A (Withdrawal of Applications)

When exercising any power given to it by the FPR, the court must seek to give effect to the overriding objective set out in Rule 1.1 (Rule 1.2). This requires the court to deal with a case justly, having regard to any welfare issues involved. Rule 1.1(2) includes a number of matters to which the court should have regard when dealing with a case justly such as saving expense and ensuring that the parties are on an equal footing.

The family court’s power to make female genital mutilation protection orders is contained in Part 1 of Schedule 2 of the Female Genital Mutilation Protection Act 2003 [“the 2003 Act”]. Section 1(2) provides that:

“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.”

A provision in almost identical terms relating to forced marriage protection orders is contained in section 63A(2) of the Family Law Act 1996 [“the 1996 Act”] as amended by the Forced Marriage (Civil Protection) Act 2007. The only difference is that section 63A(2) refers to a “person” rather than to a “girl”. Consideration of both Section 1(2) of the 2003 Act and section 63A(2) of the 1996 Act is necessary when

the court is considering either making or discharging an order. Additionally, section 63A(3) of the 1996 Act requires the court, in ascertaining the person’s well-being, to have regard to the person’s wishes and feelings (so far as they are reasonably ascertainable) as the court considers appropriate in the light of the person’s age and understanding.

The making or discharge of orders in wardship is governed by section 1(1) of the Children Act 1989 which states that, when determining any question with respect to the upbringing of a child or the administration of a child’s property or the application of income arising from it, the child’s welfare shall be the court’s paramount consideration.

In Re M (Female Genital Mutilation Protection Order: No Order on Application) [2019] EWHC 527 (Fam) I allied myself to the comments made by Hayden J in ALocal Authority v M & N [2018] EWHC 870 (Fam) to the effect that female genital mutilation was an abomination, being inhuman, torturous and degrading to its victims (paragraph 24). I also expressed the view that, when practised on those under the age of 18, it was child abuse pure and simple and, if attributable, to parental behaviour, would comfortably fall within section 31(2) of the Children Act 1989 as being significant physical harm which would justify the making of a public law order (paragraph 25). I remain of that view. Likewise, I endorse the approval by Singer J of the description of forced marriage set out in a press release from the then Home

When determining the application to withdraw the proceedings pursuant to the 1996 Act, the 2003 Act and in wardship and to discharge the orders presently in place, the local authority submitted that the welfare of the children would be the court’s paramount consideration as the applications were all applications governed by the paramountcy principle. Whilst discharge of the wardship proceedings are plainly proceedings governed by the paramountcy principle, the application of that principle to discharge of the proceedings under the 1996 and 2003 Acts is less clear. Whilst the paramountcy principle applies in full to the decision-making process in relation to many substantive orders under the Children Act 1989 such as a child arrangements order or a parental responsibility order, it only applies in other cases to the decision to make orders once the court is satisfied that additional criteria are satisfied, for example, the threshold criteria in section 31(2) of the Children Act. However, there are some decisions with respect to children or which affect children to which the paramountcy of the child’s welfare does not apply, such as an application for a secure accommodation order or orders pursuant to the Child Abduction and Custody Act 1985.

The test in section 63A(2) of the 1996 Act and in section 1(2) of the 2003 Act requires the court to consider all the circumstances including the need to secure the health, safety and wellbeing of the person/girl to be protected. Although there are no specific words requiring the court to have regard to welfare as its paramount consideration, it seems to me that health, safety and wellbeing are words which, when read together, equate to “welfare” in its broadest sense. The specific reference to those factors in the test in the 1996 and 2003 Acts suggests to me that Parliament intended welfare-based considerations to be matters of particular weight and importance when the court exercises its protective powers.

In Re M [see above for citation] I came to the view that, when deciding to exercise its powers under the 2003 Act, the health, safety and well being of the girl to be protected was the court’s first and paramount consideration (see paragraph 27). I came to that view, having scrutinised the 2003 Act through the prism of the Article 3 analysis set out by Hayden J in A Local Authority v M & N [see above for citation]. I see no reason in this case to alter that analysis.

Likewise, when viewed though the prism of respect for a private and family life contained in Article 8 of the European Convention on Human Rights, the health, safety and wellbeing of the person to be protected from forced marriage must also be the court’s first and paramount consideration. Additionally, Article 12 provides that men and women of marriageable age have the right to marry and found a family, according to national laws governing the exercise of this right. Although the consent of the intending spouses is not mentioned in Article 12, it is fundamental to the exercise of the right. It is thus plain that forced marriage represents, at the very least, a profound and unjustifiable interference with an individual’s right to respect for his/her private and family life and with their right to marry freely. Whether it also constitutes a violation of a person’s Article 3 right is not a matter which I need consider in this ruling. The breaches of Article 8 and 12 rights inherent in forced marriage add force to my view that the health, safety and wellbeing of the person to be protected from forced marriage should likewise be the court’s first and paramount consideration when it exercises its powers under the 1996 Act.

