Strand, London, WC2A 2LL
B e f o r e :
| A local Authority
|- and -
(a child acting by her Children's Guardian)
Frances Heaton QC and Kate Burnell (instructed by MSB Solicitors) for the Mother
Ginette Fitzharris (instructed by Morecrofts Solicitors) for the child, N.
Hearing dates: 31 January, 22 February, 2 and 8 March 2018
Crown Copyright ©
Mr Justice Hayden :
(i) The risk to this child, in light of the history of this particular family and in the wider the cultural context of the Sudan as set out in the UNICEF 2016 risk assessment tool, indicated that this child is likely to be at greatest risk between the ages of 5 and 9 years of age of FGM;
(ii) the mother is highly motivated to protect this much wanted baby;
(iii) the mother is eager to be reunified with her boys. M loves and respects her husband;
(iv) though the mother's ideal would be for the family to live together here in the United Kingdom, this seems unlikely in the light of the father's immigration status and his own decision to return to the Sudan;
(v) the history of the case reveals that the mother has been powerless in the past to prevent intrusive medical intervention in relation to her boys which she would not have wished;
(vi) the mother indicated in her evidence that the father behaves very differently towards her in the Sudan where he can be violent and controlling in contrast to his loving and responsible behaviour towards her and the boys in the UK; and
(vii) consistent with the above, the father has control of the boys' passports in a safety deposit box in a bank in the Sudan to which the mother does not have access.
"1. Power to make FGM protection order
(1) The court in England and Wales may make an order (an "FGM protection order") for the purposes of -
(a) protecting a girl against the commission of a genital mutilation offence …
(2) In deciding whether to exercise its powers under this paragraph and, if so, in what manner, the court must have regard to all the circumstances, including the need to secure the health, safety and well-being of the girl to be protected.
(3) An FGM protection order may contain -
(a) Such prohibitions, restriction or requirements, and
(b) such other terms, as the court considers appropriate for the purposes of the order.
(4) The terms of an FGM protection order may, in particular, relate to -
(a) conduct outside England and Wales as well as (or instead of) conduct within England and Wales …"
(i) M told the social workers that F's sister removed her 4-year old son, R, at 4am whilst M was asleep, and took him for a procedure, his tongue was cut, by a person not qualified to undertake it. This she said was against the beliefs and will of her and her husband;
(ii) M told the social worker that it was F who removed A to take him to the doctors against her wishes and the doctor cut his tongue. This is later related to the social worker as the removal of the child's palatine uvula (the flesh at the back of the throat on the soft palate);
(iii) M indicated to the social workers that she was scared of F's family; and
(iv) M appears to have told the hospital staff that she feared that the family will undertake FGM upon the baby if she returns to the Sudan.
" Hence, it is a human rights issue, not only because of the unequal treatment of men and women, but also because the procedure will almost inevitably amount either to torture or to other cruel, inhuman or degrading treatment within the meaning, not only of article 3 of the European Convention on Human Rights, but also of article 1 or 16 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, article 7 of the International Covenant on Civil and Political Rights, and article 37(a) of the Convention on the Rights of the Child."
" FGM has been condemned as cruel, discriminatory and degrading by a long series of international instruments, declarations, resolutions, pronouncements and recommendations. Nothing turns on the detail of these. Their tenor may be illustrated by a recent Report of the United Nations Special Rapporteur on violence against women, E/CN.4/2002/83, 31 January 2002, Introduction, para 6:
'Nevertheless, many of the practices enumerated in the next section are unconscionable and challenge the very concept of universal human rights. Many of them involve severe pain and suffering and may be considered torture like in their manifestation. Others such as property and marital rights are inherently unequal and blatantly challenge the international imperatives towards equality. The right to be free from torture is considered by many scholars to be jus cogens, a norm of international law that cannot be derogated from by nation states. So fundamental is the right to be free from torture that, along with the right to be free from genocide, it is seen as a norm that binds all nation states, whether or not they have signed any international convention or document. Therefore those cultural practices that involve severe pain and suffering for the woman or the girl child, those that do not respect the physical integrity of the female body, must receive maximum international scrutiny and agitation. It is imperative that practices such as female genital mutilation, honour killings, Sati or any other form of cultural practice that brutalizes the female body receive international attention, and international leverage should be used to ensure that these practices are curtailed and eliminated as quickly as possible.'
