appeal I did so, in part, on the basis that the proposed appeal raised an important point of principle. I had in mind that, as this appeared to be the first time the 2003 Act was to be considered by the Court of Appeal, it provided an opportunity to consider the approach the court should take to an application for a FGMPO including, for example, the relevance of the paramountcy principle. However for, I should make clear, wholly understandable reasons, it became apparent at the hearing that counsel were not in a position to address any issues broader than those specifically advanced in this appeal. Putting it very simply, they had focused on whether the terms of the travel ban had a sound evidential foundation and whether the judge had sufficiently explained why she had decided to order a worldwide travel ban for the next 15 years.

However, although I am not in a position to determine issues outside the direct scope of this appeal, I propose to consider some aspects of the parties’ submissions which touched on the broader issues, in particular through two authorities to which we were referred. They are E v Chief Constable of the Royal Ulster Constabulary and another [2009] 1 AC 536 and A Local Authority v M & N [2018] EWHC 870 (Fam), [2018] 4 WLR 98.

In the former, the House of Lords considered the positive obligations imposed on the state to prevent the infliction by third parties of inhuman and degrading treatment. Reference was made to Strasbourg authorities dealing with Article 2, notably Osman v United Kingdom (1998) 29 EHRR 245, in which that court had said that a violation of the state’s positive obligations depended on it being established (paragraph 116):

“… that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid the risk”.

In E v Chief Constable of the RUC Lord Carswell rejected submissions to the effect that proportionality was irrelevant. As set out in the headnote, paragraph (1), the reasonableness of the steps taken, in that case by the police, “had to be assessed in the light of the evidence and applying the test of proportionality”.

In her speech, Baroness Hale, said:

“7 The European Court of Human Rights has taken particular note of the vulnerability of children in its judgments on the obligations of the state to protect people from inhuman or degrading treatment. It is noteworthy that the landmark rulings in which the state has been found responsible for failing to protect victims from serious ill-treatment meted out by private individuals have concerned children. A v United Kingdom (1998) 27 EHRR 611 was decided shortly before the leading case of Osman v United Kingdom (2000) 29 EHRR 245. A v United Kingdom established the principle that the state was obliged to take measures designed to ensure that people were not subjected to ill-treatment by private individuals. Vulnerable people were entitled to be protected by effective deterrent measures. The existence of the defence of reasonable chastisement failed to afford children such protection. Osman took the matter further by establishing a duty to take more pro-active protective measures to guard against real and immediate risk of which the authorities knew or ought to have known. There was no breach in Osman itself; but breaches were found in both Z v United Kingdom (2001) 34 EHRR 97 and E v United Kingdom (2002) 36 EHRR 519. In Z, the authorities had failed to protect children from prolonged abuse and neglect which they knew all about. In E, they had failed to monitor the situation after a stepfather had been convicted of sexual abuse, and so it was held that they should have found out that he was abusing the children and done something to protect them. The court said, at para 99:

“The test under article 3 however does not require it to be shown that ‘but for’ the failing or omission of the public authority ill-treatment would not have happened. A failure to take reasonably available measures which could have had a real prospect of altering the outcome or mitigating the harm is sufficient to engage the responsibility of the state.”

She commented later on the relevance of whether the situation concerned the state’s negative or positive obligations (paragraph 10):

“… Nevertheless, there must be some distinction between the scope of the state's duty not to take life or ill-treat people in a way which falls foul of article 3 and its duty to protect people from the harm which others may do to them. In the one case, there is an absolute duty not to do it. In the other, there is a duty to do what is reasonable in all the circumstances to protect people from a real and immediate risk of harm. Both duties may be described as absolute but their content is different. So once again it may be a false dichotomy between the absolute negative duty and a qualified positive one …”

In A Local Authority v M & N Hayden J, when addressing the relevance of Article 3, referred to Fornah v Secretary of State for the Home Department [2006] UKHL 46; [2007] 1 AC 412, and to passages in the speeches of Baroness Hale and Lord Bingham. Baroness Hale said (at paragraph 94):

“Hence, it is a human rights issue, not only because of the unequal treatment of men and women, but also because the procedure will almost inevitably amount either to torture or to other cruel, inhuman or degrading treatment within the meaning, not only of article 3 of the European Convention on Human Rights, but also of article 1 or 16 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, article 7 of the International Covenant on Civil and Political Rights, and article 37(a) of the Convention on the Rights of the Child.”

