In The Family Court
9th February 2016
Before:
HIS HONOUR JUDGE WILDBLOOD QC
sitting as a Judge of the High Court.
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BETWEEN:
The Chief Constable
Applicant
-and-
S
First Respondent
-and-
W
Second Respondent
-and-
R, P and D
Third, fourth and Fifth Respondents
-and-
H
Sixth Respondent
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Robert Talalay, counsel for the Applicant (The Constabulary)
Hannah Wiltshire for S.
W in person.
Shabana Jaffar for the children, R, P and D
H in person
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Judgment
This judgment was delivered in private. The judge has given
leave for this version of the judgment to be published on condition that
(irrespective of what is contained in the judgment) in any published version of
the judgment the anonymity of the children and members of their family must be
strictly preserved. All persons, including representatives of the media, must
ensure that this condition is strictly complied with. Failure to do so will be
a contempt of court.
HHJ Wildblood QC:
- Introduction
– The police apply with leave for Female Genital Mutilation (‘FGM’)
protection orders in relation to three girls of Somali parents. It is
agreed that I should deliver my judgment on their applications in two
parts. Having heard the evidence and submissions about the facts of the
case I should express my findings as to what has occurred. In the second
part of the judgment I should deal with the submissions that I will hear
about the terms of the orders that I should make. All parties now accept
that I must make some form of orders and there is agreement about the
principles of law that I should apply. This is the first part of my
judgment, therefore, in which I will include the directions of law.
- The
two girls who have been involved in these proceedings from the outset are
R and P. Both girls are of primary school age. Their mother is S and their
father is W. The girls have a brother. In 2015 the mother gave birth to a
baby girl, D, and the proceedings were extended to her; the father of D is
H who is the sixth Respondent to these proceedings and who is now married
to the mother. All of the children have their home with their mother,
originally in a city in the South of England but they now live elsewhere
in the United Kingdom. H lives with the mother.
- These
proceedings began on 23rd June 2015, a time when the mother was
heavily pregnant with D, as an application by the Chief Constable under
the inherent jurisdiction of the High Court due to fears that the mother
was about to remove the two eldest girls to Somalia and cause them to be
subjected there to FGM. The mother’s evidence is that none of her
daughters have undergone FGM or any other medical procedures relating to
their genitalia and that she has no intention that they should do so.
- The
police, with the support of W, now seek protection orders under statutory
provisions and in terms that I will set out in more detail later. The
guardian initially suggested that undertakings from the mother might
suffice but now supports the making of orders. The mother, with her
husband’s support, offers undertakings not to subject the girls to FGM
but, under the skilful guidance of Ms Wiltshire, recognises that the court
may well make orders now that the evidence has been heard; she argues for
orders that are more limited than those suggested by the police.
- Immigration
status - The children are each habitually resident in this country. They
each hold British passports.
- The
mother says that she arrived in the United Kingdom in 2003 as a refugee. She
says that she was granted asylum with indefinite leave to remain on 7th
April 2004 and now has British citizenship. She says that she comes from a
minority and oppressed tribe in Somalia and has not returned to the
country since leaving it due to the risks that would arise in relation to
her physical safety. Home office records show that she became a
naturalised British citizen on 21st May 2009.
- W says
that he came to England as an Asylum seeker in 2002 and ‘has obtained
legal status in England’. Home Office records show that he became a
naturalised British citizen on 23rd June 2011.
- H
apparently came to this country from Somalia ‘over 15 years ago’ as an
asylum seeker also; the guardian says that ‘his stay in England has
been regularised by the Home office for 10 years and he has worked as a
hotel manager … for the past 10 years’. Home office records show that
he became a naturalised British citizen on 8th July 2010.
- The
mother’s position– The mother’s evidence was that she had no intention
of subjecting her daughters to FGM and did not intend to travel to Africa
in June 2015 for that or any other purpose. She said: ‘FGM happened to
me and I would never wish it to happen to my daughters. Although I have no
intention of organising this I was happy to sign a written agreement [in
2013] with the Local Authority to say that I would not do so. I would
never breach this agreement … FGM is increasingly unacceptable in
our community and I would never subject the girls to it’.
- H’s
position - H is recorded as having told the guardian that FGM ‘is
not something that he believes in nor would he consider it for his
daughter or be complicit in relation to the mother’s daughters. He said it
is against his religious beliefs, which he said he devoutly practises’.
- W
contends that the mother has often expressed the intention that the older
daughters should undergo FGM. He says that he would like the three older
children to live with him or, at very least, to re-establish contact with
them; he has not seen them ‘for many months’. He has now made an
application for a child arrangements order as to which I am only able to
give directions at this stage since that aspect of the case is not ready
for adjudication.
- The
position of ‘Cafcass legal’ – Cafcass legal have appointed a guardian
to represent the interests of the children. The first guardian, who has
now left the service, was JB, she prepared a report
dated 11th August 2015. The current guardian is JR, she has also prepared a report dated 9th December 2015
- Ms
JB was of the opinion that she was ‘not in a position to
judge whether there is sufficient evidence to show that the mother planned
to travel to Somalia with the intention of subjecting the children to FGM
on the basis of the available evidence’. However, she goes on to say
at F16 that ‘my enquiries lead me to conclude that on the basis of the
available evidence the mother presents a low risk in terms of the risk of
subjecting her children to FGM….However….she could and might be pressured
by her family or the community to carry it out’. She suggests that ‘the
court could consider dealing with matters by way of requiring the mother
and [H] to provide undertakings not to subject the children to FGM, but
the court would of course need to be satisfied about the credibility of
the mother’s account of events that led to the initiation of these
proceedings if it were to consider doing so’.
