Draconian open-ended FGM Order successfully contested in Court

Social Work England, the organisation which regulates Social Workers in England and the London Borough of Waltham Forest must be squirming in embarrassment at revelations in a recent High Court report. These include an Allocated Social Worker’s/Local Authority’s unwillingness or inability to adequately assess the ongoing risk of FGM to M, a 17 year old teenager; not responding to her specific needs as the subject of a Prohibited Steps Order and rejecting an expert Independent Social Worker’s assessment of risk to M who will be 18 in July 2025. 

But I hope they don’t attempt to scapegoat the Allocated Social Worker (ASW) for the lack of insight, sensitivity or knowledge she demonstrated in regard to the case and to FGM. These may reflect the outcome of authorities uncritically accepting the decade-long, moralistic and anti-humanist propaganda of anti-FGM campaigners, ‘survivor-activists’, charities, police and crusaders, the results of which frontline staff were expected to assimilate, interpret and apply in practice. ‘Guilty until proven innocent’ tended to be the dominant outlook leaving communities fearful and perplexed. Some of the ASW’s shortcomings might best be viewed in this context.  

The Court Report however illustrated a good example of what can be expected of a real FGM expert when assessing risk, preparing such a report and in giving evidence. And it makes some valuable recommendations that I hope will not be ignored.

History

A Prohibited Steps Order (PSO) was put in place in 2010 because the Local Authority (LA) had considered M, a then three year old girl, to be at high risk of FGM. As a consequence, her parents were prevented from obtaining a passport or travel documents for her and from removing her from the jurisdiction of England and Wales.

But, as the Judge remarked in October 2024, one of the notable and concerning features of the case was that “nobody has a full copy of that order, neither the parents, the Local Authority nor the Court. It appears to be a PSO under the CA 1989 and not an order under the Female Genital Mutilation Act 2003 and was made for indefinite duration without any mechanism for review.” She called it “a draconian open-ended order”. 

The LA stopped having regular contact with the family in 2014 but the PSO restrictions continued. The family made applications to have it revoked in 2016, possibly in 2018, and again in 2023. They said there was no risk of M being subjected to FGM. Instead, they illustrated how the PSO was having a significant, negative impact on her right to travel with friends and family, her ability to enjoy normal family life and to undertake religious responsibilities such as participating in pilgrimage abroad.

Following perceived deficiencies in the ASW’s FGM risk assessment, an Independent Social Worker (ISW) was instructed to undertake a culturally sensitive one.

Assessing Risk

The key question identified for the court’s consideration was whether the risk to M had changed since the PSO was made in 2012. The Judge rightly understood risk to be dynamic.

In that regard issues that might have shifted the risk to M were considered to be: 

• cultural changes within Somalian communities 
• the effect of extensive educational work and campaigns around FGM here and abroad
• the Mother’s direct engagement in that work 
• M’s own education generally and specifically with respect to FGM, her clear views on the issue and increasing capacity to self-protect. 

The Local Authority Allocated Social Worker

In her assessment, the ASW had acknowledged that M was upset by the inability to travel and the lack of a passport but concluded “M’s health and wellbeing was more important than travelling outside the UK”.

She went on to observe that she was not so sure about the parents given the tradition within Somalian culture and that parents might not be able to shift their views. She had not illustrated how she had formed the view of the parents, based on the assessment conducted with them.

She also opined that because M had not undergone FGM it might carry a stigma, with M being seen as unclean, bringing shame to the family, and being regarded as unfit to marry. The ASW had concluded that the risk to M of being subjected to FGM in the UK was very low, but high were she taken out of the jurisdiction.

The LA’s cross examination was assessed as not engaging with the key aspects, but was identifed as the influence M might be subjected to by other family members. 

Yet in oral evidence the ASW had said “M has been very clear that she will not have FGM performed on her, and I am confident that she will not allow this to happen”.

The LA did not accept either the ISW’s findings (see below) or recommendations. Instead, they continued to argue that the PSO should remain in place until M was 18 years old. 

But the risk factors identified by the LA were considered to not withstand proper scrutiny. The Court observed that the ASW’s assessment of risk and her evidence was fundamentally flawed and exceptionally poor. The Judge felt “unable to place any weight on the evidence of the social worker.”

The Independent Social Worker

The ISW’s findings contrasted hugely with those of the ASW’s.

She was critical of the ASW’s risk assessment, including that a Somali interpreter was not used with the Mother. She expressed the view that the ASWs assessment was ill-informed and wrong in regard to aspects of Somali culture and the practice of FGM. 

