E (Female Genital Mutilation and Permission to Remove) [2016] EWHC 1052 (Fam)

This judgment was delivered in private. The Judge has given permission for this anonymised version of the judgment (and any of the facts and matters contained in it) to be published on condition always that the names and the addresses of the parties and the children must not be published. For the avoidance of doubt, the strict prohibition on publishing the names and addresses of the parties and the children will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court.

Case No FD15FO7001

[2016] EWHC 1052 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 22/04/2016

Before

MR JUSTICE MACDONALD

Between

CEApplicant

NERespondent

Transcribed by BEVERLEY F. NUNNERY & CO.

(a trading name of Opus 2 International Limited)

Official Court Reporters and Audio Transcribers

25 Southampton Buildings, London WC2A 1AL

Tel: 020 7831 5627 Fax: 020 7831 7737

info@beverleynunnery.com

Ms Clark (instructed by Hudgell & Partners Solicitors) for Applicant

The Respondent appeared in person for in person

Mr Jenkins (instructed by the London Borough of Greenwich) for Local Authority

Hearing Hearing dates: 18, 19, 20 and 22 April 2016

Judgment

INTRODUCTION

[1]Female genital mutilation (hereafter FGM) is an abhorrent practice and a form of violence against girls and women. It is a crime in the jurisdiction of England and Wales (see the Female Genital Mutilation Act 2003 s.1(1)) and it is a crime in the Federal Republic of Nigeria (see the Violence against Persons Prohibition Act 2015 s.20).

[2]In the case of Singh v Entry Clearance Officer New Delhi

[2005] 1 FLR 308

at [68] Munby LJ, as he then was, observed that the practice was “barbarous”. In Fornah v Secretary of State for the Home Department

[2005] 2 FLR 1085

at [1] Auld LJ described it as “an evil practice internationally condemned and in clear violation of

Article 3 of the European Convention

for the Protection of Human Rights and Fundament Freedoms 1950”. In B & G (Children) (No 2)

[2015] EWFC 3

the President noted that everything he had said in MS v MI

[2007] 1 FLR 444

at [3] and [4] about forced marriage applied to FGM, namely that it is “a gross abuse of human rights and a form of domestic violence which dehumanises people and which no cultural imperative can extenuate and no pretended recourse to religious belief can justify”.

[3]Nothing in the conclusions I have reached in this judgment should be taken to detract from these statements.

[4]On 22 July 2015 the mother, CE, secured a without notice FGM order out of hours from Hogg J in respect of the parties’ children, SE, born in March 2003 and now aged 13, FE, born in November 2005 and now aged 10, and CE, born in October 2008, now aged 7. The mother and the children have resided in this jurisdiction since 2012. In a statement of the same date the mother made the following assertions regarding the position of herself and the children:(i) Her marriage to the father, NE, in Nigeria in 2001 was a forced marriage;

(ii) Immediately prior to her being forced into marriage the father’s family forced her to undergo FGM and she was subjected to Type II FGM whereby her clitoris and labia were removed;

(iii) During the course of the marriage the father regularly physically abused her by beating, including beating with belts, resulting in scars all over her body, threatened to kill her and told the children that he would kill her;

(iv) During the course of the marriage the father regularly raped her vaginally, orally and anally;

(v) During the course of the marriage the father regularly physically abused the children by beating them and threatened to kill the children;

(vi) The father had requested that the children be sent to Nigeria in order that FGM could be carried out on SE and FE and in February 2015 the father had sent white ceremonial robes to England in preparation for this;

(vii) The father was planning to kidnap the children from the United Kingdom with a view to returning them to Nigeria in order that FGM could be carried out on SE and FE.

[5]On 24 July 2015 Holman J, relying on the information set out in the mother’s statement dated 22 July 2015, which statement the mother had signed as being true, renewed that order at a further hearing, treated as being without notice given the limited notice period the father had been given by reason of his being in Nigeria. That decision of Holman J is set out in Re E (Children) (Female Genital Mutilation Protection Orders)

[2015] EWHC 2275 (Fam)

. As Holman J noted in his judgment at [6] with respect to the mother’s statement of 22 July 2015: “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 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”.

[6]The court now has available to it the evidence of the father in the form of a statement dated 24 August 2015. In addition, the father has filed and served statements from his elder brother dated 18 August 2015, his former neighbour dated 24th August 2015 and a statement from B, who I shall come to in more detail later, dated 24th August 2015.

[7]By reason of the concerns raised by the mother and, latterly, regarding the level of care given to the children by the mother, the Royal Borough of Greenwich became, and has remained, involved in the family. Following an initial child protection case conference held on 25th August 2015, the children are now the subject of a child protection plan of the same date. Within this context, in addition to the evidence filed by the father, I have had the benefit of seeing a statement from the children’s allocated social worker, Miss Ibiyode dated 2nd September 2015, documentation from the Royal Borough of Greenwich arising from their involvement in this case, including a risk assessment completed by Josephine Opadiran, a s.37 report dated 27 November 2015 completed by Bridget Durrant, together with an updating statement from her dated 15 December 2015 and an independent social work assessment of the father dated 26 October 2015 completed in Nigeria by Henrietta Coker to inform the s.37 report of the Royal Borough of Greenwich. I have also had the benefit of seeing disclosure from the Metropolitan Police concerning the family.

[8]Having considered the evidence, I am satisfied that the mother fundamentally and dishonestly misrepresented the true position before Hogg J and Holman J in July 2015. Indeed, for the reasons that I will set out in this judgment, I am satisfied that it is more likely than not that the mother made the allegations that she did and sought the orders that she did as part of what is known colloquially as an ‘immigration scam’.

[9]In addition to the mother’s application for an FGM order and by reason of the developments in this case since that application was made by the mother, the father now applies to the court pursuant to the Children Act 1989 s.13(1) for permission to remove each of the children from this jurisdiction to the jurisdiction of Nigeria.

[10]The mother has been represented at this final hearing by Miss Clark of counsel. The father has travelled from Nigeria for the hearing and has appeared before the court in person. By an order of Newton J dated 18 January 2016 the local authority have attended this hearing represented by Mr. Jenkins of counsel. At the outset of the hearing and in circumstances where the father appears in person, it was agreed by all parties that Mr. Jenkins would assist the court by calling the social work witnesses in the case and by asking questions of the other witnesses called to assist the court. By an order of Newton J dated 18 January 2016 the children were discharged as parties to the proceedings.

BACKGROUND

[11]The mother is a member of the Igbo ethnic group in Nigeria. The father is a member of a sub-group of the Igbo known as the Delta Igbo in Nigeria. As I have already set out, the parties were married in Nigeria in 2001. Whilst in her statement of 22 July 2015 the mother alleged that she was forced into this marriage, on her own evidence this is not, in fact, the case. Indeed, she stated in evidence that she married the father because she wanted to, the only pressure on her being her own parents’ view that she had reached an age where she should be married.

[12]The mother further alleges that she was subjected to FGM at the time of her marriage to the father by his family. Her evidence in this regard has been inconsistent. In her statement dated 22 July 2015 the mother states that just before her wedding the father’s family forced her to undergo FGM and that “I did not want the procedure, but I had no choice”. The mother also stated to social workers that she had been subjected to FGM prior to her marriage. In the witness box the mother’s story changed substantially and she claimed that she had been subjected to FGM by the father’s family after she got married following a family meeting at which she had consented to FGM because she was in love with the father.

[13]In her statement the mother contends that the FGM she suffered was Type II involving “my clitoris and labia being removed”. On 17 August 2015 the mother underwent an examination by Dr. Jane Dickson, Consultant in Sexual and Reproductive Healthcare. A letter from Dr. Dickson dated 18 August 2015 confirms that the mother has been subjected to Type I FGM (which, adopting the World Health Organisation classification, involves partial or total removal of the clitoris and/or the prepuce, but not the removal of the labia). The father accepts the mother has been subjected to Type I FGM but asserts that this was not performed by his family and was likely performed on the mother by her own family when she was an infant in accordance with custom.

[14]The mother alleges in her statements and in her oral evidence before this court that the father has always evinced an intention that SE, FE and CE should be subjected to FGM. In her statement of 22 July 2015 the mother says “it has always been known to me that the respondent viewed the forced genital mutilation of our three daughters as inevitable and necessary”. The mother’s case is that within the context of the father’s Delta Igbo culture FGM is ordinarily performed on girls when they reach the age of ten years old. The father denies this and states that, as far as he is aware, FGM, when practised, takes place when the child is new born. The mother further alleges that one of the father’s three sisters was subjected to FGM. The father accepts that his own mother was subjected to FGM, but denies that any of his sisters have been.

