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Family Law

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05 OCT 2015

Re F and X (Children) [2015] EWHC 2653 (Fam)

Re F and X (Children) [2015] EWHC 2653 (Fam)
(Family Court, Baker J, 10 September 2015)

Public law children – Female Genital Mutilation Act 2003 – Inherent jurisdiction – Children unlawfully retained in Sudan by their mother – Order directing the children’s return not complied with

Orders were made under the inherent jurisdiction and the Female Genital Mutilation Act 2003 in respect of two children who were being unlawfully retained in Sudan by their mother.

The mother took the two children, who had lived their entire lives in the UK, to Sudan for a holiday but when she returned she left them in the care of the maternal grandfather. The mother was arrested and charged with offences of child abduction. There were concerns that one of the children might be at risk of female genital mutilation.

The local authority applied under the court's inherent jurisdiction and under the Female Genital Mutilation Act 2003. The mother accepted that she had unlawfully retained the children in Sudan. An FGM protection order was made and the children were made wards of court. The mother was directed to take all reasonable steps to arrange for the children's return to the UK.

When the matter returned to court the mother accepted she had failed to comply with the order in not taking any steps to ensure the children were returned. The local authority intended to initiate committal proceedings but the mother now accepted that she would comply with future directions.

Orders were made including the undertakings given by the parties spelling out the detailed arrangements to ensure the children's return. Provisions were made for visas, flights and other travel arrangements and the parents were required to attend the Sudanese embassy to provide their written consent to the children's return to the UK. If the mother fully complied with the order it was likely that the court would take a lenient view at the forthcoming committal hearing. She was warned that if she failed to comply she would be compounding a clear breach of an earlier order and the court would take a very serious view.
Case No. FD15F07003
Neutral Citation Number: [2015] EWHC 2653 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand
London

10th September 2015

B e f o r e:

- - - - - - - - - - - - - - - - - - - -

THE HONOURABLE MR JUSTICE BAKER

IN THE MATTER OF THE INHERENT JURISDICTION OF THE HIGH COURT
IN THE MATTER OF THE FEMALE GENITAL MUTILATION ACT 2003
AND
IN THE MATTER OF F and X (CHILDREN)

BETWEEN:

KENT COUNTY COUNCIL
Applicant

and

A
1st Respondent
and
B
2nd Respondent

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MR ZIMRAN SAMUEL of Counsel appeared on behalf of the Applicant
MISS DIANE McBRINN of Counsel appeared on behalf of the Mother
The Father appeared in person

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Transcription by: Audio and Verbatim Transcription Services 10 Herondale, Haslemere, Surrey, GU27 1RQ : Telephone: 01428 643408 : Facsimile: 01428 654059 Members of the Official Tape Transcription Panel Members of the British Institute of Verbatim Reporters

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JUDGMENT

THE HONOURABLE MR JUSTICE BAKER
:

[1] These are proceedings under the inherent jurisdiction and under the Female Genital Mutilation Act 2003 in respect of two children, F, a girl, born 2nd February 2002, and X born 15th August 2004. They are aged respectively 13 and just 11. I am delivering this short judgment in open court with permission to the press to report it on the basis that nothing will be published in the report to indicate the identities of the children.

[2] The very brief background is that the family have lived in this country, as I understand it, throughout the lives of the children. There is a history of allegations of domestic abuse between the parents. It is alleged by the mother that the father had been violent and abusive to her. The father as I understand it does not accept that that is the case. The children were taken to Sudan by the mother at the start of the school summer holidays of this year for a holiday. The father anticipated that they would be returned at the conclusion of the holiday, but that did not happen. The mother returned without the children in early August. It is understood the children are currently in the care of the maternal grandfather in Sudan. The mother was subsequently arrested by police in this country and has been charged with offences of child abduction.

[3] There is a concern in addition that the girl, F, may be at risk of undergoing female genital mutilation. There is a dispute in the evidence of the parties as to whether or not that practice is one which members of the mother’s family have followed. Without going into the details, I am satisfied on the basis of what I have read that there are very real grounds for concern that F may have to undergo that practise if she remains in Sudan. When the matter was drawn to the attention of the local authority, an application was made to this court which initially came before me last week on 3rd September.

[4] On that occasion the mother and father attended in person without legal representatives. The mother accepted that she had retained the children in Sudan unlawfully and contrary to the wishes of the father. On that occasion I made a Female Genital Mutilation Protection Order in the standard terms. I made the children Wards of Court. I directed the mother to take all reasonable steps to arrange for the children’s return to this jurisdiction. In particular, I directed that she should arrange for the children to be presented as soon as possible to the British Embassy in Khartoum and make arrangements for travelling on the 7th, the Monday of this week. I listed the matter for a further hearing before me today anticipating that, if the mother had complied with that direction the children, would be returned to this country by now, or at least that steps would be in place to ensure their safe return in the very near future.

[5] The matter comes back before me today with the situation very much as it was last week. The children were not taken to the Embassy and the mother accepts that she has not complied with the order and has failed to take any steps to ensure that the children are returned. She makes that concession openly.

[6] It is her case before me on paper that the older child, F, has expressed a wish to remain in Sudan. The father denies that is the truth. He tells me that in a brief conversation with his older daughter (not the subject of these proceedings) the younger child, X, informed her that he was unwell. The father says that that phone call was then aborted and interrupted and further attempts to speak to his children had been unsuccessful.

[7] On behalf of the Local Authority. Mr. Samuel indicates that, in the light of the clear admission by the mother that she has failed to comply with the terms of the order made last week, the local authority is intending to initiate committal proceedings. However, on behalf of the mother, who is represented today by Counsel, Miss McBrinn, it is submitted that the mother now accepts and indicates that she will comply with any further directions that the Court may give.

[8] At my suggestion the parties have outside Court identified a number of orders and undertakings which can be put in place spelling out the detailed arrangements which will be undertaken by the parties – the local authority, the mother and the father – to facilitate the children’s return. It is unnecessary for me to spell those out. They will be included in the terms of the order. They include provisions covering visas, flights, and other practical travel arrangements, and an order requiring the parents to attend at the Sudanese Embassy to provide their written consent to the children’s return to this country.

[9] In those circumstances Mr. Samuel on behalf of the local authority invites the court to list the matter again in a fortnight by which point he indicates his local authority will have issued its application to commit the mother to prison. He observes – rightly, in my view – that it is likely that the attitude of the local authority and the court to that application will be very significantly affected by the mother’s response to the latest order and undertakings which are going to be given today.

[10] If the mother now complies with the order I am making today, and the undertakings she has given to facilitate the return of the children to this country, I think it likely – although I cannot predict it – that the court will take a lenient view at the committal hearing in two weeks’ time. If, on the other hand, she fails to comply with the order and the undertakings she has given today, she will be compounding on what seems to me to be a clear breach of the order made last week, and it is likely that in those circumstances the court will take a very serious view.

[11] The mother accepts that these children have been unlawfully retained in Sudan. In those circumstances they must be returned as quickly as possible. The court is concerned that there is a risk that the older child, F, will be subjected to female genital mutilation and for that reason the court has made the Female Genital Mutilation Protection Order and regards it as a matter of the upmost urgency that these children should be safely returned to this country as soon as possible.

[12] Accordingly, I shall make an order in the terms proposed by counsel. I would be grateful to Mr. Samuel if he could arrange for that to be put into a draft and submitted to my clerk.

Postscript:

The children were returned to England on 2nd October 2015.

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