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Category Archives: assessment of risk

Totally radical, dude

"Put them in the Iron Maiden"

“Put them in the Iron Maiden”


The President has published guidance on radicalisation cases within the family Court, which you can find here:-


The Guidance says that ALL radicalisation cases are to be heard in the High Court, and that this specifically excludes Circuit Judges who have a section 9 ticket allowing them to sit as a High Court Judge. [UNLESS an actual High Court Judge explicitly releases an individual case to them]  The cases will purely be in the High Court.

To address the fact that this means that say, the family Judges in Luton would be oblivious to there being a major radicalisation problem in Luton because they won’t see any of the cases, the Designated Family Judge in each area must be notified of each application when they are made.


The guidance goes on

Judges hearing cases falling within the description in paragraph 1 above will wish to be alert to:

(a) the need to protect the Article 6 rights of all the parties;

(b) the fact that much of the information gathered by the police and other gencies will not be relevant to the issues before the court;

(c) the fact that some of the information gathered by the police and other gencies is highly sensitive and such that its disclosure may damage the public interest or even put lives at risk;

(d) the need to avoid inappropriately wide or inadequately defined requests for disclosure of information or documents by the police or other agencies;

(e) the need to avoid seeking disclosure from the police or other agencies of information or material which may be subject to PII, or the disclosure of which might compromise ongoing investigations, damage the public interest or put lives at risk, unless the judge is satisfied that such disclosure is “necessary to enable the court to resolve the proceedings justly” within the meaning given to those words when used in, for example, sections 32(5) and 38(7A) of the Children Act 1989 and section 13(6) of the Children and Families Act 2014;

(f) the need to safeguard the custody of, and in appropriate cases limit access to, any sensitive materials provided to the court  by the police or other agencies;

(g) the need to consider any PII issues and whether there is a need for a closed hearing or use of a special advocate;

(h) the need to safeguard the custody of, and in appropriate cases limit access to, (i) the tape or digital recordings of the proceedings or (ii) any transcripts;

(i) the need to ensure that the operational requirements of the police and other agencies are not inadvertently compromised or inhibited either because a child is a ward of court or because of any order made by the court;

(j) the assistance that may be gained if the police or other agencies are represented in court, including, in appropriate cases, by suitably expert counsel.





This is a major issue, or potential issue.  Imagine for a moment that the X family come to the attention of the Police or the intelligence services. They are believed to be radicalising their child. That would, when shared with the Local Authority, give rise to the need for care proceedings being initiated, and possibly that an application be made for the removal of that child.  But imagine that the REASON the police or intelligence services have that concern is that they are monitoring the phone calls, text messages or emails of Mr Y, someone who is recruiting for ISIS.  They may very well prefer that the X family don’t learn that Mr Y’s emails are compromised, and that hence Mr Y is alerted and changes his phone, and email account.   Suppose that the REASON is not monitoring emails but that Mr Y has a colleague in the terrorist cell,  Mr Z who is actually clandestinely working with the intelligence services – that really could be a matter of life and death if the X family learned that Mr Z was a spy. Both for Mr Z and for the future intelligence that might save lives whilst he remains undetected. This is big stuff.


[If you ever watched The Wire, you’ll be familiar of the constant battle with the police and drug dealers to get the information from the phone taps but without tipping the drug dealers hand to the fact that their communications are compromised, and thus that the drug dealers would ‘change up’ their systems. And if you have never watched The Wire, then I recommend that you remedy that. ]


"Omar comin' ! "

“Omar comin’ ! “


This puts the debate into really clear terms – if there’s information that is relevant to the proceedings – for example those representing the parents are likely to want to know exactly why the parents are suspected of radicalisation and what the evidence-base is, but it might impact on national security, then the Judge is going to have to ensure that the disclosure requests are very focussed, and that if there’s to be an argument that the documents should not be disclosed, that a proper Public Interest Immunity hearing takes place which balances the article 6 arguments in favour of disclosure with the national security PII arguments.


Because let’s not foreget, that parents in this situation are entitled to a fair trial. The allegations or information might be a mistake, or malicious, or mistaken identity.  We can’t lose sight of the fact that it is the State who have to prove that these parents have radicalised the child, not for the parents to prove their innocence.

Where this happens in crime, the Judge generally sees the documents in order to conduct what is called an “Air Canada” exercise, to consider them on a line by line basis to see what can be disclosed and what might have to be withheld. You cannot assume that article 6 will trump national security always or vice versa, it will be very case and fact specific.   Might this procedure even eventually extend to police or intelligence witnesses giving evidence behind closed doors, with the parents not hearing it?  How do we feel about that?


It is worth noting that in this guidance, when the phrase “Special Advocate” is used, it may not be simply meaning a ‘specialised’ or ‘specialist’ advocate, but rather that at the hearing where the documents are considered and arguments deployed, that the Court would appoint a barrister specifically to make those arguments on the parents behalf – NOT the ones representing the parents in care proceedings, and ones who would not have a duty to share that information with the parents.  That would be a very big deal in care proceedings. It is somewhat controversial generally, but as far as I’m aware, we haven’t done it in care proceedings before.  [I’m not absolutely sure that we can even do it without a statutory basis or a strong precedent that it can be done. But I’m no expert on the Special Advocate jurisprudence]


The guidance continues


11 This is a two-way process. The court can expect to continue to receive the assistance it has hitherto been given in these cases by the police and by other agencies. But there must be reciprocity.

12 The police and other agencies recognise the point made by Hayden J  that “in

this particular process it is the interest of the individual child that is paramount. This

cannot be eclipsed by wider considerations of counter terrorism policy or operations.”

The police and other agencies also recognise the point made by Bodey J that “it is no part of the functions of the Courts to act as investigators, or otherwise, on behalf of prosecuting authorities … or other public bodies.” But subject to those qualifications, it is important that the family justice system works together in cooperation with the criminal justice system to achieve the proper administration of justice in both jurisdictions, for the interests of the child are not the sole consideration. So the family courts should extend all proper assistance to those involved in the criminal justice system, for example, by disclosing materials from the family court proceedings into the criminal process.

13 In the same way, the police and other agencies will wish to be alert to the need of the court for early access to information, for example, information derived from examination of seized electronic equipment, so far as such information is relevant to the issues in the family proceedings. Accordingly, the court should be careful to identify with as much precision as possible in any order directed to the police or other agencies: the issues which arise in the family proceedings; the types of information it seeks; and the timetable set by the court for the family proceedings.


I have been worried about the balance between confidentiality and national security on the one hand and fairness and article 6 on the other for a long while in relation to radicalisation. I think that it is helpful to have published guidance as to the very difficult issues that Judges dealing with these cases are faced with.  How they will be dealt with in practice is something I’ll be very interested to read about (assuming that I’m allowed to)

Radicalisation of children and ISIS – Jihadi Brides


This is a very powerful and disturbing case. As Hayden J says, this is a whole new category of child abuse which professionals and Courts are learning about very quickly, it just wasn’t something that had even entered anyone’s thinking two years ago.


London Borough of Tower Hamlets and B 2015


It has a somewhat stellar line up of advocates,  indicative of the serious nature of the case.  In broad terms, the issue was this :-


Was a 16 year old girl being radicalised to prompt her to travel to Syria and became a “Jihadi Bride”,  if so, were the parents to blame in any way, and what should happen to her and her brothers?


In this case, the girl had been caught at the airport trying to catch a plane with that intent – rather like the recent cases before the President that resulted in ankle-tagging.  Unlike those cases, where the President was satisfied that there had been no overt or abusive radicalisation of the child, in this case there was plenty of evidence.


14. I have already referred to a very significant amount of what I will for shorthand call ‘radicalising material’ being removed from the household. During the course of this hearing before me I asked Mr. Barnes, on behalf of the Local Authority, to distil the material that had been removed into an easily accessible schedule identifying to whom the material was attributable. The schedule, which has not been disputed, requires to be summarised in detail.

  1. There were a number of devices attributable to B herself:

    (1) A document headed “44 Ways to Support Jihad” with practical suggestions as to the support of terrorist activity;

    (2) “The Macan Minority” urging participation in Jihadi activity;

    (3) Internet searches relating to terrorist manuals and guides to terror activities. That also included queries as to the response times of the Metropolitan Armed Response Team and the Queen’s Guard;

    (4) Internet searches as to the preservation of on-line anonymity, including, as confirmed by a police officer at an earlier hearing, the downloading of software to hide the IP address of the user’s computer when on-line;

    (5) A downloaded version of “Mujahid Guide to Surviving in the West”. Possession of that document is, of itself, a serious criminal offence. It gives guides to weapon and bomb making and to “hiding the extremist identity”.

    (6) “Miracles in Syria”. This contained information as to how to get to ISIS territory and many photographs of what are referred to as “Smiling corpses”.

    I had not understood what that meant, but I have been informed that it involves photographing the corpses of fighters whose faces are set in a smiling repose and said to reveal pleasure at their glimpses of eternal reward

    (7) “Hiraj to the Islamic State”. This contained information and advice as to how to avoid airport security. It had particular advice in relation to females intending to travel to ISIS territory via Turkey.

    (8) Footage of attacks on Western Forces in the Middle East.

  2. On one of the siblings devices there was the following:

    (1) Numerous articles, some in what are referred to as “glossy magazine format” urging flight to ISIS territory and recommending its “lifestyle”.(2) An edition of Islamic State News showing men being prepared for execution and asserting community support for it.

    (3) An edition of Islamic State News showing before and after shots of human executions.

    (4) A video of terrorist training.

    (5) A video containing images of actual executions and beheadings.

  3. On another sibling’s devices there were the following:

    (1) A number of lectures and video biographies encouraging support for ISIS activities, including videos of attacks upon Western Forces in the Middle East.(2) ‘The Maccan Minority’, seen earlier in B’s own devices, suggesting that files had been shared between the siblings.

    (3) A document called “The Constance of Jihad”. This was a five hour lecture on the need to participate in fighting against non-Muslims.

  4. Finally, from the parent’s own devices:

    (1) Lectures encouraging participation in armed attacks on non-Muslims.(2) Issues of Islamic State News showing the same executions as those seen on the devices attributed to one of the siblings, again suggesting file sharing.

    (3) Photographs of teenagers holding grenades.

  5. Reducing the material in this way to this stark list was, at least to my mind, an important exercise. The impact of the material set out in this way is both powerful and alarming. It requires to be stated unambiguously, it is not merely theoretical or gratuitously shocking, it involves information of a practical nature designed to support and to perpetrate terrorist attacks. I have noted already bur reemphasise that it provides advice as to how to avoid airport security, particularly for females. In addition, the videos of beheadings and smiling corpses can only be profoundly damaging, particularly to these very young, and in my judgment, vulnerable individuals



Deep breath. You can see therefore that the material was far beyond a ‘come to syria for a life of glamour’ blandishments that anyone could come across on the internet  – there were very strong and graphic images and terrorist manuals. You can also see that the parents’ electronic devices also contained this sort of material.


Importantly, much of this material involved how to conceal extremeist views and that was certainly something which had played out with these parents, who had previously come across as concerned and anxious about their daughter’s actions.


