Re A – Court of Appeal judgment handed down in FGMPO case

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Dr Charlotte Proudman, led by Karon Monaghan QC of Matrix Chambers, represented the Respondent Mother in the case of A (A Child) (Rev 1) [2020] EWCA Civ 731. The Court of Appeal handed down judgment in this landmark case concerning FGM Protection Orders when a child does not have secure immigration status. You can access the full judgment here. Charlotte was instructed by Duncan Lewis Solicitors.

Charlotte was successful in opposing the Secretary of State for the Home Department’s appeal before the Court of Appeal. The Court of Appeal upheld the President of the Family Division’s judgment, which held that any previous assessment of risk of FGM made by the Immigration Tribunals (as part of an asylum claim or other) is not the starting point for any Family Court assessment of the risk of FGM for the purpose of determining whether the Court should make an FGM Protection Order (‘FGMPO’).

The judgment is essential reading for such cross-over cases and gives guidance on the overlaps between the two jurisdictions, family and immigration. It is particularly relevant in respect of the different legal tests in both jurisdictions and how the courts should address cases where competing findings are made in the two jurisdictions. This judgment will help those, who do not have immigration status, but there is a risk of FGM and the test is met under Schedule 2 of the FGM Act 2003.

The President of the Family Division also found that the Family Court does not have the jurisdiction pursuant to FGMPOs to curtail the Home Secretary’s immigration powers, i.e. the Family Court cannot prohibit the removal of a person at risk of FGM from the jurisdiction. The President’s decision, Re A (A Child : Female Genital Mutilation : Asylum) (Rev 1) [2019] EWHC 2475 (Fam), can be found here

Newton J sitting in the High Court of the Family Division conducted his own risk assessment of FGM in this case (see, Re A (A child) (Female Genital Mutilation Protection Order Application) [2020] EWHC 323 (Fam)). The judgment can be found here. Newton J found that the mother’s evidence was not inconsistent and that the girl is at high risk of FGM if removed from the jurisdiction. The FtT (IAC) had found a low risk of FGM and the mother not to be credible. This shows the divergent decisions that can be reached by the family and immigration jurisdictions when assessing risk of FGM. Despite the high risk of FGM, the Home Secretary has still not granted the child Refugee status and she remains at risk of removal to Sudan or Bahrain, where she is highly likely to be subjected to FGM.


Related barristers: Dr Charlotte Proudman


 

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