Can the Family Court lawfully injunct the Secretary of State for the Home Department from the exercise of their immigration powers in relation to a mother and child by making an FGM protection order?

The President of the Family Division held that there is no jurisdiction for a family court to make a FGM protection order against the Secretary of State for the Home Department to control the exercise of her jurisdiction with respect to matters of immigration and asylum. The extent of the family court's jurisdiction in such matters is to invite the Secretary of State and/or the relevant tribunals to consider any determinations made by the court in proceedings under the Female Genital Mutilation Act 2003.

The Court noted that the jurisdictions operated by the Secretary of State and the family courts are separate and distinct, and that in discharging its duties under the Female Genital Mutilation Act 2003, the Family Court had to consider all the available evidence and undertake its own risk assessment of the risk and need for an FGM protection order. This meant that it could take regard of a risk assessment completed within the immigration jurisdiction but must form its own assessment, unencumbered by the process in the immigration jurisdiction.

The local authority’s application for a FGM protection order is on-going with a decision expected in late December 2019.

To read more please see a link here to the full judgment handed down on 25 September 2019.