C, Re [2025] EWFC 300 (B)

IN THE FAMILY COURT AT DERBY
[2025] EWFC 300 (B)
AND IN THE MATTER OF THE
FEMALE GENITAL MUTILATION ACT 2003
DE24F00236
In the matter of C
JUDGMENT OF HHJ CHATTERJEE
DATED 10 JULY 2025
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person/ [child] and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court
Background and history
Date 2025-07-10
[1]This is an application for a female genital mutilation protection order (“FGMPO”) in respect of an infant girl, C, now less than 2 years old. C is habitually resident in the UK and is of Nigerian origin.[2]She has the benefit of a children’s guardian, Ms Meridy Gardner, and is legally represented as a party to proceedings.[3]The applicant is her father, F. He acts in person and brought the application on 22 October 2024. Her mother, M, was joined during the proceedings as second applicant, and is also a litigant in person.[4]An individual X, is respondent to the proceedings but has not participated within them.[5]Today’s hearing on 26 June 2025 is to determine whether C should be subject to a final FGMPO. Interim orders made on standard terms were made on 15 January 2025 when the court granted her father leave to make the application, and remain in place. The issue for me to determine today is whether the interim orders should be made final or whether they should subsist at all.[6]C’s mother and father urge the court to make orders and say there is a real risk that she could be subject to female genital mutilation (“FGM”). The risk emanates from family members, including X, who are based in Nigeria. C’s guardian does not consider there is credible evidence of such risk, and in the event there is a risk, says that M and F could in any event protect her should any risk of FGM materialise in the future.[7]I now set out a short timeline of events. M and F are from Nigeria, where they got married. Their son, D, was born to them in that country. F says he experienced direct violence and threats, on a number of occasions in Nigeria. His account in his first statement describes frightening and sinister events starting with an attack aimed at seizing his farmland.[8]The three of them entered the UK after F obtained a skilled worker’s visa, on 27 August 2023. They lived in Derby. C was born via normal vaginal delivery on XXX 2024. A month later, on XXYY 2024, the grant of leave to remain in the UK, which originally was valid until 15 September 2026, was curtailed to 27 May 2024.[9]By that time, according to F, the clan in Nigeria were instructing him to bring his baby daughter back to Nigeria for the traditional procedure of female circumcision. I have seen a number of Whatsapp messages he has produced and screenshots of missed calls, about this. The family claimed asylum, which was refused on 30 September 2024. They lodged an appeal on 10 October 2024 and on 22 October 2024 F lodged the FGMPO application. They are currently living in PP. The immigration appeal has yet to be determined according to the disclosure received from the Home Office.[10]Within the FGMPO application, I dealt with a number of case management hearings, directing F, who was the sole applicant, to file and serve a statement so that I could consider the question of leave. He is not a “relevant third party” for the purposes of the Female Genital Mutilation Act 2003 so needed leave of the court to bring his application.[11]I also directed a report from QQ Council as by the time of his application the family were living in what sounds like unsuitable accommodation in QQ. QQ Council provided a short report dated 18 November 2024. They have not sought to bring an application themselves as part of their safeguarding duties as a local authority.[12]Evidence was directed from the Home Office pursuant to the EX660 procedure. On 15 January 2025, I joined C as a party, appointing a guardian for her. I joined her mother as second applicant and made interim protective orders as a temporary measure.[13]Both M and F have been given time to see if they could obtain legal aid and secure legal representation but they have not been able to do so. During the course of the various directions hearings, F was asked to provide details for the individuals who have been instructing him and making threats in respect of FGM on C, and he has provided limited details for X, in the form of two mobile telephone numbers.[14]Alternative service via Whatsapp and email was directed as he could not provide any other details such as an postal address. The court effected this on 7 March 2025 via email and via Whatsapp on 12 March 2025 and this is recorded in the order of 28 April 2025. X has not responded in any way or attended any hearing which he would have been permitted to do remotely.[15]The court has made a Yoruba-speaking interpreter available for this hearing and the hearing on 28 April, primarily to assist M.