Lord Bingham said (at paragraph 8);

“FGM has been condemned as cruel, discriminatory and degrading by a long series of international instruments, declarations, resolutions, pronouncements and recommendations. Nothing turns on the detail of these. Their tenor may be illustrated by a recent report of the United Nations Special Rapporteur on violence against women, E/CN.4/2002/83, 31 January 2002, Introduction, para 6: ‘Nevertheless, many of the practices enumerated in the next section are unconscionable and challenge the very concept of universal human rights. Many of them involve “severe pain and suffering” and may be considered “torture like” in their manifestations. Others such as property and marital rights are inherently unequal and blatantly challenge the international imperatives towards equality. The right to be free from torture is considered by many scholars to be jus cogens, a norm of international law that cannot be derogated from by nation states. So fundamental is the right to be free from torture that, along with the right to be free from genocide, it is seen as a norm that binds all nation states, whether or not they have signed any international convention or document. Therefore those cultural practices that involve “severe pain and suffering” for the woman or the girl child, those that do not respect the physical integrity of the female body, must receive maximum international scrutiny and agitation. It is imperative that practices such as female genital mutilation, honour killings, Sati or any other form of cultural practice that brutalizes the female body receive international attention, and international leverage should be used to ensure that these practices are curtailed and eliminated as quickly as possible.”

Hayden J then observed, in a passage with which I agree:

“41.

… whilst there can be no derogation from N’s article 3 rights, the interference with her article 8 rights, and those of her siblings and family, must be limited to that which is necessary to protect her article 3 rights. Of course, though this is relatively easy to state, it is difficult to apply on the facts of this case and, I suspect, in FGMPO applications generally.”

Before turning to the parties’ submissions, I make the following observations. I would agree that, as referred to by the judge in this case, the rights engaged by both Article 3 and Article 8 of the European Convention on Human Rights will clearly 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 the 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.

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. 

This reflects (and, in part, adopts) what Lord Reed JSC said, when dealing with proportionality, albeit in a very different context, in Bank Mellat v HM Treasury (No 2) [2014] AC 700. I propose to quote only the last two elements he identified when setting out that its “attraction as a heuristic tool is that, by breaking down an assessment of proportionality into distinct elements, it can clarify different aspects of such an assessment, and make value judgments more explicit” (paragraph 74 of his judgment on the substantive appeal):

“… it is necessary to determine … (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter … I have formulated the fourth criterion in greater detail than Lord Sumption JSC, but there is no difference of substance. In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure.”

If section 1(1) of the Children Act 1989 applies the child’s welfare will be the court’s paramount consideration. In some respects this legal issue may be of secondary importance because, in any event, the order being made by the court will be intended and, I would suggest, should be designed to protect and promote the child’s welfare.

The father’s case on this appeal as advanced by Mr Hames can be summarised as follows.

He accepts that the court’s power to impose prohibitions and restrictions is extremely wide. As a result, he does not challenge the court’s power to make an absolute travel ban for an extended period of time.

However, he submits (i) that there are no evidential findings in the judgment in this case which support the making of an absolute travel ban until 2032; and (ii) that the judge has not explained sufficiently why she decided to impose an absolute travel ban and why this ban continues until 2032.

Mr Hames submits that these deficiencies are compounded by the consequences for the family, with the father in Egypt and the mother and X in England, consequences which the judge has not properly characterised or analysed when making the travel ban. The judge appears to have assumed that the father and other members of his family would be able to travel to the UK. Mr Hames submits that the judge was wrong to do so based on the evidence before her. In addition he submits that, based on the recent refusal of a visitor visa, it should, at least, be assumed by this court that the father will not be able to travel to England. In any event, he submits that the travel ban creates very significant obstacles to family life which were not properly taken into account by the judge.

