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Cloak and dagger threshold

 

The word Kafka-esque crops up a lot when you talk about the family Courts, but here’s one where it is actually apt. Whatever the evidence was against the parents, not only could they not see it, but the social worker wasn’t able to see it either. And nor was the Judge.

 

Re C a child 2016

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/3171.html

S015,  Counter Terrorism Command notified the Local Authority that a man who was a father of children was considered to be a significant risk of terrorism activities, radicalisation and possible flight to Syria (possibly with his children).  The Local Authority issued care proceedings.  To make this perfectly plain, if it had not been for the notification from S015, the Local Authority would not have issued care proceedings. They had no evidence, concerns or suspicions of their own. They were reacting to that notification from an organisation who they understood to have credible evidence for that belief.

 

 

"You can't TAKE Command. Command takes YOU"   Okay, so this is B6-13 not SO-15, but you get the idea

“You can’t TAKE Command. Command takes YOU” Okay, so this is B6-13 not SO-15, but you get the idea

This is what S015 told them

 

 

  • Two pieces of material led to the initiation of the application for a care order. The first stemmed from the assessment of HM Passport Office that the father is “an Islamist extremist who has previously travelled to Syria and engaged in terrorism-related activities” and that he is “likely to travel overseas to Syria in the near future … to engage in further terrorism-related activity, including fighting alongside an Islamist terrorist group.”
  • A very similar form of words was provided to the local authority on behalf of SO15 – “information suggests that (the father) holds an Islamist extremist mind-set. Information suggests that (the father) travelled to Syria in 2013 and 2015 where, it is assessed, he was fighting with an Islamist extremist group.

 

That’s sufficient to meet threshold – it is a good concluding paragraph to a threshold document on radicalisation.  The issue of course is that it works as a concluding paragraph, after the preceding paragraphs set out WHY those things are true and WHAT the evidence is to prove it.

 

However, SO15 didn’t provide that. And they didn’t provide it after the Court made an order for disclosure.   They applied to discharge the disclosure orders. At first they said that the order hadn’t been particular enough or that it was necessary to disclose anything at all.  That was a bold claim, given that the Judge who made the order was the one hearing that argument.

 

The arguments advanced on behalf of the SSHD

1. Failure to adhere to the Guidance – inappropriately wide request; insufficient notification as to issues; order made without notice

 

  • Ms Wheeler seeks to argue that the local authority’s approach to disclosure does not accord with the President’s Guidance, particularly paragraphs 10 – 12. She suggests there has been insufficient regard to the highly sensitive nature of the material sought and a failure to respect the differing roles of the public bodies identified within the Guidance. Ms Wheeler submits that the local authority should have informed the body from whom information is sought about the proceedings, including the matters in issue and what material it is minded to seek. In the first instance there should be discussion and if a hearing is required it should be on notice. Here, says Ms Wheeler, there would appear to have been no sound reason why the hearing was not on notice.
  • In relation to the last point, it would have been better, obviously, if the SSHD had been represented at the hearing on 4 October. But, as the terms of the order reflected, there was a need to make progress in the proceedings; and over the following 4 weeks there was no application to discharge or vary the order. At the hearing on 2 November, the indications were that consideration was being given to an application for a closed material procedure.
  • Ms Wheeler emphasises the need for a “coordinated strategy, predicated on open and respectful cooperation between all the safeguarding agencies involved” – see paragraph 10 of the Guidance.
  • I pause to reiterate that had it not been for information properly conveyed to the local authority by SO15, the strong likelihood is that local authority would have had no basis for instituting proceedings of any kind. For the SSHD to now contend that the local authority should have identified in discussions what the proceedings were about, the matters in issue and the information it was minded to seek, defies logic. It is a circular argument of the most bewildering kind.
  • In any event, read as a whole the order of 4 October is transparently clear and amply substantiates the requirement for disclosure. Recital 3 identifies that the court is faced with “an application for a care or supervision order;” and the reason the disclosure order has been sought is to “assist the court in determining (that) application.” Critically, recital 4 states that “(t)he court needs information about any extremist or radicalised conduct by adults in the family.” To suggest that the issues in the proceedings were imperfectly or inadequately defined is simply wrong.
  • The local authority was in no position to specify precisely what information is sought (beyond the provisions of paragraph 1 of the order) for the obvious reason that it does not know what is held. Whilst I quite accept that requests for disclosure should be approached with, as Ms Wheeler suggests, “particular care and circumspection” it is difficult to identify what more this local authority could have done in terms of specificity or definition. Whether in this instance it would have been of real benefit to the SSHD to have case summaries and draft threshold documents is extremely dubious. Once more I reiterate that had it not been for the “tip off” from SO15, there would have been no reason for this local authority to initiate proceedings. The notion that the SSHD has insufficient information to respond, other than by seeking discharge of the disclosure order, is to my mind fallacious.