In some countries, including the United Kingdom, effect is given to this international consensus by the prohibition of FGM on pain of severe criminal sanctions."
- The State must not, either on its own or through its agents, subject its citizens, and other persons within its territory, to torture or to inhuman or degrading treatment;
- to pass criminal laws outlawing and punishing ill treatment amounting to torture or inhuman or degrading treatment;
- an obligation to investigate arguable breaches of Article 3;
- an obligation to take reasonable steps to prevent real and immediate risks of torture or inhuman or degrading treatment at the hands of non-state agents.
" …that the protection of children who by reason of their age and vulnerability are not capable of protecting themselves requires not merely that criminal law provides protection against Article 3 treatment but that, additionally, this provision will in appropriate circumstances imply a positive obligation on the authorities to take preventative measures to protect a child who is at risk from another individual. The Commission notes in this regard the international recognition accorded to this principle in Article 19 of the United Nations Convention on the Rights of the Child which enjoins states to take all appropriate measures 'to protect children from all forms of physical and mental violence, in jury or abuse."
"the obligation on high contracting parties under article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with article 3, requires states to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals. Steps should be taken to enable effective protection to be provided, particularly to children and other vulnerable members of society, and should include reasonable measures to prevent ill-treatment of which the authorities have or ought to have knowledge"
"I am unable to accept the thesis advanced by either counsel. It is in my opinion quite clear from para 116 of Osman 29 EHRR 245 that the obligation placed upon the authorities in an article 2 case is to do all that could reasonably be expected of them to avoid a real and immediate risk to life, once they have or ought to have knowledge of the existence of the risk. I cannot suppose that the obligation under article 3 is different in kind, and the Strasbourg jurisprudence confirms this, as I set out below. To hold otherwise would be to place an intolerable burden on the state. In the present case it would have required the police to drive back the protesters by main force and make numerous arrests, irrespective of the consequences which could have ensued and which could have given rise to widespread disorder, loss of life and destruction of property."
"Secondly, there is a reflection of the principle of proportionality, striking a fair balance between the general rights of the community and the personal rights of the individual, to be found in the degree of stringency imposed upon the state authorities in the level of precautions which they have to take to avoid being in breach of article 2. As the European Court of Human Rights stated in Osman v United Kingdom 29 EHRR 245, para 116, the applicant has to show that the authorities failed to do all that was reasonably to be expected of them to avoid the risk to life. The standard accordingly is based on reasonableness, which brings in consideration of the circumstances of the case, the ease or difficulty of taking precautions and the resources available. In this way the state is not expected to undertake an unduly burdensome obligation: it is not obliged to satisfy an absolute standard requiring the risk to be averted, regardless of all other considerations: cf McBride, Protecting Life: A Positive Obligation to Help (1999) 24 EL Rev Human Rights Survey HR/43, HR/52."
"This conclusion is supported by the post-Osman decisions of the ECtHR, of which it is sufficient to mention only a few. ðneryildiz v Turkey E vChief Constable of the Royal Ulster Constabulary (HL(NI))  1 AC Lord Carswell (2004) 41 EHRR 325 was an application brought under Article 2, in a case in which it was claimed that the respondent state had failed to take sufficient measures to prevent the loss of life caused by a methane gas explosion at a municipal rubbish tip. The court held that the state had failed in its positive obligation under article 2 to set up a framework for the protection of persons at risk. Citing, amongst other cases, the Osman decision 29 EHRR 245, it held that the authorities had ample knowledge of the risk and were in breach of their duty to take such operational measures as were necessary and sufficient to protect the persons at risk. There was no suggestion that this was an absolute duty or one which differed in any way from that laid down in Osman. Z v United Kingdom (2001) 34 EHRR 97 concerned a complaint brought under article 3 of child neglect and abuse."