20. It is not uncommon in my experience, which I am confident is shared by the experienced advocates in this case, for adults in public law proceedings or child protection proceedings more generally to seek to deceive social workers. Sometimes it can be successful for protracted periods. They may conceal a drinking habit, substance abuse, or a continued relationship with a violent partner. Usually these come to the surface eventually. I am bound to say I do not recall seeing deception which is so consummately skilful as has been the case here. I have found myself wondering whether some of the material may have educated this family in skilful concealment of underlying beliefs and activities.

  1. The parents’ joint statements require revisiting. Thus:

    “We are a very strong family unit and we are doing our very best to help prevent such a situation from reoccurring. We are keeping extremely close eyes on B and trying to be encouraging of her moving without ridiculing her for her actions to the extent that this incident forever haunts and affects her day to day living. I, the mother, am particularly sensitive of how we manage the situation which we view as very serious due to my work…
    I understand how to empathise and assist those in need of support through open questioning techniques and motivational encouragement, and have done this with B at great length since the incident to help understand what went wrong. We had thought that we were nearing a stage of putting the incident behind us, having worked together as a family, convening weekly family discussions and opening up about how to move on…”

    “The police officer ‘x’ offered a piece of technology costing £79 which allows complete monitoring of the computers in the house. The instructions were followed and it was bought and a friend who is technologically minded (which neither if us are) installed it for us. The children are not aware of it. We completely understand the police and Social Service’s concerns, but we don’t want any intervention to further impact our family lives for the unforeseeable future. The risk in our minds is not high at present of B leaving the UK, particularly given that all of our passports are being held by our solicitors. We would agree with whatever measures are deemed necessary to prevent risk to B and following the explanation given at the initial child protection conference have agreed, or already carried out, the protective tasks itemised in the assessment report.”

    They were fulsome too in their praise for the social worker:

    “The new social worker explained her role and again seemed very sensitive to the need to limit and time her visits according to B’s studies. We have readily accepted the recommendations of the conference. We were impressed by the thoughtful and specific thought all there gave B. She did not feel like she was lumped together with other girls for no clear reason. The professionals at the meeting voiced confusion themselves about an initial child protection conference being held whilst the child is warded. The Chair expressed concern that it seemed a decision had been made that there must be a child protection done before the conference. In fact following the open and frank discussion at the conference, all professionals voted unanimously for a time limited Child in Need plan. We were very relieved, and repeat, we will grab with open arms practical and genuine offers of help in getting past this terrible event provided we think they will help. We also repeat we are so grateful to those who stopped S getting to Turkey.”

  2. Evaluating those passages alongside the material that was discovered in this household reveals that much of what was said was in fact an elaborate and sophisticated succession of lies.



It was a very difficult situation for the Court to deal with. There had been limited opportunity for professionals to talk to the boys.  It is worth noting here that Hayden J acknowledges that Courts are often obliged to take social workers to task for poor practice, but here the work that the social worker had done was to be commended.  Hayden J felt that there was no alternative but to remove the girl, B.  He makes a comparison with the nature of the abuse she was suffering which is a strong and powerful one. I will leave it to others to consider whether they think it is too strong or about right.


The decision for the boys was much harder.


  1. The police found it necessary, as a precaution, to limit professional access to this family. The need for that, to my mind, was self-evident. It has, however, meant that I have limited information into the lives of the male children.
  2. The Local Authority apply to remove each of the children from the household; not just B but the boys too. So corrosive and insidious are the beliefs in this household, it is argued, so pervasive is the nature of the emotional abuse, so complete is the resistance to intervention, and so total the lack of co-operation, that the emotional safety of the boys, the Local Authority says, cannot be assured. I have some sympathy for that view. Nonetheless, in exchanges with Mr. Barnes on behalf of the Local Authority the following, to my mind, important facts have emerged. Firstly, it is conspicuous that radicalised material was not found on the boys’ devices. Secondly, the boys, through a variety of sporting interests, have a much wider integration into society more generally and, on my, as yet, superficial assessment, a healthier range of interests. Between sport and study there is, I suspect, little room in their lives for radicalised interests. Thirdly, it was one of the boys who first sounded the alarm about his sister’s flight. The exact account of that, like everything else this family says, must now be viewed with very great caution, but I strongly suspect there is a core truth that it was the action of one of the brothers that foiled B’s flight to Syria. Fourthly, two of the older boys will be starting 6th Form education at college very soon, and accordingly they will be more exposed to professional scrutiny.
  3. I will require a thorough intense and comprehensive social work assessment of the boys’ circumstances. I will then be able better to decide whether their situation in this household is sustainable or not. Until I have the information I am not prepared to sanction their removal. It may or may not be necessary in the future. The balance of risk, it seems to me is, significantly different in the cases of the boys, at least at this stage. The Guardian supports such a course. Though I hope she will forgive me for saying so, I have not placed very much weight on her view. She was only appointed a few days ago. She has not had any opportunity to meet the children at all. She has an inevitably incomplete knowledge of the background of the case, and virtually no understanding of the wider issues, having, as she told me, never been involved in a case of this nature before. She is in an entirely invidious position. I am sympathetic to her and I do not intend these simple statements of facts to be construed by her in any way as a criticism. They are not.
  4. The social worker appointed in this case, by contrast, has in my assessment
    a deep, well informed and intelligent understanding of the issues. She has been working this case and with this family now for some time. It is in the nature of the proceedings that come before this court, in particular, that the actions of social workers often fall to be scrutinised and are from time to time found to be wanting and deprecated in judgments. The opposite situation arises here. This social worker has, in my judgment, made an outstanding contribution to the case. All those who have encountered her, the lawyers, the police, the guardians, have been impressed both by the extent of her knowledge of this family and by her professionalism. She has formed a very important, and in my judgment, highly effective link between social work and police operations. She has had to absorb and re-analyse her work in a dramatically changing landscape. She gave evidence. She told me she had forged a strong, open, working relationship with B, as she thought. She had been convinced, and she is not, I suspect, unhealthily sceptical, that she had achieved, in effect, a professional result with B.
  5. It is obvious listening to her that despite everything that has happened, she has some affection for B and her professional concern remains. Now, she told me, B will not sit near her or talk to her. The social worker is not deterred. She continues to work to try to engage B in a meaningful dialogue. As she gave evidence, I took the view that this social worker, though saddened by the deception on a personal level, had merely girded her loins and resolved to try to re-forge the relationship. I am not able to identify her by name in this judgment, though I should like to have done so. To do so would only risk compromising the anonymity of the children. I have not lightly rejected her social work assessment in relation to the boys. Her understanding of B is considerable, as I have emphasised, but I have the strong sense, which to her credit she readily acknowledged, that her knowledge of and assessment of the boys was far from complete. As I have said, the balance of risk, at least for the present, is different.
  6. I have no hesitation in concluding that B has been subjected to serious emotional harm, and, at the very least, continues to be at risk of such in her parent’s care. I can see no way in which her psychological, emotional and intellectual integrity can be protected by her remaining in this household. The farrago of sophisticated dishonesty displayed by her parents makes such a placement entirely unsustainable.
  7. I return to the comparator of sexual abuse. If it were sexual risk that were here being contemplated, I do not believe that any professional would advocate such a placement for a moment. The violation contemplated here is not to the body but it is to the mind. It is every bit as insidious, and I do not say that lightly. It involves harm of similar magnitude and complexion.
  8. I approach the Local Authority’s proposals by considering B’s needs at this juncture. I am required to do so by Section 1(1) of the Children Act 1989. What she needs, I find, is to be provided with an opportunity in which she can, in a peaceful and safe situation, be afforded the chance for her strong and lively mind to reassert its own independence. An environment in which there are the kind of vile images that I have described and the extreme polemic I have outlined, can only be deleterious to her emotional welfare. I hope she can be provided with an opportunity where her thoughts might turn to healthier and
    I hope happier issues. I have no doubt, as has been impressed upon me by her counsel, that she will find separation from her parents, particularly her siblings, to be distressing, though I note she was prepared to leave them to go to Syria. I do not doubt that the social worker will struggle to find a placement which meets the full panoply of her welfare needs which has been emphasised on behalf of the guardian, but I entirely see why the Local Authority plans or proposals are, of necessity, only general in outline and, to some extent, inevitably inchoate. However, I am entirely satisfied that this social worker will make every effort to ensure the best possible option is achieved for B. That is the Local Authority’s responsibility.



I note that the parents in this case have been charged with an offence,


On 12th August the parents and other siblings were arrested on suspicion of “possessing information likely to be useful to a person committing or preparing an act of terrorism.” That is an offence contrary to s.58 of the Terrorism Act 2000 and carries a substantial custodial sentence.



What this case really shows is just how sophisticated the grooming process for radicalising young people and families can be, and that over and above the grooming and information about going to Syria and practical arrangements there is sophisticated material and advice on deceiving professionals and allaying professional suspicion.  These things represent completely new challenges and Tower Hamlets (amongst some other authorities) have got really valuable insights and experiences to share with other agencies who might encounter these issues. I hope that there are some joined up discussions to take place about the best way to share these insights and new found expertise.

Strategy meetings


If you aren’t familiar with Strategy Meetings, they usually happen where there is a suspicious or unexplained injury to a child, and the medical professionals meet with the social worker and sometimes police, to gather together all of the relevant information and consider the options for going forward.


In this case, Re L  (application to withdraw ) (Head injuries : Unknown cause) 2015


they took on a particular significance.


A quick caveat – this case took place in my local Court, so of course I know some of the lawyers involved, and it was decided by my Designated Family Judge. I have had absolutely no involvement in the case (I never write about cases that I have had even a tiny part in) but of course it is much more easy to be dispassionate about the rubbish arguments deployed by Mr Edward Shirtsleeves and  Miss Rebecca Cufflinks of counsel when I’ve never met them and never will, rather than people who might concievably be in kicking distance of my shins from time to time.


Broad issues in this case were that in October 2014, a child presented to hospital with signs of head trauma. He was unwell at the time and has thankfully recovered.   A strategy meeting was held in November, and care proceedings were later commenced. The child was made the subject of an Interim Care Order and placed with an aunt.


At the final hearing, the Local Authority sought findings that the child had been shaken by one of his parents, suffering significant harm as a result.


After the medical evidence had been heard in those proceedings in June 2015, the Local Authority applied to the Court to withdraw their application.


