Expect the unexpected

November 19, 2015

Kent County Council recently obtained a High Court order requiring the return of a 13-year-old girl who had been taken to Sudan and was feared to be at risk of female genital mutilation. Graeme Bentley explains what the court proceedings involved.

We’ve all been there; the unexpected query at an awkward time in a case that is obviously urgent and that, with the best will in the world, cannot be delegated to the trainee for a “bit of research”!

So what does one do in a local authority legal department in the Home Counties when into your lap and during a busy day on the duty line drops the following scenario? A girl of 13 years has been taken by her mother to the Sudan but then not returned despite an earlier private law order. She is thought to be at serious risk of undergoing Female Genital Mutilation (FGM). Father is powerless to act. Mother (who has returned alone) has been arrested in the UK, she has appeared in the criminal courts on charges of child abduction and been bailed. The child is therefore in the day-to-day control of relatives living in a foreign state with which there are likely to be no helpful conventions or judicial protocol.

Previous local authority involvement with the case has been minimal and there is therefore no detailed knowledge of the family. It was known that FGM is part of the family culture and that maternal family members are said to have undergone it. The authority had been in communication with the Foreign and Commonwealth Office who have recommended that it seek an FGM Protection Order.

This was the problem facing my colleague, Kent Legal Services solicitor Helen Osborn. “What can we realistically do?” we probably ask ourselves. “The child isn’t in the UK, we can’t easily compel her return and what do we know about the law in relation to FGM in any event? We know that there are criminal offences and that this is bound to involve the Higher Courts but what can we do that is likely to be of any help, concerned as we are? What evidence do we have as to FGM being imminent?” The family had travelled to the Sudan previously without incident.

As one would have hoped, my colleague kept calm and carried on, acting swiftly and decisively.

While one cannot run a legal practice based on a Google search, there is of course a vast amount of information at our fingertips. Immediate research on the websites of the World Health Organisation and the Foreign and Commonwealth Office revealed a map that identified prevalence of FGM in African countries. This showed an 88% prevalence of FGM being undertaken on girls in Sudan as well as basic information on the topic. Guidance from the Government and NSPCC for professionals is readily available. Crucially however, there was the very recent change in the law, effective from 17 July 2015 through the implementation of section 73 of the Serious Crime Act 2015 (implementing section 5A and schedule 2 of the Female Genital Mutilation Act 2003). Needless to say, as we were considering this only a few weeks after implementation, there was a dearth of legal authority and only one reported case.

Needing in-house authority for the instruction of counsel, we focused on locating a specialist prepared to provide initial advice pro bono. Through his helpful input to one of our regular training days for professionals (on the issue of forced marriage) we were aware of Zimran Samuel of 42 Bedford Row. We quickly established, in addition, that he had been involved in the drafting of the new legislation and had appeared in one of the two cases thus far brought before the courts.

The key advice to a local authority (that is entitled to, and in this case should as a “relevant third party”, apply to the court) was in reference to the relatively low burden of proof required to secure a female genital mutilation protection order, namely of “some risk”. The emphasis is on protecting the child. There is no threshold to be met equivalent to that of care proceedings, it suffices for the risk to exist. Any allegations in relation to female genital mutilation still need to be looked at in detail if the risk persists and if formal findings are sought, in those circumstances, the relevant standards remain on the balance of probabilities.

Two known previous cases, if anything, contained less concrete evidence. One of those, Re E (children) (female genital mutilation orders) EWHC2275 (Fam) concerned children within the UK where the father, thought to be the primary risk, was at that precise point, abroad. Here we were concerned with children in a high risk area where the FCO had expressed concerns. It was clear that in this case an application without notice (to prevent tipping off) was clear. Pages 1067 – 1070 of the Family Court Practice 2015 (‘the Red Book’) were of particular help here as was the guidance from the President in the matter of Re: B and G children [2015] EWFC 3 that FGM cases are not to be treated in the same way as care proceedings and will seldom result in the same.

While care cases will depend upon the child being physically present in the jurisdiction, the provisions of the Serious Crime Act 2015 apply to a child who is a British National or habitually resident in the UK whether they are in this country or abroad.