The evidence and submissions

[16]On 26 June 2025, the final hearing of this matter, I heard oral evidence from F and M, the applicants, and the Guardian Ms Gardner, as anticipated at the previous case management hearing. I also had the benefit of a bundle of documents helpfully prepared by the child’s solicitors, as well as a clear and concise document headed “Observations on behalf of the Child” containing a summary of the legal principle, history of the case and a chronology, from Mr Rogers, counsel for the child, for which I am grateful and which has assisted me.[17]F gave his evidence in English although the Yoruba interpreter was there to assist. He affirmed and confirmed his address where he lives with his wife and children. He confirmed a number of documents which although they did not take the format of the usual sworn witness statements the court was prepared to treat as his written evidence. These appeared at C1 of the bundle, his written evidence in support of his application for leave to apply for an FGM order dated 28th November 2024, at C21 further written evidence date stamped by the court 28th of April 2025, and a statement dated the 7th of June 2025 at C22. He had also exhibited a number of documents such as text messages and screenshots.[18]F was asked a number of questions on behalf of the child. He agreed that when he had entered the country with his wife and son on the 28th of September 2023 he had got entry clearance to stay until the 15th of September 2026, and therefore his position then was he would be leaving the UK in September 2026. He explained to the court about the situation for him and his family when they had left Derby on the 17th of January 2024 for the PP area this was due to the fact that he could not secure a job. Only his wife who was heavily pregnant then was working. He described the living conditions which were difficult, and everything was unsettled, he said. He accepted not having told the immigration authorities/the Home Office everything when contact was first made. I pause to note that in his first statement which starts at C1 he said he did not feel mentally balanced then: C4[19]F accepted that when he applied for asylum in April 2024 he hadn't mentioned FGM including when he spoke to an officer for the screening interview by telephone. He told the court he didn’t even know then what the English word female genital mutilation event meant or what FGM stood for, he had found this on the gov.uk website.[20]Counsel put to F that the text messages he referred to were only received after he had made his immigration application. He said that he didn't tell the people in question about their movements as a family - they had only told his grandmother that they had had a baby. It was X who had called him. X and Y, whose name appears on the screenshots of telephone calls, at C11 for example, are one and the same person. I pause to observe that F says he does not know this individual personally. He says X is a member of his family but has not been able to tell me how they are related, they are “a little far in blood” as he puts it in his written evidence, their respective fathers are not related, is all he could tell me.[21]He said there had been calls in March, October and November 2024 and also through to 2025. He had deleted the first text messages he had received, so there is no record.[22]When asked about medical records which set out that his wife said, no, there was no history of FGM in her family and that she hadn't had it - something she was asked about on the 24th of January 2024, a month before their daughter was born - F told me she wouldn't know the meaning of the expression FGM or female genital mutilation. She would not know. He didn't think she would be able to fill in forms due to the level of her English, which is minimal.[23]He told me about his belief in his culture but he doesn't agree with the traditions. In his family they gave a tribal mark and he gestured to his face. He spoke about the practice of cutting and said an object was used to do it. He was asked about his family in Nigeria as he had told the Home Office he had no family there. He said his mother and father were no more and he couldn't assess the family who had contacted him in 2024 as his family. He would never disclose his whereabouts to those people. He was very resolute when he said that.[24]F's evidence was that they could never go back to Nigeria. It was pointed out to him that he had accepted when he originally entered the UK that they would be going back. Strangely F vehemently denied having said that earlier in his evidence, despite the court’s note. He repeated this vehemently (that he they could never go back.) He told me about the dangers of the northwestern states of Nigeria - every day there was killing the police cannot defend them. It is it was clear to me from F’s evidence that he considers Nigeria to be a very dangerous and unstable country. He does not wish to return and considers himself and his family to be at risk if they do so. This appears to be the case regardless of whether his baby daughter has been threatened about FGM.[25]M, the mother of C, was next to give evidence. Like her husband she too affirmed. She had not filed or served any written statements although case management directions had provided for her to have the opportunity do so.[26]Her evidence was given in Yoruba and translated via the interpreter. She confirmed she had worked in a warehouse and has got a little bit of spoken English. She accepted that when she had given birth to C, it was a vaginal delivery. She told the court after she had read a booklet with an explanation about female genital mutilation in this country which explained that it could lead to discomfort and pain during sexual intercourse, she had noticed she was experiencing such symptoms and has taken some medication for this. She was now certain she had experienced female genital mutilation.[27]It was pointed out to M, by counsel for the guardian, that she had had a cervical scan and a vagina delivery for C, but none of the medical professionals involved had recorded any indications of FGM. She accepted that she had never sat down with any member of her family to discuss having undergone FGM as a child. She isn't in touch with her mother, and she was brought up by a sibling. She accepted that she was worried about returning to Nigeria because of civil unrest there.