Author Archives: suesspiciousminds

Absconding and secure accommodation

Posted on August 2, 2016 by suesspiciousminds

This Court of Appeal decision hasn’t come up on Bailii yet, and I’m grateful to Graham Cole from Luton’s LA legal team for alerting me to it.

RE W (A CHILD) (2016)

[2016] EWCA Civ 804

A lawtel link is here, but that’s only good if you have access codes to it. Will keep an eye out for it on Bailii.

https://www.lawtel.com/MyLawtel/Documents/AC0151488

It relates to an application for a Secure Accommodation Order for a girl who was 17 years and 8 months old. There’s a common misconception that you can’t have a Secure Accommodation Order on a child over 17 (in fact, what the Secure Accommodation Regs prohibit is secure accommodation for a child accommodated under s20 (5) of the Children Act 1989.

Secure Accommodation Regulations 1991

Children to whom section 25 of the Act shall not apply

5. –

(1) Section 25 of the Act shall not apply to a child who is detained under any provision of the Mental Health Act 1983(1) or in respect of whom an order has been made under section 53 of the Children and Young Persons Act 1933(2) (punishment of certain grave crimes).

(2) Section 25 of the Act shall not apply to a child–

(a)to whom section 20(5) of the Act (accommodation of persons over 16 but under 21) applies and who is being accommodated under that section,

So a 17 year old accommodated because of a Care Order, or under s20(3) is okay.

However, when you look at the definitions of s20(3) and s20(5) side by side

(3)Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation.

and

(5)A local authority may provide accommodation for any person who has reached the age of sixteen but is under twenty-one in any community home which takes children who have reached the age of sixteen if they consider that to do so would safeguard or promote his welfare.

Then you can see that determining which one was used for any given young person is tricky, as there’s a waffer-thin mint between them, AND it all hinges on what was in the LA mind at the time of accommodation and whether they correctly alloted the young person to the (reasonable and proportionate) type of accommodation. IF the accommodation is to stop their welfare being seriously prejudiced, then they can securely accommodate. If the accommodation was just to safeguard or promote welfare, they can’t.

Initially, I thought “Well, any s20 where the concerns are sufficient to want to go for secure, will trigger s20(3)” but remember, one is looking at the reason for the provision of accommodation in the first place, not necessarily immediately before the secure accommodation application. If a young person leaves home and is accommodated under s20(5) to prevent them having to sofa surf or be homeless, then when there’s a later deterioration in behaviour that triggers the secure criteria, the option wouldn’t be open to the LA. Can the LA discharge the s20(5) and immediately convert it to s20(3) ? That sounds a bit iffy to me. (My legal summary of ‘a bit iffy’ is not necessarily the way I would express it in the Court of Appeal. Let us instead say “has the hallmarks of an abuse of process)

Be grateful I went for THIS image rather than the many others available

What has always been a bit dubious/uncertain, if you don’t have a Care Order on the 17 year old, is the power of the LA to accommodate a young person against their will, and specifically by then locking them up, if accommodated under s20(3) and a Secure Accommodation Order is obtained.

The statute doesn’t say anything about a young person’s capacity to discharge THEMSELVES from s20 accommodation. It says specifically that a parent has the right to discharge them by objecting or removing, and it says specifically that post 16 a parent can’t do that if the young person wants to remain in s20. But it says nothing about a young person saying “I don’t want to be here, I’m checking out.”

Well, maybe you can check out any time you want, but you can never leave….

W’s lawyers were saying that W DID NOT consent to being accommodated under s20(3), and thus could not be accommodated, and if she wasn’t accommodated, she couldn’t be SECURELY ACCOMMODATED.