As an additional warning, a mandatory reporting duty has with effect from 31 October now been placed upon regulated professionals in England and Wales to make a report to the police in specified circumstances where they become aware of FGM having been carried out and where they do not have reason to believe that another professional has done so (section 5B of the FGM Act 2003 as inserted by s.74 Serious Crime Act 2015). In the first instance, breaches of the duty are likely to be dealt with by way of referring the professional to their governing body. It is not clear currently if and how penal consequences will follow and this does not clearly cover cases involving risks but it emphasises the positive duties on professionals including social workers and potentially serious consequences of failing to act swiftly and appropriately where the circumstances require.

Having communicated this advice to a client understandably concerned as to its ability to act without detailed and compelling evidence, instructions were secured and an application made to the Court within a day. There was some urgent communication with both the Central Family Court and the Royal Courts of Justice, focussed on which could most quickly and effectively deal with this but in view of the international and potential wardship issues, the latter inevitably prevailed (much to the disappointment of the former!).

A short statement from the client coupled with the relevant application form and a position statement from counsel sufficed to ensure the grant without notice on 28 August 2015 of wardship orders and a FGM protection order. These were renewed at a short hearing on notice on 3 September 2015 when Mother was required to take all reasonable steps to arrange for the children’s return to the jurisdiction. In particular, she should arrange for the children to be presented as soon as possible to the British Embassy in Khartoum and make arrangements for travel on the following Monday 7 September 2015; she should secure the children’s presentation to the Foreign and Commonwealth Office in the Sudan, the case to be listed in a further seven days.

When the case returned on 10 September 2015, mother had sadly failed to take any action. The court made it clear that if the local authority were to issue an application for committal to prison, it would view the matter one way if she complied and another if she failed to do so. She was not in a position to leave the country. The case was listed for further hearing on 24 September 2015 in order to deal with a committal application. A number of orders were granted ancillary to this, including as to the filing of detailed evidence by the mother as to the child’s whereabouts and the specifics of the travel arrangements that she had made (visas, travel documents, flights) including details of return travel.

The above, thankfully, secured the desired result. Following a hearing on 24 September when mother’s compliance was recorded, the child was safely returned on 2 October and the proceedings concluded successfully on 12 October.

Our experience was that in these urgent circumstances, all relevant organisations involved worked really well collaboratively for the benefit and protection of a child. The court was extremely proactive and concerned to assist. Both the FCO and the police were of active assistance. Counsel could not have been more helpful and would have advised us and assisted regardless of payment of fees in instructing him to represent the LA.

I have included at the foot of this article, a link to the judgment.

The key lessons here can be summarised as follows:

Don’t panic if this is a novel area of law and outside your comfort zone of the 1989 and 2002 Acts.
Do not assume that the absence of the child abroad is necessarily a bar to effective action.
Neither should it be assumed that the child’s continued presence in the UK and absence of direct evidence of imminent abduction is necessarily a reason to refrain from action. The risk of FGM exists within the UK as well as abroad.
Act quickly. Establish whatever information is immediately to hand as to why there is thought to be risk. Consider the guidance available to professionals (link appears below).
If the need for legal action is clear (bearing in mind a relatively low threshold) ensure that a brief statement to deal with this is prepared straight away. In addition, the required application form for an FGM Protection Order is FGM001 and can be easily located on line for completion.
Reassure client that it is dealing with a different evidential burden and that this is not a Re BS scenario! Planning meetings and more detailed evidence on the plans for the child must wait. All that is being sought is an urgent order requiring that a person or persons refrain from committing a criminal act.
Be aware that in specified circumstances the local authority is under a duty to act, this is not a question of discretion. We may at very least face significant criticism for failure to do so in appropriate cases aside from the potential referrals to professional governing bodies and penal consequences that may follow in future in failing to act promptly.
Ensure that a specialist advocate can be made available to attend court as soon as required. This may of course in some cases involve needing to make an application to the out of hours judge. If action is needed it is likely to be required in a very tight time frame, probably no more than 24 hours.
Consider in-house training to enable your team to be prepared for unexpected cases in this area.

Graeme Bentley is Senior Solicitor at Kent Legal Services.

The following links may be helpful:

World Health Organisation:

http://www.who.int/en/

http://www.who.int/topics/female_genital_mutilation/en/

Foreign and Commonwealth Office:

https://www.gov.uk/government/organisations/foreign-commonwealth-office

FGM001 application form:

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/fgm001-eng.pdf

Judgments

F and X (Children), Re [2015] EWHC 2653 (Fam) (10 September 2015):

B and G children (case citation: [2015] EWFC 3):