Mr Hames also submits that the order amounts to a disproportionate interference with the family life of X and her parents. Adopting what Baroness Hale said in E v Chief Constable of the Royal Ulster Constabulary, he submits that order goes beyond that which “is reasonable in all the circumstances to protect” X from a risk of harm. Although the judge referred to the need for any such interference to be balanced against the risk, he submits that the judgment contains no analysis to explain why the form of travel ban imposed by the judge was the minimum required to protect X from the risk of FGM. In particular, he submits that the judge did not include in any analysis the significant loss to X which, Mr Hames describes as, the harm X will suffer if she is not able to have a proper relationship with her father.

Ms Forster on behalf of the mother explained that, whilst formally the mother is neutral, she is sympathetic to the appeal because of the situation the order creates for her and X. I have set out above what she told us as to the mother’s position.

Ms Markham QC submits, correctly, that the judgment must be read as a whole. She submits that the judge’s findings support the terms of the travel ban, that the order was not wrong in law and that it was not disproportionate. She points to passages in the judgment where the judge referred to the need to have regard to the rights engaged by Article 8, including “each child’s right and need for a relationship with both of their parents” (paragraph 68), as well as those within Article 3; to the need to “consider the proportionality of making such an order in light of any risks assessed”; to the need for any interference with Article 8 rights to be balanced against the risk to X of FGM should she travel to Egypt”; and to the judge’s conclusion that “any order will have to remain in place throughout (X’s) childhood” (paragraph 79).

Ms Markham acknowledges that the judge did not specifically address the risk to X from travelling to any country other than Egypt but says that this reflects the fact that the focus of the case was the issue of travel to Egypt and at no stage during the hearing did any party suggest to the court that alternative provisions should be considered to an absolute travel ban. She also submits that the issues raised by the parents could be advanced in an application to vary the order.

In broad terms, Ms Markham accepts that the extent to which an order interferes with family life must be proportionate to the degree of the risk of FGM and that, applying ECHR principles, the court should impose the least intrusive measure(s) needed to protect a child from that risk.

Ms Green on behalf of the Guardian supports the Local Authority and opposes the appeal. She says that the Guardian was “very alive” to the Article 8 rights involved in this case. The Guardian had, initially, proposed that the case should be further reviewed but the judge made it clear that any order would be final.

I state my conclusions shortly both because, by the end of the hearing, it was clear to me that the appeal must be allowed and because there will be a rehearing.

However, before doing so, I start by repeating what Sir James Munby, P said in Re B and G (Children)(No 2) [2015] 1 FLR 905 (paragraph 55), as quoted by the judge:

“... FGM is a criminal offence under the Female Genital Mutilation Act 2003. It is an abuse of human rights. It has no basis in any religion … it is a “barbarous” practice …”.

It is not in doubt that there is an obligation on the courts to use the specific powers given by the 2003 to protect children and others from this practice.

The question raised by this appeal, however, is whether the judge’s decision to order an absolute travel ban can be successfully challenged on the grounds advanced by the father. When considering this question I accept, of course, as submitted by Ms Markham that I must consider the whole judgment. I also acknowledge, as was made clear by counsel during the hearing of the appeal (as referred to above), that there was little, if any, focus during the hearing below on the scope of any travel ban. The judge, it appears, was largely faced with what might be called the two extremes, namely either no travel ban or a complete ban. There also appears to have been little consideration in the evidence of the likelihood of the father being able even to travel to England as a visitor.

I first consider whether the judge’s decision to impose a worldwide travel ban has a sufficient evidential basis and whether it has been sufficiently reasoned. In considering these issues, I recognise the significant pressures on family judges because of the volume of work, among other factors. However, as Peter Jackson LJ recently observed in Re DAM (Children) [2018] EWCA Civ 386 the need for a judgment to be adequately reasoned is a matter of substance. “The judgment must enable the reader, and above all the family itself, to know that the judge asked and answered the right questions” (paragraph 7).