The LA lawyers said, the statute doesn’t say that W has to consent. (It doesn’t say that the parents have to consent either, but that particular ship has sailed with the caselaw on s20 over the last year)

The Court of Appeal on this point said (and curse it not being on Bailii, because I’m having to TYPE this rather than cut and paste it as normal)

“A due regard to the wishes and feelings of a competent child so far as consistent with his or her welfare may dissuade a Local Authority from applying for a secure accommodation order. As a child approaches its majority, the factors to be weighed in the balance will undoubtedly acknowledge its looming legal independence. That said, we are satisfied that the subject child’s consent is not a pre-requisite of the making of a secure accommodation order”

They also indicate that for secure based on s20(3), the parents have to be consenting to the s20 accommodation (the s20(11) provision that a 16 year old can block parents removing them from s20 if they want to stay there doesn’t apply, because it is not removal but entry that is up for debate)

The Court of Appeal also had to look at whether the secure accommodation criteria were met, and there’s a novel argument there. W’s lawyers argued that W was not ‘absconding’ from placements. She was absenting herself and then returning, whereas absconding carries the connotation of ‘escape’ and this was developed into ‘escape’ has a connotation of an intent to be absent indefinitely.

Now, that’s very very important. An awful lot of the ‘absconding’ that you see in application for Secure Accommodation Orders is a young person going missing for a few days and coming back of their own free will – and them putting themselves in danger in the interim. You do see some absconding which fits the classic ‘escape with intent to avoid recapture’ where the child is missing for weeks or even months and generally gets picked up by the police not entirely voluntarily, but those are rarer. The very modern post Rochdale phenomenon of Child Sexual Exploitation leading to secure is very much a young girl not returning to placement after school and staying away for a few days (with abusive and exploitative men) and then returning home. This case is raising the important issue of whether that actually IS absconding. If it ISN’T, then the first of the two possible limbs to satisfy the Secure Criteria is not made out.

25 Use of accomodation for restricting liberty.

(1)Subject to the following provisions of this section, a child who is being looked after by a local authority may not be placed, and, if placed, may not be kept, in accommodation provided for the purpose of restricting liberty (“secure accommodation”) unless it appears—

(a)that—

(i)he has a history of absconding and is likely to abscond from any other description of accommodation; and

(ii)if he absconds, he is likely to suffer significant harm; or

(b)that if he is kept in any other description of accommodation he is likely to injure himself or other persons.

So if the Court of Appeal rule that ‘absconding’ for s25 means some intent to escape with intent to stay away, then ground (a) can’t be made out for a lot of young people in Secure, because although they are AWOL a lot, and missing a lot, they are coming back and intended to, rather than had the intent to ‘escape’. Ground (b) might still apply, but most Secures are dealt with on ground (a).

This could be very big.

What did the Court of Appeal decide?

21. Miss Judd QC’s arguments in relation to the Judge’s definition of ‘absconding’ arose in the fact-specific circumstances of the case and did not persuade us that it was necessary to define the term beyond its everyday meaning.

[That noise you just heard was 500 LA lawyers breathing out. Don’t jump the gun – the Court of Appeal might SAY that they don’t think it’s necessary, but they are probably still about to do it anyway]

Munby J (as he then was)

[500 LA lawyers just said ‘oh god, no’]

in Re G (Secure Accommodation Order) 2001 FLR 884 at 895 relied on the definition of ‘abscond’ found in the Concise Oxford English Dictionary. This accords with the usual application of the term to connote the element of ‘escape’ from an imposed regime. Mr Tyler QC’s reliance on the wider definition in the Shorter Oxford English Dictionary was perhaps borne of the need to support his argument that Keehan J’s approach to the issue was correct. Although trite to say, the facts will speak for themselves. As it is, we are satisfied, as we indicate below, that the Judge wrongly categorised W’s absences from the Unit in which she had been placed since January 2016 as absconding.

This particular girl had NOT absconded.

We don’t have Keehan J’s judgment to look at the facts, but the Court of Appeal say at para 7 that she has from a variety of placements and units, absented herself at all hours to pursue her own ends and has not followed the rules in any of the placements, when absent she has been with risky adult males and come back with sums of money. It looks, therefore like the sort of CSE case I discussed earlier. Lots of short-lived absences without leave, which the Court of Appeal concluded did not amount to absconding.