- Ms
JR says: ‘it is my view that – on the basis of the evidence
available to me – I agree with the recommendation of Ms
JB….If the court is satisfied that the mother’s account of
events is credible then this matter, in my view could be dealt with by way
of undertakings to the court’.
- With
respect to both Cafcass officers, I do not think that their written recommendations
add much to the case. If the mother is telling the truth then there is
plainly no need for an order and, further, there would be no basis for
requiring her to give undertakings. There is every need for an order to be
made if the mother is not telling the truth about whether she intended to
travel to Africa and subject the girls to FGM. Thus it is simply not
possibly to advance a recommendation until the facts of the case are
determined.
- For
reasons that I set out below it is obvious that the mother has told lie
upon lie about her intentions in June and has been supported in her false
account by untruthful evidence from her brother. As the untruthfulness of
the mother’s evidence became apparent the guardian changed her
recommendations and now supports the making of orders.
- Procedure
- On 23rd June 2015 McDonald J made an order over the
telephone on the ex parte application of the police that the two girls
should be joined to the proceedings and made wards of court, that their
passports should be retained by the police and that there should be an
urgent hearing on 26th June 2015. When the case came before
Pauffley J on 29th June 2015 she made orders, amongst others,
that the girls should remain wards of court, the parents should be forbidden
from removing them from the jurisdiction, they should not be subjected to
FGM and that their passports should remain in police custody. On 2nd
July 2015 Pauffley J extended the passport orders to D whose birth was
then imminent and then, on 17th July 2015, extended the further
protective orders to her as well, also transferring the case to be heard
by me.
- Following
the coming into force on 17th July 2015 of the provisions of
the Female Genital Mutilation Act 2003 as amended by The
Serious Crime Act 2015, the police issued an application for leave
to seek FGM protection orders on 3rd August 2015. On 14th
September 2015 the proceedings came before me when I gave leave to the
police to seek the orders for which application had been made and made a
full range of interim protective orders relating to FGM, removal from the
jurisdiction and passports. I also discharged the wardship and listed the
case before me for this hearing, giving anticipatory directions in light
of an indication by W that he would seek child arrangement orders in relation
to the two older girls; however, the only issues before me at this hearing
are whether I should make FGM protection orders.
- Burden
and standard of proof and Lucas direction – The police contend
that the mother has not given a truthful account of her intentions in June
2015 and, in particular, whether she intended to subject the two older
girls to FGM then. It is not for the mother to show that she has told the
truth. The burden of proof of disputed events in this case lies upon the
Applicants - that is the police. Therefore it is for the police to prove the
facts upon which they rely in support of the application and to do so to
the civil standard of proof. In relation to all disputed events alleged by
the police I must ask myself whether they have shown on evidence that it
is more probable than not that those events occurred.
- In
relation to the allegations that the mother has given an untruthful
account of her actions and intentions in June 2015 and on other occasions
I must adopt the two stage approach which arises by analogy with the
criminal case of Lucas v R 1981 QB 720. I must ask myself whether the
police have proved to the civil standard of proof that the mother has
lied. If they have so proved I must then consider why the mother may have
lied. Plainly the fact that the mother may have done so does not mean
necessarily that she intended that her girls should be subjected to FGM;
there might be many reasons why a mother might lie when faced with enquiry
by the police, such as distrust, obstructiveness, fear, embarrassment or
lack of full understanding. Before drawing conclusions about why lies
might have been told it is important to have regard to the overall
evidence– to fit all of the pieces of the jigsaw together in order to see
what picture emerges.
- Factual
Background – I now want to work through the relevant background,
making findings where necessary.
- The
mother was herself subjected to FGM when she was aged nine. Although I
accept that the mother did tell the police and the social worker that this
was so (in terms about which I make findings below) she told the
then guardian that she had never been cut and that the police must have misunderstood
her when she said that she had been. The mother accepts that her account
to the guardian was not true and suggests that she was unwell at time of
the discussion, being ill in hospital following the birth of D. I do not
accept that the mother was confused about what she was saying to the
guardian; she was simply being untruthful.
- The
date of the marriage between the mother and W is not given in the
paperwork before me but I am told that it took place in 2008. The mother
says that she and W separated in 2013 and alleges that W was violent to
her during their relationship, an allegation that W denies. The mother’s
brother, who gave unreliable evidence at this hearing, filed a statement
which contains his account of extreme violence that W allegedly
perpetrated against the mother (‘[W] would break the door down…he was
arrested on multiple occasions and attacked her regularly…[W] made threats
to remove the children from the UK…he made threats that…he would take the
children abroad…[W] assaulted me using a nail clipper which he used to
stab my neck…[W]’s assaults on [S] were so severe that she lost a child as
a result’).
- The
mother’s brother said in evidence that, due to the fear that W would
abduct the children, he had held the passports for R and P and that he
kept them at his girlfriend’s house for safety. The mother’s brother made
specific mention in his evidence of an incident in which W allegedly
attacked him outside the school in front of other people; as a result, the
mother’s brother still has back pain and walks with a limp he says – this
is a reference to the incident that is referred to in his statement when
the mother’s brother says that W tried to abduct R from school and he
stood in front of the car and then was attacked by W with a pair of nail
cutters.
- I
am not able to express a concluded view about the allegations of violence
that have been made against W since they have not been fully litigated
before me at this hearing. However, it is very plain that there is intense
hostility between the mother’s family and W. That hostility was also
apparent on the question of whether the mother had expressed to W an
intention to subject the girls to FGM; W said that the mother spoke in
favour of subjecting the girls to FGM whilst he opposed it. The mother
says that they never discussed FGM at all.
- In
his evidence W said that he learnt that the mother had been subjected to
FGM when R was born. Thereafter there were two times when the mother
spoke to him about subjecting the girls to FGM. The first time was prior
to a trip that she took to Ethiopia with P and the second time was, after
she returned from Ethiopia. I now go on to consider that evidence.