[15]As I have already set out, the mother alleges that the father was violent to her on an almost daily basis during the marriage and was also violent to the children, including threats to kill them. By a further statement dated 8September 2015 (which repeated the mother’s allegation that she was forced to marry the father) the mother again alleged that she was subjected to years of sexual, physical and emotional abuse and that the children were abused on an almost daily basis. The mother repeated her assertion that “I have injuries and marks all over my body from the years of beatings from the respondent”.

[16]The mother has never particularised any of these allegations and the court was only referred to one specific incident during the course of the hearing during which the mother alleges that the father broke his sister’s leg whilst trying to reach her (the mother) to assault her. The allegations that the children suffered daily abuse were not particularised at all. In her oral evidence her allegations reached their crescendo when she expanded on an allegation contained in her statement of 8 September 2015 that the father had “ordered and financed” thugs and members of the Nigerian Police Department to kill her and that SE had begged her to take them from the home and hide. In a quite remarkable exchange when she was giving evidence, asked by Mr. Jenkins how she had responded to SE’s pleas to flee the approaching death squad, the mother replied, “I said to her ‘I will just take a shower’”.

[17]In December 2012 the children arrived with their parents in the United Kingdom on a visitor’s visa valid for two years. Whilst the mother now seeks to suggest that coming to the United Kingdom was part of a ploy to escape the clutches of the father and the risk to two of the children of FGM, there is cogent evidence that the parents came to the United Kingdom on a holiday. That evidence also demonstrates that the father agreed to the mother and the children remaining in England whilst he returned to Nigeria. This appears to have been for the purposes of allowing the children to receive education in England.

[18]In March 2013 the Royal Borough of Greenwich completed a core assessment after CE, who was then four years old, was found wandering in the street alone and poorly dressed. The assessment concluded that the mother had left CE with other occupants in the property while she went out and that by reason of poor supervision CE managed to leave the property unnoticed. Advice was given and the case was closed.

[19]The mother contends that she and the father were divorced in Nigeria on 22 June 2013. The mother relies in this regard on the photocopy of what she asserts is the certificate of divorce which was granted on that date. I have not been provided with the original of that document, despite asking for the same. The mother asserts that the parties met at the court in Nigeria in June 2013 and signed the necessary papers, after which time she did not see the father. The mother told Miss Durrant that she was “forced” to sign the relevant divorce papers. The father disputes that the parties are, in fact, divorced. He states that the parties were married in a customary ceremony and that none of the customs that are required to dissolve the marriage have been performed. Further, whilst he agrees that he and the mother were in Nigeria on or around 26 June 2013 he states they did not attend a court and, indeed, travelled back to the United Kingdom together on 28 June 2013. I have had sight of the father’s passport which contains exit and entry stamps for Nigeria and the United Kingdom respectively dated 28 June 2013. I requested sight of the mother’s passport (having only been provided with a partial copy) but this was not forthcoming.

[20]On 14 January 2014 the mother made an application to the Home Office for leave to remain in the United Kingdom on the basis of EU national spousal rights, she allegedly having married a Lithuanian national. This application was rejected by the Home Office on 4 June 2015 on the grounds that the purported marriage was a sham designed to secure leave to remain in the United Kingdom. The mother appealed that decision and that appeal was dismissed on 26 June 2015 with all further rights of appeal exhausted.

[21]On 15 July 2015, and only 19 days after the mother’s appeal against the dismissal of her application for leave to remain in the United Kingdom was itself dismissed, the mother first raised allegations of FGM against the father, that initial allegation being made via the NSPCC by a gentleman who identified himself as the children’s uncle, but who is in fact no relation to them. The mother also thereafter launched a claim for asylum based on the alleged threat of FGM to the children. Following the allegation of FGM in July 2015, the mother stopped all contact between the father and the children.

[22]In her evidence the mother contended that she made a referral regarding the risk of FGM to the children after her own father had contacted her from Nigeria and informed her that he had heard from his friends in a beer parlour that the father was going to travel to the United Kingdom to kidnap the children in order to take them to Nigeria for the purposes of FGM. The father denies ever making such threats. The mother further alleges that she received seventy threatening text messages from the father regarding FGM. The mother, however, has failed to produce these texts to her lawyers or the court. The mother told Miss Opadiran that the texts were with the police but the police have made clear they have never seen the same. When pressed at this hearing to explain herself in relation to the absence of the texts the mother resorted to increasingly outlandish statements. The mother first claimed that the father had destroyed the texts by placing her phone in water in 2013. When it was pointed out to the mother that this was two years before the alleged threats made by the father, she stated that most of the messages were voice recordings. When pressed further she finally resorted to claiming that her phone had deleted the text or voice messages of its own accord.

[23]As I have noted, it is clear from the police disclosure that whilst the mother told the police about the alleged text threats from the father, she failed to provide the police with any evidence in respect of the same. Further, the police disclosure shows that the one text the mother did show to the police, a text received from the father by her father, was not in any way threatening.

[24]On 15 July 2015 the Royal Borough of Greenwich were made aware of the allegations of risk of FGM. A child and family assessment was commenced. As already noted, on 25 August 2015 an initial child protection case conference was held and the children were made the subject of child protection plans under the category of emotional abuse.

[25]During the course of the initial involvement of the local authority with the children the following issues came to light:(i) The mother told social workers on 6 August 2015 that she was working as a “prostitute” in order to support the children. The mother now denies she said this, stating that the social worker, Miss Opadiran, was not present at the relevant meeting and is lying about the conversation and that the social worker, Miss Ibiyode, was at the meeting but is hard of hearing;

(ii) The mother was engaging the children in inappropriate conversations by telling them about her own experience of FGM and telling them that they should not speak to their father, as he was coming to kidnap them and take them away for the purposes of FGM. This resulted in considerable emotional distress for the children. FE told Miss Opadiran that she had nightmares and dreamt of her father holding a knife in his hand and threatening to kill her. SE said that her mother had explained to her that her father wanted to perform FGM on her and that she (SE) was afraid, because her father was trying to kidnap them;

(iii) The mother reported to social workers that the children were frightened of their father and had no emotional bond with him. By contrast, the child and family assessment highlighted that all three children reported a positive relationship with their father and had enjoyed a high level of contact with him prior to July 2015.

[26]On 20th October 2015 the mother took the children to an interview at the Home Office in connection with her asylum application. As I have noted, the basis of the mother’s asylum application is the alleged risk of FGM to the children. THE ASSESSMENTS Parenting assessment of the father

THE ASSESSMENTS

[27]The parenting assessment of the father completed by Miss Coker on 26 October 2015 was completed for the purposes of informing the s.37 report being completed by the local authority. Miss Coker, an independent social worker, completed the assessment in Nigeria. In order to complete the assessment, she spoke to the father and met with members of the extended family and P, one of the family’s foster children. The family has fostered informally several children, including P, R and B. These arrangements appear to derive from the family taking in children whose parents cannot care for them and looking after them in return for the children carrying out certain chores and tasks. Having spoken to the paternal family, Miss Coker was left with the impression that the mother derived significant assistance from the foster children in caring for SE, FE and CE and that, accordingly, P, R and B represent established attachment figures for the children within the context of the father’s proposals for the children’s care in Nigeria that I will come to.

[28]It is particularly noteworthy that the evidence before the court plainly indicates that the father in particular has taken great care over the past number of years to ensure that P, R and B have received a comprehensive education, the father clearly prizing education very highly. Miss Coker reports that each of P, R and B are completing some form of higher education.

[29]The assessment of Miss Coker details the father’s proposals for caring for the children should they be returned to his care in Nigeria. The father has a spacious bungalow in a major city in Nigeria. Miss Coker describes the property as being a four bedroom property on a new development with all bedrooms having en suite facilities and as being in good condition. The estate development has lots of young families. Miss Coker also details the schooling proposed for the children with a boarding school proposed for SE (in accordance with expectations that are common for children of SE’s social background in Nigeria) and a primary school proposed for FE and CE.

[30]The father has completed further education and holds an HND in engineering. He owns and runs his own engineering company and concedes that he is often away in other parts of Nigeria for work. Within this context, the father’s proposal is that he will initially remain at home whilst the children settle back in Nigeria, the current family home being in a different area of the country from the home they left in 2012.

