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 http://www.bailii.org/ew/cases/EWHC/Fam/2015/2265.html
[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)  EWHC 3065 (Fam),  1 FLR 653, and Re A (Family Proceedings: Electronic Tagging)  EWHC 710 (Fam),  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)
- 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.
- 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.
- 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.
- 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.
- 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)  EWHC 3065 (Fam),  1 FLR 653, para 46, which I refer to below.
- 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).
- 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.
- 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.
- 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?
- 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.
- 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.
- 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
- 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?