- November
2011 – This appears to be the month in which the mother went to
Ethiopia with P, who was very young at the time. W said that, as soon as
the mother said that she was going to Africa with P, he told her not to
subject her to FGM. His case is that the mother promised that she would
not do so but he did not believe her. Notwithstanding that, he did not
seek to prevent her going; he gave various reasons for why that was so but
I did not find any of them convincing. He said that the mother was breast
feeding P at the time and so he did not feel able to separate them. He
said that the mother assured him that she would not subject P to FGM but
then went on to say that he did not believe her denial. He said that the
mother, S, begged him to let her go and he felt that he could not stop
her.
- In
his statement W gives this account of what occurred when the mother and P
were in Ethiopia: ‘when [S] arrived in Ethiopia she stayed with her
mother. Her mother lives close to where members of my family lived. [My
friend] became aware that there was a lady (S) looking for someone who
offered FGM. Someone in the community realised that it was [S] and [my
friend] telephoned to inform me. [My friend] also told me that [P] was
poorly and [my friend] telephoned me to inform me.’ He sought to
suggest that the only reason why [P] was not subjected to FGM then was
because she had been unwell. When [P] came home, he checked her by looking
carefully at her genitals; he did not have to pull her genitalia to inspect
them and was satisfied that she had not undergone FGM, he said.
- In
her oral evidence S said that she went to Ethiopia with P in November 2011
at a time when her own mother and sister were living in that country.
However, she says, no arrangements were made for P to undergo FGM during
that visit and it is wrong for W to allege that the only reason why P did
not undergo FGM was because she was ill. The mother’s brother said his
sister did go to Ethiopia with P but that there was no question of the mother
intending to subject P to FGM.
- The
mother’s evidence, however, went much further than that. She said that she
and W never discussed subjecting the girls to FGM; they did not
even discuss it to the extent of saying ‘we would never subject the girls
to that’. She said that she has never spoken of any intention ‘to have
their daughters undergo FGM’ and denied that it would be regarded as
shameful for the girls not to undergo FGM in the area from which her
family originate in Somalia.
- Findings
about November 2011 – As will be apparent from this judgment as a
whole I found the evidence of the mother, W and the mother’s brother utterly
unreliable. I have no doubt whatsoever that the mother did not tell the
truth about whether FGM was ever discussed with W. She had undergone FGM
herself as a child and I believe W when he says that he did not know about
this until about 2009. I think it highly unlikely that, when the mother
was planning to take P to Ethiopia in 2011, nothing would have been said
about whether the mother would subject her to FGM. I think that it is
highly likely that the issue was discussed between them and I accept that
the father expressed strong opposition to his daughters being subjected to
it. I also accept that the mother’s expressions of reassurance that she
did not intend to subject P to FGM left the father anxious about whether
she would keep to her word. I find that the mother did not voice
opposition to FGM in anything like the strong terms expressed by the
father.
- I
also accept that, when the mother and P came back from Ethiopia there were
further discussions about FGM between the mother and W and W was again
left unconvinced about the mother’s intentions. I note however that he did
not bring those concerns to the attention of the police or social services
until 2013 and that his allegations in this regard arose only after he was
arrested on allegations of domestic violence against the mother. On W’s
own case he failed to act protectively towards the children until then and
only made the allegations in the context of his arrest.
- Although
I think that the mother was far less opposed to FGM than she has made out,
I am not persuaded that she did intend to subject P to FGM then, even if
FGM is currently being carried out to children of an increasingly young
age. I do not think that the hearsay account of W about what his friend
told him could possibly be regarded as reliable. Further I consider that,
if W had genuinely believed that P would be subjected to FGM, he would
have prevented her from going to Ethiopia or at very least would have
referred his concerns to the police or social services; otherwise he would
have been guilty of a very serious failure to protect his daughter in
2011.
- Thus
I find that the issue was discussed between the parents and that the
mother was far less opposed to FGM than she has made out.
- In
August 2013 the mother signed a written agreement with the police that
she would not subject the girls to FGM after the father had told the
police of his fears that she would do so. There is a copy of the
agreement within the bundle of evidence. I do not accept that this was an
act of mere vindictiveness on behalf of W and, despite its context, it
signals that he was genuinely concerned that the mother might expose the
girls to FGM.
- 18th
June 2015 - These proceedings were issued after a referral was made to
the police on 18th June 2015 by an organisation which provides
support to women who allege that they have been suffering domestic abuse.
The mother had been attending that organisation for support in the light
of her allegations that she had experienced domestic abuse from W.
- The
referral to the police arose after the mother failed to attend a meeting
with a support worker from the organisation. The support worker, says:
‘[S] did not attend the appointment on Thursday 18th June
2015. My colleague made a call to [S] on her mobile phone. A person
answered who identified themselves as her cousin. This person told my
colleague that [S] had left for Africa. Her mother was unwell as she had a
stroke and was in a coma. They [in evidence the employee said that
this means the cousin] said that [S] had called the office to leave a
message that she would not be attending. This message had not been passed
to me. My colleague passed this information to me…I spoke to a friend of
[S]’s, the same friend that I had used to help me communicate with her. She
said that she saw [S] on Saturday 13th June 2015. This friend
told me that a relative of [S]’s [The support worker said that this
was the mother’s brother’s wife/girlfriend] had told her the same story
yesterday in that [S] had gone to Africa. This friend gave a phone number
for [S]’s brother’.
- The
support worker then says that she rang the mother’s brother, and that he
told her that S had gone to Africa a week ago and that his mother was in a
coma. The support worker says: ‘I told him that a colleague had spoken
to [S] that week so I was confused about how he was saying that she was
still in Africa. He became angry at me because he felt that I was accusing
him of lying…he accused me of being a drama queen…I asked him questions
about the children but he did not answer them…he continued to be
aggressive and I ended the call’.