  1. Essentially, the evidence of the experts and medical professionals was put to the test over those days, and by the conclusion of the medical evidence it had become clear to all those in this matter, including myself, that the local authority, who must prove their case against the parents, were in a position where it was highly unlikely that the evidence would support findings to the requisite standard against the parents and the threshold criteria would not be met in this single-issue case. I make it plain that there can be no criticism of the fact that the Local Authority issued proceedings here where there was clearly a prima facie case from the time L fell ill on the basis of the medical information which was supplied to them.
  2. Very properly in my judgment, and with exemplary good grace, the Local Authority made their application having taken stock of the evidence available to them at this point in the hearing.
  3. To found the basis for permitting the local authority to withdraw their application, I note the difficulties posed which have arisen in this unique case: some are serious, some perhaps less so, and some only visible with hindsight. There were gaps in the information available to the experts, and gaps in their own expertise as regards being able to come to clear understanding about what happened to L medically. There was, however, less uncertainty amongst the treating clinicians at Worthing Hospital as regards the cause of L’s head injuries at the critical point in time when life-changing decisions were to be made as regards his future, and I have concluded on all the evidence that this is something which requires careful exploration and recording in this judgment.
  4. L’s case and his long separation from the care of his own family will, I hope, contribute to a greater understanding of how the identified omissions which prevailed in this case might be avoided in future, though that may be poor consolation for his family.
  1. I have the weight of the expert evidence in this case as my yardstick to measure the identified omissions: it is difficult to imagine a more experienced and respected array of consultants with specialist knowledge, who have been stretched to and at times beyond their limits, but who have also provided valuable opinion in terms of their views of best practice. The case illustrates the position that there are limits to what can be achieved forensically.
  2. It is important that this judgment is seen as specific to the highly unusual case of L. Hindsight offers the court the opportunity to develop a counsel of perfection, but I am the first to acknowledge that this is unlikely to be achievable and practices vary and will always vary, and may be resource-specific. I can only do the best I can on what I have to go on in this matter with its very unusual features. The information about L which the experts had to go on was undoubtedly insufficient, and that in turn has left the court in the position where it cannot simply bypass their powerful evidence and return without more to the clinical picture available at Worthing Hospital to make findings, because such doubt has been cast upon L’s case as it was dealt with there. The information that there was what now appears to have been a very relevant differential diagnosis in relation to the cause of L’s injuries was available to the hospital, but it was not provided to the Local Authority at the outset of the case. The fact that there was a later differential diagnosis with a recommendation for further investigations related to L’s treatment was not fully conveyed to anyone in this case until the matter got to court.




If you are involved in a child protection case involving a head injury to a child or are a doctor who is involved in this area, I’d commend the entire judgment to you. It throws up a lot of really important practice issues, which are beyond the scope of this small(ish) piece.

You will see that although the Judge does not criticise the Local Authority for bringing the case to Court (and of course the Court when they made Interim Care Orders had to make the decision on the same information that the LA had),  we still end up in a situation where the parents were separated from their child for around seven months when they had done nothing wrong.


The mother was separated from her child for seven months. That is an almost unimaginable situation. I reaffirm the significance of this; of what she has missed out on in enjoying the first wonderful months of her child’s life and of what she must suffered as a result. She has lost her happy relationship with the father as well.


I think all of us could agree that this is intolerable. But what’s the solution?  One immediately cries out that the case must be heard more swiftly, but it is clear from reading this case that it was only by deploying a raft of very specialist experts that the true picture with all of its complexities emerged.  If someone had decided at the outset that the Court would reach a decision after say three months, those experts wouldn’t have reported and it is possible that the wrong conclusion could have been reached.


As Billy The Kid used to say,  “Speed’s fine, partner, but accuracy is final”

The other solution is not easy. Faced with an application for an Interim Care Order, with the treating medical professionals telling the Court that this child has been hospitalised as a result of one of his parents violently shaking him,  one is therefore asking a Court to take that risk on their own shoulders and keep the child and family together.  As we can see with the benefit of hindsight, that would have been the right thing to do on this occasion.  But ask yourself what would happen if a Local Authority (or a Court) decided that the medical evidence might later be proven wrong and left the child at home, where a second injury possibly more serious or life-threatening occurred?   How would Ofsted, the newspapers, the House of Commons, the public, react to that?

Part of the problem is that at the time when the social worker and then the Court has to make the decision about where the child should be whilst everything is investigated, that those cracks in the medical evidence haven’t yet appeared. It is only when ALL of the source material is available and looked at by people in painstaking detail, people with expertise, that you really get a sense of whether the evidence is unequivocal or whether this is a case with some real grey areas.

A Judge faced with an application for an Interim Care Order in those circumstances will know that there is a  risk of very serious injury but also that until all of the experts has reported we will not know whether the medical evidence is cast-iron or swiss cheese. Short of the parents going to live with another trustworthy adult or vice versa  (which is not really a practical solution for a seven month period of time), the risk can’t be absolutely protected against whilst the child is with the parents.  What’s the lesser of two evils here?

The way to keep the child at home with the parents is for the Judge to say “I know that there is risk here, I know that if it turns out that the medical evidence provided so far is right then these parents may have seriously harmed the child and may do it again, but experience has showed us that the only time one can be absolutely confident about the medical evidence is at final hearing when it is put to proof, so I am deciding that the risk should be taken in keeping this family with the parents, and I make that decision knowing that something could go wrong, no matter how much effort is put into a protection plan”.    And for a Court of Appeal to back a Judge up in that situation.

I would not pretend that this would be an easy thing to do.  If it goes wrong, the clamour would be for heads to roll and it would be a judicial head on the paraphet.


Anyway, back to the particular case.


Everyone was in agreement that the case should be withdrawn and the Court should find that the threshold was not met; but the issue was whether the Court should consider making a declaration under the Human Rights Act and possibly compensation   (although note that the Legal Aid Agency are currently stating that the Statutory Charge applies to such HRA compensation and it would all be swallowed up to repay legal costs)


The argument was twofold :-


1. That the medical professionals on the ground (not the Court appointed experts) had made serious mistakes which led to the child being removed and hence a breach of article 8

2. That the strategy meeting convened had been one at which a decision was made for the issue of proceedings, and thus was something that the parents should have been invited to, and failure to involve them was a breach of article 8 and article 6.


The Judge had been critical of some of the treating medical team on the ground, but was mindful that this was not, and could not purport to be a medical negligence case – the doctors had not been represented, nor had their Trust, and it was going outside the scope of the care proceedings to conduct that exercise.  The Court could go as far as it had, which was to identify practice areas for improvement and highlight failings, but apportioning blame was going too far.


The second point was developed more fully.


  1. I have been referred to Re R [2002] 1 FLR 755, Re L [2002] 2 FLR 730, Re G [2003] 2 FLR 42, where the protection offered by Article 8 was seen to extend to all stages of the decision-making process in child protection proceedings. [4]Re M [2001] 2 FLR 1300; Re S (Minors) [2002] 1 FLR 815; McMichael v UK [1995] 20 EHRR 205 and the injunction that: “Whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8.”
  2. In Re G, the importance of full and frank disclosure by a local authority was emphasised:

    i) Informing the parents of its plansii) Giving factual reasons

    iii) Giving an opportunity for parents to answer allegation

    iv) Providing an opportunity to make representations

    v) Allowing the parents the opportunity to attend and address any crucial discussions.

  3. I have also been referred to Re M (Care: Challenging Decisions by Local Authority) [2001] 2 FLR 1300 where parents were not present at a discussion where the decision was taken to place a child from adoption; Re L (Care: Assessment: Fair Trial) [2002] 2 FLR 730 for the premise that the case must be viewed as a whole and exclusion may not in itself render the proceedings unfair.
  4. S 47 of the Children Act 1989 governs the duty of a Local Authority to investigate. The relevant aspects of this section are:
  5. S47 (1) 1:

    (1)Where a local authority—………………

    (b)have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm,

    the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.. . .

    (2)(b)have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.

  6. In addition I have been referred to the Sussex Child Protection and Safeguarding Procedures, published in March 2015. I have not been privy to this document hitherto. It contains a chapter on Strategy Discussions and Discussions, envisaged as a preliminary step before initiating a S 47 Enquiry, and when one is required, to plan how it should be undertaken. It provides guidelines for convening a strategy discussion or discussion. Discussions are advised in the case of serious physical abuse. It is identified as a “confidential professionals’ discussion” and participants are identified as a “professionals sufficiently senior to be able to contribute, although exceptional circumstances may arise where others may usefully contribute”. The relevant Consultant is highlighted as a required participant, as here.
  7. There is no requirement to include parents at such a discussion.
  8. In this case, I am faced with the tension between the need for a confidential professionals’ discussion to take place to which parents would not ordinarily be invited, and the argument that these parents should have been invited to contribute to that meeting, either for whole or part of it.


More detail about the Strategy Meeting followed



  1. (a) The Strategy Discussion
  2. In a case such as this, the decision to initiate a statutory s 47 inquiry (set out above) is taken following a strategy meeting held with relevant interested representatives of social services and external agencies such as the police, GPs and other medical personnel, schools, carers and, in appropriate cases, more specialised individuals. No more than and no less than that occurred in this case.
  3. The document generated by the meeting on 5th November is headed “Record of Strategy Discussion.” I see that It was called for as follows: “Referral from hospital this morning L had been admitted on two occasions. L has subdural bleeds of different ages. Suggestion non accidental injury. Possible shaken baby“.
  4. The proceedings hare was set running on what appears to have been the basis of the single clinical view provided at that meeting. There were a number of doctors at the meeting – Dr Cooke, Dr Kabole and Dr Shute in particular.
  5. These meetings are familiar to the Court. There is a protocol locally in operation across the three local authorities which sets out the normal parameters for such a discussion, which in short includes those who should “generally” be involved. It reads “all participants should be aware that a strategy Discussion/Meeting is a confidential professionals meeting and as such, notes of the meeting should not be shared within anyone without the permission of the chair”.
  6. It was chaired by Amanda Cole but I do not know who made the record. Its accuracy has been explored by the parties with Dr Hazell who gave her input over the phone. I have to say that the list of negatives does not quite coincide with Dr Hazell’s more nuanced evidence but I make nothing of that.
  7. The Social Worker Ros Sims told the court in her statement that L’s injuries were confirmed at the strategy meeting by the consultant paediatricians who attended as non-accidental injuries and consistent with L having been shaken and have resulted in the significant harm that has been medically evidence. The entire case stood on the information available to West Sussex County Council. It was the only thing which supported his removal. The initial stated belief of the local authority was that “L had experienced significant harm from one or more of his carers”.
  8. It was known that the parents were to be arrested and interviewed because it is recorded. The only planning in relation to further action by the local authority was that they were to make a decision regarding legal proceedings. In Re G [2003] 2 FLR 42 the first of the identified requirements upon a Local Authority is to inform parents of their plans. The recorded plan was to move to a decision in relation to legal proceedings. That is all.
  9. The issue is whether in this case, as distinct from other cases where parents would not normally be included in a confidential professionals meeting,[                 and                    ]should have been invited.
  10. Mr Storey argues that on the basis of Re G, where the protection offered by Article 8 was seen to extend to all stages of the decision-making process in child protection proceedings, this particular strategy discussion should be considered as part of that inclusive roll call to say that he fact that the mother and father were not invited to the Strategy Discussion was an incursion into that right because to was a decision to separate the mother from the child.
  11. Looking again at that decision. I am mindful that what has to be determined is whether, having regard to the particular circumstances of the case, and notably the serious nature of the decisions to be taken, the parents were involved in the decision making as a whole, to a degree sufficient to protect their interests. If not this would amount to a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as “necessary” within the meaning of Article 8.”
  12. Mr Storey takes that decision at its highest, and sets it as the first rule in every case, to mean that this particular decision was part of the trial process and the parents were entitled to participate without qualification. If that is the case, then potentially parents would be entitled to be present at every strategy discussion, and the essentially confidential nature of the discussions would be lost.
  13. Like the experts in L’s case I am really hampered. All I have are the recordings. All I know is that the wheels had been set in motion prior to that meeting because there was a plan to arrest the parents and the social workers were going to refer the case to their legal department. It was technically not a decision to separate the parents from L, as far as I can tell from the notes. They are not likely to reflect the whole of the discussions. However I do not have the benefit of the evidence of those present: they have not been required to set out their evidence as to what occurred and why.