Eep.

22 . In determining that W had absconded, Keehan J invoked the facts that W had ‘disengaged’ with the Unit, returning “not just a few hours later but well into the following day”. I do not consider that this meant that W was ‘absconding’ from the Unit, in terms of escaping indefinitely from an imposed regime, as opposed to deliberately absenting herself for a limited period, knowingly and disdainfully in breach of the night-time curfews imposed.

The Court of Appeal went on to say that in W’s case, they considered that the second criteria (b) was made out in any event and thus a Secure Accommodation Order could legitimately be made.

But the first criteria is now in tatters for a lot of cases – the Court of Appeal are looking for evidence that the young person ‘escaped indefinitely from an imposed regime’ rather than ‘deliberately absenting themselves for limited period in breach of rules. Obviously, the shorter the period of absence the harder it will be to prove that the young person ‘escaped indefinitely’, particularly if they return of their own volition. Ground (b) will be the criteria to inspect chronologies for in the future – the absconding ground just became very tough to prove in 80% of cases.

If you enjoyed this piece, or like the blog generally – my novel which is set in a Children’s Secure Accommodation centre, is available to pre-order and should be out around Christmas time. I’d LOVE your support, which you can provide by pre-ordering here

https://unbound.com/books/in-secure

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Posted in case law, section 20 and tagged 2016 EWCA Civ 804, absconding, can young person discharge themselves from s20?, Court of Appeal, court of appeal defines absconding, definition of absconding, making secure order on 17 year old, Re W A child 2016, section 20, section 20(3) Children Act 1989, section 20(5) Children Act 1989, section 25 children act 1989, secure accommodation, secure order. Bookmark the permalink.

Re W – no presumption for a child to be brought up by a member of the natural family

Posted on July 29, 2016 by suesspiciousminds

This was a Court of Appeal case decided today. It has taken a LOT of chewing over to make sense of it. I’m still not quite sure that I get it.

Re W (A child) 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/793.html

The facts

A, a young girl, was born on 1st May 2014. Care proceedings took place and on 21st October 2014 a Care Order and Placement Order were made. A was placed with prospective adopters, Mr and Mrs X in December 2014. An adoption application was lodged by Mr and Mrs X on 1st April 2015.

In June 2015, the parents went on to have another child, J, and in those care proceedings, the paternal grandparents were approached and wanted to care for J. This was the first time that they learned of A’s existence. They wanted to also care for A.

They made an application for leave to oppose the adoption (which was wrong in law, but understandable – only parents can apply for that) and for a Child Arrangements Order for A to come and life with them. [Yet another child K was born in April 2016 and K was placed with paternal grandparents and J]

The case came before Bodey J in April 2016. He dismissed the adoption application and made a Special Guardianship Order to the paternal grandparents. Mr and Mrs X appealed.

A powerful comment

This is not legally significant, but it was very punchy and wise, from Jackson LJ

As things stand at the moment, no party is proposing a compromise solution whereby A has contact with both families. The court is therefore faced with two unattractive options:

i) Shall A be removed from the home of Mr and Mrs X, where she is thriving and much loved? That will be involve the brutal and traumatic transfer of a two-year-old girl from her perceived parents to a family whom she has never met; or

ii) Shall A be kept apart from her two siblings and her birth family? Shall she grow up without meeting them?