- The
mother’s brother says that he did not speak to anyone from that
organisation that day, 18th June 2015. In his statement he
says: ‘I do recall having a conversation with a worker called Joanne. She
was Spanish and had a heavy Spanish accent. I confirm that I never said
that [S] had left the UK to go to Africa’. The support worker said
that she did not know anyone called Joanne that worked there and did not
know anyone with a strong Spanish accent.
- Therefore
there was an issue about whether the mother’s brother did speak to the
support worker that day and in the terms that she stated.
- I
heard oral evidence from the support worker about this. During that
evidence she handed to me a piece of paper on which she had written the
number that she had rung. She said that she could not remember exactly how
she identified the person to whom she was speaking or whether she asked
whether he was S’s brother; however, she had phoned the number that had
been given to her for the mother’s brother and the man to whom she was
speaking told her about his own mother being in a coma. He also spoke to
her about the mother, S, and told her that S went to Africa a week ago.
- In
his evidence the mother’s brother said that no one else used his mobile
phone and he could not think why anyone else would want to suggest that
they were S’s brother; S has no other brother in this country. He said
that he has a nickname. I note that the support worker says in her statement
that ‘I have his name [written down] but I am unsure of the spelling or
pronunciation (in evidence she provided a name which was similar to
the brother’s nickname). After the support worker wrote down the
number that she had rung (exhibit one), the mother’s brother was recalled
in evidence. Without knowing of the number that the support worker had
given, he wrote down the number of his mobile phone (Exhibit two). The two
numbers are the same. When the mother’s brother was asked about this
during further evidence, he accepted that he had only one mobile phone and
that his number had not changed since May 2015. He said that he would
never lie.
- I
very much regret to say that I am driven to the conclusion that the
mother’s brother has not told the truth on this issue; I express real
regret about that because my impression of the mother’s brother was that
he is a courteous man who spoke quietly and deferentially. I am left in no
doubt that he did speak to the support worker and I accept her evidence both
as to the fact that she did speak to the mother’s brother that day and
also as to what he told her. Ms Wiltshire for S submits that I must
separate the brother’s untruthfulness from my assessment of the mother’s
evidence – just because her brother lied it does not mean that this should
taint her position. As Mr Talalay correctly submitted, the brother’s
evidence is, however, directly relevant to the mother’s intentions.
- To
her credit, the support worker made further checks of hospitals and the
children’s school; she heard that the mother was not in hospital and that
the children had been at school. It is then that the support worker called
the police because she was so worried. I would like to express my
admiration for the work that the support worker does and also for the care
and dedication that she so plainly shows when doing it. She was a very
impressive witness. Despite Ms Wiltshire’s crafted questioning I do not
accept that her concerns were the origins of the concerns that the
children were at risk of FGM; the support worker was involved with the
mother on issues relating to alleged domestic violence.
- 19th
June - Two uniformed police officers, visited the mother on this day
following the referral from the organisation supporting S with the
domestic violence allegations. Belatedly, a statement was provided by
one of the uniformed officers together with his notebook and he gave oral
evidence. He said that he and his colleague arrived at the mother’s
address at 10.30 a.m. He said: ‘[S] opened the door to us and appeared
upset. [S] allowed us into the address and I informed her we had concerns
about her missing her appointment in the week….[S] informed me her mother
had suffered a stroke and was in a coma in [a named] hospital in Mogadishu,
Somalia. [S] provided her mother’s details. [S] informed me she had missed
a flight out to Somalia on the 18th of June 2015 which was due
to leave Heathrow airport. [S] informed me she was awaiting a phone call
from [an individual] who was re-arranging her flight out to Somalia. [S]
had paid £800 in cash to [a travel agent] to organise the flight. I asked
[S] to provide me any receipt of payment or any flight bookings. [S] was
unable to provide me any documentation or any contact details for [the travel
agent]. I asked [S] when she was intending to return with the children and
she could not provide me with an answer…I wanted to make some further
enquiries into [S] giving £800 to [the travel agent]. [S said where the
travel agent was situated]…At 11.45 I attended [the children’s school]
where I spoke to [a] Home School Child Protection Worker. From memory [the
worker] appeared to have no knowledge of [S]’s intentions of returning to
Somalia or taking the children with her back to Somalia…I searched the area
of [where he was told the travel agent was situated] and finally found a
travel agent company …I spoke to [an individual] in the store who was not
able to provide any current booking for [S] back to Africa… [S] had
informed me that her sister, was currently travelling [to the UK from
another country]. [S’s sister] would be returning to meet [S] and then
they would all be travelling down to London to catch the flight to
Somalia. [S’s brother] would be taking them to London. [S’s sister] was
due to land in London at some point in the evening of 19th
June’.
- Thus,
it is important to note from this conversation that the mother gave the
police officer details of a travel agent and the police officer found a
gentleman by that name who was involved in a travel agency. Further the
officer was able to record the suggestion that S’s brother was going to
take the mother to London and also recorded the means of transportation.
Further, the police officer was able to obtain details of the mother’s
sister and of the fact that she lived in another country and was also able
to obtain details of the condition and location of S’s mother in a
specific hospital in Mogadishu, Somalia. These points are important in two
respects. First, because the mother was able to communicate this to the
police officer. Second, because the account that the officer has recorded
contains some information that is demonstrably correct.
- In
his oral evidence the police officer said that he had little recollection
beyond what he noted. He said that, if he had thought that the mother was
unable to understand what was being said he would have used Language Line
which is available at any time; he did not use that service because he did
not consider it necessary.