Her view was that M had a strong, informed stance on FGM. She presented as confident, independent, well versed in her rights and well able to advocate for herself. 

She assessed M’s mother as being fully able to safeguard her daughter. The father also understood the legal repercussions should he seek to arrange FGM for his daughter. The maternal grandmother was assessed as posing minimal risk given her current circumstances. 

She concluded that the risk to M would be non-existent should the family visit Somalia and recommended that the PSO be discharged. 

The Judge considered the ISW’s risk assessment to be professionally and appropriately conducted. Because it was undertaken in the Somali language it allowed for cultural nuance in the discussion. It was also “thorough, cogent and robust”. The Judge also found the ISWs evidence to be exceptionally helpful, informative, authoritative and persuasive.

The Judge’s summary

The Judge considered that any Order which restrict an individual’s freedoms and liberties had to be based on an informed and evidence-based analysis of the risk they are intended to protect against. If the risk was not properly and carefully assessed, “protective orders can simply become a form of unjustified oppression; not the protection of a child’s rights and welfare they were intended to be.”

In her judgment, she considered the position adopted by the LA to lack sophistication. There was not a properly informed and evidence-based analysis of current risk. Instead, its position was based on ill-informed assumption and stereotype. Nor was there any attempt to carry out the careful balancing of M’s competing rights and interests required. The LA had not asked themselves the critical question: whether the ongoing draconian interference with this young woman’s rights and freedoms was necessary and proportionate to keeping her safe?

Having weighed up competing considerations the Judge found that there was no evidence of ongoing risk of FGM to M, whilst the PSO continued to have a very profound impact on her competing rights and freedoms. Placed within the framework of the Children Act 1989, it was viewed in her best interests for the PSO to be discharged.

My assessment

The case sadly reflects some unwelcome consequences of the propagandistic and crusading work undertaken by anti-FGM activists, campaigners, politicians, practitioners etc and of those who uncritically believe their rhetoric. 

The excuses given by the ASW for the outcome of her assessment and for her assertions reflect the propaganda pushed by activists from the outset.  Asking them for evidence to support their crusade or critically questioning their views was considered heretical. It had to be bought into. This led to critics and sceptics being dismissed as supporters of child abuse. 

Frontline staff such as health, education and childcare professionals in addition to social workers also fear getting it wrong. They may feel it necessary to cover their backs so may not approach the issue sensitively and objectively but defensively. Who after all would risk being the one to misjudge a situation which might result in a child undergoing FGM?

The Judge recommended that whilst an Order is in place, it remains incumbent on the LA to continue supporting the family, including facilitating direct work with the child appropriate to their age, and to improve their understanding and insight into the risks and harms of FGM. The objective must be to reduce or remove the risk to obviate the need for the Order remaining in place. 

We do not know how well LA’s already comply with this recommendation because there is little publicly accessible information about the FGMPOs issued. Since their introduction in July 2015, 632 applications and 889 FGMPOs were issued up to June 2024. But there is not an analysis available in regard to them. Does one even exist? We do not know why they were issued, whether they’ve been reviewed and what the outcome was.

The concerns/limitations/challenges in regard to FGMPOs are unlikely to be unique to this case however. How many are regularly reviewed? How many have not had restrictions reviewed? How many families live unhappily with restrictions? How many LA’s proactively assist families wanting to have Orders reviewed or discharged?

The Judge also recommended that in undertaking risk assessments (whether within proceedings or outside of them), the LA should identify whether they require expert assistance and support from outside professionals or agencies. That’s because she acknowledged it crucial that assessments are made on a sound and properly informed understanding of FGM, and the socio-cultural and familial context within which the continuing risk of FGM to women and girls exists.

She understood that hard-pressed local authorities may not have the necessary levels of knowledge and experience within their existing teams to carry out what can be complex and nuanced assessments.

But this service has been available via the expensively fundedNational FGM Centre since 2015. The Centre, a partnership between Barnardo’s and the Local Government Association, was set up to achieve system change in the provision of services for children and their families affected by FGM.

Barnardo’s reports that between 2015-2023 the Centre worked on over 900 referrals and supported the application of 48 FGMPOs.

The Centre advertises FGM Good Practice Guidance and Assessment Tool for Social Workers as well as resources that can be used by social care professionals to help assess and manage cases where FGM has been identified or is a concern. It also welcomes commissions for FGM Assessments for Court proceedings.

So the expertise would appear to be available. One can but wonder why the LA did not avail of it?

But it was refreshing to learn of an Independent Social Workers professionalism and contribution to the process which so impressed the Judge, enabling her to discharge the PSO.