E (Children) (Female Genital Mutilation Protection Orders), Re [2015] EWHC 2275 (Fam)

Case No FD15FO7001[2015] EWHC 2275 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of JusticeDate Friday, 24 th July 2015
Before
MR JUSTICE HOLMAN(sitting in public)
Between
Applicant motherApplicantRespondent FATHERRespondent
RE. E (children) (Female genital mutilation protection orders)
MR Z. SAMUEL appeared on behalf of the applicant mother.
THE RESPONDENT FATHER did not attend and was not represented.
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J U D G M E N T
MR JUSTICE HOLMAN
[1]This application is for a Female Genital Mutilation Protection Order (FGMP0) pursuant to Schedule 2 to the Female Genital Mutilation Act 2003, which was inserted by s.73 of the Serious Crime Act 2015 and came into force last Friday, 17th July 2015. This must be one of the earlier applications for an FGMPO pursuant to these new statutory provisions.[2]The essential factual background is as follows. The applicant is the mother of three daughters. They are currently aged 12, 9½ and 6. The applicant was formerly married to, but is now divorced from, the father of those three girls. The ethnicity of both parents is Nigerian, and their country of origin and citizenship is Nigeria. Currently, it is understood that the father is in Nigeria although he visits England regularly. The mother has been living in England, together with her daughters, for several years, although her visa has now expired and she frankly admits to being an overstayer. However that may be, that is no reason, of course, for denying to these innocent young girls the protection of an FMGPO if one is otherwise required and is appropriate.[3]The mother and girls currently live in a council flat within London. In her statement signed on 22nd July 2015, the mother describes that she met and married her former husband in Nigeria in 2001, when she herself was aged 20 and he was in his mid-thirties. She says that it was a forced marriage. Her statement continues:
“Just before the wedding, the respondent’s family forced me to undergo genital circumcision. I underwent the Type 2 procedure and so my clitoris and labia were removed. I did not want the procedure but I had no choice. Since the procedure, I have suffered terrible pain from my injury. It has never properly healed. After sexual intercourse, the wound will usually open again.”
There, in a few short sentences, is a description from first-hand experience of the terrible scourge and damage inflicted upon females by forced genital mutilation.[4]The mother continues in her statement to describe how the respondent, her former husband and the father of the girls, is physically abusive, both to her and to the children. She says that he beats her and the children, regularly using weapons, such as belts, and that she has scars all over her body. She says that he will often beat her and, whilst he is hitting her, will say to the children that he is going to kill her. She says that he regularly threatens to harm or kill her or the children. So, if there is any truth at all in what the mother says, there is a general background to this case and application of very serious violence and sadistic brutality.[5]The mother continues in her statement as follows:
“It has always been known to me that the respondent viewed the forced genital mutilation of our three daughters as inevitable and necessary. In February 2015, he sent the ceremonial robes from Nigeria in preparation for this. Now the school holiday is upon us he has told me, via messages, that he expects to see the children immediately. He has requested that the two elder girls be sent now. He is angry because the eldest is over ten years old and past the usual age for the procedure to happen … The respondent has requested the umbilical cords and first teeth of the children to be used as part of the ceremony. He is very serious about the preparations and carrying out the ceremony in the school holidays so that the children can heal before the new term starts.”