- After
the meeting with the mother the police officer sent two emails to a
Detective Sergeant of the police investigations department (CID) in which
he recorded what had occurred. The emails are contained in the bundle of
evidence and I note that the email includes: ‘[S] indicated her mother
had suffered a stroke and was in [a named hospital], in Moqdisho, Somalia
in a coma. [S] had missed a flight out to Somalia on 18th June
2015 from Heathrow. [S] stated that she awaiting a call from [a travel
agent] who was re-arranging her flight out to Somalia. [S] had paid £800
in cash! [S] had no reference for the flights she was due to take out on
the 18th’. I also note that the officer’s pocket book
states: ‘flying out to Somalia – as mum is in hospital who has had a
stroke on…Was due to fly yesterday but missed the flight. Due to fly
tomorrow’. He said that he would have filled out his notebook either
as the discussion went on or immediately afterwards.
- The
mother was recalled to respond to this evidence. She says that the
policeman asked ‘did you buy a ticket’. The mother said that she ‘told
them that I had already bought a ticket and had flown and come back’.
She said that, by this, she had meant that she had bought a ticket in
February to fly to Dubai and had already used the ticket a long
time ago. She said that the police officer said: ‘you are about to fly to
Mogadishu’, and she said ‘no’. She said that the officer then asked her
where she had bought the ticket and she had said that she had bought it
from a named travel agent in February for cash (£340, which she received
from her husband H). She said that she did not say anything about going to
Somalia and that the conversation with the police officers was quite
difficult as they were using hand signals. She did not remember saying
anything about her sister coming. She accepted that she had given the
officer the details of her children, her mother and her brother as he had
recorded them.
- The
mother said that her sister would not have the money to fly to Somalia as
she had no money of her own and anything that she had came from her
husband; therefore, she said, her sister could not have been coming to
London in June en route for Somalia. It was then put to her that the
guardian spoke to the mother’s sister when she was in Somalia in December
2015. The mother then said that her sister’s husband had funded her
sister’s trip to Somalia later in 2015. I find that the mother was being
untruthful about her sister’s ability to travel.
- I
have no difficulty at all in preferring the account given in evidence by
the police officer to that advanced by the mother and I find that the
police officer’s account is an accurate record of what was said by the
mother during his visit. In the context of the discussion and on the
evidence that I have heard it is patently untrue that the mother was
discussing a ticket that she had bought to travel to Dubai in February
2015. The detail that the mother gave to the police officer had nothing to
do with spending £340 on a flight to Dubai in February.
- I
find therefore, that the mother has not told the truth about what she said
to the police officer. She did tell him that she had missed a flight to
Somalia and also told him that she intended to travel to Somalia with the
children. Therefore the mother has given seriously misleading and
untruthful evidence on this issue.
- Later
on 19th June - At about 15.30 the police officer, a
Temporary Detective Inspector (T/DI) made an unannounced visit to the
mother’s home with the social worker. The mother and children had not gone
to Somalia and so the T/DI and the social worker questioned the mother
about whether it was her intention to travel there. Thus, what the mother
said about intentions to travel was central to the discussions that were
held and, therefore, I find, that the T/DI and the social worker paid
particular and careful attention to what the mother said on that issue.
- The
mother spoke to them, without the aid of an interpreter but in English
that the T/DI assessed to be clear. The current guardian says that she
considers ‘[S]’s English speaking ability to be extremely limited and I
dispute the shared police view that her English is adequate to make
herself understood and enable her to communicate properly’. The social
worker said in evidence that the mother’s English was good and that she
appeared to understand what was being said. The support worker from the
domestic violence support organisation said the mother has basic English
but that her English is not good.
- I
find that the mother’s English is nowhere near as limited as she
represented and as the guardian accepted. I accept the assessment of the
support worker from the domestic violence support organisation that the
mother has basic English and I accept the evidence of the T/DI and of the
social worker that the mother understood perfectly well what was being
discussed at their meeting. I also find that the mother has attempted to
mislead the court about the extent of her understanding of what was being
discussed that day as a means of seeking to retract things that she had
said. Later in the chronology, she repeated her account through an
interpreter in any event.
- It
is accepted that the mother told the T/DI and the social worker that she was
worried about her mother who was in hospital in Mogadishu having had a
stroke and being in a coma. The social worker said that, in the
discussion, the mother confirmed that she had bought a ticket to travel to
Somalia because her mother was unwell and that she was not aware that she
could not travel in the light of her advanced pregnancy. The mother then
said that she had taken the ticket back; the T/DI says: ‘I asked her
about her ticket and she told me that she had taken it back’. The T/DI
said in her oral evidence that she recollected clearly that the mother
said that she had bought an airline ticket and had taken it back to the
travel agent from which she bought it. The T/DI was clear that the mother
said that she intended to travel to Africa.
- In
oral evidence the mother said that she had not told anyone that she had
bought a ticket and the police misunderstood what she was saying; the only
discussion about a ticket was a ticket that she had bought in February 2015
when she went to Dubai, she said. The mother said that she did not say
that she had taken the ticket back. In oral evidence she said that she did
not intend to go to Somalia at all at that time.
- I
have no doubt at all that the mother did say that she had bought an
airline ticket to fly to Somalia. I accept the evidence of the social
worker and of the T/DI. There is no misunderstanding about this – the
mother has chosen not to tell the truth about it.