That did make matters difficult.  The Judge distilled the HRA argument into a central question


To reach any conclusion as regards an infringement of the parents’ rights due to not being invited, a court would at the very least have to ask the following question; Was the omission to invite the parents to a confidential professionals’ discussion, where the case was extremely serious in terms of what was being advanced medically, where their accounts appear not been given to the discussion, an infringement?


The Judge goes on to say, that understanding that the HRA point was developed once it became clear that the medical evidence was less solid than it would have appeared at the outset of the case, that there were important evidential matters which would have been needed to be obtained and put to witnesses before the Court could properly make that decision.


  1. The evidential basis for answering those questions with care and fairness is not available to me. To really understand what occurred and why, a court would at the very least need a detailed response from the local authority, and evidence from the key participants which could be fairly and properly tested. I cannot therefore take this point any further.
  2. What does concern me however is the medical information which was given then and later which tended so strongly to characterise this case as a case of inflicted injury as opposed to there having been another possible identifiable cause as of 4th November and indeed throughout. That alternative possibility has never gone away during this case. The Local Authority assumed that to be the only available diagnosis at the start of the case and the court only had the single view upon which to proceed.


The Court also expressed disquiet about the medical information provided at that meeting, most notably that it was not communicated to the Strategy Meeting that at least one treating doctor had considered that there was a medical explanation for the injury due to an unusual clinical feature that might give rise to a differential diagnosis  (i.e that there might not have been an injury at all, but rather some sort of medical episode)


I know not whether those involved intend to leave it at that, or whether a stand-alone HRA claim will be lodged.


For the moment, the answer to the question  “Is it a HRA breach to have a strategy meeting which might result in very critical decisions being made for a family if the family aren’t present?”   is  “it might be”  –  and at the very least, this case has made us all think rather harder about the issue.



Physical chastisement – Court of Appeal


A Local Authority appealed the decision of a Recorder at a finding of fact hearing, that having made some serious findings about physical injuries sustained by a child and caused by a parent, he went on to find that the threshold was not made out in terms of risk to that child’s sibling.   This case also deals with some important principles as to what extent making SOME findings has on the other allegations to be dealt with.


Re L-K 2015


The Recorder had made these findings about the injuries

  1. The Recorder found that two sets of bruising had been inflicted by the parents, although he was unable to say which of them was responsible. They were as follows:

    i) There were parallel lines of bruising on R’s buttocks which the Recorder found were caused by someone striking him across the buttocks with a linear object (§20 of the Recorder’s first judgment). The Recorder thought it likely that the object used was a ruler or a belt, in which case there were at least two blows, but it may have been a stick or flexible cable, in which case there were at least four blows.

    ii) There were three bruises on the inner part of R’s right thigh, immediately below his buttocks, which were described as “loop pattern or crescent shaped injuries” and a further “sigma shaped pattern bruise” to the right of the lower buttock crease (§21). The Recorder found that these marks were caused by at least two deliberate slaps (§24).

  2. The Recorder found that both the instances of inflicted injury had the character of corporal punishment (§29). The parents had denied that they were responsible for the injuries but the Recorder found that they both knew who did it and had agreed to stick together and protect each other (§33), trying to mislead the social workers and lying in court. He said that it was “difficult to blame them in the circumstances” (§35) (referring, I think, to their lies and collusion, although he may have been referring to their treatment of R) as they were in a foreign country and had a difficult child to look after.
  3. It is not entirely clear how the Recorder viewed the corporal punishment inflicted on R. At §36, he said it “may well be regarded as going well beyond reasonable chastisement”. At §37, he said that he could envisage that if the parents had admitted it, they would have argued that it was no more than reasonable chastisement and said, “I cannot judge that question”. Later in the same paragraph, however, he went on to say that it certainly seemed excessive to him to hit a five year old at all, especially with an implement. What is clear is that he was unwilling to find it established that what happened to R was “abuse”. He seems to have taken into account in reaching this conclusion the possibility that it was “an over exercise of parental authority in a disciplinary capacity”, the evidence that the parents are loving parents and that R loves them and is not afraid of them, and the fact that he could not know how much R had suffered in the process (§37 of the main judgment and §5 of the Recorder’s supplemental judgment).
  4. The parents did admit one of the local authority’s allegations, that is that they had, each independently of the other, made R stand in a corner for more than two hours when he was naughty. The Recorder described the father’s conduct in so doing as “treating R cruelly” (§31). However, he accepted the parents’ evidence that this was something that happened when the family was under great stress and was not a regular occurrence (§34).



He then went on, however, to conclude that whilst the threshold was met for R, it was not met for R’s brother even in terms of risk of harm:-



14. He was accordingly asked to deal with the threshold thereafter, and did so, after further argument and consideration, in a short ex tempore judgment. In it, he found the threshold crossed in relation to R on the basis that R would have suffered significant harm because a) hitting a child of five who suffers from psychological problems with an implement will cause significant harm b) standing such a child in a corner for two to three hours must also cause significant harm and c) there must be a significant risk of repetition as the parents had closed ranks and said nothing about it to social services and the courts (supplementary judgment §5). As to M, in that judgment the Recorder stated baldly that he did not think the threshold was crossed.

  1. He returned to the threshold in relation to M in his judgment refusing permission to appeal and in his final short judgment. He determined that M was not at risk in his parents’ care, essentially on the basis that he was a very different child and had not suffered any harm so far. In the permission judgment, he referred to the findings he had made about R, and the evidence as to how very difficult R was to look after, contrasting that with M, in relation to whom there was neither evidence of psychological difficulty nor evidence of any problem with him in foster care. He said:

    “6. The difference between these two children is such that I cannot conceive that anybody could imagine that the findings I have made in respect of the older brother should lead to a finding that the younger brother is at risk.”



Well, the Recorder couldn’t concieve that anyone could imagine this, but the Court of Appeal not only imagined it, but did it.


36. The local authority argued that, in the light of the findings that R had been beaten with an implement and slapped sufficiently hard to leave bruising and had been excessively punished by being made to stand in a corner for a prolonged period, it was wrong to conclude that there was no risk of significant harm to M. What those facts indicated, in their submission, was that at times of stress or challenging behaviour from one of the children, the parents may harm their child whether by way of discipline or simple loss of control. They argued that the Recorder placed too great a weight on the difference between the two boys as a protective factor for M and failed also to take account of the fact that M is more vulnerable because of his young age and may also become more challenging as he grows older.

  1. I would accept this submission. Rightly or wrongly, the Recorder did not make any findings on the issue of whether M was present during the punishments of R and whether he was emotionally harmed by what he saw and there was no evidence that M himself suffered any physical harm. The threshold in relation to M therefore depended on whether he was “likely to suffer significant harm”. “Likely to suffer” in this context means that there is “a real possibility, a possibility that cannot sensibly be ignored having regard to the gravity of the feared harm in the particular case”, see Re H and R (Minors)(Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80. The threshold is therefore “comparatively low”. It was, in my view, plainly satisfied on the facts that the Recorder had found. Every case depends upon its own facts, but in this particular case it was not at the threshold stage but at the welfare stage that matters such as the parents’ circumstances at the time R was injured and the differing personalities of the children were relevant. Given the nature of the Recorder’s findings in respect of R, and the parents’ failure to acknowledge or explain what had happened and why, I do not think that the factors that the Recorder relied upon in differentiating between the two boys in fact provided any reassurance in relation to the risk to M for threshold purposes. I would therefore substitute for the Recorder’s dismissal of the proceedings in relation to M, a finding that the threshold criteria were satisfied in his case on the basis of likely harm.



The next limb of the appeal was that, having made those findings, was the Judge wrong in discounting the other injuries to R that he made no findings on?  I.e in relation to say ten physical injuries should the Judge approach each and every one in isolation, OR if the Judge had made findings in relation to four or five or them, does the fact of those findings become a relevant consideration when approaching the remainder?


  1. The local authority argued that the Recorder was wrong to decline to make findings in relation to the injuries to R’s face, neck/chest, and thigh, and a finding that he was “abused”. They submitted that he had gone wrong because he failed to look at the totality of the picture, instead considering the injuries only individually. It was argued that the findings that he did make, whilst not probative of the other injuries, were capable of being corroborative and supportive evidence in respect of them. Also relevant to the overall evaluation, it was submitted, was the parents’ dishonesty.
  2. I agree with these submissions. It is always necessary for a judge who is considering possible non-accidental injuries to look at the whole picture before determining causation. So, for example, what might be accepted as an accidental injury if it stood alone, might take on a wholly different aspect if it is only one of a number of injuries. Similarly, the fact that it is firmly established that one of a number of injuries has been inflicted by a parent must be taken into account when evaluating the cause of other injuries.
  3. In this case, I have no doubt that when it came to considering the possible causes of the other marks found on R, attention had to be paid to the fact that the parents had a) beaten R with an implement causing bruising, b) smacked him to the extent that bruising was caused, and c) lied in an attempt to conceal what they had done. Regard should also have been had to the excessive punishment which the parents conceded had been imposed on R in the form of having to stand in a corner for a prolonged period. As the local authority acknowledged, the fact that one injury is inflicted does not prove that others are non-accidental, but it changes the context in which the child came by the other injuries from a home which may be beyond reproach to one in which it is known that there has been, at the least, excessive physical punishment. As Mr Roche for the father observed during submissions, it was also the case that R had injuries which were accepted to be accidental. That fact was relevant too, but it did not remove the potential significance of the findings of non-accidental injury. The fact that the parents had lied about what they had done was also relevant to their credibility in relation to other matters. The Recorder’s approach did not pay proper regard to these factors as part of the overall picture he was surveying.


Whilst the Judge did not have to slavishly follow the medical opinions  (see dozens of Court of Appeal decisions that confirm that), the Judge does have to pay proper attention to them, and where a theory for the explanation of the injury emerges from the Judge himself, it is necessary for the Judge to explore that theory with the expert.


