Court of Appeal allows first successful appeal against Female Genital Mutilation Protection Order

Wednesday 1 August 2018

Sarah Forster of Garden Court Chambers appeared on behalf of the mother and James Holmes of Garden Court Chambers, who was also instructed at first instance, appeared on behalf the local authority led by Hannah Markham QC.

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The Court of Appeal has handed down judgment in the case of Re X (A Child) (FGMPO), which is the first case in which the Court of Appeal has had the opportunity to consider the approach the court should take to the statutory provisions underpinning Female Genital Mutilation Protection Orders and in particular to the imposition of travel bans under that legislation.

The child was 14 months old at the time of the appeal. She was born in England to an English mother (M) while her Egyptian father (F) had remained in Egypt where her parents met and married. It had been the mother’s intention to visit her husband in Egypt for a holiday after the child was born but the parents' longer-term intention was to settle in England. Despite being separated since before their daughter’s birth, the parents remained committed to their marriage and sought to bring up their daughter together.

The case arose as a result of Local Authority concerns about the possibility of X suffering female genital mutilation (FGM) should she be taken to Egypt. This possibility was brought to the attention of the Local Authority following a home visit by the Health Visitor. Following the referral, the local authority issued proceedings, which were heard over five days in the summer of 2017 by Ms Justice Russell sitting in the Family Division of the High Court. At the conclusion of the hearing, the Judge made a Female Genital Mutilation Protection Order (FGMPO) until 22 August 2032, and also, as part of that order imposed a total travel ban prohibiting the child from travelling anywhere outside of England and Wales until 22 August 2032.

Ms Justice Russell formed an adverse view of the father and paternal family’s attitude to FGM and decided that the risk of the child being subjected to FGM could only be averted if protective orders including a travel ban, which would completely prevent the child being removed from England and Wales, were made. She expressed the hope that the father would be able to travel to England to meet his daughter.

The mother subsequently obtained permission to appeal the part of the order relating to the travel ban, with permission being granted by Lord Justice Moylan. She was subsequently replaced as appellant by the father. At the conclusion of the full hearing, the Court unanimously allowed the appeal on the basis that the total travel ban could not stand and remitted the matter for full rehearing before a different High Court judge.

The mother and father’s position is that they are totally opposed to FGM and will not allow their daughter to be exposed to the risk of FGM.  They believe the effect of the travel ban deprives them of having a family life with their daughter because of the total travel ban lasting until 2032.

The court will now look at the whole case afresh and consider the competing effects of Article 3 of the European Convention on Human Rights (prohibition of inhumane treatment) and Article 8 of the European Convention on Human Rights (right to family life).

Sarah Forster and James Holmes are both members of the Garden Court Chambers Family Team and International Team. They are also legal advisors at FORWARD (a specialist FGM and Child Marriage Organisation).

See also: the judgment of the Court of Appeal and the first instance judgment.

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