- I
also have no doubt at all that the mother did intend to travel to Somalia
with the children. I base this on the following:
i)
The case of the police has always been
based squarely on the fact that the mother intended to travel to Africa with
the children - see para 8 where it is stated that ‘the intention was for the
children to go with her although school had not been notified of any planned
absence’. This can also be seen in the police log recorded ‘[S] then
disclosed that she was going to try and fly to Africa today and take her three
children with her as her mother had a stroke’.
ii)
The discussions with the uniformed
officer were plainly based on the intention that she would take them – ‘I
asked [S] when she was intending to return with the children and she could not
provide me with an answer’.
iii)
The discussions between the social
worker and the children which I set out below were plainly on the basis that
the children understood that they would be travelling with the mother.
iv)
The discussions between the mother and
the police were in the context of whether the girls would be subjected to FGM
and there was no suggestion of the children being left behind when the mother
travelled.
v)
There would have been no reason for the
mother to lie about her intentions to travel if she had intended to travel
there alone. Recollecting the Lucas direction the fact that she lied about an
intention to travel, in the context of discussions of whether her daughters
would be subjected to FGM, is indicative of an intention to travel with the
children.
vi)
The fact that the mother has lied about
her intentions in June means that there is no reliable evidence from her on
this issue. Looking at the circumstances overall I think highly unlikely that
the mother would have travelled without her children.
- The
issue of whether there was evidence to support a finding that the mother
intended to travel with the children only arose after I had
delivered my first judgment. It was not an issue that was challenged in
evidence (despite the case that the police presented) and was not raised
in argument until then. This paragraph and the paragraph above therefore
were included into this judgment by way of expansion of my reasoning on an
issue that had not been argued previously.
- The
fact that she did not have any money herself does not in any way mean that
she did not intend to travel there with them. Therefore the mother has
lied about her intentions and also as to whether she had said that she had
bought a ticket. Whether the tickets had been paid for or reserved is
impossible to say.
- I
recognise that a possible interpretation of events so far might have been
that the mother wished to travel to Somalia to be with her dying mother.
However, that is not the account that the mother gave in evidence. Her
evidence was that she had no intention to travel there at all. Further,
she directly challenges the accounts that she told the police that she did
intend to travel there. Therefore, returning to the first limb of the
Lucas direction, I have no doubt that the mother has lied about her intentions
to travel to Somalia. As to the second limb of the Lucas direction, there
would have been no reason for the mother to hide the fact that she had
wished to travel to be with her own mother, if that had been the case.
Therefore I do not accept that she lied due to a fear of being
misunderstood or through any misunderstanding of what was being discussed.
- During
this conversation with the T/DI the mother told the police officer that
she had been ‘cut’, that cutting had caused her pain and that she would not
do this to her children. In evidence the mother said that she thought that
the police officer was talking to her about stitching after birth and did
not understand that by referring to ‘cutting’ reference was being made to
FGM; that, again, is patently untrue - the mother then went on to say, I
accept, that she ‘would not do this to her children’. The
mother knew full well that the discussion was about FGM and had nothing to
do with her birth experience. Why should the police officer have been
enquiring about the mother’s birth experiences with children of this age
(the baby, D, had not been born yet)? Therefore I find that the mother has
lied about this as well.
- During
this visit the social worker spoke to R and P and began the conversation
by saying to the girls ‘I hear that you are going on a holiday’. Ms
Wiltshire stressed that this was a leading question and argued that it
tarnished the account that followed. Mr Talalay accepted that the social
worker’s question was leading but submitted, correctly, that the account
from P that followed was far more expansive than could have been
influenced by the leading question.
- The
social worker says: ‘[R] replied ‘yes’. [P] then said to me but
directed her comment at [R] ‘she’s lied to me, she said we were going
today and we’ve not gone’. [P] then said ‘we were going to Kenya’. I asked
what they were planning to do there and they both started to chat over
each other quite excitedly about a party. One of the girls, I think [R]
said ‘we’re going to a party just for girls, we’re going to be dancing and
there’s going to be food on a big table, its going to be all night’. They
were both talking about it and seemed to be genuinely pleased about going
to the party in Kenya . I then asked if mummy was going to be at the party
and [R] replied ‘yes and [our brother] can come … but it is for girls’.
I find that, for very good reason, the content of what the girls said
alerted the social worker and, later, the police to the risk that the
mother intended to subject the girls to FGM in Somalia. I accept that FGM
may be associated by celebrations of the sort that the girls were
suggesting.
- The
social worker says that the girls then showed her some clothes which were
said by them to be for the party and then the social worker continues: ‘we
then talked a bit more about the party, it was the girls speaking mainly
and they just went over what they had already said about it being in Kenya
and it being for girls. Both [R] and [P] were fairly articulate in the way
they spoke and talked naturally and in an open manner. I didn’t get the
impression at all that this was them making it up. To them this was a real
excitement for them to be travelling to Kenya to go to this party which
was just for girls’.
- In
her statement the mother says that the girls must have been talking about
a birthday party that was to be held for R at school. Her brother is
recorded as saying that the mother was ‘probably talking about the school
holidays’. H suggests that R was talking about going on holiday to see him
in another part of the UK. I have no difficulty at all in rejecting all of
these suggestions. This was not a discussion about a party at school nor
was it a discussion about school holidays or visiting H. The discussion
took place in the context of the mother’s plans to visit Africa with the
children. The mother accepted that Kenya is regarded as a safer location
to visit in Africa than Somalia; I do not accept Ms Wiltshire’s submission
that the reference to Kenya could have been influenced by the fact that a
child from Kenya had joined the school class of one of the children
shortly before this. Again, therefore, I find that the mother has given
untruthful evidence about why the girls should have been discussing a
party.
- Therefore
a picture is already built up of i) a mother who was herself subjected to
FGM and who has discussed with W whether the girls should undergo it; ii)
A mother who has lied about an intention to go to Somalia in June 2015 and
has done so for no good reason and iii) a family in which the girls were
speaking about going to Africa for a party that was for girls only and iv)
where the mother has lied about what that party might be for.