  1. In my view, the Recorder also failed to pay proper attention to the evidence of Dr Fonfé in determining what had happened. It was, of course, for him to decide, on the basis of all of the evidence, whether it was established that particular injuries were non-accidental, and not for Dr Fonfé. However, he needed to take her expert views into account in his determination. In referring to what she said about each of the injuries as her “suspicion”, he seems to me to have understated the force of her opinion. He also failed to take account of her more general advice as to causation, perhaps because he concentrated on the injuries individually. As can be seen from the passages from her reports which I have quoted above, Dr Fonfé’s approach was entirely conventional in that she looked at R’s situation overall as well as considering the various injuries individually. The Recorder was not bound to accept her general observations but he did, at least, need to show that he had considered them. Had he done so, he may have structured his judgment differently and avoided falling into error. As it was, he appears to have made his determination about each of the individual injuries before, at §26 (see above), turning to look at the picture collectively, and when he did look at the whole canvas at this point, it was not with a view to considering what the overall picture might tell him about the individual injuries, but in order to address the local authority’s allegation that R had been subjected to a prolonged single attack or a series of individual episodes of attack.
  2. In short, the Recorder was wrong to conclude that there was nothing but Dr Fonfe’s suspicions in relation to the other injuries. His own positive findings and Dr Fonfé’s expert evidence about what, in her view, the overall picture revealed were important too. It is not a foregone conclusion that they would have led to a different conclusion as to the other injuries but they needed to be put into the equation and considered with the rest of the evidence.
  3. In my judgment, this deficiency in the Recorder’s approach is sufficient to render his decision in relation to the balance of the local authority’s allegations unsafe. It would follow that, in so far as it is necessary in order to make decisions about the children’s futures for there to be findings in relation to those allegations, there would have to be a further hearing for that purpose. I need not therefore say much more about the other flaws that there may have been in the Recorder’s approach. I would, however, mention a number of matters.
  4. The first is the Recorder’s crayon explanation (see §16 of the judgment). It seems that this came entirely from him. Dr Fonfé’s view as to the feasibility of the hypothesis was not sought. If a particular explanation such as this is to carry weight in the court’s decision, it is important, in my view, for it to be offered for comment by the relevant expert and in submissions. Had that been done, the response may well have been that the crayon explanation ignored the existence of what Dr Fonfé saw as a pair of marks which looked like grip marks.
  5. I wonder also whether this passage in the Recorder’s judgment indicates that he was veering towards requiring that all other possible causes must be excluded before a finding of non-accidental injury could be made (see also §14, for example) and/or proceeding on the basis that no finding could be made without corroboration. Depending on the particular facts of the case, it may not be necessary for the evidence to go that far. What is required is simply that it should be established on the balance of probability that the injury was non-accidental.
  6. As to the Recorder’s conclusion that the findings he had made were not established to be abuse, I am not inclined to spend time on that issue for two reasons. First, there is little point in debating whether what the Recorder found to have been established should or should not be classed as “abuse” when his findings may not be the last word on what happened to R. Secondly, what actually happened is much more important than how it is classified and it may well be that evidence which is relevant to this may continue to emerge, for example from Poland, from the parents themselves in response to the findings made so far, and in the course of any further fact finding hearing in relation to the balance of the allegations.



The appeal was therefore successful



For the reasons I have already given, I would allow this appeal. In relation to the threshold in respect of to M, I would substitute a finding that it is satisfied on the basis of likelihood of harm. As far as the Recorder’s findings of fact are concerned, I would not interfere with the facts which he found proved but I would set aside his determination in relation to the balance of the local authority’s allegations and remit the case to the Family Court for an urgent directions hearing at which the future conduct of it will be decided.

Syria, children and electronic tagging


In what has been a challenging month, I have to confess that my heart sank right into my boots when I saw  Sir James Munby, President of the Family Division, had published a judgment about Emergency Protection Orders.  I’m still recovering from Re X, his last major contribution to this legal domain, and that was nine years ago.


But Re X (children) and Y (children) (Emergency Protection Orders) 2015

[Weird, the link doesn’t seem to be working. Try again      ]


is not actually about expanding the fourteen point guidance into a two-hundred and nine point guidance, so you can read on without fear or dread.


Note, I am lying. This is a judgment from the President. Have you ever seen a judgment from the President that made a Local Authority lawyer happy?  If I wrote the Top Ten list of case-law that had made my job harder, the President’s fingerprints would be on seven of them – going right back to seven days a week contact.  This does not buck that particular trend.


It is one of the cases where a family are accused/suspected/found  (delete as relevant to the particular case) of trying to take their children out to Syria to join up with ISIS (or whatever David Cameron thinks that we should call them this week), and what the State can do about it.


At the moment, this responsibility rests on the shoulders of Social Services and the Children Act 1989, and Parliament is more than welcome to produce some proper legislation that takes that off us and gives it to someone else, any time now.


A lot of this case is very factual about the circumstances, and I daresay that it will be very helpful to all the LA’s who are making applications to Court about such families.


[I have always wondered where the families go after that EPO. If a Court has ruled that you intended to take your child into a warzone and join up with terrorists and removes the child, what sort of assessment gets you the child BACK at the end of the final hearing? Aren’t the EPOs basically determinative of final outcome?  Well, that was the thrust of this case, whether there was some sort of arrangement that would allow the children to be back in the parents care with some form of cast-iron guarantee that they would not leave the jurisdiction. The important thing to remember here is that the Court had not conducted a finding of fact hearing about the parents intentions and plans and thus what risk the children were at – they had just determined that there were REASONABLE grounds to believe that the children were at risk of significant harm requiring interim protections]


However, the President would not be the President if he didn’t try to stretch the law a bit, and so that’s the point of interest.    [Occasionally, the President’s approach to the law reminds me of the year at school where all of us were given a brand new white plastic ruler to replace the wooden ones – the rulers were each labelled “Helix – Shatterproof” , an ill-thought out boast, which led to all of us industriously breaking them that very morning to demonstrate that they were not in fact Shatterproof.   I say ill-thought out, but of course, the school had to get on to Helix and order another 250 that same day, so for Helix it was a profitable claim]


Thinking about the cases over the intervening weekend, it occurred to me to think about the possibility of electronic tagging. Accordingly, on 5 July 2015 I sent the following email:

“I am sending this email to the advocates in both … cases. Please make sure that it is communicated as soon as possible to all concerned.

It has occurred to me to wonder whether in these cases it may be appropriate to consider the making of electronic tagging orders: see Re C (Abduction: Interim Directions: Accommodation by Local Authority) [2003] EWHC 3065 (Fam), [2004] 1 FLR 653, and Re A (Family Proceedings: Electronic Tagging) [2009] EWHC 710 (Fam), [2009] 2 FLR 891 (setting out a form of order).

Could counsel please consider this possibility.”

This time there are precedents (though fairly obscure ones, which I had to go and read). They relate of course to the powers under the Child Custody and Abduction Act 1985.  Those powers aren’t exactly delineated to require someone to submit to electronic tagging, but in the modern era of law as they don’t say that they DON’T give that power, it could be interpreted thus

5 Interim powers.

Where an application has been made to a court in the United Kingdom under the Convention, the court may, at any time before the application is determined, give such interim directions as it thinks fit for the purpose of securing the welfare of the child concerned or of preventing changes in the circumstances relevant to the determination of the application.


Of course here, though, there is not an application before the Court under the Convention. These are EPO applications, governed by the Children Act 1989.   It is beyond my working knowledge to consider whether an attempt by the persons who hold PR (when there are no Children Act 1989 orders) could find themselves foul of the Child Custody and Abduction Act 1985   (if everyone with PR agrees that the children will go to Syria, who are the children being abducted FROM?).   It would be different if the Court had made Children Act 1989 orders, or were seised with such an application, since there’s authority to say that the Court can go on to make orders compelling the children’s return to the jurisdiction.


Anyway, let’s see what the President does with the idea of electronic tagging.


It is worth noting that the parents were keen on the idea – because it was obviously their best shot of having the children returned to their care  – this being a case where the Court had not found any evidence that the children had been exposed to radicalisation.   So the Court did not have to consider whether there was power to impose it on the family.   (Mr Rowley and Miss Woodward were counsel representing the parents)


  1. Mr Rowley and Miss Woodward take as their starting point the fact that, the precipitating events apart, the parents are, in other respects, good parents who are bringing up their children lovingly and well. Although it would seem that all the children are doing as well as might be expected in foster care, there is no doubt that they are missing their parents very much and that they are, in consequence, suffering harm. In these circumstances Mr Rowley and Miss Woodward question both the necessity and the proportionality of the children remaining in foster care. Their safety, both physical and emotional, can, it is submitted, properly be met while the children remain at home; their safety, whether physical or emotional, does not necessitate their remaining in foster care.
  2. In the final analysis, say counsel, my task is to evaluate the risk of harm deriving from the possibility of flight and balance that against the undoubted harm the children are suffering because of continued separation from their parents. Given the adequate safeguards against the risk of fight which they assert can be put in place, the balance, they submit, comes down in favour of returning the children to their parents.
  3. Both local authorities are clear that they feel unable to exercise the parental responsibility vested in them by the interim care orders unless the children remain in foster care. That being so, Mr Rowley and Miss Woodward say that the appropriate order is, in each case, an order discharging the interim care orders, making the children wards of court, and placing them in the care and control of their parents, subject, however, to a raft of stringent protective orders.
  4. What Mr Rowley and Miss Woodward propose is in each case an order containing: passport orders in the usual wide-ranging form and an all-ports alert; injunctions restraining the parents removing the children from the jurisdiction and requiring them to live with the children at a specified address; and provisions for the monitoring of the parents and the children by a combination of unannounced visits by the local authority, regular reporting to a specified police station or local authority office and, in the case of the parents, electronic tagging. It is proposed that the order should include a provision requiring the parents to swear on the Quran that they will abide by each and every provision of the order and that the order should spell out the consequences (including but not limited to committal for contempt of court) in the event of any non-compliance.
  5. There is no need for me to consider whether I would have power to impose such orders on unwilling or recalcitrant parents, for all the parents here are willing to submit to whatever restrictions, including electronic tagging, I think it necessary to impose for the safety of the children. That said, I am inclined to agree with the views expressed by Singer J in the passage from his judgment in Re C (Abduction: Interim Directions: Accommodation by Local Authority) [2003] EWHC 3065 (Fam), [2004] 1 FLR 653, para 46, which I refer to below.
  6. Mr Rowley and Miss Woodward realistically accept that, however stringent the protective measures which might be put in place, there will always be some risk that the parents will be able to flee with the children. But they counsel me against being too concerned by remote or fanciful possibilities. An order the court makes is not, they submit, to be measured by the standard of certainty or infallibility but by reference to what Mr Rowley called real-world possibilities. Judged by that standard, he says, the risk is slight indeed, in reality reduced to an effective nullity if the parents are, as they propose, subjected to GPS electronic tagging (as to which see below).
  7. To get the children to Syria, he says, the parents would: have to cut the tag (thereby triggering an immediate alarm), having made arrangements to travel immediately to a point of exit from the United Kingdom; have to evade detection while in transit there; have to evade detection at the point of exit despite their being in a family group, the all-ports alert, and publicity about them being on the run; have to be able to pass through the immigration controls of a second country without detection; and have to be able to cross from that country (or some third country) into Syria. Whilst he accepts the possibility that the parents have the connections and means to achieve all this, Mr Rowley disputes that there is any evidence upon which I could reasonably infer it.
  8. More tellingly, perhaps, Mr Rowley makes the point that if the parents do indeed have the means to achieve this, the children are not safe in their foster placements. For if they have the resourcefulness and determination postulated by the local authorities and the guardians, the parents would by the same measure be able to track the children down and abduct them. The reality, he suggests, is that nothing short of actual incarceration of the children would ensure the complete eradication of all risk of their being removed to Syria. In truth, he says, the local authorities and the guardians are prepared to countenance a level of risk in the present placements while requiring from the proposed placements with the parents the certainty that all risk has been eradicated.



