Buckinghamshire County Council v MA & Anor [2016] EWHC 1338 (Fam)

Case No FD16P00180[2016] EWHC 1338 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of JusticeDate Monday, 16 th May 2016
Before
MR JUSTICE HOLMAN(sitting throughout in public)
Between
Buckinghamshire County CouncilClaimantMA & AnorDefendant
B E T W E E N:
BUCKINGHAMSHIRE COUNTY COUNCIL Applicants
- and -
(1) MA
(2) FHY
Respondents
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MS M. CHAUDHRY (instructed by Legal Services) appeared on behalf of the applicants.
MR A. PERKINS (instructed by Freemans) appeared on behalf of the respondents.
J U D G M E N T
[1]These are proceedings brought by Buckinghamshire County Council to make three children wards of court and also pursuant to the Female Genital Mutilation Act 2003. The respondents are the mother and father, respectively, of the children concerned.[2]The parents are both Somali who were brought up in Somalia. The father travelled to Britain as a refugee in 2002 and has lived here ever since. The mother, as his wife, was enabled to join him here in 2005. She also has lived here ever since then. The parents have altogether seven children, of whom five are daughters and two are sons. Three of those children were born here in England after the mother arrived here in 2005. The eldest four were all born in Somalia.[3]It is a fact that the two eldest daughters have been subjected to female genital mutilation in Somalia. That must necessarily have been over ten years ago. The father says that it took place without his knowledge, let alone his consent, in the period after he had travelled to Britain, whilst the mother and the four eldest children were still living in Somalia.[4]Over the last several years the family have lived in the area of several different local authorities. There is clearly a history here of different local authorities at various times having acute concerns that the youngest three daughters might similarly become the victims of female genital mutilation. As a result, there were proceedings in 2012 and 2014 and again this year. It is said that the consequence of a rather last minute application by another local authority in 2014 was that the mother and children were unable at the last minute to travel on a planned holiday to Somalia. If that was the necessary and inevitable consequence, it is obviously a matter of the utmost regret; the more so as, before the actual booked date of travel, a judge sitting as a High Court Judge had given permission to go.[5]What gave rise to the current proceedings was that in early April 2016 Buckinghamshire County Council learned that the mother and two of the daughters, together with one of the sons, had travelled to Somalia without their prior knowledge, even though at that time there was quite considerable engagement between the family and that local authority. This resulted in a without notice order being made on 8th April 2016 and these proceedings ultimately coming before myself on notice here today.[6]Later in April the mother and children did duly return from Somalia. The two daughters who had been there were medically examined, and there was no evidence or indication of any genital mutilation or other interference with their genitalia. The result is that today Buckinghamshire County Council have proposed and sought that all the proceedings which they commenced last month should be dismissed or otherwise discontinued or brought to an end, and all current orders of a continuing nature discharged. I have been expressly told today by Ms. Mehvish Chaudhry, who appears on behalf of Buckinghamshire County Council, that in the opinion of Buckinghamshire County Council there is currently a low risk of any of the three youngest daughters being subjected to female genital mutilation.[7]Mr Alistair Perkins, who appears on behalf of both parents today, has urged that there should nevertheless be a “fact finding” hearing at which the court should consider and give a suitably detailed and analytical judgment as to whether there is any future risk of any of these three daughters being subjected to female genital mutilation. He stresses that this is now the third set of proceedings in relation to this issue, and that the proceedings in 2014, in particular, had the undesirable consequence (it is claimed) that the planned travel of the mother and children to Somalia was aborted. He submits that unless there is a fully reasoned judgment after hearing oral evidence there is a risk that there will be yet further future sets of proceedings of this kind. Whilst I do have considerable sympathy with these parents and with that argument and submission of Mr Perkins, it seems to me that a so-called “fact finding” hearing cannot really achieve the finality from any future legal proceedings that Mr Perkins seeks.[8]The issue in this case does not relate essentially to past facts, but to future risk. The headline past facts can be very shortly stated. The two eldest daughters did undergo female genital mutilation in Somalia. The three youngest daughters have now travelled on one occasion to Somalia for a fortnight last month and have not ever been subjected to genital mutilation. It would, of course, be open to a court to hear at a little length from each parent about their attitudes to female genital mutilation and their future intentions. A court might indeed conclude, as the local authority already have done, that there is only “low risk” of future female genital mutilation. But it seems to me that no court could ever responsibly, on the facts and in the circumstances of this case, rule out altogether any risk of female genital mutilation. The inescapable fact is that, whilst in Somalia, two of the daughters in this family were genitally mutilated. So it does not seem to me that the parents could realistically ever achieve some fact finding judgment that rules out altogether any future risk of genital mutilation.