- A
further visit that day - After that visit the police began to make
further enquiries and the T/DI returned to the mother’s home at about
17.00 hours. In her oral evidence the mother said that she knew by the
time of this second visit that her mother had sadly died having received a
telephone call to that effect from her sister in Somalia. In his oral
evidence the mother’s brother said that his mother had died that day and
he thought that he heard about it sometime that afternoon but could not
remember when. I am left in grave doubt about whether their mother did die
on 19th June, not least because on days after this S was still
asserting that her mother was unwell and in a coma, as I set out below. W
produced a text message which he said showed that S’s mother had died in
September 2014; however I am unable to rely on his evidence either.
- During
the visit at 17.00 hours there was a discussion between the T/DI and the
mother’s brother by telephone about the surrender of the children’s
passports. The police wanted the mother to provide the passports and they
were told by the mother that her brother held them which is why the T/DI
spoke to him.
- I
do not think that anything of separate forensic value can attach to the
initial alleged reluctance of the family to hand the passports over.
Eventually, during that discussion, the mother’s brother agreed to bring
the passports of the mother and children to a police station between 18.00
and 18.30 hours. He did not do so. As a result the T/DI went round to the
mother’s home at about 18.50. After a while the mother’s brother came
round to the mother’s home with three other men. The mother’s brother said
in evidence that one man was his cousin and named the other man; he could
not remember a third man.
- After
some lengthy discussion the mother’s brother handed over S’s passport and,
later, one of the other men handed over the children’s passports. By that
stage, the mother’s brother said, he knew that his mother had died but did
not mention this to the police. If he had just heard that his mother had
died I am surprised that he did not say anything to the police about it
but am not able to use this as of forensic value when deciding this case.
However, I do note that, during the conversation with the police, the
mother’s brother said that it was very expensive to fly to Africa and said
that S could not afford to go; this contrasts with the fact that he had
told the support worker the domestic violence support organisation, in
their conversation on 18th June 2015, that the mother had gone
to Africa a week ago. It also contrasts with what the mother herself had
said about her plans to go to Africa.
- 22nd
June 2015 - On a date that is put by Mr Talalay in his chronology at
about 22nd June 2015 R is said by her teacher, to have stated that
‘she was going to France in the summer holiday with her family and
cousins. She said they were going to have a big party with her cousins in
France. She also mentioned that her grandmother would be there. [R] told
me her mum was going to buy her sunglasses for the holiday’. R’s
teacher adds: ‘I would like to add that [R] often had trouble retelling
stories or events and on occasion would say things that had not happened’.
The family support worker, says in a statement: ‘I would like to make
mention however, that [R] does sometimes get confused when relaying
information’. I accept that R may get confused about things and be
inventive; however I also find that there is very clear evidence that, at
a time when the mother was intending to go to Somalia, the children were
saying that they were expecting to be taken by their mother to a party for
girls. There were further discussions about this between the social worker
and R which I set out later.
.
- On
24th June 2015 the T/DI and the social worker
returned to the home with another police officer. During the
discussions, the T/DI said, the mother again said that she had bought a
ticket through an informal travel agency, a group of Somali people, in
order to fly to Africa. Therefore, five days after the initial visit by
the police on 19th June the mother spoke through an interpreter
and still said that she did intend to go to Africa. I reject the mother’s
denial that she ever expressed such an intention. There can be no doubt at
all about the mother’s understanding of what was being discussed because
there was an interpreter present throughout the discussion.
- The
T/DI’s statement about this contains the following: ‘I told [S] that I
was very concerned that [R] and [P] were at risk of being cut. I told her
that this was for several reasons. Firstly, she told me that she bought a
ticket to fly to Africa but there is no record of that with the travel
agency. Secondly, her brother said that she had not made any arrangements
and would not travel during Ramadan. [S] told me that she intended to
travel and had bought a ticket. She said that she bought it from an
informal travel agents, they are a group of Somali people. She didn’t know
that she couldn’t fly [during advanced pregnancy]. Now that she does know,
she will not fly as she won’t put her unborn baby at risk. I asked her how
her mum was and she said that she was still in a coma. She said that her
sisters are with her which is a relief…she said that she would feel awful
if her mother died and she had not seen her but her baby is a priority. I
told her that the third concern was something [R] said…She said that [R]
is desperate to go on holiday. She took [P] to France last year and [R]
did not go. [R] is really jealous of this….[P] saw a programme about Kenya
and now says that she wasn’t to go to Kenya’. Thus, at that stage, the
mother was saying that her own mother was still alive.
- The
social worker says that she discussed with the mother what the girls had
said about a holiday and that ‘[S] responded by telling me that [R]
wanted to go to France and that she was jealous that [P] got to go to
Ethiopia four years ago and she had not. [S] did not say any more about
Kenya or a party but did say that she would not hurt her girls and wants
to prove this to us’.
- In
her oral evidence the mother said that she did not say that ‘she intended
to travel and had bought a ticket’. She accepted that she had been
speaking in Somali through a registered interpreter. Again, I find that
the mother has not told the truth.
- On 29th
June 2015 the T/DI says that she spoke to the mother again at her home
through an interpreter. The T/DI says that the mother ‘said that she
did not intend to do this [FGM] anyway. She was going to travel but now
she knows she cannot, she will not’. The mother said in evidence that
she never said that she had intended to travel; she merely said that she
would have liked to have travelled. I reject the mother’s evidence.
- Also
on that day the T/DI records that S said that her mother had died ‘last
Friday’ (which would have been 26th June); in her oral evidence
the mother said that this was a misunderstanding and that she had said
that her mother died on Friday 19th June. T/DI says ‘she
said that her sister’s oldest son died on Friday as well. He was only
18…she told me that he was shot in Mogadishu and that her sister was in a
coma’. In her oral evidence S said that her nephew had died on 26th
June 2015. This adds to the lack of reliability of the account given by S
and her brother that their mother had died on 19th June.