Mr Rowley (and no doubt Miss Woodward) go high up on my list of people who have been able to develop a compelling argument from unpromising beginnings.  They manage to make the parents position sound completely reasonable and the Local Authority’s anxieties utterly unreasonable.  In an atmosphere where the pulbic concern about terrorisim and children going to Syria could not be higher. That takes some skill.   One has to remember, of course, that the Court had not conducted any finding of fact hearing about the circumstances and intentions of the parents in making those trips or plans for the trips.


To Local Authority lawyers, I’m sorry that I wrongly suggested that you could read this judgment without dread. Of course you know what is about to happen now.


  1. The law, even the criminal law in the days of capital punishment, has never adopted a standard of absolute certainty or infallibility. So the mere fact that there is, as Mr Rowley and Miss Woodward accept, some risk that the parents will, if so minded, be able to flee with the children, the fact that it is no doubt possible to construct hypothetical scenarios of how they might achieve this, is not determinative of the question I have to decide. That question, in the final analysis comes down, in my judgment, to two linked inquiries: how great is the risk that the parents will, if so minded, be able to flee with the children, and is that a degree of risk which the court is, in all the circumstances, prepared to accept as tolerable?
  2. Given the potential consequences if the parents, being minded to flee with the children, were able to achieve their objective, it seems to me that what the court needs is a very high degree of assurance, albeit falling some way short of absolute certainty, that the protective measures put in place will be effective to thwart any attempted flight. This is ultimately a matter for judgement and evaluation, in relation to matters, in particular those dealt with DS Y, DS Z and Mr Fearnly, which I am in as good a position to assess as any of the social workers or guardians, none of whom can bring to this particular exercise in evaluation either professional training or (as they all accepted) any previous experience of any remotely comparable case. Accordingly, I have to come to my own conclusion, though obviously feeding into my overall evaluation the expert views of the social workers and the guardians as to the impact on the children of their continuing separation from their parents.
  3. At the end of the day, and having given the matter the most anxious thought both during and since the two hearings, I have concluded that the comprehensive and far-reaching package of protective measures proposed by Mr Rowley and Miss Woodward does provide the necessary very high degree of assurance that the court needs, that I need, if the children are now to be returned to parental care. Taking into account all the points pressed upon me by those opposing such an order, I am at the end of the day persuaded by Mr Rowley and Miss Woodward that I should make the orders they seek, and essentially for the reasons they have articulated.
  4. I accept that there is some degree of risk of successful flight. I cannot go quite as far as Mr Rowley when he asserts that it is reduced to an effective nullity by the protective measures he proposes, but taking a realistic view, though not forgetting that we are here in the realm of unknown unknowns, my considered assessment is that the degree of that risk is very small, indeed, so small that it is counter-balanced by the children’s welfare needs to be returned to parental care. I should add, to make plain, that in relation to their welfare (leaving flight risk on one side), the benefits all of these children will derive from being returned to their parents clearly, in my judgment, outweigh any and all of such contrary welfare arguments as have deployed by the local authorities or the guardians. Conclusion
  5. I shall therefore make orders essentially in the terms proposed by Mr Rowley and Miss Woodward. The orders will contain the additional provisions proposed by Mr Crabtree and Mrs Crowley. The orders will spell out that nothing is intended to prevent the police exercising any powers which would otherwise be available to them, including, in particular, their powers under section 46 of the Children Act 1989. I invite counsel to consider two further matters: whether the proposed oaths on the Quran should be sworn before a notary or an imam, and what, if any, provisions should be included in the orders to enable the relevant local authority to remove the children in an emergency if there has been some breach of the order and there is no time to apply even by telephone tothe duty judge. I am inclined to think that the local authorities should have that power, but strictly confined to circumstances of emergency and subject to an unqualified obligation to make an application to the court immediately



The judgment then goes on to set out the protocol for such matters. It will, I’m sure, calm the nerves of every social worker who is now going to be driven to leave children like this at home under the protection of their parents wearing electronic tags that the tagging system is provided by Capita, whose record is flawless.


I am perhaps missing what actually stops these children’s uncles or cousins taking them to Syria if it is the parents who are tagged?  Yes, the parewnts would be stuck her to face the music, but how great a feature is ‘fear of the consequences’ a major inhibitor to terrorism? I have always rather missed how one is to stop these things happening if the parents book a package holiday to Turkey and then just travel onwards once they are out there. Are we going to stop all families going to Turkey on holiday? Or only those who are on some sort of Watch list?  And if only those on the Watch list, given that social workers don’t have access to that, how are they supposed to intervene?


Whilst of course, it can’t be imposed on a parent, I’m sure they will be queuing up to agree to it.

The judgment of course does not set out who will be paying for the tagging and monitoring, but we all know that it will be the Local Authority  (or under what power the Court is apparently imposing this expense on the LA – it will be the theoretically limitless powers of the inherent jurisdiction, if anyone ever challenges it)

I wonder how any parent facing an ICO hearing for neglect, or consumption of alcohol will feel, knowing that they too are meeting the same “Reasonable grounds to believe” test as parents of this type, but that parents suspected of taking their children to join a warzone will keep them at home with electronic tags, whereas they may be separated from their own children.

Where exactly is the bar for removal under Interim Care Order, if a case like this isn’t over it?


And if tagging works in the interim, what stops these children being tagged for the remainder of their childhood at final hearing, even if the allegations are proven to be true?



Sibling rivalry


In Re P (A child) 2015, His Honour Judge Wood had to deal with an application for a Care Order for a girl who was sixteen years and four months old. That in itself is unusual. Even more unusual, the central allegation was that of physical abuse (which was disputed by the family). More unusual still, the allegation was that the girl had been physically assaulted by her older brother.


Now, if you have a sibling, you might be thinking along similar lines to my initial reactions.  My sister and I fought, not like cat and dog, but like two fighting roosters whose feed had been laced with PCP. We fought about absolutely everything. No topic was too trivial , no imagined slight too minor.  That did occasionally spill into physical conflict. I’m sure that my sister has many dreadful stories about me – many of which would be true, and I will simply indicate that there was a day at Pwllhlei Butlins putting green where she hit me with some degree of force on the nut with a golf club  (from behind) and when it knocked me out, ran off and spent the rest of the afternoon in the arcades playing Burger Time.  She also once hit me full in the face with a tennis racket swung with genuine purpose and intent (but as I recall, that was warranted, though painful).


This story, however, goes rather further even than those (admittedly shameful) incidents.


At 18.11 hours on Monday, 20th June 2014 P, a girl born on 28th October 1998 and now aged 16 years 4 months, was admitted by ambulance to the emergency department of Hospital A. She was found to have six distinct areas of injury: the first were three red linear marks on the right upper thigh, 1cm by 6cm long; second were two linear marks on the outer aspect of the left forearm, 4cm by 1cm wide; the third was an oblique red mark across the left upper outer thigh, 10cm by 1cm; the fourth was a bruised area, circular in shape, 3cm in diameter with a contusion over the left shoulder tip; the fifth was a linear bruise to the left upper outer arm approximately 4cm by 1cm and the final were a number of red marks across the lower thoracic area, that is to say the back, approximately 3cm by 1cm to the left and right of the midline.



The fact that the girl had been injured was not therefore in dispute, what was disputed was how these injuries had occurred.

The girl said that she had been at home, watching television and that she and her brother had had an argument (he wanting to turn the channel over to watch football and she wanting to finish watching what she had started), whereupon he started hitting her, escalating to hitting her with an iron bar.


The brother said that the girl had come home from school, complained of being hot and fainted from the heat.

It had of course been June when this happened, so perhaps it was hot. However, the girl had grown up in Nigeria and only been in England for a year.   And the family were living in Sunderland. Perhaps the weather in Sunderland that particular day was so hot that a girl who had spent 13 of her 14 years in Nigeria was unaccustomed to such heat and it caused her to faint.


The weather in Sunderland on 20th June 2014 was pretty hot for Sunderland. 20 degrees Celsius.  Looking at the weather in Nigeria in the year before, when the girl had been living there, 20 degrees C would represent a brisk chilly day in Nigeria, with a hot day being about 33-36 degrees.


I have to say that the ‘fainting from heat’ explanation is in need of some work.  I suspect that “Girl Faints from Heat in Sunderland” would be headline news in the North East were it ever to happen.


[Actually out of curiosity, I just Googled ‘Sunderland heat wave’ ready to tell you that there were no results, but there were 168,000. Perhaps many of them were along the lines of  “Ed Milliband making a comeback as Labour leader in 2020? That’s about as likely as a Sunderland Heat Wave”]


The brother’s evidence became less credible when, for example, he denied that the iron bar was something that he had ever seen before and then retracted this when it was suggested to him that his DNA would be on it.


The mother, who had been present, and her father (who had been in Nigeria) both supported the brother’s version of events.

The cultural issue of course raised its head, and the Judge dealt with that

  1. Before considering which evidence I prefer, I want to say a word about cultural issues. This family come from a remote part of Nigeria. English is not their first language, albeit they have a good command of it. They are, as I have said, born again Christians and they seek to live their lives by a strong religious code. Their cultural background is in many ways very different to that which exists in the north east of England. They do things in Nigeria which are acceptable there but not here.
  2. Specifically, physical chastisement of children is normal. The father’s evidence was very clear that for what he called an accountable child, probably from the age of 10 onwards, whipping a child on the legs with African broom or with a cane as part of a process of punishment and learning is normal. It is not so long ago, certainly within the lives of some of the lawyers here, that such was acceptable in this country and so the court has no difficulty at all in accepting that but, given the way that this case has proceeded, its relevance is limited because it is not said either by the mother or R that this is what happened to P. Rather, they say she was not struck at all but I do accept that P and R are likely to have a more benign view of physical chastisement on a child than most British people would have in 2015. All that said, I agree with Mr Donnelly that this is not a case about chastisement in a different culture but a case about significant harm in the care of a mother.
  3. I accept that, further, there is a strict hierarchical structure within families whereby the father of the house, whether he is there or not, has to be consulted on important decisions. That has had significant practical consequences given parental separation here and I accept that it may have played some part in the refusal to consent to P being accommodated, as well as the initial engagement with the Local Authority and possibly even going to court in the early stages which I have no doubt is both a frightening and possibly shameful thing for the mother, in particular, to have experienced. So I have all of these factors very much in mind in making the decisions that I have to and I will return to this in due course.



The Court had to consider the evidence given by all parties, and of course the legal framwork, which is all very carefully set out. It is a very well constructed judgment.