[31]Thereafter, when the father is away on work for up to four or five days a week, Miss Coker recorded that the children will be cared for by B, the paternal grandmother and a nanny the father proposes to hire. The father proposes that the nanny will not have exclusive care of the children until she has proven her abilities. Within this context, Ms Coker recorded that B will be at home for another year before commencing the next stage of her education. In addition, the father proposes that other members of his extended family who live in the area will provide support. P will be at home during the holidays, as will R. At the weekends and when he is not away on work the father will be responsible for the care of the children. With respect to this arrangement, Miss Coker points out that the children will have consistent care from attachment figures when the father is away and that: “It may be worth noting that the type of care arrangement that the father is proposing is not uncommon in Africa. Most middle class families would employ some type of paid outside help to assist with childcare. Again, the involvement of extended family members in child rearing is usual practice within the African context. Whilst the arrangements may appear unconventional to Western eyes, it is important to remember that this is a different cultural context. Prior to going to the UK this is the manner in which the girls were raised. The father is highly committed and attached to these children and I feel assured that he will provide the best care possible”.

[32]Miss Coker also examined the issue of FGM. Whilst Miss Coker was not instructed to complete an FGM risk assessment and the assessment of the level of risk of FGM is a matter for the court, Miss Coker notes the following relevant points:(i) Generally speaking, FGM is not widely practised amongst the Delta Igbo, the father’s ethnic group;

(ii) The paternal grandmother said that FGM was practised historically and that she had been subjected to FGM but this was not done to the father’s sisters;

(iii) The paternal grandmother said that when FGM was practised, it would be performed when the child was seven months’ old and that SE, FE and CE are past this age;

(iv) The Delta was one of the first states in Nigeria to run widespread public education campaigns against FGM;

(v) Nigeria has introduced legislation outlawing FGM by way of the Violence against Persons Prohibition Act 2015 s.20;

(vi) The father is an educated man who has promoted education for the foster children of the family and who has high aspirations for each of his daughters.

[33]Having completed her parenting assessment of the father, Miss Coker concludes as follows in respect of the question of whether the father is capable of meeting the children’s emotional, educational and physical needs: “The foster children who have grown up in his care are confident, achieving, well and happy. NE is an experienced parent. I have no reason to believe that he will be less successful with his biological children”.

[34]In assessing what weight to attach to Miss Coker’s report and to her oral evidence, I have borne in mind that it has not been possible for Miss Coker to speak to the children or to see the father with the children. However, this task has been undertaken by social workers in this jurisdiction. I am also mindful of the fact that the mother asserts, through Ms Clark, that Miss Coker is not qualified to assess the risk of FGM. However, as I have made clear, the question of the risk of FGM is a matter for me, informed so far as is relevant by any information from Ms Coker’s report on which I am satisfied that I can rely.

[35]When giving evidence, the father largely repeated the arrangements that are set out in Miss Coker’s report, albeit with one significant amendment about which he was initially less than candid. During the course of questions put to him by me, the father confirmed that, as set out in Miss Coker’s report, the paternal grandmother would be moving into the father’s property to assist with caring for the children when he is away. However, during cross-examination by Miss Clark, the father suddenly stated that his mother had in fact, sadly, died on 1 March 2016 and that, in her place, his maternal aunt T (who at present lives in a village adjacent to the city in which the children would reside and is widowed with adult children who have moved away) would be assisting with the care of the children.

[36]This episode reflected poorly on the father. The court asked him in plain terms what the arrangements would be for the care of the children and the father answered in equally plain terms that his mother would be involved. I must, however, consider in accordance with the principles set out in R v Lucas

[1981] QB 720

, which I summarise later in the judgment, the reasons for the father initially choosing to mislead the court. Whilst deprecating the father’s initial dishonesty, I also bear in mind that the position first articulated by the father was true at the time Miss Coker completed her report and that the father did eventually and of his own volition come clean to the court regarding the true position. I also bear in mind that this aspect of the father’s evidence was incongruous with a presentation that was otherwise credible, child-centred and which displayed obvious concern for the welfare of these children. Further, I note that during his closing submissions he said it would be a “fatal error” for the court not to accede to his application.

[37]Within the foregoing context, I am satisfied that the father’s initial lack of candour was in large part motivated by a misguided wish not to say anything that might derail what is his fervent desire to secure the return of the children to his care.

[38]Miss Clark seeks to point out that the court in any event does not at the present time have independent confirmation from T or from B that they are prepared to assist with the care of the children in Nigeria and does not have independent evidence that they have an established relationship with the children. This is a matter to which I shall return later.

The Section 37 Report

[39]The s.37 report of the Royal Borough of Greenwich was completed by Miss Durrant and is dated 27 November 2015. As I have already noted, that assessment has been informed by the parenting assessment of the father completed by Miss Coker. In addition, Miss Durrant has provided an updating statement to the court dated 15 December 2015.

[40]Miss Durrant’s assessment of the mother is that she is struggling to provide basic care for the children. Miss Durrant assesses the mother to be very isolated in the United Kingdom with no support network. The mother accepts that she is dependent upon subsistence support under the Immigration and Asylum Act 1990 and is not permitted to have recourse to public funds.

[41]During the contact session with the father Miss Durrant was told by SE that she was getting up at 3 a.m. in the morning to ensure that she had time to get herself and her sisters ready for school whilst the mother stayed in bed until 8 a.m. It is notable that Miss Durrant’s evidence as to how this information was conveyed by SE and the evidence of the father who was present at the contact at which the information was conveyed was strikingly similar. I accept that SE said this to Miss Durrant and have no reason to believe that SE was not telling the truth.

[42]During her assessment Miss Durrant was concerned that whilst the children clearly love their mother, she did not observe any signs of open affection from the mother towards the children. At the time Miss Durrant was involved she also noted that the children were reserved towards their mother. Miss Clark points out that this contrasts to the observations made by Miss Opadiran in August 2015 when the children were observed to be comfortable in their mother’s care and no concerns were expressed with the child/parent relationship. Whilst this is correct, by the time of Miss Durrant’s assessment, there is ample evidence to suggest that ahead of that assessment the mother had been speaking to the children inappropriately concerning FGM. As I shall come to, there is also evidence that the mother was pressuring or coaching the children regarding their responses to professionals. I am satisfied that these developments explain the apparent discrepancies between the observations of Miss Opadiran and the later observations of Miss Durrant.

[43]Having assessed the position, Miss Durrant is concerned that the mother is not in a position to provide stability for the children in circumstances where the mother has overstayed her visa and has no definite long term plan. The mother’s housing is also insecure and she has recently been at risk of eviction. Miss Durrant observed that the mother discouraged educative aspects of the children’s welfare, discouraging SE’s interest in reading as causing “damage to her brain” and asserting that SE hates reading when in fact SE makes clear that she “loves” reading. Miss Durrant considered the mother not to be supportive of either of the children’s formal or informal learning. Miss Durrant further notes that the children are isolated from their peer groups by reason of the mother’s insistence on a strict curfew.

[44]Miss Durrant was troubled by the manner in which the mother has portrayed the father to the children. As noted, the children have clearly reported entirely inappropriate comments being made by their mother to them regarding the father wanting to take them away for FGM, which comments have resulted in considerable emotional distress for FE and SE and which comments the mother did not deny during the course of her evidence. At the core group on 17 November 2015 the mother was recorded by Miss Durrant as being unhappy with CE’s positive representation of her father. This evidence was not challenged. Miss Durrant is finally concerned, as is the court, with the mother’s inconsistent narrative and her anger when those inconsistencies are challenged.

[45]Having assessed the mother, Miss Durrant concludes that the mother has limited capacity to care for her children and considers that the threshold of significant harm is met in respect of the children, having regard to the matters that I have recounted.

[46]Miss Durrant also assessed the father and observed two sessions of contact between him and the children in the course of compiling her s.37 report. The children had contact with their father on 29 September 2015 and 3rd October 2015. When Miss Durrant spoke to the children to introduce the fact they would be having contact with their father after three months the children (whom the mother alleges were regularly beaten by their father and threatened with being killed by him) were observed to be extremely relaxed about seeing their father. FE and CE were eager to see him. SE smiled, FE smiled broadly and CE began to giggle. At the first contact CE immediately ran to her father (so fast that the social worker had to prevent her from running into the road) and FE was close behind. SE was seen to be more reserved, but transformed after 20 minutes and became relaxed, laughing and able to enjoy herself. Within this context Miss Durrant notes that SE aspires to be an engineer like her father. There were lots of kisses and cuddles exchanged at the end of contact and all the children said they wanted to see their father again. CE said she wanted to see him “all of the time”. During contact the father presented as natural in his affection towards the children, who in turn presented as relaxed and able to accept their father’s demonstrations of affection. The father was observed by Miss Durrant to be both elated and relieved following the initial contact of 28 September 2015.

