A follow-up from last week’s case involving a decision that children whose parents were suspected of intending/attempting to take them to Syria to a war zone should be at home with the parents, with the parents being electronically tagged to prevent a recurrance.
You may remember that during that piece, I expressed some reservations about how the scheme would operate and who would pay for it.
Well, part two of
X and Y (children) No 2 2015
raises that particular question and then doesn’t answer it.
The answer is, that in THIS PARTICULAR CASE but not other future ones, the Ministry of Justice agree to pay.
- By the time the matter came on for hearing before me on 3 August 2015, Mr Alex Ustych, on behalf of MoJ, was able to tell me on instructions that it would take approximately a fortnight to put all the arrangements in place for GPS tagging. He was also able to say that, having considered its position further since filing its submissions, MoJ was willing, if I took the view that there should be GPS tagging, to meet the cost in this case without having recourse to any of the parties for any payment.
- That, as he made clear, was entirely without prejudice to MoJ’s position as I have summarised it in paragraph 2 above, and is not to be treated as a precedent in any future case. In particular, the fact that MoJ is willing in this case to agree to meet the cost does not mark any departure from its fundamental position that the court has no power to order MoJ or NOMS (or, I assume, EMS) to bear the cost of providing GPS tagging.
You may have picked up the not comforting crumb that it will take a fortnight to get the tagging sorted out.
So what about future cases? Well, it seems fairly plain that the MOJ would at the very least want to have an argument about it, and as we learned from the Court of Appeal decision about whether the President’s suggestion that the MOJ/HMCS should pay for costs of a litigant where article 6 would be breached (no statutory power, so no thanks) they might well win there.
Can the costs be split between the parties? Well, if you were a solicitor for the parents or child, there’s no way on Earth that you are writing that cheque without the Legal Aid Agency agreeing. And I am certain that they won’t. Putting a tag on a parent can in no way be construed as an assessment of the parent. What are you assessing? Whether they will run away if there is an electronic device that prevents them from doing so?
If you want an expert to assess that, I am available to conduct the assessment. It will be a very fast turnaround, and my report will consist of the words, “No, they won’t. I don’t know what they will do when you take the tags off”
So, that leaves the good old Local Authority. Well, what’s sauce for the MOJ goose is sauce for the gander too. Please find me the statutory power that allows the Court to order the Local Authority to pay for electronic tagging. I don’t mind waiting.
I’m afraid that the very next Local Authority who have to go to Court because children in their area have been involved in an attempt to take them to Syria are going to have to go through this entire argument all over again.
And I will add in another argument – it is still really unclear what would happen if one or both of the parents does not consent – is there a proper statutory basis for an interference with their article 5 rights? It is probably easier if both refuse, because then the children just can’t be placed with them, but if one says yes and the other says no? tricky.
If you WANT to enter into this arrangement, the President does set out a very useful template order.