[28]I then heard evidence from Ms Meridy Gardner, who is the court-appointed guardian for C, employed by Cafcass. She had not prepared any statements of evidence as such, but confirmed that the position statements filed on her behalf set out her views accurately. They are dated as follows: 20 February 2025, 9 April 2025, 23 May 2025, 18 June 2025.[29]Ms Gardner told the court that she still held the view that there was no compelling evidence that the child is at risk of FGM, following hearing the oral evidence of the mother and the father.[30]She agreed that the parents’ primary focus was the safety of their children. They are good and attentive parents who will protect their children. The parents had demonstrated that they could stay away from the family members in question. They had blocked contact from those family members and had ended their ties with them. An FGM court order is a protective measure for when a parent isn't able to protect from the risk of FGM, but in her view, these parents can protect.[31]F and M were given the opportunity to put questions to the guardian but found this challenging. Indeed F became emotional at this point, clearly struggling. The court explained they could set out their case in closing submissions and they opted to do so.[32]Mr. Rogers on behalf of the child helpfully offered to go first in his closing submissions. He supplemented what he had said within his written document headed “Observations on behalf of the Child.” He relied upon the fact that the asylum application and the screening interview did not mention FGM. As to whether the mother had undergone a procedure herself, there was nothing in the medical notes to support that assertion. It was submitted that it was highly unlikely that she would have undergone cervical screening and a vaginal delivery yet there was no evidence of her having had the FGM procedure. Medical professionals would have been alerted to that surely.[33]It was submitted that the guardian's position is the only logical one, the court was not being asked to make any findings about the reasons why the parents might have brought the application in hand. In terms of the macro and micro factors to consider in an analysis of risk set out within Re X 2019, that would apply if the court were to accept the parents’ case that FGM risk exists, however on the guardian’s case if I were to find there was no such risk then it would not be necessary to undertake the macro micro factor factors into consideration. This seemed to me to be a logical analysis.[34]F, speaking to me in his closing submissions, stressed that the risk of FGM and the situation was very risky for them and for their young daughter. He had not told lies in his statement - this was all true.[35]M made similar submissions, saying that the family members in Nigeria were very capable and could use black magic. She too asserted that C was at risk.[36]I was satisfied that the parents had had the opportunity to present their case fully. They were both very courteous and co-operative with the court and the guardian.[37]I heard from the parties as to the way forward given that it was not going to be possible to deliver judgment due to the lateness of the hour. With the agreement of the parents as well as the guardian, I determined that I would send out a written judgement. Both F and M are content for F to translate it and explain it to her and of course that they present the same case as C’s mother and father.

Analysis and findings

[38]I turn to the applicable law.[39]Section 5A and Schedule 2 (Part 1) of the 2003 Act contain the legislative powers for the civil injunctive order under consideration in this case. Such orders are made (Schedule 2 para.1(1)) “for the purposes of – (a) protecting a girl against the commission of a genital mutilation offence”. Schedule 2 para.1(2) materially provides that:
“In deciding whether to exercise its powers under this paragraph and, if so, in what manner, the court must have regard to all the circumstances, including the need to secure the health, safety and well-being of the girl to be protected.”
[40]Schedule 2 para.1(3) provides that an order may contain:
“(a) such prohibitions, restrictions or requirements, and (b) such other terms, as the court considers appropriate for the purposes of the order.”
[41]The terms of the order may extend to conduct outside of England and Wales (as well as (or instead of) conduct within England and Wales) (see para.1(4) Schedule 2, of the 2003 Act). The 2003 Act specifically preserves the right for the court to use any of its other powers to protect a girl in these circumstances, including the inherent jurisdiction (Schedule 2, para.16).[42]There is no fixed period of time for which a court can make the order (see para.1(6)schedule 2 of the 2003 Act).[43]The burden of proof of proving that a risk of FGM exists, and that I should exercise my powers under para. 1 (2) above, rests on the applicant parents. The standard of proof is the simple balance of probabilities.[44]I have considered the oral and written evidence I have received in this matter, including the medical records and the material from the Home Office.[45]Firstly, I accept that female circumcision, or female genital mutilation as it is more properly known, also referred to as “cutting” young girls, is a practice which continues to take place in Nigeria to this day although it is rightly deemed illegal there. Although the practice is outlawed does not mean that it has ceased. It continues to occur, very, very sadly. It is an abhorrent and cruel practice.[46]Secondly, I accept that F and M are loving and protective parents who wish the best for their two young children, I note that the guardian has met with them all and has observed D and C in their care. The children are well-cared for and happy – described as “delightful” – which I entirely accept.[47]I have to apply the test under schedule 1 paragraph 2 of the Female Genital Mutilation Act 2003 which is that the degree of risk of FGM will need to be at least a “real risk”: Re X (FGMPO) No 2 2019 EWHC 1990[48]Thirdly, I have very little information about the respondent X, how he is related to the parents or why he is concerned with their lives and affairs, or what his status is within the family clan. I have seen and considered the screenshots of voice calls and text/WhatsApp messages from 29 May 2024 to 11 August 2024, 25 September 2024, 5 and 18 November 2024, which refer to the need for the family to return to the country for the practice to be undertaken to their daughter. In his statement date-stamped by the court has having been received on 17 April 2025, F says X recently telephoned him again from an unknown number: electronic page 68 of the court bundle.