- H’s
evidence – He said in his oral evidence that S did not plan to go to
Africa in June 2015. He said that he was always aware of her plans and
that, even when her mother was ill, S did not mention that she would have
liked to have gone to Somalia. That has to be compared with the report of
the first guardian who says: ‘[H] told me his wife was deeply troubled
by the seriousness of her own mother’s illness, to the extent that she
feared that her mother might die before she got the chance to see her one
last time. [H] said it was her wish to travel to Africa to be with her
mother but not to take the children with her’. After this passage had
been put to him he said that S merely expressed a wish to go to Somalia to
see her mother but he was against it. I do not find H’s evidence reliable
either.
- On 9th
July 2015 the social worker met with R on her own. She says: ‘I
asked [R] about the holiday and what had happened about it. [R] said ‘I
was only joking’ and I said ‘what do you mean you were only joking?’ [R]
said ‘we weren’t really going on holiday.’ I said ‘OK’ and we then had a
discussion about what a joke was and what it meant to [R]…So I then said
to [R] that saying about going on holiday isn’t really a joke and she said
‘well no’. I said about mummy having tickets and said ‘so you were
planning to go on holiday?’ and [R] said ‘yes we were’. I then asked her
about why it was a joke to say that she wasn’t and she said ‘I was told to
say it’. I asked [R] ‘who told you to say that?’ and [R] said ‘my sister’.
I said ‘[P]?’ and [R] said ‘no, my other sister. She lives across the road
from school in the green house’
- The
mother’s brother said in his evidence that his girlfriend lives in a green
house (providing the name) and said that her house is about 3 or 4 minutes
walk from S’s house. The social worker said in evidence that she got the
impression that R was speaking truthfully about being told to say that
travelling for a holiday was a joke but it was not clear who had told her
to say that. I find that it is highly likely that, by that stage, R had
been told to say that she had been joking about going on holiday and I
accept Mr Talalay’s argument that there must have been a reason why R was
put under that pressure and that reason must lie in the fact that the
adults in her family did not wish the true intentions to be revealed.
- A
Detective Chief Inspector (DCI) gave evidence of her analysis of the
risk that the girls would be subjected to FGM. I accept that the DCI is
highly experienced in this field of work but I think that this case has to
be judged on its facts. It is for me to judge those facts.
- Lies
– I therefore find that the mother has given untruthful evidence about
the following particular matters:
i)
Whether she intended to travel to Africa
in June 2015 with the children.
ii)
Why she intended to go to Africa with
the children then.
iii)
The arrangements that she made for that
travel.
iv)
Why the children spoke about a party
being arranged for girls when they went on holiday.
v)
Whether FGM was ever discussed with W.
- Conclusions about the mother’s intentions – Mr Talalay does not argue that I can make a positive finding
that the mother did intend to subject the girls to FGM in June 2015.
However, he contends, and I find, that the evidence demonstrates that was
a real possibility that she would do so. To express matters in another
way, there was a real and evidentially established risk that the mother
would subject them to FGM. I find that, without FGM protection orders
being in place there is a real possibility that she will subject them to
FGM in the future. The harm that FGM causes to girls and women does not
need to be stated in this judgment save to say that it is lifelong and
very significant.
- Law
– Under Paragraph 1(2) of Schedule 2 to the FGM Act 2003 it is
provided that ‘in deciding whether to exercise its powers…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’.
- Paragraph
1(3) provides that ‘an FGM order may contain – a) such prohibitions,
restrictions or requirements and b) such other terms, as the court
considers appropriate for the purposes of the order’. Paragraph 1(4)
provides, amongst other things, that an order may relate to ‘conduct
outside England and Wales as well as (or instead of) conduct within
England and Wales’.
- In
the cases of Re E (children) (Female Genital Mutilation Protection Orders)
[2015] EWHC 2275 (Fam) Holman J said at paragraph 15: ‘It is clear from
paragraph 1(3) of the schedule that appropriate additional prohibitions,
restrictions or requirements can be attached to an FGM Protection order,
but they must always be ‘for the purposes of the order’.
- Plainly,
an application for an FGM protection order invokes a discretionary
jurisdiction and also invokes Article 8 of the European Convention on
Human Rights. That Article provides: ‘1. Everyone has the right to
respect for his private and family life, his home and his correspondence. 2.
There shall be no interference by a public authority with the exercise
of this right except such as is in accordance with the law and is
necessary in a democratic society …for the protection of health or morals,
or for the protection of the rights and freedoms of others.’
- Although
it is accepted that the police, as Applicants, bear the burden of proving
disputed facts to the civil standard of proof, it is also accepted that it
is not necessary for the police to prove as a fact that the mother did
intend to subject her daughters to FGM in June 2015. The court has to
conduct a balanced risk assessment on the basis of established facts. The
correct approach is that, having made findings of fact about what occurred
at relevant times and having considered all the circumstances I must ask
myself in the light of my assessment of risk:
i)
Is an FGM protection order necessary to secure the health, safety and well-being of
the girls to be protected?
ii)
Is the order proposed a proportionate
response to the facts as I find them to be?
iii)
Are the terms of the order lawful (i.e.
‘in accordance with the law’) and within the provisions of the schedule?
- Outcome
and second judgment – Following the delivery of the above judgment I
heard further submissions. Given the findings that I had made it was
plainly necessary, proportionate and lawful that I should make protection
orders. The terms of that order were the subject of lengthy and detailed
submissions and I gave a short oral judgment about that. In summary I made
a wide range of orders directing that the children were to be protected
from FGM. Those orders included provision for the surrender of the
children’s passports on the basis that I would review that order within
the proceedings under The Children Act 1989.
HHJ Stephen Wildblood QC
9th February 2016.
