Court of Appeal upholds ruling by President of Family Division that Family Courts are not bound by a previous assessment or determination on the risk of ‘FGM' made by the First-tier Tribunal

Monday 15 June 2020

Amanda Weston QC, James Holmes and Naomi Wiseman of Garden Court Chambers represented the Local Authority. Kathryn Cronin and Artis Kakonge of Garden Court Chambers led by Deirdre Fottrell QC represented the child.

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This is an important guidance case on the intersecting immigration and family jurisdictions dealing with the protection of children against the risk of FGM. 

The Court of Appeal dismissed the Secretary of State for the Home Department’s appeal against an interim decision of the Rt Hon Sir Andrew McFarlane, President of the Family Division in the case of Re A (A Child: Female Genital Mutilation: Asylum [2019] EWHC 2475 in which he held that a family court is not bound to take, even as a starting point, a previous assessment or determination on the risk of female genital mutilation ('FGM') made by the First-tier Tribunal ('FtT of the  Immigration and Asylum Chamber IAC)'). The first tier tribunal finding was that the evidence of the child’s mother lacked credibility and there was no FGM risk to the child.

The appeal to the Court of Appeal on this interim issue took place after the family proceedings had concluded and Newton J had made an FGM protection order and findings on the FGM risk to the child in Bahrain and Sudan. He noted that it was  “difficult to think of a clearer or more serious case” where the risk of FGM to the child  “is so high” and found “without hesitation overwhelmingly that there is a high risk of FGM“ to the child, A.  

In upholding the President’s interim ruling Sir Ernest Ryder, Senior President of Tribunals who gave the leading judgment of the Court of Appeal, outlined the jurisprudence showing the two jurisdictions are ‘largely distinct and separate’, that unlike the Tribunal proceedings the child was separately represented in the family proceedings and had "her own voice" and the “unambiguous, plain and .. mandatory” requirement in the FGM Act 2003 that Courts, in deciding whether and how to exercise its FGM protection powers “must have regard to all the circumstances”.

The Court deliberations have some wider application, in particular on the admission of expert country evidence in the family proceedings, the observation that:  

"a) ‘43. When a family court comes to consider an issue upon which it is said a tribunal has already opined, including, for example, a tribunal's specialist view about third country risk, the relevance of the tribunal's conclusion, any intermediate findings of fact, and the nature and extent of the evidence upon which these are based will be examined as part of all the circumstances in accordance with paragraph 2 of schedule 2 of the FGMA 2003. Whether further evidence is required by the family court to undertake its separate function in respect of a FGM protection order will depend on the application of the test in rule 25.4(3) FPR which is whether the expert evidence is necessary to assist the court to resolve the proceedings. There is no need to add any gloss to that test."

And in response to the Secretary of State’s reliance on the principle of comity supporting her ‘starting point’ submission, the Court noted that:

"b) ’38. It is not even clear that the family court and the FtT (IAC) can be considered to be courts of coordinate jurisdiction. The point has not been fully argued before us and we do not purport to express a concluded view on the question; but, on the face of it, there are significant relevant differences. Whereas the family court is a court of record, the FtT (IAC) is not. The FtT has the features of a court but is quintessentially an independent judicial tribunal which is a specialist administrative law decision maker. The UT is a superior court of record that is able to bind itself and the FtT (IAC) but neither the Family Division of the High Court nor the family court can make a decision that has precedential effect in either the FtT (IAC) or the UT. And, as we have remarked, the FtT (IAC) is adversarial while, when exercising its powers under the FGMA 2003, the family court is essentially investigatory".

The full judgment,  A (A Child) (Rev 1) [2020] EWCA Civ 731, can be viewed here.

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