[9]The inescapable fact is that if, on some future date, on some future facts, a local authority with a proper interest in these children (essentially the local authority for the area in which they are from time to time living) had concerns that one or more of these children was at risk of being genitally mutilated, it would be the duty of that local authority to take whatever action seemed to them to be appropriate. It seems to me, therefore, that the proposed future so-called fact finding hearing that Mr Perkins seeks could not achieve the finality or certainty that he and his clients aspire to; and it would, frankly, be a considerable further waste of court time and public money, all parties in these proceedings being publicly funded. For those reasons, I decline to give directions for a future so-called fact finding hearing.[10]However, as I have already stated, Buckinghamshire County Council, who have clearly displayed proper concern for the wellbeing of these children, are now currently satisfied that there is, at most, a low risk of any of these children being subjected to female genital mutilation. The trigger to the present applications and round of proceedings was, as I have already said, Buckinghamshire learning that two of these daughters had already travelled to Somalia with their mother.[11]The father himself has said in paragraph 29 of his recent statement in these proceedings that:
“I confirm to the court at this stage that I did not inform Buckinghamshire County Council of the trip as I did not think that I had to. There were no orders in place that required me to inform them of any planned holidays. Further, it had never been discussed during child protection meetings or child in need meetings in either Surrey or Buckinghamshire that they would have to be informed. At no stage did I try to keep the holiday secret from the local authority and if it had been made clear to me that they had to be informed of all trips abroad, I would have shared this information and avoided the need for this matter to come before the court once again.”
[12]Pausing there, one can see from that paragraph that the father himself has said that if he had appreciated the importance of giving to the local authority due warning or notice of a proposed trip abroad, and in particular one to Somalia, then he would have told them in good time. As I understand it, having learned the hard way of the importance of keeping an involved and concerned local authority well aware in good time of a trip of this kind, the father will do so in the future.[13]That being so, I am very content to record on the face of the order which I will make today:(1) In the opinion of Buckinghamshire County Council, there is currently a low risk of any of the daughters being subjected to female genital mutilation; and(2) On the evidence currently available to the court, I (the court) am not satisfied that the parents (whether separately or together) present or are likely to present a risk of female genital mutilation to the youngest three daughters during their minority, or that the parents will fail to prevent others from causing them to undergo female genital mutilation. I couple that with stating (although it cannot be the subject of any undertaking or order since all proceedings are now coming to an end) that, before any of the children travel again to the continent of Africa, the parents should give to the local authority for the area in which they then reside not less than twelve clear weeks’ notice of the proposed trip, and permit a social worker or similar professional to discuss the risks of female genital mutilation with the parents at that time.[14]I am further very content to state on the face of the order that if, in the future, the relevant local authority (whose duty and discretion must remain unfettered) consider that there is a risk of female genital mutilation such that they must seek a legal remedy, they should do so without delay and as long as possible in advance of the proposed trip. The words “whose duty and discretion must remain unfettered” in that formulation are very important. I must, and do, make quite clear that if, at some future date, some local authority - whether Buckinghamshire County Council or any other local authority - do have a current concern that any of these children are at risk of female genital mutilation, they are under a very high duty to take whatever steps then appear to them to be necessary and appropriate to protect the child or children concerned.[15]Equally, it is obviously highly undesirable if there are late or last minute applications, particularly if made without notice, for orders shortly before a proposed trip or, as in this case, whilst a planned holiday is already under way and the children are already abroad. So there is a very clear tie in between the expectation, on the one hand, that the parents will be open and up front with any relevant local authority and give to them very good notice (i.e. not less than twelve clear weeks) of any proposed trip by any of the children to the continent of Africa; and, on the other hand, an expectation that if, having been given that notice, the local authority are sufficiently concerned, they really must bring legal proceedings very promptly and not leave it to the last minute.[16]I make clear that I simply cannot give a judgment in terms, or to the effect, that there is no risk of these children being genitally mutilated. As two of their older siblings already have been, it is impossible to exclude all future risk. But Buckinghamshire County Council, who have recently been very concerned about these children, have satisfied themselves that any risk now is a low one. I am not myself aware of any evidence or material to suggest that the risk, such as it is, is any higher than that which Buckinghamshire County Council have assessed it to be.