Manisha Marwaha represents the Secretary of State for the Home Department before the Family Court in proceedings brought under the Female Genital Mutilation Act

Manisha Marwaha advised and successfully represented the SSHD, who sought to intervene in family proceedings concerning an application by a Nigerian national for a Female Genital Mutilation Protection Order (FGMPO). Orders were sought by the applicant seeking to restrain or injunct the Home Office in the exercise of the asylum jurisdiction.

Manisha advised the SSHD on the implications of the FGMPO proceedings where there was an outstanding asylum appeal before the First Tier of the Immigration and Asylum Chamber (IAC). To this end, whilst the family court does not have any power to injunct or restrain the SSHD in the exercise of the asylum jurisdiction, as per Re A (A Child) (FGM: Appeal) [2020] 2 FLR 987, any order or risk assessment made by the family court may be relevant material considered by the IAC when making a decision on an asylum appeal. Any findings made by the family court do not carry an automatic starting point or default position but do need to be weighed by the SSHD or IAC when considering any outstanding protection claim. The jurisdiction of the family court is therefore to invite the SSHD and/or Tribunal to consider any determination made by the court in the FGMA proceedings.

The respondent in these proceedings accordingly deemed intervention beneficial when assisting with disclosure in both sets of proceedings and contributing to submissions where necessary before the Family Court.

Manisha was further instructed to advise on the weight which could properly be given by the IAC to any FGMPO granted and findings made by the family court. To this end the judicial decision maker should consider, in line with the Upper Tier guidance in GW (FGM and FGMPOs) Sierra Leone CG [2021] UYKUT 108:
a) the extent to which the family court’s assessment maps over the same or similar factual issues to those considered in the protection appeal
b) the extent and the cogency of any reasons given by the Family Court for making the order; and
c) the similarity of the evidence before the Family Court and the judicial decision maker in the protection appeal.

There is of course a spectrum of cases where at one end an FGMPO may be made on nothing more than a statement of the applicant and the other end where a fully reasoned judgement setting out detailed findings of fact on the balance of probabilities is handed down. The judgement may be the product of extensive investigation or where contested evidence is heard and/or expert evidence received. The judgement may also consider the evidence before the IAC. In such a case the weight which might properly be given is likely to be significant. It is however worth remembering that a Judge sitting in the Family Court might not consider when making any assessment whether there is sufficiency of domestic protection available or the availability of a viable internal relocation option as an alternative.

Accordingly the family courts, in preserving their ability to assess risk independently and using a wide discretion to impose necessary orders, can still attempt to influence and inform the outstanding immigration proceedings however; the final decision will rest with the immigration jurisdiction. In circumstances such as those arising in this case, the SSHD might properly consider whether to be joined as an intervenor in FGMPO proceedings where immigration considerations have arisen. The application for an FGMPO in this matter was ultimately dismissed.

Manisha practises in Children and Family Law with a primary focus on international family law matters. To instruct Manisha, please contact our clerks on clerks@kbwchambers.com