Family courts have no power to prevent removal of children at risk of FGM abroad

The President of the Family Division concluded that the family courts have no jurisdiction to interfere with Home Office, even if they think it is necessary to protect a girl from female genital mutilation (FGM). The most they can do is to ask the Home Office to refrain from removing the child and to reconsider the removal decision in light of the family court’s determination.

In response to media pressure in this case — reported as A (A Child: Female Genital Mutilation: Asylum) [2019] EWHC 2475 (Fam) — the Home Office has agreed to wait until the family court proceedings have finished.  The judgment highlights a worrying gap in the legislation designed to protect girls and women from FGM.

The case concerns a ten year old girl, known as A, who was due to be removed to Bahrain with her mother. The mother is originally from Sudan, where she was subject to FGM as a child. There is a risk that both mother and daughter could be removed a second time from Bahrain to Sudan, where there is a high risk that A will be subject to FGM.

A's school has informed Suffolk County Council of this risk. The council immediately applied for an order under Schedule 2 of the Female Genital Mutilation Act 2003 preventing anyone from taking A outside the United Kingdom. A family judge issued an order preventing the Home Office from removing her.

The issue when the case came before the President of the Family Division was whether the judge had the power to make such an order.

Sir Andrew McFarlane concluded that the order was made without jurisdiction and must be set aside. His reasons are based on the long-standing principle that the family courts cannot use their powers to interfere with immigration control because immigration decisions are made under a different statutory regime with different criteria. 

The overall decision in this case is disappointing, but McFarlane can hardly be blamed for following authority. Instead, the judgment illustrates a gap in the FGM legislation. Parliament should have included a power for the family courts to issue injunctions against the Home Office where necessary to protect girls from FGM.