[6]I stress, of course, that at the moment this is simply the one-sided account of the mother, and the respondent father may in due course file and serve different and contradictory evidence. But clearly, if what the mother there says is true or substantially true, there is currently a very high risk indeed to one or more of these three vulnerable girls that they may be forced, just as their mother was, into undergoing some form of genital mutilation.[7]As I have mentioned, the new legislation to which I will shortly refer only came into force last Friday. With great speed after that, the mother or her lawyers first made an out-of-hours oral application by telephone to Hogg J two days ago, on 22nd July 2015, for an ex parte FGMPO pursuant to paragraph 5 of Schedule 2 to the Act. Hogg J did make such an order, essentially in the standard form now prescribed. Appropriately, because that order had been made without any notice to the father, Hogg J provided for a further hearing in court here at the Royal Courts of Justice today, 24th July 2015. This, therefore, is the return date that was fixed by Hogg J in that order.[8]The hearing was specifically timed to begin at or after 2 pm English time today. I have been supplied with a statement of service by a process server, Paul Gilchrist, signed today, 24th July 2015, in which he says, “That I did on Friday 24th July 2015 at 11.30 am serve the respondent by phone conversation, after he verbally identified himself, followed by sending camera phone pictures of the following documents to his mobile phone, which are now listed below …” namely, the notice of proceedings and the orders made by Hogg J on 22nd July 2015.[9]I have been told that, currently, there is no time difference between here in England and Nigeria, where the father currently is. In other words, it was at 11.30 am also in Nigeria today that the father was first served with any of the documents in this case or, I assume, first had any knowledge of it.[10]The relevance of that is that paragraph 5 of Schedule 2 to the Act makes provision for ex parte orders, that is, orders made without any notice to the proposed respondent, followed by a return date or opportunity for the respondent to make representations. Realistically, so short a time (namely less than three hours) elapsed between the father being served with the orders made last Wednesday and the start of this hearing, that fairness and justice to him require that I treat this as a further hearing for an ex parte order. I must, as I will, fix a further return date at which, of course, the father can be present or represented and heard.[11]With that background explanation, I briefly refer to the material parts of the legislation. Section 73 of the Serious Crime Act 2015 added a section 5A to the Female Genital Mutilation Act 2003. Section 5A is headed ”Female genital mutilation protection orders” and provides that Schedule 2, as added to the 2003 Act, provides for the making of female mutilation protection orders.[12]One turns, therefore, to Schedule 2 to the Female Genital Mutilation Act 2003 which was added by section 73 of the Serious Crime Act 2015. So far as is material, that provides as follows:
“1. Power to make FGM protection order (1) The court in England and Wales may make an order (an “FGM protection order”) for the purposes of - (a) protecting a girl against the commission of a genital mutilation offence … (2) 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. (3) An FGM protection order may contain - (a) Such prohibitions, restriction or requirements, and (b) such other terms, as the court considers appropriate for the purposes of the order. (4) The terms of an FGM protection order may, in particular, relate to - (a)conduct outside England and Wales as well as (or instead of) conduct within England and Wales …” (1) The court in England and Wales may make an order (an “FGM protection order”) for the purposes of - (a) protecting a girl against the commission of a genital mutilation offence … (2) 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. (3) An FGM protection order may contain - (a) Such prohibitions, restriction or requirements, and (b) such other terms, as the court considers appropriate for the purposes of the order. (4) The terms of an FGM protection order may, in particular, relate to - (a)conduct outside England and Wales as well as (or instead of) conduct within England and Wales …”
[13]Pausing there, the court in England and Wales means the High Court or the Family Court, so this is a matter in relation to which I have jurisdiction. I have to have regard to all the circumstances, including the need to secure the health, safety and well-being of the girl, or in this case girls, to be protected. As I have said, those short sentences from the statement of the mother in this case are sufficient to illustrate the scourge of female genital mutilation and how profoundly damaging that it may be, not only in the short term, but in the long term to the health and well-being of the person affected. The mother underwent this procedure about 14 years ago. She describes how she has suffered terrible pain from it, it has never properly healed, and even now, after sexual intercourse, the wound will usually open again.[14]It is clear, on the basis of the mother’s statement, that there is, potentially, a very high risk indeed of this procedure being inflicted on one or more of these girls if they are not protected and made safe to the maximum extent possible.[15]In my view, having regard to all the circumstances and the background of this particular case, and the need to secure the health, safety and well-being of these girls, this is a case in which an FGMPO requires to be made. It is clear from paragraph 1(3) of the schedule that appropriate additional prohibitions, restrictions or requirements can be attached to an FGM protection order, but they must always be “for the purposes of the order”.