[47]During contact on 3 October 2015 SE appeared subdued and said she was tired. She complained that her mother had no plans for her birthday. There did, however, come a point when SE was interacting very well with the father. FE and CE were again happy to see their father. All the children enjoyed the company of their father and none showed any apprehension, although SE did present as preoccupied with adult concerns. SE also lamented that they would never have a nice house in the United Kingdom within the context of a discussion that occurred with regard to what the father’s new house in Nigeria was like.

[48]Within the foregoing context it is important to note that Miss Durrant observed a stark dissonance between SE’s enjoyment of contact and her father’s company and statements she later made during direct work designed to ascertain the children’s wishes and feelings. Having plainly enjoyed contact and her father’s company on 29 September and 3 October, on 12 October SE presented as closed and detached when speaking to Miss Durrant and unwilling to share her wishes and feelings with professionals. She said that she did not like her father, but was unable to say why, eventually saying she liked him a little bit, but claimed to be afraid of him. Eventually SE said just, “I don’t want to talk about it”. In light of the comments made by the mother to the children regarding the father and the threat of FGM, Miss Durrant is satisfied that this disjunction between SE’s presentation with her father in contact and her late presentation when speaking to Miss Durrant is the result of SE being pressured or coached by her mother in respect of the matters with which the court is concerned.

[49]There is also, I am satisfied, evidence of the mother having pressured FE within the context of Miss Durrant seeking to ascertain her wishes and feelings. During the contact on 3 October 2015 FE said she enjoyed living in Nigeria and was sure she would not have a nice house in the United Kingdom. By 6 November 2015 when speaking to Miss Durrant, FE considered Nigeria frightening and unsafe due to robbers and wanted to live in London. Once again, in light of the comments made by the mother to the children regarding their father and the threat of FGM, Miss Durrant is satisfied that this disjunction between FE’s presentation with her father in contact on 3 October and her late presentation when speaking to Miss Durrant on 6 November speaks to FE being pressured or coached by her mother. FE has also told Miss Durrant that her mother is “comfortable and nice” and that her father was someone who encouraged her when she is sad and was the first person to pick her up when she is hurt. She also said that she would be happy to live her whole life with her mother and sisters.

[50]Miss Durrant is clear that CE loves both mother and father and that CE did not express a preference in terms of with whom or where she lives. From what the children said to her over the course of her involvement with them and her observation of the children’s relationship with and their attachment to their father, Miss Durrant concluded and informed Miss Coker that the children would be happy to be placed in the care of their father in Nigeria.

[51]Having met with the father, Miss Durrant considered that her assessment of him matched that of Miss Coker and was reinforced by seeing him in contact with the children. Like Miss Coker, Miss Durrant noted the father’s commitment to the children’s education. The father was keen to hear about the children’s educational achievements during contact and showed pleasure in them. In relation to boarding school, the father was confident that SE could manage the transition and said it was expected that a girl of SE’s age and social background in Nigeria would attend boarding school. Miss Durrant considered, having spoken to him and observed him in contact with the children, that the father presents as a warm and caring father well able to meet the emotional, physical and educational needs of all three children.

[52]Within this context, Miss Durrant recommends that the children should be returned to the care of their father in Nigeria. Were the court to reject that recommendation and consider that the children should remain in the care of their mother, given the contents of a s.37 report, the local authority has indicated to the court that it will be holding a legal planning meeting with a view to considering the issue of care proceedings in respect of the children. If the court’s decision is in line with the recommendation of the local authority pending the children’s departure to Nigeria, Miss Durrant recommends that contact between the children and their mother be supervised contact due to the very real risk that the mother will place inappropriate and undue pressure on them. Miss Durrant is of the view that particular support will need to be given to SE to assist her in understanding the court’s decision and to avoid a risk of inappropriate responsibility being placed upon her within the context of that decision.

[53]In a particularly unattractive part of the mother’s oral evidence, and one which demonstrated, I am satisfied, a complete lack of insight into the concerns that have been expressed about her by multiple professionals, the mother asserted that Miss Durrant had come to the conclusion she had in her s.37 report by reason of the fact that she is having a sexual relationship with the father and has accepted bribes from him in order to reach the conclusions she has (although it is right to record that the mother instructed Miss Clark not to pursue these assertions in cross-examination after I enquired whether they were to be put).

UNICEF Statistics

[54]During the course of this hearing I have considered certain statistics published by UNICEF in relation to FGM in Nigeria. Those statistics are set out in UNICEF Nigeria FGM/C Country Profiles (UNICEF 2003), the UNICEF Female Genital Mutilation/Cutting: A statistical overview and exploration of the dynamic of change (UNICEF 2013) and the UNICEF Statistical profile on female genital mutilation/Cutting for Nigeria (UNICEF 2013).

[55]Care must, of course, be taken with statistics. It is important that the court decides the case on the evidence before it in relation to the subject child or children in question. However, treated with appropriate caution, statistics can help to provide context and, in some circumstances, can serve to corroborate or undermine certain evidence. Within this context I note that the aforementioned statistical surveys indicate that Nigeria has the lowest level of FGM performed after the age of 14 years (16 per cent) and that over 90 per cent of Igbo girls on whom FGM is performed have it performed in early infancy (there appears to be no data in respect of the sub-group of Delta Igbo).

Safeguarding Guidance

[56]Finally, I have also had my attention drawn, quite properly, during the course of the hearing by Miss Clark to the Department of Health Female Genital Mutilation Risk and Safeguarding Guidance for Professionals (DOH March 2015) and the chapter on FGM in the London Safeguarding Children Board London Child Protection Procedures (2015) 5th Edition. In particular, I have paid close regard to the indices of risk set out in those publications. THE LAW Findings of Fact

THE LAW

[57]The law to which the court must have regard when making findings of fact is well settled. The following well known principles apply:(i) The burden of proving a fact is on the party asserting that fact. To prove the fact asserted, that fact must be established on the balance of probabilities;

(ii) The inherent probability or improbability of an event remains a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. As has been observed:

“Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities” (Re B [2008] UKHL 35 at [15]); (iii) The decision on whether the facts in issue have been proved to the requisite standard must be based on all of the available evidence and should have regard to the wide context of social, emotional, ethical and moral factors (A County Council, A mother, A father and XYZ [2005] EWHC 31 (Fam)); (iv) If a court concludes that a witness has lied about one matter, it does not follow that he or she has lied about everything. A witness may lie for many reasons, for example out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure (R v Lucas [1981] QB 720); (v) The court must not evaluate and assess the available evidence in separate compartments, rather regard must be had to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward has been made out on the balance of probabilities (Re T [2004] 2 FLR 838 at [33]); (vi) There is no room for a finding by the court that something might have happened. The court may decide that it did or that it did not” (Re B [2008] UKHL 35 at [2]). However, failure to find a fact proved on the balance of probabilities does not equate without more to a finding that the allegation is false (Re M (Children) [2013] EWCA (Civ) 388); (vii) In principle, the approach of fact finding in private family proceedings between parents should be the same as the approach in care proceedings. However, as Baroness Hale cautions in Re B at [29]: “There are specific risks to which the court must be alive. Allegations of abuse are not being made by a neutral and expert local authority which has nothing to gain by making them, but by a parent who is seeking to gain an advantage in the battle against the other parent. This does not mean that they are false, but it does increase the risk of misinterpretation, exaggeration or downright fabrication”

Female Genital Mutilation

[58]When defining “female genital mutilation” the President stated in Re B and G (Children)(No2)

[2015] EWFC 3

that the World Health Organisation classification of the types of FGM is the classification that should be used for forensic purposes. It provides as follows:

“Type I: Partial or total removal of the clitoris and/or the prepuce (clitoridectomy). When it is important to distinguish between the major variations of Type I mutilation, the following subdivisions are proposed: Type Ia, removal of the clitoral hood or prepuce only; Type Ib, removal of the clitoris with the prepuce. Type II: Partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora (excision). When it is important to distinguish between the major variations that have been documented, the following subdivisions are proposed: Type IIa, removal of the labia minora only; Type IIb, partial or total removal of the clitoris and the labia minora; Type IIc, partial or total removal of the clitoris, the labia minora and the labia majora. Type III: Narrowing of the vaginal orifice with creation of a covering seal by cutting and appositioning the labia minora and/or the labia majora, with or without excision of the clitoris (infibulation). When it is important to distinguish between variations in infibulations, the following subdivisions are proposed: Type IIIa: removal and apposition of the labia minora; Type IIIb: removal and apposition of the labia majora. Type IV: Unclassified: All other harmful procedures to the female genitalia for non-medical purposes, for example, pricking, piercing, incising, scraping and cauterization.”

