A (A Child)

Factual and Procedural Background

This appeal arises from a decision by the President of the Family Division concerning the exercise of the family court's jurisdiction to make a female genital mutilation (FGM) protection order under the Female Genital Mutilation Act 2003 (FGMA 2003). The President held that the family court is not bound to treat a previous risk assessment of FGM made by the Immigration and Asylum Chamber of the First-tier Tribunal (FtT (IAC)) in an asylum application as a starting point in its own risk assessment for a protection order.

The case concerns an 11-year-old young woman, referred to as "A," a Bahraini citizen of Sudanese origin who entered the UK with her family in 2012. After a series of asylum applications by her mother, which were ultimately refused with all appeal rights exhausted, removal directions were set for the family. Suffolk County Council (SCC), the local authority with safeguarding responsibilities, became involved and sought a FGM protection order to prevent A's removal due to a high risk of FGM if returned to Bahrain.

Initial orders were made by the family court restraining A's removal. The Secretary of State challenged the jurisdictional basis of such orders against immigration powers. The President of the Family Division addressed several issues, including whether the family court must give primacy to the FtT (IAC)'s risk assessment in making FGM protection orders. The appeal concerns the correctness of the President's conclusion on this point.

Legal Issues Presented

1. Whether a family court is bound to take a prior risk assessment of FGM made by the Immigration and Asylum Chamber of the First-tier Tribunal as the starting point in its own risk assessment for a FGM protection order.
2. Whether the family court can lawfully restrain the exercise of the Secretary of State's immigration powers by making a FGM protection order.
3. The duty of a local authority under the FGMA 2003 in safeguarding a child at risk of FGM.
4. Whether an existing FGM protection order should be continued or discharged.

Arguments of the Parties

Appellant's Arguments (Secretary of State)

• The family court must respect the FtT (IAC) and Upper Tribunal's determinations on the risk of FGM and consider those as part of the overall circumstances.
• Where the FtT (IAC) has dismissed the risk of FGM as a basis for refugee status, the family court's starting point must be that determination.
• The family court should only depart from the FtT (IAC)'s assessment in exceptional circumstances supported by material evidence, such as a change in country conditions.
• The principle of comity requires the family court to give deference to the FtT (IAC)'s findings unless convinced they are wrong.
• The President's approach risks duplicative litigation, conflicting decisions, inefficiency, and waste of public resources.
• The FtT (IAC) possesses specialist knowledge on third country risk, which should inform the family court's assessment to avoid disproportionate inquiries.

Respondent's Arguments (Local Authority and Others)

• The family court has a statutory duty under the FGMA 2003 to consider all circumstances independently and is not bound to adopt the FtT (IAC)'s risk assessment as a starting point.
• The assessment of risk in family proceedings is a distinct process from that in immigration and asylum law, involving a two-stage evaluation: establishing facts on the balance of probabilities, then assessing risk.
• The FtT (IAC) proceedings are adversarial and bind only the parties involved, whereas the family court's proceedings are investigatory and focused on the child's welfare.
• The statutory language of the FGMA 2003 mandates the family court to have regard to all circumstances without presumptions or limitations.
• Judicial comity does not require the family court to treat the FtT (IAC)'s assessment as a default position, given the different statutory frameworks and purposes.
• Procedural rules governing evidence in family courts provide sufficient safeguards to ensure relevant prior assessments are considered appropriately.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re A (A Child: Female Genital Mutilation: Asylum) [2019] EWHC 2475 (Fam)	Family court's discretion in making FGM protection orders and independence from FtT (IAC) risk assessments	Adopted as the foundational decision confirming family court's independent assessment of risk
Re H (A Child) [2016] EWCA Civ 988	Distinction between family court risk assessment and immigration tribunal risk evaluation	Supported the court's conclusion that family court risk assessment is a separate two-stage process
Police Authority for Huddersfield v Watson [1947] K.B 842	Principle of judicial comity between courts of coordinate jurisdiction	Considered but rejected as inapplicable to the relationship between family courts and FtT (IAC)
A v A (FGMPOs: Immigration Appeals) [2018] EWHC 1754 (Fam)	Consideration of the impact of family court orders on immigration appeals	Distinguished as involving tactical use of family court jurisdiction rather than principle of comity
Mohan v Secretary of State for the Home Department [2012] EWCA Civ 1363	Distinct functions of family courts and immigration tribunals	Supported the view that the jurisdictions are separate and assessments distinct
R (MN) v Secretary of State for the Home Department and the Aire Centre [2018] EWHC 3268 (QB)	Support for family court's independent risk assessment in FGM cases	Reinforced the President's approach to risk assessment
Re J (Children) [2013] UKSC 9	Family court's approach to establishing facts on balance of probabilities	Referenced to explain family court's fact-finding process distinct from immigration tribunals
Nimako-Boateng [2012] UKUT 216 (IAC)	Distinction between family court and immigration tribunal functions	Supported the separation of jurisdiction and assessment approaches

Court's Reasoning and Analysis

The court affirmed the President's decision that the family court is not bound to adopt the FtT (IAC)'s risk assessment as the starting point in making a FGM protection order. The court reasoned that the statutory framework under the FGMA 2003 requires the family court to have regard to all circumstances without limitation or presumption, including the need to secure the health, safety, and well-being of the girl.

The court distinguished the different functions and statutory contexts of the family court and the immigration tribunal. The FtT (IAC) conducts adversarial proceedings focused on refugee status under the Immigration Acts and the Refugee Convention, assessing risk on a reasonable degree of likelihood basis. In contrast, the family court undertakes an investigatory process, establishing facts on the balance of probabilities before assessing risk for protection orders, with the child's welfare as paramount.

The court rejected the Secretary of State's reliance on judicial comity as requiring deference to the FtT (IAC), noting that the tribunals are specialized administrative decision-makers and not courts of coordinate jurisdiction with the family court. The principle of comity does not mandate that the family court treat the FtT (IAC) assessment as a default position.

Procedural safeguards under the Family Procedure Rules 2010, particularly concerning the admission of expert evidence, were noted as sufficient to manage the consideration of prior tribunal findings without additional gloss or presumptions.

The court further held that the risk of duplicative litigation and conflicting decisions does not outweigh the need for the family court to perform its statutory role independently, especially given the different focuses and the paramountcy of the child's welfare in family proceedings.

Holding and Implications

The court DISMISSED the appeal, affirming that the family court is not bound to take a prior FtT (IAC) risk assessment of FGM as the starting point in its own assessment when considering a FGM protection order under the FGMA 2003.

The direct effect is that family courts retain broad discretion to independently assess risk based on all relevant circumstances, including but not limited to prior tribunal findings. No new precedent was set beyond confirming the existing principles and statutory interpretation. The decision clarifies the distinct roles of family courts and immigration tribunals in assessing risk related to FGM and reinforces the primacy of child welfare considerations in family proceedings.