[16]Moving on, paragraph 2 of Schedule 2 makes provision as to the categories of people who may apply for an FGMPO. The primary categories under paragraph 2(2) are the girl who is to be protected by the order or “a relevant third party”. Paragraph 2(7) defines that a relevant third party means a person specified, or falling within a description of persons specified, by regulations made by the Lord Chancellor. However, Mr Zimran Samuel, who appears on behalf of the applicant mother today, tells me that, because the implementation of these provisions was brought forward, no regulations have yet been made specifying who may be a relevant third party for the purposes of this Act. So at the moment it is not possible to say that the mother is a relevant third party. However, paragraph 2(3) goes on to provide that “an application may be made by any other person with the leave of the court.” Paragraph 2(4) provides that “In deciding whether to grant leave, the court must have regard to all the circumstances including(a) the applicant’s connection with the girl to be protected;(b) the applicant’s knowledge of the circumstances of the girl.”[17]When she made the FGMPO on 22nd July 2015, Hogg J expressly gave to the applicant mother leave or permission to make the application. It is right that I should further consider her status and capacity at this first in-court hearing. Plainly, however, the connection of the applicant with the girls concerned could not be a closer one, since she is their mother. Further, her knowledge of the circumstances of the girls could not be more intimate or profound, since she is their mother and it is with her that they live. In my view, this is the plainest possible case in which to grant to the mother leave or permission to make this application.[18]Finally, it is necessary to make more detailed reference to paragraph 5 to which I have already briefly referred. This is headed “Ex Parte orders”, Parliament preferring to use that Latin tag when judges, by and large, have trained themselves to move on to the more modern language of “without notice orders”. Paragraph 5 provides that, in any case where it is just and convenient to do so, the court may make an FGMPO even though the respondent has not been given such notice as would otherwise be required. Paragraph 5(2) provides as follows. “In deciding whether to exercise its powers under sub-paragraph(1), the court must have read to all the circumstances including -(a) the risk to the girl, or to another person, of becoming a victim of the genital mutilation offence if the order is not made immediately,(b) whether it is likely that an applicant will be deterred or prevented from pursuing an application if an order is not made immediately, and(c) whether there is reason to believe that - (i) the respondent is aware of the proceedings but is deliberately evading service, and (ii) the delay involved in effecting substituted service will cause serious prejudice to the girl to be protected or (if different) an applicant.” (a) the risk to the girl, or to another person, of becoming a victim of the genital mutilation offence if the order is not made immediately, (b) whether it is likely that an applicant will be deterred or prevented from pursuing an application if an order is not made immediately, and (c) whether there is reason to believe that - (i) the respondent is aware of the proceedings but is deliberately evading service, and (ii) the delay involved in effecting substituted service will cause serious prejudice to the girl to be protected or (if different) an applicant.”[19]This is not a case to which the provisions of sub-paragraph (c) or, indeed, (b) apply. However, I am satisfied on the evidence that there was and remains a serious risk to these girls of becoming a victim of a genital mutilation offence if an order was not made and is not now repeated immediately. As the mother says in her statement, as long ago as February the father sent the ceremonial robes from Nigeria in preparation. She says that now the school holiday is upon us, he has told her, via messages, that he expects to see the children immediately and requested the children to be sent to him.[20]She expresses the opinion, at paragraph 12, that “He is very serious about the preparations and carrying out the ceremony in the school holidays so that the children can heal before the new term starts.”[21]Further, as the mother explains, the father is already angry because the eldest daughter has already passed the usual age for the procedure to happen.[22]It seems to me that there was, and remains, a significant risk to one or more of these girls of being a victim of a genital mutilation offence unless an urgent ex parte order was made and is now repeated.[23]Paragraph 5 continues by providing as follows:
“(3) The court must give the respondent an opportunity to make representations about an order made by virtue of sub-paragraph (1). (4) The opportunity must be - (a) as soon as just and convenient, and (b) at a hearing of which notice has been given to all the parties in accordance with rules of court.” (a) as soon as just and convenient, and (b) at a hearing of which notice has been given to all the parties in accordance with rules of court.”
[24]I am absolutely satisfied in this case that the protection and safety of these girls demands that I continue the FGMPO made by Hogg J on 22nd July 2015. It is patently vital that for the time being these children are not allowed to be removed from England and Wales and, in particular, to Nigeria. Accordingly, I will repeat that provision of the order of Hogg J which restrains both the applicant and the respondent father from removing any of the children from England and Wales until further order.[25]In exercise of her powers under paragraph 1(3) of Schedule 2, which I set out above, Hogg J added to the order the following provisions:
“The respondent must not himself, or encourage, permit or cause any other people to (a) use or threaten violence against the applicant or children; (b) intimidate, harass, threaten or pester the applicant or the children.”