  1. So which evidence do I prefer? Unhesitatingly, that of P. There is no more explanation for her lying now than there was in June last year. The lengths to which she went in feigning a faint point to the seriousness of the assault that she suffered. The instincts of the ambulance man first on the scene were, in my judgment, entirely correct. The injuries are entirely consistent with her account. They are all about the same age and fresh. They have the characteristics of being hit with an object such as a table leg in their linear appearance. They affect the outer aspects of both thighs, the outer aspects of the left arm and the back. They are not consistent with a simple collapse to the floor. They are, as Dr Mellon said but the mother, father and R denied, characteristic of defensive injuries. It appeared to be beyond the father and R’s comprehension that P would not fight back. She is described elsewhere as an underweight, 15-year-old girl of slight build pitched against a 19-year-old male who appeared to be over six feet high and who was armed and one might have thought that that was a sufficient reason to adopt a defensive position rather than try and fight back.
  2. There is simply no other explanation for these injuries, just as there is no reason put before the court as to why, as R said, P would want to put herself in care and be separated from her family. I reject her father’s submission that because P has told him that she has been refused permission to go to church and to foster care, to the foster carer has said that she does not want to go, that she is demonstrably untruthful or unreliable. There could be many reasons for two different accounts at different times and there has been no opportunity to investigate the circumstances in which those accounts were given in any event. I also reject R’s submission that because she identified her shoulder to the ambulance man, she was thereby not complaining of being beaten by her brother. The medical evidence, in my judgment, is clear. There is no alternative, credible explanation.
  3. The evidence of the mother and R, far from causing me to question her veracity, confirms that they were neither credible nor reliable. I found R to be evasive, argumentative and unwilling to confront the truth staring us all in the face. I could say more about it but I am satisfied, as it happens, that in her letter P has described her brother to a tee:

    “My brother is not a type of person that says sorry so easily. He is a type of person that is so proud and full of himself.”

    It seemed to me that that was a very accurate description of a rather arrogant and self-centred young man. I am quite satisfied that he is an intelligent and articulate man. Having seen him give his evidence and be cross-examined, I am quite sure that he was generally intent on ensuring that he gave answers which supported and/or did not undermine his case rather than trying to tell the truth, the whole truth and nothing but the truth at all times. Accordingly, I did not find him credible and reliable.

  4. I am satisfied that R lost his temper with his sister over an argument about the television. He wanted to watch the five o’clock football match and would not let her finish the programme that she had been watching for some time since she came in from school and, not for the first time, he responded with violence. I am satisfied he beat her with a table leg and caused the injuries that I have noted and, furthermore, I am satisfied that P’s mother knew that this is what had happened for the very reason that she saw it. I pay due regard to what her husband has said about his belief in her veracity but I do not believe that she intervened but, in seeking to deflect attention at the outset, suggested that very thing to the police only to back away from it, as she did, when the seriousness of the incident became known.
  5. P’s shock and distress at her mother not intervening was marked and entirely understood. Although the mother told me that both R and P are her children and that she loves them equally, by her conduct she has demonstrated that, in fact, she has put R’s interests before her daughter. She has protected him when she knows the truth of what he has done. She has almost inexplicably abandoned – and it is not too strong a word – her daughter by denying her contact, putting up as obstacles the Local Authority’s perfectly reasonable conditions. Most parents would walk over hot coals to see their children, however objectionable the terms, because to do so would be to prioritise the child and to meet the child’s needs to see her family. Furthermore, she is not ignorant of the role of social workers. Her professional training and experience over a period of almost ten years contradicts her claim. She may very well be ashamed at the misfortune that has befallen her and her family but she simply has persistently refused to engage in this process as I will explain.
  6. So looking at the threshold document prepared by the Local Authority in the bundle at A16, I am satisfied it is made out as pleaded. That refers in paragraph 4(a) to the injuries themselves, in paragraph (b) to R being the cause of the injuries, being struck by an iron rod and that it was causing her pain, in subparagraph (e) that the mother has been complicit in that physical abuse perpetrated by her son in that she knew or ought to have known it was happening and had failed to tell anyone so as to protect her own interests. She misled professionals and, indeed, now the court about her son having assaulted her daughter and instead alleged that P is lying about the abuse she has suffered and following P’s admission to hospital and subsequently care has, as I have said, abandoned her daughter preferring to protect her son.


The family in this case had adopted a strategy of not engaging with the assessment or coming to contact, which is the all or nothing approach that only really ever works if the Court find that the threshold is not met. In a case like this, where the Judge found that the brother had caused very serious significant harm to the girl by hitting her with an iron bar, and that the mother had been in the home at the time, had not intervened and had lied about it, that is not really giving the mother much chance of a happy outcome.  They absolutely would not countenance the brother moving out of the home so that the girl could come home.


Even then, though, the Judge was holding out a hand and inviting the parents to take it

I want to say this at this stage: it is still not too late for this family, mother and R in particular, to accept the findings of this court, to make a suitable admission and to work with the Local Authority to reduce the risk both to P and any other children with whom they may be concerned – a very particular concern of P as she said in her letter to me


The Court had to make the Care Order, there was no other option


This is a very, very sad case. It began as a one issue case, the assault. It could, as Mr Rowlands has said, have had a very different outcome. That it has not is entirely due to the family and not their daughter. It has ended up as more than that because of the astonishing and persistent denial in the face of all of the evidence and the near complete rejection of P by her family. The harm to her from the latter is likely to outweigh the harm from the former in the longer term but, I repeat, even now it is not too late to reverse that process. These parents have an attractive, appealing and loving daughter who has shown the Christian virtues of forgiveness and love that they taught her. She really deserves a very much better outcome than this but I am afraid the solution lies entirely in their hands.


One particularly worrying feature of this case was the removal of the child by Police Protection. The mother having refused section 20 and the girl at that time not being sixteen so she was not able to accommodate herself using section 20 (11).   However,

I want to register my extreme concern at the level of force which was used when the police recovered P from her home when she ran away from foster care in September. She was handcuffed, under what power is not clear, and the incident is said to have been recorded because of its nature. This incident needs to be noted and taken up by the Local Authority in conjunction with the police. It is ambiguous from the statement as to whether a social worker was actually present when it happened. It has not formed part of the material evidence before me but it was an extremely unfortunate incident, it was harmful to P that her guardian was rightly horrified about. I do not know what the Local Authority response to it was at the time, what its response has been since and I do seek separately an explanation from the Local Authority and the police as to the circumstances that were pertaining and as to what measures have been devised and agreed upon to avoid a repetition of such an event in the future.


High Court expresses doubt that the inherent jurisdiction covers the ‘name and shame’ CSE cases


Readers will probably be familiar with the case of Riaz, where Keehan J was invited to use the inherent jurisdiction to make injunctions preventing a group of men who were believed to pose a sexual risk to children from associating with children, and also allowed them to be named in the national press.


At the time and still, I have mixed feelings about that case.  As a society, we do desperately want to do something to protect children from Child Sexual Exploitation, and we have to face the reality that criminal prosecutions often cannot get off the ground where the child does not want to make the complaint or give evidence. And at the moment, the only remedy to protect such children is Secure Accommodation – i.e locking them up for being victims, which doesn’t sit well with anyone.


Therefore, when Keehan J announced that he was using the inherent jurisdiction to make injunctions that would prevent men suspected of sexually exploiting children from spending time with children, in a ‘bold and innovative’ move, I was really hoping that it would be a robust mechanism that could be deployed by Local Authorities.


However, when I saw the judgment, I was concerned that it was placing a great deal of weight on the concept that inherent jurisdiction has theoretically limitless powers. I wondered whether it was robust enough if the men who were being subject to the orders sought to challenge the power to make them.

And so it has proven


London Borough of Redbridge v SNA 2015


The London Borough made their application, before Hayden J, set out that they relied on the Riaz case as authority for making the application and no doubt confidently thought that if they could persuade the Judge to the civil standard of proof that these men were more likely than not to pose a risk to children, the order would be made. However, the power to make the order was challenged.


The limit that Hayden J draws is the one that myself and Martin Downs of counsel observed at the time – the inherent jurisdiction has powers to make orders to protect a particular named individual child from such men, but the Riaz order was drafted broadly to protect all children. Hayden J feels that this went too far.



  1. It is easy to see why the Local Authority has brought this application. Indeed, given the emphasis in Dr. Parsons’ report on the risk to adolescent females the Local Authority may very well have faced criticism for failing to act, given the apparent jurisdictional basis on which to do so highlighted in the Birmingham case. If I may say so Mr Lefteri has advised the Authority entirely properly and has prosecuted his case succinctly and effectively. In the course of exchanges however, he could identify no jurisdictional basis for the order he sought other than the Birmingham case.
  2. Mr Lefteri concludes his supplemental submissions thus:

    “It is respectfully submitted that the use of injunctive orders pursuant to the inherent jurisdiction should be perceived as a deterrent to dissuade abusive and exploitative practices of the perpetrators of sexual abuse, not to dissuade Local Authorities from adopting the “bold and innovative” approach of Birmingham City Council for the protection of children.

    The Local Authority does not suggest that the use of injunctive orders should be used as a substitute for the Police actively pursuing Sexual Risk Orders. Indeed, multi-agency cooperation and sharing of information should be strongly encouraged by this Court, irrespective of the outcome. It is respectfully suggested that as a matter of good practice, Courts in care proceedings (or indeed any other family proceedings) where findings of sexual abuse or harm are made, should immediately direct the disclosure of the Court’s judgment to the relevant Police department.

    The purpose of keeping the remedy open to the High Court is to provide potential relief to Local Authorities under the inherent jurisdiction in the future, to account for transitional protective arrangements or where Sexual Risk Orders are inappropriate, delayed or unavailable. The Court will undoubtedly consider each case on its facts and circumstances and consider the implications of such an order on the Convention Rights of each individual against whom such remedy is sought.”