[59]The Female Genital Mutilation Act 2003 s.1 creates a criminal offence as follows: “(1) A person is guilty of an offence if he excises, infibulates or otherwise mutilates the whole or any part of a girl’s labia majora, labia minora or clitoris. (2) But no offence is committed by an approved person who performs –(a) a surgical operation on a girl which is necessary for her physical or mental health, or

(b) a surgical operation on a girl who is in any stage of labour, or has just given birth, for purposes connected with the labour or birth. (3) The following are approved persons – (a) in relation to an operation falling within subsection (2)(a), a registered medical practitioner, (b) in relation to an operation falling within subsection (2)(b), a registered medical practitioner, a registered midwife or a person undergoing a course of training with a view to becoming such a practitioner or midwife. (4) There is also no offence committed by a person who – (a) performs a surgical operation falling within subsection (2)(a) or (b) outside the United Kingdom, and (b) in relation to such an operation exercises functions corresponding to those of an approved person. (5) For the purpose of determining whether an operation is necessary for the mental health of a girl it is immaterial whether she or any other person believes that the operation is required as a matter of custom or ritual.” (a) a surgical operation on a girl which is necessary for her physical or mental health, or (b) a surgical operation on a girl who is in any stage of labour, or has just given birth, for purposes connected with the labour or birth. (a) in relation to an operation falling within subsection (2)(a), a registered medical practitioner, (b) in relation to an operation falling within subsection (2)(b), a registered medical practitioner, a registered midwife or a person undergoing a course of training with a view to becoming such a practitioner or midwife. (a) performs a surgical operation falling within subsection (2)(a) or (b) outside the United Kingdom, and (b) in relation to such an operation exercises functions corresponding to those of an approved person.

[60]The Serious Crime Act 2015 amended the Female Genital Mutilation Act 2003 by creating the civil remedy of a Female Genital Mutilation Protection Order (hereafter FGM order).

[61]Pursuant to Schedule 2 para 1 of the 2003 Act, as amended, an FGM order can be made by the High Court or the Family Court for the purposes of protecting a girl (defined by s.6(1) of the 2003 Act to include woman) against FGM, as defined in s.1(1) of the 2003 Act.

[62]In determining whether to make an FGM order and, if so, in what terms, 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 (Female Genital Mutilation Act 2003 Schedule 2 para 1(2). Where the court determines that all the circumstances, including the need to secure the health, safety and well-being of the girl to be protected requires the making of an order, the court is given wide powers as to the terms and duration of the FGM order it may make (Female Genital Mutilation Act 2003 Schedule 2 para 1(3) and 1(6)).

Permission to Remove

[63]Pursuant to s.13(3) and 13(4)(a) of the Children Act 1989, when deciding whether to make an order permitting a parent to remove a child permanently from the jurisdiction pursuant to s.13(1)(b) of the Children Act 1989, the test for determining whether to grant permission to remove from the jurisdiction under s.13(1)(b) is the child’s best interests (see Re F (International Relocation Case)

[2015] EWCA (Civ) 882

and FZ v MW

[2016] EWFC 8

). Within this context in Re F (International Relocation Case) the Court of Appeal has recently observed as follows:(i) There can be no presumptions in a case governed by s.1 of the Children Act 1989. From the beginning to the end the child’s welfare is paramount and the focus from beginning to end must be on the child’s best interests.

(ii) Each option must be evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options. Not only is it necessary to consider both parents’ proposals on their own merits and by reference to what the child has to say [where appropriate] but it is also necessary to consider the options side by side in a comparative evaluation. A proposal that may have some but no particular merit on its own may still be better than the only other alternative which is worse.

(iii) A step as significant as the relocation of a child to a foreign jurisdiction where the possibility of a fundamental interference with the relationship between one parent and a child is envisaged requires that the parents’ plans be scrutinised and evaluated by reference to the proportionality of the same.

(iv) The questions identified in Payne v Payne may or may not be relevant on the facts of an individual case and the court will be better placed if it concentrates not on assumptions or preconceptions but on the statutory welfare question which is before it”.

[64]Finally, on its facts, it may be said that this case falls outside the ordinary run of leave to remove cases in circumstances where it concerns children whose immigration position in this jurisdiction is precarious, children who were, in any event, until 2012 living in another jurisdiction and always had been and children in respect of whom there is a clear dispute between the parents as to with which parent the children should reside. I have heard submissions on how, if at all, this may affect the court’s approach to the father’s application for permission to remove the children permanently from the jurisdiction.

[65]Within this context I note the observation of Thorpe LJ in the case of Re J (Leave to Remove: Urgent Case)

[2007] 1 FLR 2033

at [27] with respect to cases where the issue of relocation arises as a function of a dispute between the parents as to with which parent the children should live: “There are many relocation applications that come to this court where the primary carer has developed an urge to relocate for any of a wide variety of reasons and provokes an application by the other parent for a residence order which is simply reactive. However, this is an unusual case in which there was a full-blown contest between the parents as to which should have the responsibility for primary care of the two children at the centre of the storm, namely A and D. The judge quite rightly recorded that there was really only one possible resolution to the cross-residence order applications, given that both A and D had so completely and so sadly disconnected themselves from their mother. The judge ultimately had to decide between a mother’s proposal for a residence order to be implemented in this jurisdiction and a father’s residence order application to be implemented in another state. In those circumstances the discipline suggested in paras [40] and [41] of my judgment in Payne v Payne hardly applies”.

[66]However, it is also important to bear in mind the words of Moore-Bick LJ in K v K (Children: Permanent Removal from the Jurisdiction

[2012] Fam 134

as follows:

“The circumstances in which these difficult decisions have to be made vary infinitely. This is not, I emphasise, a call for an elaboration of the taxonomy. Quite the contrary. The last thing that this very difficult area of family law requires is a satellite jurisprudence generating an ever-more detailed classification of supposedly different types of relocation case. Any move in that direction is, in my judgment, to be firmly resisted. But so too advocates and judges must resist the temptation to try and force the facts of the particular case with which they are concerned within some forensic straightjacket. Asking whether a case is a ‘Payne type case’, or a ‘K v K type case’ or a “Re Y type case’, when in truth it may be none of them, is simply a recipe for unnecessary and inappropriate forensic dispute or worse. It is to be avoided.”

[67]Within the foregoing context I consider that the particular facts comprising this case are simply factors that fall to be taken into account in the evaluation of each child’s best interests within the context of their respective welfare being the court’s paramount consideration. Overall, the court must weigh up all of the relevant factors, look at the case as a whole and determine the course that best meets the need to afford paramount consideration to the child’s welfare (Re F (International Relocation Case) at [50]).

[68]Finally, were I to make an order permitting the father to remove the children permanently from this jurisdiction, such an order would, to a greater or lesser degree, depending on whether the mother decides also to return to Nigeria or is compelled to do so by reason of deportation by the immigration authorities, place limitations on contact between the mother and the children. In this regard, it is important that I bear in mind the following principles drawn from the domestic and European jurisprudence when considering the application for permission to remove:(i) It is almost always in the interests of a child whose parents are separated that he or she should have contact with the parent with whom the child is not living;

(ii) Contact between the parent and the child is a fundamental element of family life. Within this context there is a positive obligation on the State and, therefore, upon the court to take measures to maintain contact;

(iii) In seeking to achieve this, the court must take a medium term and long term view and should take all necessary steps to facilitate such contact as can reasonably be demanded in the circumstances of a particular case.

(iv) It is important to note, however, that the child’s best interests will remain the paramount consideration. Accordingly, the fact that the removal of the child from the jurisdiction will result in a reduction in contact between the child and his or her non-resident parent will not necessarily lead to the conclusion that permission to remove should be refused. SUBMISSIONS The Mother

SUBMISSIONS

[69]The mother submits that, on the evidence before the court, the children are at considerable risk of FGM at the hands of the father and that, accordingly, to return them to their father’s care would expose them to physical and emotional harm. The mother submits that this risk justifies the continuation of the FGM order and is reason enough in itself to dismiss the father’s application to remove the children permanently from the jurisdiction. In this regard, the mother relies on what she contends is the father’s cultural background (and, she says, the tradition within the father’s culture of FGM when the child reaches the age of ten), her allegation that the father’s sister has been subjected to FGM, her allegation that she was forced to marry the father and subjected to FGM before (or after) her wedding to the father and the threats she alleges the father has made in the context of a long expressed intention that his daughters should undergo FGM.

