Family Court Discretion Over Asylum Risk Assessments in FGM Protection Orders: Re A (A Child) (2020) EWCA Civ 731

Introduction

The case of Re A (A Child) (Rev 1) ([2020] EWCA Civ 731) presents a significant development in the interplay between family courts and immigration tribunals concerning the assessment of risks associated with Female Genital Mutilation (FGM). The appeal challenges the decision of the President of the Family Division, Sir Andrew McFarlane, who ruled that family courts possess the discretion to independently assess the risk of FGM without being bound by prior assessments from the Immigration and Asylum Chamber of the First-tier Tribunal (FtT (IAC)). The parties involved include A, an 11-year-old Bahraini girl of Sudanese origin, her mother, Suffolk County Council (SCC), and the Secretary of State for the Home Department.

Summary of the Judgment

The Court of Appeal upheld the President’s decision, dismissing the appeal and affirming that family courts are not obliged to consider the FtT (IAC)’s prior assessment of FGM risk as a starting point in their deliberations for FGM protection orders under the Female Genital Mutilation Act 2003 (FGMA 2003). The court emphasized that family courts have a broad, discretionary mandate to evaluate all relevant circumstances independently, ensuring that the welfare of the child remains paramount. This decision underscores the distinct roles and methodologies employed by family courts and immigration tribunals, rejecting the notion that one should defer to the other’s assessments in such critical matters.

Analysis

Precedents Cited

The judgment extensively references key precedents that delineate the boundaries and interactions between family courts and immigration tribunals:

Re H (A Child) [2016] EWCA Civ 988: Black LJ highlighted the distinct approaches to risk assessment in family cases versus asylum/humanitarian protection claims, emphasizing that family courts must conduct an independent evaluation based on the balance of probabilities.
Re J (Children) [2013] UKSC 9: This case underpins the two-stage process of establishing risk within family proceedings, starting with factual determination followed by risk assessment.
Police Authority for Huddersfield v Watson [1947] K.B 842: Lord Goddard CJ discussed judicial comity, though the Court of Appeal clarified that this principle does not mandate deference to immigration tribunal decisions in family court FGM assessments.
Mohan v Secretary of State for the Home Department [2012] EWCA Civ 1363: Highlighted the distinct and separate functions of family courts and immigration tribunals.

Legal Reasoning

The court’s reasoning pivots on the statutory framework provided by the FGMA 2003, which empowers family courts to consider "all the circumstances" when deciding on FGM protection orders. This scope inherently includes, but is not limited to, previous assessments from other jurisdictions. The court underscored that:

Independent Assessment: Family courts must independently evaluate the risk of FGM without being constrained by prior determinations from the FtT (IAC).
Distinct Jurisdictions: The functions and evaluative criteria of family courts and immigration tribunals are fundamentally different, driven by divergent policy considerations.
Judicial Comity and Proportionality: The court rejected the Secretary of State’s arguments grounded in comity and proportionality, clarifying that these principles do not necessitate deferring to immigration tribunal assessments in the context of FGM protection orders.

The judgment also highlighted procedural aspects, noting that the admission of new evidence in family courts is governed by the Family Procedure Rules 2010, which do not inherently prioritize external assessments.

Impact

This judgment has profound implications for future cases involving FGM protection orders. It establishes that family courts retain autonomy in assessing FGM risk, ensuring that such decisions are tailored to the child’s best interests without undue influence from unrelated jurisdictions. This reinforces the primacy of family courts in safeguarding children, particularly in complex cases intersecting with immigration and asylum law. Additionally, it clarifies the legal boundaries between different judicial bodies, reducing potential conflicts and fostering clearer procedural pathways in safeguarding proceedings.

Complex Concepts Simplified

Female Genital Mutilation (FGM) Protection Order

An FGM protection order is a legal measure under the FGMA 2003 that prohibits individuals from removing a girl from England and Wales, either physically or by encouragement, and from obtaining travel documents for her, to protect her from undergoing FGM.

Judicial Comity

Judicial comity refers to the principle where courts show mutual respect for the decisions of other courts, often deferring to each other’s judgments out of respect. However, this case clarifies that such deference does not apply when different courts have distinct functional mandates.

Balance of Probabilities

A standard of proof in civil cases, including family law, where a fact is considered true if it is more likely than not to be true. This contrasts with the higher standard in asylum cases, which require a reasonable degree of likelihood of serious harm.

Asylum and Humanitarian Protection

Asylum is granted to individuals fleeing persecution, while humanitarian protection is provided to those at risk of serious harm but not necessarily falling under the strict definition of persecution as outlined by the Refugee Convention.

Conclusion

The Court of Appeal’s decision in Re A (A Child) (Rev 1) reaffirms the independent discretion of family courts in assessing the risk of FGM, free from the constraints of prior assessments by immigration tribunals. By delineating the distinct functions and evaluative frameworks of family courts and immigration bodies, the judgment ensures that the welfare of the child remains the paramount consideration in safeguarding proceedings. This landmark decision not only clarifies the legal boundaries between different judicial jurisdictions but also strengthens the protective mechanisms available to vulnerable children at risk of FGM, thereby contributing significantly to the body of family law and child protection jurisprudence.