When do Family Courts and the IAC have discretion to risk assess female genital mutilation?

The Court of Appeal clarifies the relationship between the Family Courts and the Immigration and Asylum Chamber in assessing the risk of female genital mutilation.

John McKendrick QC and Claire van Overdijk represented the Secretary of State for the Home Department (SSHD) in the recent case of Re A (A Child) [2020] EWCA Civ 731, which raised an issue of importance concerning the relationship between the jurisdiction of the Family Courts and the First Tier Tribunal of the Immigration and Asylum Chamber (IAC) and the overlap that exists when the risk of FGM is assessed for the purposes of a decision in each of those jurisdictions.

The Court of Appeal confirmed that when the Family Court considers an application for a female genital mutilation protection order (FGMPO), it is not required to use the IAC’s FGM risk assessment as a starting point. It upheld the decision of the President of the Family Division that Family Courts have the broad discretion described in the Female Genital Mutilation Act 2003 to take into account all of the relevant circumstances when considering whether to make an FGMPO and is not constrained by any prior conclusion of the IAC and can give it such weight as it might consider appropriate in its own assessment.

The background

The appeal followed earlier proceedings in the High Court before the President of the Family Division in Re A (A Child: Female Genital Mutilation: Asylum) [2019] EWHC 2475 (Fam) where John McKendrick QC and Claire van Overdijk successfully represented the SSHD in arguing that the Family Court cannot lawfully injunct the SSHD in the exercise of her immigration powers by making an FGMPO.

More information

John McKendrick QC is an experienced advocate and advisor with twenty years’ experience of litigation in the UK and internationally. He has an extensive public law practice and regularly appears before the Administrative Court, Court of Protection, Family Division, the Tribunal system and the Court of Session.

Claire Van Overdijk has a busy public law practice covering a wide variety of contexts concerning both local and central government and non-governmental bodies. She is frequently instructed in the High Court, Court of Appeal and specialist tribunals in the public law field. She has expertise in community care, data protection and privacy issues, immigration/asylum, healthcare, ordinary residence disputes, cases affecting children and vulnerable adults, and those involving a human rights claim. Claire’s expertise in private international law has also led to her being known as an expert in jurisdictional issues.

To instruct John or Claire or discuss the issues above in the strictest of confidence, please contact Paul Barton  on +44 (0)20 7353 6381.

News 19 Jun, 2020