I will extend those provisions of that order.[26]Today, Mr Samuel has invited me to go further and to add an additional provision or provisions to the effect that the respondent father must not come within 100 metres of the address of the flat at which the mother and three girls live, and must not come within 100 metres of the children’s school, the name of which will be specified in the order but not stated by me in this public judgment.[27]As I said to Mr Samuel, it is extremely important that the courts do not allow their powers under the Female Genital Mutilation Act 2003, which are very wide ones, to get stretched to providing protection for somebody such as the mother herself in this case. She says that she has suffered great violence at the hands of her former husband. But if she in her own right needs protection from him, she has a different statutory remedy under the Family Law Act 1996, as amended. I wish to make very, very clear that, in adding, as I will, those restrictions against the respondent father from coming within 100 metres of the home or the children’s school, I am doing so purely for the purposes of protecting these three girls from female genital mutilation, and not for the purpose of protecting the mother from any feared violence from the father. But it does seem to me, on the facts and in the circumstances of this case, that simply to prohibit the father from himself or by others practising enforced genital mutilation upon these girls is not sufficient. He must, for the time being, be prohibited altogether from coming within a restricted radius of their home and, when they return there next term, their school.[28]For those reasons, I will add provisions to that effect to the underlying order which was made by Hogg J on 22nd July 2015.[29]As I have said, in the circumstances of this case, when the father only first learned of these proceedings about two and a half hours before this hearing began, it would not be right for me to treat this hearing as being the on-notice opportunity for him to make representations about the order. Quite rightly, as she dealt with this matter by telephone out of hours, Hogg J fixed a very rapid return indeed for an in-court hearing, which is able to be conducted with appropriate formality, as this hearing has been; fully recorded, as this hearing will be being; and, indeed, open to the public, as this hearing is, with, as it happens, an accredited journalist present. But, nevertheless, I treat this hearing as being an ex parte hearing under the provisions of paragraph 5 of Schedule 2.[30]Accordingly, I am required by sub-paragraphs (3) and (4) to give the respondent an opportunity to make representations about the order which I make, and that opportunity must be “as soon as just and convenient” and “at a hearing of which notice has been given” to him.[31]I must, as I will, identify a specified time, date and place for a further hearing. I bear in mind that he is currently in Nigeria and obviously cannot reasonably be expected to attend rapidly at court himself, nor even rapidly to instruct legal representatives on his behalf if he so wishes. I bear in mind also, however, that it does appear that today the process server was able, without difficulty, to serve the father electronically and send to him the relevant documents. It seems to me that an opportunity which is both “as soon as convenient” and “as soon as just” requires a short period of time before the next hearing. Frankly, there is no significant prejudice to the respondent in a somewhat extended period, as it would be a criminal act, in any event, for him to attempt to perform forced genital mutilation on any of his daughters.[32]I accordingly propose to fix an opportunity here at the Royal Courts of Justice on Tuesday, 11th August 2015 at 10.30 am, with the time allowed of one hour. That seems to me to give a fair and just amount of time for the father to attend or arrange representation if he wishes, and yet not to delay that opportunity beyond the point of being just.[33]I will expressly provide that the solicitors for the applicant must ensure that today’s order is served upon the respondent father, which may in the first instance be done electronically, as it was earlier today, immediately after the sealed copy of this order is available.