Before applying the above to the discharge applications, I turn to the application to withdraw all three sets of proceedings. Miss Cabeza submitted that the paramountcy principle applied to all three set of proceedings as the court was determining a question with respect to the upbringing of a child. I disagree. Even though I consider that, in exercising its powers under the 1996 and 2003 Acts, the health, safety and wellbeing of the person to be protected should be the court’s first and paramount consideration, that analysis does not necessarily apply to an application to withdraw those proceedings. Rule 29.4 read alongside Rule 1.1(1) and Rule 1.1(2) requires the court to survey all the circumstances, having regard to any welfare issues but does not give priority to welfare above all other matters.

The recent case law relating to the withdrawal of care proceedings is of limited assistance in this case as there are no additional precursor criteria (like the threshold criteria in section 31(2) of the Children Act 1989) to be applied when the court is considering whether to exercise its powers under the 1996 or 2003 Acts. However, I accept Miss Cabeza’s submission that the court should, when surveying the circumstances, consider if there is some solid advantage to the person to be protected from continuing the proceedings [see London Borough of Southwark v B [1993] 2

I deal first with the applications to discharge the wardship orders, forced marriage protection orders and the female genital mutilation protection orders. In this case, there is little evidence on which it might be said that continuing such orders was justified. Both the mother, the father and A have been consistent in saying that A remained in Somalia to live with her father rather than a means to procuring either her forced marriage or female genital mutilation. A did not feel under threat whilst in Somalia and was not forced into marriage or genitally mutilated whilst there. Looking to the future, both A’s mother and father are opposed to forced marriage and female genital mutilation. They are supported in that stance by the maternal extended family. The mother has engaged meaningfully with an assessment by Forward UK, a specialist resource with experience of working with African women about female genital mutilation and has also co-operated with the local authority and the children’s guardian. Both the mother and father accept that A should complete her education in this jurisdiction rather than in Somalia. It is also evident that the mother recognised the need to demonstrate that A was safe by taking steps to return her to this jurisdiction within a very short time of the matter being first before the court. Finally, there are no other child protection concerns in circumstances where all five girls appear to be thriving and well cared for.

In order to come to a meaningful assessment of future risk, I have evaluated these factors mindful that the court should look beyond mere compliance with its orders or lip-service (by parents and sometimes by the person to be protected) to the convention that forced marriage and female genital mutilation are profoundly harmful. I note that the local authority’s concerns about the risk to A of female genital mutilation and forced marriage appear never to have been adequately explored with the mother prior to the issue of these proceedings. Had they been, these proceedings might not have been necessary. In that respect, the swift return of A to this jurisdiction very early in these proceedings indicates to me that the family wished to co-operate with the court and the professionals and were anxious to show they had nothing to hide. That cooperation has continued to date as I have summarised in paragraph 23 above. In these particular circumstances and with the girls’ welfare in its broadest sense as my first and paramount consideration, I am satisfied that the wardship orders, forced marriage orders and female genital mutilation protection orders should be discharged.

Turning to the application to withdraw the various proceedings, the local authority’s request was in written form and gave reasons. The parties present at the directions hearing on 30 January 2019 all signalled their agreement to the local authority being given permission to withdraw these applications. The father of A and B was not at court and was not on notice of the local authority’s wish to withdraw. It is plain from his discussions with the children’s guardian that the father had no concerns about A and B’s welfare and he cooperated with the mother to return A to this jurisdiction. There is, accordingly, no basis upon which this court might believe the father would wish the proceedings to continue. I have decided that I should dispense with the formal requirement to give the father notice of the local authority’s application to withdraw. This is proportionate in the circumstances in helping the court deal with the matter justly.

I accept Miss Cabeza’s submission that there is no solid advantage to the proceedings continuing. The evidence now before the court rebuts the circumstantial evidence that gave rise to a legitimate concern that A had been left in Somalia as part of a plan for her to be forced into marriage and/or subjected to female genital mutilation. For the proceedings to continue would be disproportionate; would generate further expense for the local authority and for the Legal Aid Agency; and would delay the expeditious resolution of the proceedings. It would also not be in the children’s welfare especially in circumstances where future risk is assessed as being low and where no purpose would be served by an enquiry into how A came to be left in Somalia and whether she was at risk of forced marriage/female genital mutilation. Indeed, it is highly doubtful if the local authority could establish on the evidence any case for the making of protective orders under either the 1996 or the 2003 Acts.

In those circumstances, I grant the local authority permission to withdraw its applications for wardship, forced marriage protection and female genital mutilation protection orders.

That is my decision.