[70]In any event and notwithstanding the uncertainties inherent in their current situation, the mother submits that it is in the children’s best interests to remain in her care in London. The mother submits that the current legal and financial instability of her and the children’s situation, the concerns that she is engaged in prostitution, which she denies, the concerns regarding her conduct towards the children, which she denies, and the risk of care proceedings in respect of the children are not factors which gainsay such a conclusion.

[71]Further, the mother submits that the interference in her relationship with the children and their relationship with her that would be constituted by an order permitting them to be removed from the jurisdiction by the father would be of a magnitude that is entirely antithetic to their best interests and that will constitute a wholly disproportionate interference with the right to respect for family life of the mother and of the children.

[72]Finally, the mother submits that the father’s proposals for caring for the children in Nigeria are in effect inchoate in that the court has no confirmation from T or from B that they are prepared to assist with the care of the children in Nigeria nor does the court have independent evidence that they have an established relationship with the children. The mother submits that the court cannot rely on the father’s assurances in this regard, given his initial lack of candour regarding the death of his mother. Within this context the mother submits that the court cannot be reassured that the father’s proposals are realistic, properly thought through and in the children’s best interests. As such, the mother submits that the father’s application must be dismissed or, if not dismissed, at least adjourned for the further assessment of the position in Nigeria. In any event, the mother submits that B is the father’s lover.

The Father

[73]The father is adamant in his denial that he presents a risk of FGM to the children. He relies on the fact that he grew up without knowledge of the practice and on his contention that the mother has lied repeatedly to the court regarding this issue. He further relies on the fact that he is a member of the Delta Igbo people who, he says, do not now practise FGM and in any event never practiced it on children who are of the age his children are now. The father says there is no risk that the children will be subject to FGM if they are returned to his care and the care of the paternal family.

[74]The father submits that he has made adequate arrangements for the children in Nigeria whereby the children will reside with him, being cared for when he is away at work by B, T and a nanny, together with the support of a wider paternal family. The father submits he has identified school placements for the children which, for SE, will involve a boarding school (which arrangement is normal in Nigeria for girls of SE’s age and social background) and for FE and CE will involve a local day school.

[75]With respect to the mother’s submission that the court has no confirmation from B or from T that they are prepared to assist with the care of the children in Nigeria, nor does the court have evidence that they will have an established relationship with the children, the father submits that the children do know them and that the court can rely on him “never to allow the children to come to harm” and not to “compromise anything as to their needs”. The father made clear to the court that if the mother returns to Nigeria he has no objection to contact taking place (although he suggests such contact would need to be supervised due to a risk of abduction). Were the mother to remain in England, the father states that he would facilitate contact via Skype.

[76]The father contrasts the position for the children that he has sought to establish for them in Nigeria with their current position as over-stayers in the United Kingdom. He goes as far, as I have already observed, to say that the court would be making a “fatal error” not to permit him to remove the children permanently to the jurisdiction of Nigeria to reside in his care. The father was particularly concerned to emphasise to the court, with some feeling, the damage that the children’s current insecure and relatively deprived situation in England will do to their current education, their chances of attending university and to their life chances overall.

The Local Authority

[77]Whilst the local authority are not a party to these proceedings, with all parties’ agreement Mr. Jenkins makes the following helpful points by way of assistance to the court with respect to the issues that fall for determination by the court.

[78]With respect to the allegation that the father poses a risk of FGM in respect of his daughters, Mr. Jenkins submits that if the court concludes this to be the case, then permitting the father to remove the children from the jurisdiction could not be said to be in their best interests, whatever other factors might fall to be considered with respect to that application. However, Mr. Jenkins cautions the court in respect of the evidence of the risk of FGM as follows.

[79]The mother appears to have misrepresented in her statement the type of FGM to which she was subjected, saying in her statement it was Type II, but examination showing it was Type I. Mr. Jenkins suggests that this represents a significant exaggeration on the part of the mother.

[80]Further, Mr. Jenkins points to the fact that the mother’s allegation of forced marriage, as set out in her statement in support of her without notice application dated 22 July 2015 and her statement of September 2015, is, even on her own evidence, nothing of the sort. As the mother herself conceded in evidence, as I have already observed, she married the father because she chose to. When asked why she had alleged the marriage was forced, the mother stated that she was referring to the fact that her parents were pressing her to get married, given her age.

[81]With respect to the allegations of daily domestic violence made by the mother in her statement, including vaginal, anal and oral rape, Mr. Jenkins points out that these are not, and never have been, particularised. Mr. Jenkins also points to the fact that the mother’s allegations that she had “scars all over her body” as the result of this alleged violence became during her oral evidence some small scars on her left forearm and some scars on her back, which the evidence suggests could have been caused by her own father. Further, Mr. Jenkins points out that the mother claimed to have been “forced” by the father to sign the divorce papers, such an assertion being inconsistent with her assertions that she was trapped in a forced marriage in which she experienced daily and extreme physical and sexual violence. Finally, Mr. Jenkins points to the mother’s extraordinary evidence that her response to SE urging her to flee and approaching death squad intent on kidnapping and/or murdering her was to “just take a shower”.

[82]With respect to the mother’s allegation that the father physically abused the children on almost a daily basis when they were in Nigeria, in addition to contradicting the mother’s case that the father was never involved with the care of the children, Mr. Jenkins submits that the children’s evident joy on seeing their father after a long break in contact, their affection towards him and their statements in respect of him, as observed by Miss Durrant, tends to lend the lie to the mother’s allegations.

[83]With respect to the mother’s credibility generally, Mr. Jenkins points out that in relation to the evidence of Miss Opadiran and Miss Ibiyode that the mother had told them she was engaged in prostitution, the mother contended that Miss Opadiran had not been in the room for the conversation, even though it was Miss Opadiran the mother had contacted to arrange the meeting and that Miss Ibiyode was hard of hearing, an allegation in no way borne out when Miss Ibiyode gave evidence. Mr. Jenkins points out that following this the mother’s evidence in relation to social workers descended into wild allegations against Miss Durrant, as I have already recounted.

[84]As to the father’s application for permission to remove the children from the jurisdiction, Mr. Jenkins highlights the conclusions of the s.37 report completed by the local authority with its clear recommendation that the children’s interests are best served by being placed in the care of their father and the fact that the local authority will consider care proceedings if they are not.

[85]Mr. Jenkins submits that the fact that the court does not have confirmation from B or T that they are prepared to assist with the care of the children in Nigeria, does not prevent the court from dealing with the father’s application. Mr. Jenkins submits that the court can, on the evidence available to it (including Miss Coker’s report on how he has cared for P, R and B and Miss Durrant’s observations and assessment of the father and the nature and the quality of his relationship with the children, as I have summarised earlier in this judgment) conclude that the father has prioritised the welfare of his children in the past and will continue to do so and that, accordingly, he will arrange for the care of the children when he is away working in a manner that meets their bests interests without the need to adjourn this hearing to secure further information or assessments.

[86]Finally, Mr. Jenkins draws a distinction between the positions of the children were they to be in the care of their father and the position of the children were they to be in the care of their mother.

[87]Mr. Jenkins submits that the proposal that the father care for the children will result in three Nigerian children returning to their homeland as part of a well thought through plan, and to a situation with which they are already familiar, to be cared for by a parent and people with whom they already have an established attachment with the support of extended family well known to the children with a good standard of living and where the children’s legal status within the country of residence will be secure.

[88]By contrast, Mr. Jenkins submits that the proposals that the children remain with their mother in London will result in three Nigerian children being cared for in circumstances of relative deprivation by a parent in London who is socially isolated with no means of support beyond subsistence payments under the Immigration and Asylum Act 1990, at risk of deportation should the mother’s asylum claim based on the risk of FGM to the children be refused and who has in any event demonstrably acted in a manner antithetic to the children’s best interests in the manner I have already set out to the extent that the local authority is now contemplating the issue of care proceedings.

DISCUSSION

[89]Having listened carefully to the evidence in this case and considered the submissions of the parties, I am satisfied that there is no appreciable risk of the children being subjected to female genital mutilation were they to return to the care of their father in Nigeria and that the mother’s application for a continuation of the FGM orders first made in July 2015 should be dismissed.