  3. These are important issues and I reserved judgment to reflect on the arguments. The concept of the ‘inherent jurisdiction’ is by it’s nature illusive to definition. Certainly it is ‘amorphous’ (see paragraph 14 above) and, to the extent that the High Court has repeatedly been able to utilise it to make provision for children and vulnerable adults not otherwise protected by statute, can, I suppose be described as ‘pervasive’. But it is not ‘ubiquitous’ in the sense that it’s reach is all- pervasive or unlimited. Precisely because it’s powers are not based either in statute or in the common law it requires to be used sparingly and in a way that is faithful to its evolution. It is for this reason that any application by a Local Authority to invoke the inherent jurisdiction may not be made as of right but must surmount the hurdle of an application for leave pursuant to s100 (4) and meet the criteria there.
  4. The point is illuminated by considering the fetters that exist on the scope of the inherent jurisdiction in those cases where the needs of an individual child are in issue. In Holmes-Moorhouse v Richmond Upon Thames London Borough Council [2009] UKHL 7 the House of Lords emphasised that a child who is a Ward of Court cannot be regarded as having special privileges, nor has the High Court any power to obtain access to resources for a Ward which would not be available otherwise. The same principle is reflected in the situation of the incapacitous adult see: Aintree University Hospitals Foundation Trust v James and Others [2013] UKSC 67.
  5. Not only is the scope of the inherent jurisdiction restricted but the interface between the Family Court or the Court of Protection and Public Authorities is subtle. Thus the High Court may try to persuade a Public Authority to act in a way which the court considers to be in the best interest of the child but it must not allow itself to be utilised to exert pressure on a public authority see: R v Secretary of State for Home Department ex p T [1995] 1 FLR 293.
  6. The development of Judicial Review, as illustrated by ex parte T (supra), has also served to curtail the exercise of the powers of the inherent jurisdiction. No power be it statutory, common law or under the prerogative is, in principle, unreviewable. The High Court’s inherent powers are limited both by the constitutional role of the court and by its institutional capacity. The principle of separation of powers confers the remit of economic and social policy on the legislature and on the executive, not on the Judiciary. It follows that the inherent jurisdiction cannot be regarded as a lawless void permitting judges to do whatever we consider to be right for children or the vulnerable, be that in a particular case or more generally (as contended for here) towards unspecified categories of children or vulnerable adults.
  7. Whilst sympathetic to the objectives of this Local Authority and indeed to those of Keehan J in the Birmingham case, I think Ms. Johnson is correct when she says that to extend the scope of the inherent jurisdiction to children who are neither known nor subject to any proceedings, is to go beyond the parameters of it’s reach. However well intentioned the ambition to prevent child sexual exploitation generally, this is ultimately to make a utilitarian calculation of social policy. The framework within which such children should be safeguarded and protected is for Parliament to create and for the Courts to enforce.
  8. Certainly, a survey of the case law reveals that however creatively the jurisdiction may have been implemented it has always been deployed to protect or promote the best interests of an identified child or vulnerable adult. The most recent consideration of the jurisdiction was by Sir James Munby, the President of the Family Division, in Re M (children) [2015] EWHC 1433 (Fam). In considering whether to grant leave pursuant to s100 (4) the President addressed the application in this way:

    “27. The local authority has turned to the court inviting its assistance and proposing recourse to the inherent jurisdiction, to wardship. That requires consideration of section 100 of the Children Act 1989. There was, in my judgment, reasonable cause to believe that, if the court’s inherent jurisdiction was not exercised, the children were likely to suffer significant harm, as that expression is defined in section 31 of the 1989 Act: see section 100(4)(b) of the Act. I had no doubt that this is a case in which I should give the local authority leave in accordance with section 100(3) of the Act. I was satisfied that each of the conditions in section 100(4) is met. Quite plainly I should exercise my powers under the inherent jurisdiction. The questions was, can I and if so how?”

  9. Answering the question posed in that final sentence, the President sets out his reasoning thus:

    “29. The Crown – I put the matter generally and without descending into detail or identifying any qualifications to what I am about to say – has a protective responsibility for its subjects wherever they may be, whether in this country or abroad. The correlative of this, as both Casement and Joyce ultimately discovered to their cost, is the subject’s duty of allegiance to the Crown wherever he may be, whether in this country or abroad: see The King v Casement [1917] 1 KB 98 and Joyce v Director of Public Prosecutions [1946] AC 347. As Darling J said in Casement (page 137), “the subjects of the King owe him allegiance, and the allegiance follows the person of the subject. He is the King’s liege wherever he may be”.”

    “30. Now the significance of this in the present case – I say nothing whatever of its significance (if any) in relation to the children’s parents – is that the Crown’s protective duty, as parens patriae, in relation to children extends, in the case of a child who is a British subject, to protect the child wherever he may be, whether in this country or abroad.”

  10. The emphasis in bold above is my own. What is plain is that the President is contemplating the inherent jurisdiction in the context of an individual child, casting his language in the terms of the Practice Direction 12 D (see para 17 above).
  11. In Al Habtoor v Fotheringham [2001] EWCA Civ 186, [2001] 1 FLR 951, Thorpe LJ made the following observations in relation to the scope of the inherent jurisdiction:

    “42. The first is that in my opinion the courts of this jurisdiction should be extremely circumspect in assuming any jurisdiction in relation to children physically present in some other jurisdiction founded only on the basis of nationality. Parens patriae jurisdiction has a fine resounding history. However its practical significance has been much diminished domestically since the codification of much child law within the Children Act 1989. In order to achieve essential collaboration internationally it has been necessary to relax reliance upon concepts understood only in common law circles. Thus our historic emphasis on the somewhat artificial concept of domicile has had to cede to an acknowledgement that the simpler fact based concept of habitual residence must be the currency of international exchange. The parens patriae concept must seem even more esoteric to other jurisdictions than the concept of domicile. If we are to look for reciprocal understanding and co-operation, so vital with the steady increase in mobility and mixed marriage together with an equal decrease in the significance of international frontiers, we must refrain from exorbitant jurisdictional claims founded on nationality. To make a declaration of unlawful detention in relation to a child of dual nationality cared for by a biological parent in a jurisdiction whose courts have sanctioned the arrangement by order is only to invite incomprehension, and perhaps even stronger reactions, in that other jurisdiction.”

  12. Later, Thorpe LJ reviewed the existing case law and observed:

    “I accept Mr Everall’s submission that the decision nearest in point is the judgment of Ward J in F v S (Wardship: Jurisdiction) [1991] 2 FLR 349. In that case Ward J held that where the court in wardship did not have jurisdiction under the Family Law Act 1986 to make an order in relation to a child’s care and control it should not assume inherent jurisdiction to make an order for the recovery of the child. In his judgement he categorised such an order as ‘a devious entry to the court by the back door where parliament has so firmly shut the front door’. Although his judgment was subsequently reversed on the facts, his conclusions on jurisdiction were not criticised. In my opinion by analogy there is equally no jurisdiction to make a declaration of wrongful detention in similar circumstances.”



He refutes any notion of sharp practice by Keehan J


I would wish to make it abundantly clear that I do not consider Mr. Lefteri’s application here to be ‘a devious entry to the court by the back door where parliament has so firmly shut the front door’. I most certainly do not suggest that of Keehan J either. I am, as I have been at pains to stress, entirely sympathetic to their respective objectives but as Thorpe LJ emphasises this is a jurisdiction that should be used with ‘extreme circumspection’ respectful of the role of Parliament.



But decides that use of the inherent jurisdiction to protect all children or a raft of children rather than individual named ones has finally found a limit to the inherent jurisdictions theoretically limitless powers


Cumulatively therefore, reviewing the relevant law, statute and practice directions, I have come to the clear conclusion, for the reasons I have set out above, that the injunctive relief sought on behalf the London Borough of Redbridge is outwith the scope of this Court’s powers. I recognise that in this and on this point only I disagree with the approach taken by Keehan J in the Birmingham case.



Hayden J also points out that at the time Riaz was decided, the Sexual Risk Orders hadn’t come into force  (they’d been in the statutory powers for nearly a year but hadn’t been implemented, and they now have). So from this point on, you can use the inherent jurisdiction to protect AN individual child from risky persons, but if you want to stop those risky persons being around children, you’ll need to use the criminal jurisdiction (which is going to be the police making these applications  – underlinign as ever, mine)


  1. Serendipitously, at least for the purposes of my analysis, Parliament has now amended parts 2 and 3 of the Sexual Offences Act 2003 and the Anti-social Crime and Policing Act 2014. Section 122 A provides for the making of ‘Sexual Risk Orders’ (SRO) and outlines the Grounds on which they may be obtained and their effect:

    Sexual risk orders (England and Wales)

    122A Sexual risk orders: applications, grounds and effect

    (1) A chief officer of police or the Director General of the National Crime Agency (“the Director General”) may by complaint to a magistrates’ court apply for an order under this section (a “sexual risk order”) in respect of a person (“the defendant”) if it appears to the chief officer or the Director General that the following condition is met.

    (2) The condition is that the defendant has, whether before or after the commencement of this Part, done an act of a sexual nature as a result of which there is reasonable cause to believe that it is necessary for a sexual risk order to be made.

    (3) A chief officer of police may make an application under subsection (1) only in respect of a person—

    (a) who resides in the chief officer’s police area, or

    (b) who the chief officer believes is in that area or is intending to come to it.

    (4) An application under subsection (1) may be made to any magistrates’ court acting for a local justice area that includes—

    (a) any part of a relevant police area, or

    (b) any place where it is alleged that the person acted in a way mentioned in subsection (2).

    (5) The Director General must as soon as practicable notify the chief officer of police for a relevant police area of any application that the Director has made under subsection (1).

    (6) On an application under subsection (1), the court may make a sexual risk order if it is satisfied that the defendant has, whether before or after the commencement of this Part, done an act of a sexual nature as a result of which it is necessary to make such an order for the purpose of—

    (a) protecting the public or any particular members of the public from harm from the defendant, or

    (b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from harm from the defendant outside the United Kingdom.

    (7) Such an order—

    (a) prohibits the defendant from doing anything described in the order;

    (b) has effect for a fixed period (not less than 2 years) specified in the order or until further order.

    (8) A sexual risk order may specify different periods for different prohibitions.

    (9)The only prohibitions that may be imposed are those necessary for the purpose of—

    (a)protecting the public or any particular members of the public from harm from the defendant, or

    (b)protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from harm from the defendant outside the United Kingdom.

    (10)Where a court makes a sexual risk order in relation to a person who is already subject to such an order (whether made by that court or another), the earlier order ceases to have effect.

  2. When Keehan J heard the arguments in the Birmingham case these provisions had not come into force and accordingly, the protection that they offer was, at that stage, not available. I have been told by Mr Lefteri that an application has been made to a Magistrate’s Court in respect of SNA it is believed that the conditions for the making of such an order are met. That will ultimately be a matter for the Magistrates Court. It would seem therefore, that the protection contemplated in this application may, in due course, be available. Recognising this from the outset Mr Lefteri sought orders in this Court in an attempt to ‘hold the ring’ until orders have been made in the criminal courts.
  3. There are sound reasons why the criminal courts are the correct venue to consider the making of these orders. Firstly, and most obviously, Parliament, after proper scrutiny, has carefully defined the scope and ambit of the provisions. Secondly, notwithstanding the considerable advancements made in achieving much greater levels of transparency in the Family Court, a judge sitting in this jurisdiction will invariably have to protect the identity of the child and in order to do so, preserve, by a side wind, the anonymity of a perpetrator. I do not believe any right minded person having read my short review of the facts of this case (above) would consider it appropriate to expose this young girl to the inevitable harm of publicity. The Press, in my experience, have been assiduous in their respect of this principle.
  4. In the Criminal Courts however, the focus is different. There is now, rightly, much greater emphasis on the ‘victim’ but that is wholly different to the range of the enquiry necessary in the Family Courts. In the Criminal Court, where the liberty of the individual is in issue, the public interest in the administration of the criminal justice system must always weigh heavily. The Criminal Courts are now, frequently, able to conduct trials entirely in the public domain whilst at the same time protecting the identity of the Complainant and, where necessary, his or her relationship to the Defendant. Certainly, where the Complainant is a minor, society recognises the necessity of this measure. The family justice system is unlikely to replicate this. Thirdly, the responsibility for the policing of such orders rest with the police who are far better equipped than social services to monitor compliance





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