AB v AN & Anor

Factual and Procedural Background

This case concerns an application by the Applicant for a Female Genital Mutilation Protection Order (FGMPO) against her husband, the First Respondent, and the paternal grandmother, the Second Respondent. The Applicant seeks an order preventing the Respondents from removing the child, EO, from the UK and from performing FGM on EO.

The Applicant and her family are originally from Nigeria. She arrived in the UK on a two-year visit visa in November 2017, gave birth to EO in January 2018, and applied for asylum the next day. Her asylum application was refused in August 2018 and again in January 2019 after an appeal and a further application. The refusals were partly based on adverse credibility findings and the fact that the husband had applied with her for a visa while she was pregnant.

In July 2019, the First Respondent brought the couple's two older children, including EO, to the UK and left them with the Applicant. The Applicant made further representations to the Secretary of State for the Home Department (SSHD), which were refused in January 2020. She did not challenge this refusal by judicial review.

The Applicant applied for an FGMPO in October 2019, alleging risk of FGM to EO. An urgent ex parte application for the order was declined in November 2019, as EO was in the UK under the Applicant's care, the Respondents were in Nigeria, and there was no evidence of an imminent risk of removal or FGM.

The Applicant filed two witness statements explaining her opposition to FGM, her own experience of having undergone FGM, the risk posed by the paternal family, and letters from the family demanding EO be returned to Nigeria for circumcision. The Respondents have not participated in the proceedings, citing lack of infrastructure for remote attendance and leaving decisions to the court.

The Applicant’s solicitors contacted local authorities for involvement; the London Borough of Havering and Redbridge declined to take part. The SSHD remains an Intervenor in the proceedings due to the immigration issues involved.

Legal Issues Presented

1. Whether the court should grant an FGMPO without hearing oral evidence from the Applicant and without findings being made.
2. Whether a Children's Guardian should be appointed to represent the child in the proceedings.
3. Whether expert evidence should be appointed to assist the court, including an independent social worker, an expert on FGM in Nigeria, and a psychiatrist.
4. The extent to which the court should consider or give weight to prior immigration tribunal findings and the role of the SSHD in the family court proceedings.

Arguments of the Parties

Applicant's Arguments

• The court should grant the FGMPO immediately without hearing oral evidence or making findings, or alternatively appoint a Children's Guardian and three experts (social worker, FGM expert, psychiatrist) to assess the risk and the Applicant’s mental health.
• The SSHD has no continuing role and should not be allowed to continue intervening.
• The child’s interests may be inconsistent with the Applicant’s due to adverse credibility findings; therefore, a Guardian is necessary to ensure the child’s voice is heard and best interests properly assessed.
• Expert evidence is necessary to assess complex macro and micro risk factors, including the risk of FGM in Nigeria and the Applicant’s mental health impact on her ability to protect EO.

Secretary of State for the Home Department's Arguments

• The child does not have interests inconsistent with the Applicant; both share the interest in protection from FGM.
• The issues are narrow factual matters not requiring a Guardian or additional expert evidence.
• Previous cases cited by the Applicant do not support appointing a Guardian due to material factual differences.
• The SSHD’s intervention remains necessary to ensure all relevant immigration documents and submissions are before the court.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
SSHD v Suffolk County Council [2020] EWCA Civ 731	Clarifies that family court FGMPO proceedings and immigration tribunal asylum decisions are separate statutory schemes with different risk assessments; family court not bound by tribunal findings.	The court emphasized that it must form its own assessment of risk independently from the FTT and that the two statutory processes serve different functions.
Re A (A child): Female Genital Mutilation: Asylum [2019] EWHC 2475 (Fam)	Family court must consider all circumstances and evidence on balance of probabilities; FGMPO requires a real and immediate risk; FTT findings are not the starting point.	The court relied on this judgment to reject the Applicant’s request for an immediate order without oral evidence and to clarify the court’s independent fact-finding role.
Re A (FGMPOA) 2020 EWHC 323	Use of expert evidence including social workers, legal experts, anthropologists, and psychiatrists to assess risk and protect the child in FGMPO proceedings.	The court noted this case but distinguished it based on factual differences, particularly the involvement of local authorities and the nature of the risk.
Re X (FGMPO) [2019] 4 WLR 144	Appointment of experts and travel bans in cases involving risk of FGM; detailed risk assessment of family and country-specific factors.	The court distinguished this case due to different factual circumstances, including local authority involvement and the nature of the risk posed by the mother’s travel.
Re H	Two-stage process in family cases: first find facts on balance of probabilities, then evaluate risk; contrasts with immigration tribunal’s reasonable likelihood standard.	Referenced to support the court’s approach to risk assessment and fact-finding in family court proceedings.

Court's Reasoning and Analysis

The court considered the Applicant’s request to grant an FGMPO without oral evidence and found this inappropriate given the lack of imminent risk while EO remains in the UK and in the Applicant's care. The Respondents are in Nigeria with no evidence of intention to remove EO forcibly. The risk assessment depends heavily on the Applicant’s credibility and evidence regarding the father's family, which requires oral testimony and the opportunity for cross-examination.

The court rejected the Applicant’s argument that there is no harm in granting an order as a precautionary measure, emphasizing that an FGMPO is a significant legal order requiring an evidential basis showing a real and immediate risk.

Regarding the appointment of a Children's Guardian, the court noted there is no legal requirement to appoint one in FGMPO cases. The court found no conflict between the Applicant’s and child’s interests, as both seek protection from FGM. The child's wishes to be protected are clear, and the Respondents’ non-participation limits the scope for a Guardian to add value. The court concluded that appointing a Guardian would not be necessary or proportionate.

The court also considered the Applicant’s request for expert evidence. It rejected the need for an independent social worker because the risk is narrowly focused on the father’s family, who refuse to participate, and the child is not of an age to provide meaningful input. The court found no gap in evidence justifying this appointment.

The request for an expert on FGM risk in Nigeria was denied as unnecessary given the detailed and recent Home Office Country Information Note and UNICEF report already before the court. The generic risk of FGM in Nigeria was not the central issue; the case hinges on family-specific risk.

The application for a psychiatric assessment was refused as irrelevant to the risk determination. The Applicant’s mental health was not shown to impair her ability to protect EO, and the risk assessment depends primarily on the Applicant’s evidence about the family threat.

The court emphasized the importance of proportionality and efficient use of court resources, noting the absence of local authority involvement and the Respondents’ refusal to participate.

Holding and Implications

The court declined to grant the Female Genital Mutilation Protection Order without hearing oral evidence from the Applicant, finding insufficient evidence of imminent risk to justify an order at this stage.

The court also refused to appoint a Children's Guardian, concluding there was no conflict between the Applicant's and child’s interests and that appointment was not necessary or proportionate.

Further, the court rejected the Applicant’s applications for expert evidence (independent social worker, Nigerian FGM expert, and psychiatrist) as unnecessary for a fair determination of the case based on the evidence and information already available.

The case was listed for a final hearing in early October to allow full evidence and cross-examination.

The decision directly affects the parties by requiring full oral evidence before any protective order is made, emphasizing the court’s independent fact-finding role and the need for a real and immediate risk. No new legal precedent was established beyond reaffirming existing principles about the separation of family court and immigration tribunal processes and the discretionary nature of appointing Guardians and experts in FGMPO cases.