"The court stated in para 73 that the states obligations under the Convention required them to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals. Citing Osman, it said that these measures should provide effective protection, in particular, of children and other vulnerable persons and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge. In 97 members of the Gldani Congregation of Jehovah's Witnesses v Georgia (Application No 71156/01) (unreported) given 3 May 2007 police had known in advance of an attack upon the applicants by religious opponents, which constituted inhuman or degrading treatment, but had failed to take any preventive action. The court rearmed the existence of a positive obligation upon states under article 3, in the terms set out in Z v United Kingdom and quoted above. It added, at para 96: "This protection calls for reasonable and executive measures."
"It is noteworthy that the landmark rulings in which the state has been found responsible for failing to protect victims from serious ill-treatment meted out by private individuals have concerned children. A v United Kingdom (1998) 27 EHRR 611 was decided shortly before the leading case of Osman v United Kingdom (2000) 29 EHRR 245. Av United Kingdom established the principle that the state was obliged to take measures designed to ensure that people were not subjected to ill-treatment by private individuals. Vulnerable people were entitled to be protected by effective deterrent measures. The existence of the defence of reasonable chastisement failed to afford children such protection. Osman took the matter further by establishing a duty to take more pro-active protective measures to guard against real and immediate risk of which the authorities knew or ought to have known. There was no breach in Osman itself; but breaches were found in both Z v United Kingdom (2001) 34 EHRR 97 and E v United Kingdom (2002) 36 EHRR 519. In Z, the authorities had failed to protect children from prolonged abuse and neglect which they knew all about. In E, they had failed to monitor the situation after a stepfather had been convicted of sexual abuse, and so it was held that they should have found out that he was abusing the children and done something to protect them."
"Nevertheless, there must be some distinction between the scope of the state's duty not to take life or ill-treat people in a way which falls foul of article 3 and its duty to protect people from the harm which others may do to them. In the one case, there is an absolute duty not to do it. In the other, there is a duty to do what is reasonable in all the circumstances to protect people from a real and immediate risk of harm. Both duties may be described as absolute but their content is different. So once again it may be a false dichotomy between the absolute negative duty and a qualified positive one."
"Where the conflict is between the media's rights under article 10 and an unqualified right of some other party, such as the rights guaranteed by articles 2, 3 and 6.1, there can be no derogation from the latter. Care must nevertheless be taken to ensure that the extent of the interference with the media's rights is no greater than is necessary. The need for such care reflects the important role of the media in a democratic society in scrutinising the administration of justice generally, as well as their role as the conduit of information about particular proceedings which may be of public interest."
" The relevance of the position at which English law has arrived, after long consideration at the highest level, is not that English law can control the operation of the ECHR. But it is to highlight the delicate balance between the duty of the State to the public generally and its relationship to individuals in particular cases of reported or anticipated crime. That delicate balance is as applicable to the ambit of the implied ancillary positive obligation under articles 2, 3 and maybe others as it is to an action in tort in the domestic courts."
" Secondly, I cannot see any basis in its jurisprudence to suggest that it is likely that the Strasbourg court would think it right to limit the extent of the investigatory duty to systemic, as opposed to operational, failures. It is true that in A v United Kingdom (1998) 27 EHRR 611, having held that article 3, together with article 1, "requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment", the court concluded that then-current statutory provisions "did not provide adequate protection to the applicant against treatment or punishment contrary to article 3" and that "the failure to provide adequate protection constitutes a violation of article 3" (paras 21 and 24). However, that conclusion merely reflected the factual basis and arguments in the case. If the statute did not provide adequate protection, there was a systemic failure, and it was both unnecessary and pointless to consider the operational aspects of the legal system.
 Similarly, while the court in Osman, para 116, was concerned to ensure that the investigatory duty was not interpreted or applied unrealistically, there is no indication in that paragraph that it was intending to limit the duty to the provision of a satisfactory framework, irrespective of how ineptly it operated in a particular case. Indeed, such an approach would seem to me to be inconsistent with how the Strasbourg court approaches cases generally, namely by reference to the specific facts of the particular case."
"For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention."
This, it seems to me, also needs to be considered when assessing M's own ability to take protective measures for her daughter.