I note that the judgment contains no separate consideration of the nature of the travel ban the judge decided to impose either in terms of findings or of analysis. More broadly, whilst the judgment as a whole contains findings which deal with the risk if X were to go to Egypt, there are no findings in respect of the risk consequent on her travelling anywhere else. Also of relevance to the nature of any travel ban, as referred to above (paragraph 16), the judge does not make any findings or reach any conclusions as to the prospects of the father being able to travel to England. Nor, although this is perhaps self-evident, does the judgment deal with the consequences for the family if he is not able to do so.

As to the judge’s analysis, the only reason contained in the judgment for the absolute ban is “to prevent onward travel to Egypt”. With due respect to the judge, this is not a sufficient explanation for the imposition of an absolute travel ban, in particular when this comment is unsupported by any prior findings and having regard to the judge’s assessment of the mother. There are, of course, cases in which, although not expressly stated, the judge can be taken to have weighed the relevant factors when deciding what order to make. However, I do not consider that this is possible in this case because of the absence of any substantive consideration of the nature of the travel ban which should be ordered. In my view, it cannot be supported by the conclusion that there is a “very substantial risk of FGM should (X) travel to Egypt” nor by the other matters referred to by Ms Markham. They were directed to the need for a FGMPO at a more general level and specifically to the issue of travel to Egypt. They do not address the absolute nature of the travel ban nor any of the other factors relevant to an assessment of whether such a ban was justified.

Accordingly, I accept that grounds (i) and (iii) are made out, namely that the findings made by the judge do not support the making of an absolute travel ban until 2032 and that this aspect of the order is not sufficiently reasoned. Put simply, this part of the case required a more extensive analysis than that undertaken by the judge. This is not remedied by the ability to apply to vary the order because, as I have just said, the order must, first, be justified.

It follows that I also accept that the judgment does not explain why the absolute travel ban was a proportionate order and why another, less intrusive, order would not have sufficiently protected X from FGM. Whilst I do not suggest that there needs to be express reference to the latter point in every case, the absence of any reference in this case adds to my conclusion that the judgment contains an insufficient analysis of the factors relevant to a determination of what, if any, travel ban to order.

Finally, I do not consider that it was sufficient for the judge to say that it is “not intended that X should not be able to see her father or members of the paternal family”. This may not be the intention, but it may be the effect, and that factor does not feature in the judge’s analysis when deciding the terms of her order. Indeed, to repeat, the judge states only her conclusion that “any order” would have to be in force for X’s childhood and does not provide any reason for the imposition of a worldwide travel ban other than the comment that this is “to prevent onward travel to Egypt”.

Accordingly, in my view, the absolute travel cannot stand. This raises a number of consequential issues.

The first is whether this court is in a position to determine what alternative provisions might be appropriate to include. It is clear to me that this is not possible because it would require this court, in effect, to have the information and understanding of the case which only a trial judge has. We are not able to put ourselves in that position and, therefore, we are not able properly to weigh and assess the relevant factors.

Secondly, I also do not consider that it would be appropriate to ask the judge to reconsider this aspect of her decision. It is not possible to seek to sever this part of the order from the hearing and judgment as a whole.

Thirdly, this leads me to conclude that the only proper outcome is to order the matter to be reheard before a different judge. It has to be a full rehearing because another judge could not be asked to determine one aspect of the case but at the same time be bound by the judge’s findings. This would not be a fair way of determining the application. As referred to above, the question of what additional terms to include within the order cannot be severed from the rest of the case. The determination of what order to make under the 2003 Act, including as to what prohibitions and/or other terms, has to be determined at the same hearing.

Accordingly, for the reasons set out above, the appeal must be allowed and an order made to give effect to our consequential decisions.

I agree.

I also agree.