Lessons in challenging FGM Court Orders

Serious limitations in regard to a Court Order made under the Children Act 1989 were given a welcome airing by a UK High Court Judge in 2024. 

Other issues of concern included poor record keeping management, the case becoming inactive with Children’s Social Care almost immediately after the Order was made, a Social Worker’s inability to carry out an FGM Risk Assessment, and her general lack of knowledge and expertise in regard to FGM. Recommendations in regard to FGM Protection Orders were also made. 

But the positive impact that a real FGM expert can have was demonstrated during the case.

I have previously written about the case here; Draconian open-ended FGM Order successfully contested in Court.

The Case

This was AS -v- London Borough of Waltham Forest [2024] EWHC 2808 (Fam). It concerned an application by a mother seeking to discharge a 2012 High Court Order in respect of her youngest daughter which prevented the girl from leaving the jurisdiction of the UK. The Prohibited Steps Order was made under the Inherent Jurisdiction, not an FGM Protection Order under the Female Genital Mutilation Act 2003. Its intention was to protect a then five year old girl from a perceived risk of FGM.

The Mother had previously, unsuccessfully applied to the Court for the Order to be varied or discharged. The case exposed the unprofessional nature of record-keeping in respect of the Order – neither the Court, the Mother’s previous solicitors nor the Local Authority had a complete record of either the original Order or the papers arising from the previous attempts to discharge the Order.

When the girl was 16 in October 2023, the mother reapplied for the Order to be discharged. She argued that given her daughter’s age, the progress made in the Somali community in educating itself on the detriment of FGM and the work they had done as a family to educate themselves on the harms of the practice that the risk was no longer sufficient to justify such an Order.

Here I draw on a piece written by Adam Kayani, a Barrister who represented the teenager’s Mother in Court. He noted several concerns in regard to the case: 

• the original Order was made for an indefinite period, with no requirement to be reviewed either by the Local Authority’s internal processes or by the Court
• the Order was made pursuant to the Inherent Jurisdiction, not the Children Act or the Female Genital Mutilation Act 2003 and so, in theory, could have bound the subject child into adulthood and beyond
• the case became inactive with Children’s Social Care almost immediately after the original Order was made. 

These factors combined to leave the young woman unable to travel outside of the UK for any purpose. She was for example unable to attend school trips, accompany her siblings on family trips abroad or undertake religious pilgrimages.

In the October 2024 application, the Court needed to decide to what extent the Local Authority’s continued refusal to discharge the Order in respect of the subject Child was commensurate to the risk and whether to leave this Order in place for the remaining two years of the Child’s minority or not. The subject child’s three sisters, and the Mother herself, had all been subjected to FGM whilst in Yemen (where they lived having fled the civil war in Somalia).

The Local Authority were directed to produce a risk assessment, taking into account the work the family had undertaken with FORWARD and this was carried out by the Allocated Social Worker. 

But the Court determined that this risk assessment was unsatisfactory and ordered another to be undertaken by Zainab Nur, an Independent Social Worker. The judgment of the Court highlighted the extraordinary nature of the Allocated Social Worker’s approach in this case, highlighting how (with regret) the Court was unable to place any weight at all on her evidence given the deficiencies in the Local Authority’s approach – both in terms of them failing to make any kind of accurate assessment of risk and failing to take any cultural nuance or understanding into account when reaching their conclusions.

The Court ultimately decided to discharge the Order immediately.

Lessons learnt

The Court made important observations in regard to future cases: 

• FGM Protection Orders that restrict a young person’s right to travel should not be made indefinitely (unless in extreme cases) and should always have a built-in review process
• The Local Authority (and those representing the Child concerned or the families involved) should be sure that they commission culturally specific risk assessments (by Independent Social Workers who speak the family’s first-language or have some other specific expertise if required)
• Records of such Orders that are made must be retained for so long as they remain in force. Local Authorities must continue to work with families whose young people are subject to this Order and should return the matter to Court to consider the continuation of the Order before closing them to further Social Care involvement if they believe the risk has reduced or been resolved completely.

My concerns re FGM Protection Orders and Expertise

FGM POs were introduced in 2015 but there is little information in the public realm in regard to them apart from stats published quarterly by the Ministry of Justice. They have never been evaluated. Fewer than expected have been officially acknowledged: only 632 applications and 889 orders were made up to end of June 2024. We do not know why they were issued, whether they’ve been reviewed, maintained or discharged. Considering the devastating impact these can have on family life, this should be of huge concern to all of us.

It is also important to note that expertise in regard to FGM and giving evidence in court continue to be areas of concern. I’ve previously published about them here, here and here.