[90]With respect to the father’s application to remove the children permanently from the jurisdiction, I have decided that, having regard to each of the children’s best interests as my paramount consideration, it is in each of the children’s best interests for the father to be given permission to remove them to Nigeria. My reasons for so deciding are as follows. Application for FGM order.

[91]Having regard to the Department of Health Female Genital Mutilation Risk and Safeguarding Guidance for Professionals (Department of Health March 2015) and the chapter in the London Safeguarding Children Board London Child Protection Procedures 5th Edition 2015 on FGM, it is plain to me that, prima facie, certain risk factors are present in this case. The children come from a culture in which FGM has occurred and the paternal grandmother confirmed that in relation to the paternal family, FGM used to be practised and she herself was subjected to the same. The mother has been subjected to FGM. The mother has expressed concern that FGM may be carried out on the children. However, accepting that these risk factors are present, I am satisfied that they are, on the evidence before the court, substantially mitigated in this case.

[92]According to the information available to the court, FGM is practised in Nigeria and amongst the Igbo people. Whilst I have no information specifically on the Delta Igbo, I have no reason to doubt the information provided to Miss Coker by the paternal grandmother that FGM used to be practised in her family and that she was subjected to the same. However, there is no evidence to gainsay her statement and the evidence of the father that this is no longer practised in the paternal family and that, in particular, the father’s sisters have not been subjected to FGM. Indeed, quite the contrary.

[93]The mother has adduced no evidence to support her claims regarding FGM in the family more generally. Further and importantly, when speaking to professionals SE told Mrs. Opadiran that when she lived in Nigeria she had never heard about FGM and does not know anyone who has had it done before. In addition, I agree with Mr. Jenkins’s submission that the father’s mistaken description of the age at which FGM generally occurs when compared with that of the paternal grandmother is more likely to be indicative of his lack of familiarity with the practice than a subtle lie designed to mislead the court. Finally, whilst in no way determinative, I note Miss Coker’s evidence that the family originate from an area of Nigeria that was one of the first to experience campaigns against FGM and that the practice is now a criminal offence in Nigeria pursuant to the Violence against Persons Prohibition Act 2015.

[94]Further, I am satisfied that the mother is lying when she claims to have been subjected to FGM by the paternal family. The mother’s claims in this regard are characterised by patent inconsistencies and her story has evolved in the telling. In her statement dated 22 July 2015 and to social workers the mother claimed she was subjected to FGM just before the marriage and did not want the procedure, but had no choice. In the witness box the mother’s story changed to her having been subjected to FGM after she had got married, to which procedure she consented. The mother’s description of FGM likewise does not match the outcome of her examination. In her statement the mother contends that the FGM she suffered was Type II. Examination showed it to be Type I. Whilst care must be taken with this latter point, given the mother is not an expert in FGM, this apparent inconsistency further illuminates the mother’s lack of credibility, which lack of credibility is exacerbated by what I am satisfied are further untruths she has told during the course of this matter in respect of forced marriage and domestic violence.

[95]On the mother’s own evidence, it is clear that her assertion in both her statements before this court that she was forced into marriage is not true. I am quite satisfied that the mother wholly misrepresented the position to the court when she claims to have been forced into marriage with the father. I am likewise satisfied that the mother is not telling the truth when she claims that the father subjected her to sexual and physical violence and that he perpetrated violence against the children. The mother’s allegations in this regard are entirely un-particularised. Her assertion that she was “forced” to divorce the father is at odds with her characterisation of her marriage to him. When pressed regarding her allegations in cross-examination, they became ever more outlandish. As I have noted on a number of occasions during the course of this judgment, whilst the threat of violent gangs cannot be discounted in any jurisdiction, the mother’s evidence that her reaction to the approach of an armed group aiming to do her grave harm was to take a shower was, frankly, incredible. The mother’s allegations that the father has beaten and threatened to kill the children on a regular basis for years is entirely at odds with the close, comfortable and loving relationship with their father that the children demonstrated, even after a gap in contact of three months.

[96]Having regard to all the evidence, I am satisfied that the mother was not forced into marriage and subjected to FGM by the paternal family prior to or after marrying the father. Whilst, in my assessment, it is more likely that the procedure was performed on the mother by her own family, I do not have sufficient evidence to make such a finding on the balance of probabilities.

[97]I am satisfied that the mother is not telling the truth when she claims that the father has threatened to subject the children to FGM and sought their return to Nigeria for that purpose. Beyond the mother’s evidence which, for the reasons I have already set out, is substantially lacking in credibility, there is no evidence that the father has made the threats alleged. The police made clear that they have never seen the alleged seventy text messages that the mother claimed the father sent her in relation to FGM and the mother’s evidence to the court on this issue was wholly unreliable. The mother has adduced no evidence in support of her assertion that her father was told in a beer parlour in Nigeria about threats allegedly made by the father. The mother conceded in evidence that the white robes allegedly sent by the father to the children in the United Kingdom are used for ceremonies generally and are not specific to the performance of FGM (it is in any event difficult to see why the robes would have been sent to this country when, as the mother alleges, FGM was to be performed following the kidnap of the children to Nigeria).

[98]Most importantly in this regard, having read the assessment of the father, having seen him in evidence and having heard the account of his relationship with, and his approach to, his children and foster children, I am satisfied that he is plainly a well-educated man who clearly dotes on his children and has high educational and career aspirations for them. This must also be factored into my assessment of the risk he presents of inflicting FGM on his daughters. In my judgment, these matters further reduce the risk of this occurring.

[99]Within this context and, again, whilst not determinative of the issue, I am also satisfied that the current age of the children in this case further mitigates any risk of FGM. Whilst once again noting the need for caution when considering statistics, the statement of the paternal grandmother to Miss Coker that when it was practised, FGM would be carried out on girls when they reached the age of seven months is consistent with data showing Nigeria as having the lowest level of FGM performed after the age of four years (16 per cent) and consistent with the statistic that over 90 per cent of Igbo girls upon whom FGM is performed have it performed in early infancy (again accepting that there appears to be no data in respect of the subgroup of Delta Igbo).

[100]Finally, I am reinforced in my conclusion that the allegations made by the mother in respect of FGM in this case are untrue by the fact there is, I am satisfied, a clear explanation in this case as to why the mother has told the lies I am satisfied she has.

[101]It is, in my judgment, no coincidence that notwithstanding her assertion that the father had “always” intended that the children should be subjected to FGM, the mother made her allegations only 19 days after her appeal against a refusal to grant her leave to remain in the jurisdiction was dismissed following an earlier conclusion that her application for leave to remain was based on a sham marriage to a Lithuanian national. Within this latter context, I reject the mother’s evidence that the copy of the divorce certificate in the bundle demonstrates that she obtained a divorce from the father in Nigeria on 23 June 2013. I accept the father’s evidence that this did not occur in circumstances where I am satisfied that the father and the mother returned together to the United Kingdom on 28 June 2013. I am satisfied that the copy of the purported divorce certificate exhibited to the mother’s statement is more likely to have been an element of the sham marriage discovered by the Home Office in 2015. Having regard to all the evidence before the court, I am satisfied that the mother has made the false claims she has in respect of FGM in an effort to bolster an application for asylum in the United Kingdom. I shall direct that a copy of this judgment be provided to the Home Office.

[102]As I noted in London Borough of Camden v RZ and others

[2015] EWHC 3751 (Fam)

in the context of forced marriage protection orders, in determining whether to invoke protective measures of the type comprised by the order sought in this case, the court is dealing with the management of risk. In the circumstances of this case and for the reasons I have outlined, I am satisfied that, having regard to all the circumstances, including the need to secure the health, safety and well-being of the children, the risk of FGM in this case is not such as to justify the continuation of FGM orders first granted in July 2015. I am further satisfied that there is no basis for suggesting that were the children to be returned to Nigeria with their father, they would be at risk of FGM.

Permission to remove from the jurisdiction

[103]Having weighed up all of the relevant factors and looking at the case as a whole, I am satisfied that the option that best meets the need to afford paramount consideration to the children’s welfare in this case is to permit the father to remove them permanently from the jurisdiction to the jurisdiction of Nigeria.

[104]I have given careful consideration to each of the children’s welfare needs in this case. None of the children has expressed in terms a wish to live with the father in Nigeria. Likewise, none of the children has expressed a wish in terms to live with their mother in London. I do note in respect of the latter option that both SE and FE have expressed regret that they will not be able to have a house in London comparable to that which they had in Nigeria. Having listened to the evidence of Miss Durrant and having regard to the distance between SE and FE’s delight in seeing their father and the statements made by each child to Miss Durrant, I am also satisfied that the mother has sought to heavily influence what the children have said to social workers about their wishes and feelings. Within this context, whilst none of the children have stated in terms a preference as to where they live, having considered carefully the evidence concerning that which they have said and having regard to the account of contact with their father, I agree with the assessment of Miss Durrant that each child would be happy to return to the care of their father in Nigeria.

