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Family court cannot interfere with decision of immigration tribunal in FGM case

Case report: [2020] EWHC 323 (Fam).

One reason for seeking asylum in the UK might be to escape harmful practices, such as the risk of female genital mutilation (FGM).  But how does the law in regard to FGM interact with the UK’s asylum and immigration laws?  Which has precedence?

These were the issues to be explored when partner and expert in child care law Kate Hammond was instructed to represent a child M on an application for a female genital mutilation (FGM) protection order.  The application was made by the local authority and Kate was asked to get involved by the child’s guardian.

The child’s parents were originally from Sudan, and the family had come to the UK together from Bahrain, although the father had returned to Bahrain and was believed to be in a military prison.

The mother had claimed asylum on the basis of a risk of female genital mutilation to her daughter, alongside other personal issues that did not relate to this case.

The Home Secretary had refused the mother’s application for asylum, and she had exhausted all of her appeal rights.

Shortly before the mother and children were due to be deported, the child’s school became concerned and made a referral to the local authority which led to their application for an FGM protection order.

At the first hearing, the judge made an order prohibiting the Home Secretary from removing the child from the jurisdiction. That judge joined M as a party and the Home Secretary as an intervener and transferred the matter to the President of the Family Division to resolve a number of technical legal questions.  The main query was whether the family court had the power to interfere with the decision making of the immigration tribunal.

The President of the Family Division heard the matter and found that the family court cannot interfere with the decision making of the immigration tribunal. However, the president also found against the Home Secretary’s submissions that the starting point for a risk assessment in family proceedings ought to be the risk assessment completed in the immigration jurisdiction.

That matter is the subject of an appeal that will come before the Court of Appeal.

Next steps

In the meantime, the case continued with assessments to look at the risk issues.  The alternative position was that the Home Secretary would be asked to reconsider on the basis of a through risk assessment by the Family Court and that the child could make an application based on the court’s risk assessment, as whilst the mother’s appeal was exhausted, the child was merely named on her mother’s application and was not a party to it.

The matter came before Mr Justice Newton for final hearing, and he concluded that the risks to M in respect of FGM were high and made a FGM protection order to last throughout her childhood.

Click here to read the final judgment.

For more information on FGM or any aspect of child care law, please contact Kate Hammond on 020 7426 0400 or email kh@milesandpartners.co.uk.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.

Kate Hammond

Kate Hammond

Managing Partner
Joint Head of the Family Department

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