[49]Overall, the information provided by the applicants about this individual is vague at best. It seems that F and X have never met.[50]It also seems to me that if the family returned to Nigeria that they would be able to take steps to ensure that X did not find out their whereabouts. The parents present as determined and able, very committed to each other and their young children. I note that from F’s account he has lived in different places in Nigeria after being originally raised in Ipetumodo. The family practise Islam as their religion. Nigeria is of course a large and populous country where Islam and Christianity are practised. There is a strong belief in cultural norms and traditions, and M spoke of black magic. F is a skilled worker, and has a good understanding of English which he used in Nigeria before coming here.[51]At F27, the Home Office letter refusing asylum dated 30 September 2024, says that F told them he had not had any further communication with family from his father’s side about FGM to his daughter since June 2024. I also note he originally told them he had no family in Nigeria.[52]I note that at the time of the application to the Home Office on 24 April 2024 there was no mention of a threat of FGM to the parties’ daughter – even though the father’s case is that family members had started phoning him about this by that time. Nor was there any such mention at the screening interview on 2 May.[53]This failure by him to mention to it does not sit well with the applicants’ case - even if they were both stressed out and under pressure at the time, as I accept seems likely. I take into account that having a new baby and then having your immigration status curtailed would be very difficult indeed for the family, but I would have expected F nevertheless to have mentioned it at his screening interview on 2 May 2024 if he was genuinely receiving threats or instructions by then. They would have been very fresh in his mind and a source of worry. I don’t think it is likely that the language barrier prevented him from doing so, having dealt with F at all of the directions hearings which I have presided over, as well as this final hearing.[54]Fourthly, I consider what the mother has told me about having experienced FGM herself. This is not consistent with the medical records about her pregnancy and birth. I have of course not heard directly from any doctor or midwife who has examined her.[55]She told me it was only on reading a leaflet in this country that she came to recognise she had had FGM performed on her as a child. I accept that it is not necessarily something that is discussed openly with girls growing up and I accept that M told me she had been raised by a sibling and not her mother.[56]I take into account M’s case which is that her understanding of English is limited, for the purposes of dealing with professionals such as a midwife and that she took some medication for pain and discomfort. But I have to balance her oral evidence and assertions about this against the information within the records, which include a cervical scan and a vaginal delivery for C. She also told Children’s Services on 13 November 2024 that she was “unsure” if she had undergone female genital mutilation.[57]Taking all of the available information before me into account, I am unable to conclude on the balance of probabilities that M herself underwent female genital mutilation. However that alone does not mean that her daughter is not at risk of course.[58]I consider all of these matters against the parents’ assertion that there is a real and powerful risk of the father’s family threatening them to return to their native country and that C will be at risk of being cut. I observe that F, who wishes to protect his family at all costs, was emotional at times, and presented as desperate.[59]However I have to consider whether there is “at least a real risk” of the commission of female genital mutilation on C, a young infant girl, exists.[60]Taking into account the matters I have considered and analysed above, the applicants have not persuaded me that the risk of FGM exists in this case.[61]I am not satisfied about this based on the evidence presented to me - which I find to be vague, and contradictory when considering what F was telling the Home Office in his original asylum application and screening interview - that X or other members of the father’s family have instructed or told him to return to Nigeria for the procedure to be performed on C. I am indeed doubtful as to whether such an individual, also known as Y, even exists, given that the applicant could tell me so little about him and the nature of their family connection.[62]I accept what the child’s guardian tells me, that in any event, these are protective, committed and loving parents who do not wish in any shape or form for their daughter to undergo this procedure. If they were to return to Nigeria, I agree they would take appropriate steps to prevent members of the clan from finding out their location. F in his own evidence accepted that it would be his decision as to whether any alleged risky adults were told of their whereabouts. They told me they had only informed one member of their respective families, M’s grandmother, of C’s birth.[63]Therefore, having determined that I am not persuaded that the risk of FGM exists for C and considering the test under paragraph 1, Schedule 2 of the 2003 Act, there is no need for me to go on and consider any macro and micro factors.[64]It seems to me that the right course is for the court to dismiss the application. I decline to make any protective orders. The interim orders in place will be discharged forthwith.[65]I would be grateful if the guardian’s legal representatives could draw up a final order in those terms. I am also like to publish this judgment to the National Archives and would be grateful if they could provide an anonymised version within 21 days. DATED 10 JULY 2025 HHJ CHATTERJEE .