[105]In terms of the children’s physical needs, I am satisfied that each of the children needs stability and security with respect to their accommodation and their legal status within the country in which they reside. The children’s best interests are not served by continued uncertainty over where they will be living in respect of home or country. Each of the children likewise has a need to be kept safe and not to be exposed to persons who may present a risk to them. With respect to their emotional needs, on the evidence before the court I am satisfied that each of the children has an urgent need to be reassured in respect of the fear they have been subjected to regarding the risk of FGM and kidnap. It is not in the children’s best interests to be exposed to negative comments in respect of one parent by the other. SE in particular has an urgent need to be able to live as a child and to be relieved from adult concerns and inappropriate adult responsibilities. With respect to the children’s educational needs, within the context of SE and FE’s love of reading and generally, the children need a carer who can support and promote their interest in education and encourage them to meet their full potential.

[106]A move from the care of their mother to the care of their father would, of course, constitute a change of circumstances for the children in that they would move from the care of their mother in London to the care of their father and other attachment figures in Nigeria. In particular, as matters stand, I note that such a move would represent a very substantial change in the level of contact the children would be able to have with their mother in whose primary care they have been for the past four years. Against this, the change of circumstances constituted by a return to the care of their father is a change that will result in a return to surroundings with which the children are familiar (accepting that they would be returning to a different home city to that which they left in 2012) and extended family members with whom they have established relationships.

[107]In terms of their characteristics, each of the children is Nigerian whose cultural heritage is that of the Delta Igbo. It is important for the development of each of the children’s identity and self-esteem that they have the opportunity to experience and learn about their heritage and background and to have contact with their wider extended families to that end.

[108]I am satisfied that each of the children has suffered harm in the care of their mother. On the evidence before the court I am satisfied that the mother has sought to scare the children by telling them in detail about the FGM she was subjected to and telling them that their father was seeking to kidnap them in order to subject them to the same procedure resulting in the children suffering considerable emotional distress. I am further satisfied on the evidence that the mother has sought to undermine the children’s relationship with their father by this conduct and by dishonestly depicting the children as having been scared of their father and having no bond with him when the opposite was in fact the case.

[109]Further, I am satisfied on the evidence that the mother has placed entirely inappropriate adult responsibilities on SE. I accept the evidence of Miss Durrant and the father that SE told them that she gets up at 3 a.m. to ensure that she and FE and CE are ready for school whilst the mother sleeps in until 8 a.m. I accept that SE was telling the truth when she said this. I am reinforced in this conclusion by the clear evidence during contact sessions of SE being preoccupied with adult concerns.

[110]I reject the mother’s assertion that she did not tell social workers that she was engaged in prostitution in order to support the children. I likewise reject her assertion that Miss Opadiran is lying and that Miss Ibiyode is hard of hearing. I am satisfied that the mother did tell Miss Opadiran and Miss Ibiyode that she was prostituting herself in order to secure support for the children. I am further satisfied that by engaging in such conduct (whether so-called “transactional sex” or prostitution in the sense it is ordinarily understood) the mother exposed the children to a risk of coming into contact with inappropriate individuals.

[111]Finally, I am satisfied that the mother has further exposed the children to a risk of harm by acting in a manner that has resulted in the children’s legal status in this jurisdiction being insecure. In particular, by entering into a sham marriage and making false claims of FGM to support her asylum application (which resulted in the children being taken to the Home Office by the mother) the mother has exposed the children to a risk of instability, uncertainty and ultimately potential deportation. Further, by overstaying with the children the mother has placed herself in a position whereby she has no means of support, resulting in the children living in conditions of relative deprivation compared to that which would have been available to them and to the mother in Nigeria had the mother complied with the legal requirements of her visa.

[112]Turning to examine the competing options for the care of the children in this case, I am entirely satisfied that the father is in a position to meet the identified needs of each of the children. The father’s application is, in my judgment, plainly motivated by his wish to secure his children’s welfare in the face of significant and, I am satisfied, justified concerns regarding the children’s welfare in their mother’s care. Having heard him give evidence and having regard to the assessments of Miss Coker and Miss Durrant, I am satisfied that were the children placed in his care in Nigeria, he would prioritise the welfare of each of the children and, in particular, their educational needs.

[113]Within this context, having considered the point carefully, I do not consider it necessary to adjourn these proceedings in order to secure confirmation from B and T that they will be involved in the care of the children or to further assess them. I am satisfied on all the evidence before the court that the father will ensure that the children are well cared for when he is at work were they to return to Nigeria. Having considered them carefully, I am satisfied his proposals are well thought through and realistic, particularly where the children will be returning to familiar surroundings and extended family members with whom they have established relationships and to circumstances which substantially, although not completely, reflect their living arrangements prior to their leaving Nigeria in 2012. For the reasons I have already given, I am satisfied that the return of the children to the care of their father does not carry with it a risk that they will be exposed by him to FGM.

[114]By contrast, I have grave doubts about the mother’s ability to meet the children’s needs. By her actions I am satisfied that the mother has failed to prioritise the children’s physical, emotional and educational needs. I am further satisfied that she has shown very little insight into her conduct and its adverse impact on the children’s welfare. Rather than seeking to address the current situation of the children through lawful means and open and honest cooperation with the professionals seeking to assist the family, the mother has instead chosen to seek to deceive the authorities and mislead the professionals to the manifest detriment of the children.

[115]I am satisfied that were the children to remain in the care of their mother, they would continue to be at substantial risk of not having their needs met. They would, I am satisfied, continue to be isolated and, in particular, isolated from peer groups. In addition, they will continue to be isolated from extended maternal and paternal families in Nigeria. Given the narrative pursued by the mother in pursuit of her asylum claim and her continuing willingness to lie in order to get what she wants, I consider that there is also an appreciable risk that the mother would continue to seek to undermine the children’s relationship with their father. Within this context and having regard to the matters I have already set out in this judgment, I am satisfied that the mother’s opposition to the father’s application has not been driven by genuine concern over FGM and the children’s welfare but rather by her desire to gain immigration status on false pretences.

[116]I accept that an order permitting the father to remove the children permanently from the jurisdiction to Nigeria will constitute a change of circumstances for the children and a considerable one at that. However, having regard to all the evidence before the court, I am satisfied that the children will be able to manage that change of circumstances and I am satisfied that the father is adept at meeting their needs, particularly where, as I have said, the children will be returning to familiar surroundings and extended family members with whom they have established relationships and to circumstances which substantially, although, as I have said, not completely, reflect their living arrangements prior to leaving Nigeria in 2012.

[117]I of course also accept that an order which results in the children returning to Nigeria with their father constitutes, as matters stand, an interference with the rights of the mother and children to respect for family life. I am however, having regard to all the matters recited, satisfied that that interference is proportionate in circumstances where, in my judgment, there is an imperative need for safe, secure and consistent care that I am satisfied, out of the mother and the father, only the father is in a position to provide at the present time. In these circumstances I am satisfied that the interference in the mother and children’s right to respect for family life constituted by an order permitting the father to remove the children permanently from the jurisdiction is proportionate, having regard to the aims it is sought to achieve.

[118]In the circumstances, setting the competing options side by side and evaluating the same one against the other, and for the reasons I have given, I am satisfied that it is in the children’s best interests for orders to be made that the children should reside in the care of their father and that the father should have permission to remove the children permanently from this jurisdiction.

CONCLUSION

[119]In conclusion, I make a child arrangements order providing that the children will live with their father. I give the father permission to remove the children permanently from the jurisdiction, to the jurisdiction of Nigeria. I make a child arrangements order in favour of the mother in respect of contact, the terms of which will be the subject of further discussion.

[120]It is my intention that the children should move to the care of their father today. I am satisfied that were the children to remain in the care of their mother for a period of time following my decision, that, having regard to what I am satisfied has been her previous conduct, she is likely to seek to influence the children in a manner antithetic to their emotional welfare. Whilst I have no jurisdiction to dictate to the local authority the actions it should take consequent upon my order, it would be my hope that the local authority will(a) assist in facilitating the handover of the children from the mother to their father;

(b) assist the children to understand the reasons why they are moving to the care of their father and returning to Nigeria; and

[121]That is my judgment.