"In Secic v. Croatia (2009) 49 EHRR 18 (31 May 2007), ECtHR considered a complaint of ineffective criminal investigation of a racially motivated physical assault. the court again repeated the statement from MC that article 3 may give rise to a positive obligation to conduct an official investigation - para53. The court stated that the obligation on the state to conduct an official investigation is one of means, not result [emphasis added] referring to the article 2 cases of Menson v. UK (2003) 37 EHRR CD 220 and Yasa v. Turkey (1998) 28 EHRR 408." § 33 per Lord Kerr;
Referring to Berganovic v. Croatia (Application No 46423/06) 25 June 2009 the ECtHR acknowledged that no direct responsibility can attach to a member state under ECHR for the acts of private individuals however at §71, "In order that a state may be held responsible it must ... be shown that the domestic legal system, and in particular the criminal law applicable in the circumstances of the case, fails to provide practical and effective protection of the rights guaranteed by article 3" - §37 per Lord Kerr;
"Even in the most law-abiding of states, that sometimes serious harm will be inflicted by one individual upon another, in the context of all manner of disputes and in pursuit of many different objectives, is a regrettably unavoidable feature of life. No one suggests that the state is bound to guarantee that this will not happen. Indeed, some steps which an authoritarian state might be inclined to take with a view to preventing it (such as preventative detention without conviction or other court order, house arrest, intensive surveillance and the like) might themselves be infringements of other fundamental rights afforded to the citizen. [Emphasis added]. That consideration apart, the systems which states adopt for the protection of those within their boundaries do not have to be the same. It has never been suggested that it is the function of the Convention to monitor every act of enforcement or policing of the varied domestic legal requirements, nor the content of those requirements, so long as they provide sufficiently for the protection of the individual against third party behaviour which meets the high threshold of severity contemplated by article 3." - §109 per Lord Hughes."
"(i) [S's] travel is restricted via the FGMPO and mother and [N] remain in the UK. The Court makes orders for the return of the older children from Sudan which are highly unlikely to be enforceable. The net result will be mother and [N] in England with father and the boys remaining in Sudan.
(ii) [N's] travel is restricted via the FGMPO and the mother returns to Sudan (with or without court orders for the return of the boys) and attempts to bring the boys back to England (noting that the Court has already indicated that it considers very unlikely that mother would leave [N] in England to return to the Sudan). The Court has already acknowledged that in this scenario the mother is very unlikely to be able to leave Sudan with the boys. Court orders are highly unlikely to be enforceable. The net result will be [N] in England and mother, father and boys in Sudan.
(iii) [N's] travel is not restricted. Mother and [N] return to Sudan to attempt to bring boys back to England. If successful mother and all seven children will be in England. If unsuccessful, or as the court has commented mother decides to remain in Sudan because she does not want to or cannot leave, mother, father and all seven children remain in Sudan."
"The ability of her mother to protect her becomes irrelevant. However [N's] article 8 rights are breached - she cannot have a direct relationship with her siblings and she cannot have a direct relationship with her father given the restriction on her travelling out of the country and his immigration difficulty in returning to England,. The article 8 rights of the mother, father and older siblings are similarly breached. Crucially the boys will continue to suffer the significant harm which they are presently subject to, namely:
(i) lack of access to education;
(ii) separation from their primary carer;
(iii) emotional harm to the extent that one of the children is refusing to eat;
(iv) lack of access to medical care, one of the children is suffering from malaria;
(v) the care being given to the children by members of the extended family in circumstances where the children do not speak the same language as the family and where it is known that in the past the extended family have carried out "medical" procedures against the wishes of the parents."
"This situation also respects the mother's autonomy to determine how and where she and her children should live. It is the only scenario where [N] can meet and have the possibility of a direct relationship with her father. It is the only scenario where there is a realistic prospect of [N] having a direct relationship with her siblings whilst also maintaining her relationship with her mother. The issue is therefore the extent to which, if permitting this situation, the Court (as arm of the state) is protecting [N's] absolute right pursuant to article 3. Conversely, does [N's] article 3 right require the Court to make an FGMPO with a travel restriction?"