 

2. Failure to comply with FPR r.21.2(3) or have regard to the Guidance – necessity

 

  • The second complaint made on behalf of the SSHD about the disclosure order of 4 October 2016 is closely related to the first. Ms Wheeler relies upon the terms of r.21.2(3) of the Family Procedure Rules 1991 – “disclosure against a third party is only permitted where it is necessary in order to dispose of the proceedings fairly” and paragraph 7(e) of the President’s Guidance – “the need (for judges) 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 would 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’.”
  • Ms Wheeler contends that the SSHD and the Passport Office “are almost entirely in the dark about the nature of the local authority’s case and the allegations of significant harm.” She maintains that disclosure was sought on an erroneous basis, namely that it would “assist” the court.
  • I cannot accept that the wrong test was applied to the disclosure request. The face of the 4 October order (recital 4) records that the court “needs” the information. I reject the suggestion that I would have sanctioned a disclosure order against the SSHD, or any other third party, unless satisfied there was a genuine necessity.

 

 

However, SO15, and the SSHD (Secretary of State for the Home Department, or the Home Secretary) had an ace up their sleeve. Counsel representing the SSHD made it clear that if the Court wanted to press ahead with an order for disclosure, the Home Secretary would sign a Public Interest Immunity certificate which would prevent the disclosure of any material.  There’s a process for the PII certificate to be reviewed by the Court, but none of the parties would see the basis on which it was asserted that disclosure would be against the national interest.

 

Rock, I’d like you to meet Hardplace, Hardplace, this is the Rock.  I’ll just stand between the both of you.

 

In a game of Rock Paper Scissors, the Rock wins every round

In a game of Rock Paper Scissors, the Rock wins every round

 

Obviously the family Court don’t want to trample on national security and of course security services don’t want to cough up in detail why they happen to be watching the father and what led them to do so and what they have found out about who he is talking to, because that could jeopardise all sorts of other important and sensitive and possibly life-threatening/life-saving operations.   And given that the family Courts have so far ended all of the radicalisation cases with the children remaining with the parents, one can see why SO15 don’t consider that it is worth taking those risks with sensitive information given the likely final resolution of any individual case.   (At present it rather seems as though you are better off  in care proceedings as a parent being in contact with ISIS members than letting your ten year old child shoot terrorists on Call of Duty, but that’s just my cynical jaded take on it)

On the other hand, there are children here and the Local Authority can’t obtain orders to protect them without having evidence to show why they need to be protected and the parents can’t refute the allegations about them without knowing what they are.

 

The Judge left the disclosure orders in place, indicating that when and if the Home Secretary issued a PII certificate, that would be the time for consideration of whether the reasons on the PII certificate outweighed the need for disclosure.  If there is no disclosure, presumably the application will have to be withdrawn, as the LA have no evidence that could prove threshold.

 

This was always going to be the difficult issue in radicalisation cases and whilst the President’s guidance works very hard to find a solution, I’m just not sure that there is one. If you are a Local Authority who receives that sort of tip-off, what the hell are you supposed to do with it?  If you issue, you’ll hit this road-block and the proceedings will be dropped, and if you don’t and something happens, the Daily Mail will be eating you alive.  It’s a complete hospital pass by the Security Services.

 

What’s the alternative? Amend the Children Act 1989 to allow SO15 to issue care proceedings of their own? Run a family Court equivalent of the Closed Material Procedure Courts that operate in alleged terrorism offences in the criminal Courts?  They are hugely controversial in crime  (and if you’re interested in more about them I recommend Ian Cobain’s book “The History Thieves”  where he describes the AB and CD case, with the jury being told that if they ever discussed any of the evidence in the case they could themselves be punished by two years imprisonment and the incredible stipulations on journalists whose notebooks were taken each day, were prohibited from writing notes outside the Courtroom after hearing the evidence and not being able to tell their readers any of the important details in the case)

 

I certainly can’t claim to have a solution, but it is an obvious problem.