[34]For those reasons, there will now be a further female genital mutilation protection order in the terms that Mr Samuel drafted, as I have amended there. Now, Mr Samuel, how quickly can you get this to today’s associate in its perfected form? MR. SAMUEL: That can be straightaway. MR. JUSTICE HOLMAN: I am going to hand down to you the copy on which I have made these amendments and additions. If you could weave them all in, the usher will give you the associate’s email address, you can email it to him, but, as this is a public hearing and as the press have an interest in this case, would you make some arrangement to supply a copy to Mr Farmer if he wishes to have one, but with the names of the girls and their dates of birth and the actual names of the parties and the actual address of the home and the children’s school very clearly redacted? MR. SAMUEL: My Lord, I will certainly do that. May I make two brief observations, my Lord, on your judgment? MR. JUSTICE HOLMAN: Yes. MR. SAMUEL: Firstly, my Lord, my client instructs me that her visa is due to expire but has not quite expired yet. MR. JUSTICE HOLMAN: That is not what she says in her statement. Her statement says, “I had a two-year visa that expired last year. I am currently an overstayer.” My judgment was quoting what she said in her statement and was accurate. Her statement may be inaccurate, but that is her error not mine. MR. SAMUEL: I will put that aside. Those were my instructions in raising it. Secondly, my Lord, I told the court that there was not yet a list by the Lord Chancellor of who would be considered relevant third parties. That is correct, however, if I can put on the record for clarity, there has been guidance issued that relevant third parties do at the moment include local authorities. There is not a list yet but---- MR. JUSTICE HOLMAN: Has the Lord Chancellor made any regulations? MR. SAMUEL: My understanding is at the moment, no, but there has been guidance circulated by the MOJ. MR. JUSTICE HOLMAN: That is just guidance. What the Act clearly says is that an application may be made by a relevant third party, relevant third party means a person specified … by regulations. If the Lord Chancellor has not yet made the regulations, we do not yet have a defined relevant third party. MR. SAMUEL: I would not wish to mislead the court. It might be that something exists that I have not seen, it is always possible, but what I have seen - and I have been doing some research to find out, my Lord - is that the MOJ circular says “relevant third parties include local authorities” at the moment and that is it. MR. JUSTICE HOLMAN: I think that what I have said in the judgment was that you had told me that there were no regulations and you did tell me that. MR. SAMUEL: My Lord, as far as I am aware there is no current list. MR. JUSTICE HOLMAN: I do not think that anything needs correcting in the judgment, because I correctly said what you told me. MR. SAMUEL: My Lord, very well. The last thing that I wish to raise is I wonder, my Lord, if you would consider having this judgment released on BAILII for a few reasons that I can briefly outline. MR. JUSTICE HOLMAN : The first question is whether a transcript is made of it. If a transcript is made of it, I put all transcripts of all judgments on BAILII, so, if it were to be transcribed, it will go on BAILII. Who is going to pay for a transcript? MR. SAMUEL; My Lord, may I seek to persuade you that it should be at public expense? MR. JUSTICE HOLMAN: All right. MR. SAMUEL: Firstly---- MR. JUSTICE HOLMAN: You do not need to develop it. It is very important. This is the first, so I will say - and you can add it into the order - that a transcript of the judgment given today must be made forthwith on an expedited basis at the expense of public funds. I will ask my clerk to trigger that, but you must make sure that that goes in the order. MR. SAMUEL: I will, my Lord.35. (To the clerk) Could you arrange - and he is going to draft it in the order - that a transcript be made on an expedited basis at the expense of public funds of the judgment that I have just given? Can you ring them today so I can get on with it early next week otherwise I will be going away? MR. SAMUEL: I am grateful. It may be of assistance to others dealing with issues like this. MR. JUSTICE HOLMAN: No, you do not need to develop that. Is there anything else, Mr. Samuel? MR. SAMUEL: No, my Lord, I am grateful. MR. JUSTICE HOLMAN: I am very grateful to you. I will, in fact, keep these papers so that I can correct quotations and so on in the transcript then. MR. SAMUEL: My Lord, may I have your corrected order? I thought that you had made some handwritten corrections. MR. JUSTICE HOLMAN: I thought that I had already handed that down. My clerk must have picked it up in order to give the details to the Court Recording and Transcription Unit. I will get it back. MR. SAMULE: Unless my Lord is content with me sending it over----36. Is there anything else, Mr. Samuel, that you now need to raise or say? MR. SAMUEL: Not at all. We are grateful for the court’s time. Mr. JUSTICE HOLMAN: Thank you very much indeed for coming, Madam, and I sincerely hope that this will protect you daughters from suffering that terrible experience that you suffered. All right. Thank you all very much indeed.

Cited in 1 later judgment