 

 

 

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

13 responses

  1. Reblogged this on | truthaholics and commented:
    “Obviously the family Court don’t want to trample on national security and of course security services don’t want to cough up in detail why they happen to be watching the father and what led them to do so and what they have found out about who he is talking to, because that could jeopardise all sorts of other important and sensitive and possibly life-threatening/life-saving operations. And given that the family Courts have so far ended all of the radicalisation cases with the children remaining with the parents, one can see why SO15 don’t consider that it is worth taking those risks with sensitive information given the likely final resolution of any individual case. (At present it rather seems as though you are better off in care proceedings as a parent being in contact with ISIS members than letting your ten year old child shoot terrorists on Call of Duty, but that’s just my cynical jaded take on it)

    On the other hand, there are children here and the Local Authority can’t obtain orders to protect them without having evidence to show why they need to be protected and the parents can’t refute the allegations about them without knowing what they are.”

  2. I cannot understand why seizing his children would somehow make this man less of a risk to the public (if indeed he is a risk)..If they have sufficient evidence to detain him under the anti terrorism acts then let them do so (not very much evidence is needed (or so I am told !) If not then leave his kids alone ;Even ISIS do not kill their OWN children after all just other people’s and those “other people” would not be saved by taking this man’s kids ;very much the reverse if he took revenge ……….Confiscating children seems to have become a solution to everything to do with suspect families these days but then the social workers have adoption score cards to fill …..

  3. indeed why are they not prosecuting him?

    otherwise simply there is no evidence, but then that is also true in other family cases, the only difference here is, there is proof there is maybe no evidence rather than no proof there isnt

    • I think there’s a direct reference to that in the judgment. It certainly creates a strong impression that they have suspicion but not much in the way of hard evidence. (It may be instead that they don’t want to turn over their cards when there are still other players at the table)

      I don’t know why the police are not prosecuting this father – my first thought was much like the way police don’t prosecute all heroin users, because they are watching and hoping to lead to someone bigger and more dangerous – but then it makes very little sense to actually tip off social workers. It seems to me that there’s probably a back-covering aspect – our suspect has kids, so we’d better tell social workers something, then it is their problem.

  4. Part of CTC/SO15 fuction is to investigate crimes against humanity so maybe they were actually really after the LA. and its SW’s, who commit crimes against humanity on a daily basis..!

    Wishful thinking on my part I think….

    Seriously though, If the security services knock your door or let you know that you are on their radar by any means, they want you to know because they either want you to make a mistake (by putting psychological pressure on you as a result of the contact ) /change the path you are going down or they want you to knock their door to give them what they want/join them by becoming an informant. It happened many a day in northern Ireland in the 70’s, 80’s , 90’s and even in the rest of the UK and southern Ireland.

    Why the threat of a PII certificate?

    Has the father become an informant ?

    Was the father already an informant or operative and the passport office/SO15 have made a mistake?

    or is the whole shebang a mistake and embarrassment (look at Jean Charles da Silva e de Menezes killed on the london underground)?

    Are the government using SW’s/LA and children to make contact ? and putting them at risk ?

    I would not be surprised by any action or lack of action by the government.

  5. I am having a hard time understanding why it is considered acceptable in the family law sphere for an LA to issue proceedings without knowing, understanding or evaluating the evidence upon which its own case is based.

    • I don’t think it is. But I think they were given a hospital pass by the security services – if they didn’t take action and something happened to the children, the Daily Mail et al would have been slavering for blood over the fact that they knew and did nothing. Personally I would have gone back to the security services and said if you can’t give us some evidence for the concerns, we can’t act on them.

      • Sure, i sympathise with the instinct not to look bad if the mail turn up- but its not a relevant factor in the decision of the state to intervene.

    • It happens all the time, I could give loads of examples.

      A simple one and very briefly, Baby goes to a party with other babies and toddlers, the next day a nursery worker notices a bite mark on the baby and calls the police, police arrest the mother and ss take the baby into care.

      The police insist that the bite mark was the result of an adult biting the baby and they point their finger at the mother and the ss go along with this with no evidence at all and initiate care proceedings.

      Six months later after numerous attempts to get the police to disclose photographs/”evidence” and with the threat of having the chief constable ordered into court to explain the actions of his officers, the police disclose that their investigation/expert points at the bite mark being the result of a small child biting the baby.

      What got me about this case as it collapsed in the court was the last desperate comment by the LA solicitor “but the mother wont amount to anything in her life”…

      In many cases there is no evidence just an opinion/suspicion, even the roman emperor Trajan ruled that no one should be condemned on the ground of suspicion alone.

      • ashamedtobebritish

        You’d have thought they’d have done a simple dental imprint analysis BEFORE pointing the finger at anyone!

      • The police do not like using dental impression analysis done by forensic odontologists/dentists because its very questionable in a criminal case, skin is not the best medium for bite marks. they would rather try and pressure someone into being found guilty or into pleading guilty or and rely on other evidence…

        But it was used they just did not want to hand over the results, the mother had her impression analysed too, which was not necessary…

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