If the court adopts the first course, what will be the long term effects on A (who has already had one change of carers) of such a huge upheaval at the age of 2? Alternatively, if the court adopts the second course, what will be the consequences a decade from now when A discovers that Mr and Mrs X through court orders have kept her away from her ‘real’ family and that her ‘real’ family were in a position to care for her? The teenage years are not always trouble-free and this could be a devastating discovery when A is a teenage girl.
I agree with McFarlane LJ that the shortcomings in the evidence and in the judgment at first instance are such that this case must be remitted to the Family Division for rehearing.
I express the hope that the next judge will not face the same “all or nothing” options which were put before Bodey J. The option should also be considered of A enjoying contact with both families. Mr and Mrs X love A dearly and have brought her up for almost two years. The paternal grandparents and A’s two siblings will, no doubt, love A dearly when eventually they meet her. Both families have the potential to enrich A’s life after its troubled start. Above all else what matters is the welfare of A, not the wishes of the opposing couples in this litigation.
The final tribunal in this case is not us or the Supreme Court. It is A herself. In later life A will probably read these judgments on the Internet. She will decide whether the positions adopted by the Xs and by the grandparents were reasonable. She will also make up her own mind about whether we were right or wrong to allow the present appeal.

Powerful stuff. I hope that heed is taken of it.

Another powerful point, and one that I think was long overdue – children cases seem to barely be about children anymore. They are about timescales, and capacity to change, and resources, and whether professionals can be criticised, and whether parents can be blamed, and about 26 weeks and statistics, and about getting all of the case law window-dressing in place. But they’re not about the children very much. So HOORAY for this

This case was all about A. She is a person. Her personality, her attributes, her achievements should have been centre stage in these proceedings. Yet she does not shine out from any reading of the court papers or from the judge’s judgment, indeed, the opposite is the case. It is, of course, on one level meaningless, given her age, to say that A was not “heard” or that she did not have ” a voice” within the proceedings but, for the reasons I have given, particularly the failure to allow the judge to hear directly from Mr and Mrs X and the failure of the Guardian to provide any description of A and her world, the way the case was presented, did, in a very real sense, rob the court of this essential dynamic.

Issues for the appeal

This appeal raises the following issues which may be of general importance:

a) The approach to be taken in determining a child’s long-term welfare once the child has become fully settled in a prospective adoptive home and, late in the day, a viable family placement is identified;

b) The application of the Supreme Court judgment in Re B [2013] UKSC 33 (“nothing else will do”) in that context;

c) Whether the individuals whose relationship with a child falls to be considered under Adoption and Children Act 2002, s 1(4)(f) is limited to blood relatives or should include the prospective adopters;

d) Whether it is necessary for a judge expressly to undertake an evaluation in the context of the Human Rights Act l998 in such circumstances and, if so, which rights are engaged.

I think most of us thought that with the President’s clarification in Re R, we were pretty much done with ‘nothing else will do’ (don’t take the soundbite literally, use the entireity of Lady Hale’s formulation, it is about realistic alternative options not fanciful ones). But the Court of Appeal have grabbed hold of a can opener and opened about a dozen cans that were labelled “WORMS, Do not open”

Because they can can can

The Court of Appeal were very very critical of the ISW and the Guardian (chiefly the Guardian) who they felt had got the law seriously wrong. Their mistake as to the law meant that their recommendations and conclusions were so flawed that the Judge’s reliance on them made the judgment flawed and the appeal succeed. So what did they get wrong?

All of them had approached the case in this way :-

A) This is an adoption application

B) The grandparents are a realistic option to care for A – they are caring for two siblings and doing a good job

C) There is nothing to rule them out as a carer for A

D) To make the adoption order, the Court must be satisfied that “nothing else will do”

E) Unless the risks of moving A are too great, she should be moved

I have to say, that this is exactly the way that I think almost every social worker, Guardian and lawyer in the country would have approached matters. And candidly, how I would have approached it too. Of course look at the risks in E and weigh them up very carefully, but the starting point is that this is only a “nothing else will do” case and thus an adoption order case IF those risks mean that a placement with grandparents is not a realistic option. The starting point is surely that the child should be placed within the birth family if possible. (That’s exactly the way that Bodey J – one of the smartest men I’ve ever been in a room with – looked at it as well)

The Court of Appeal ire was particularly drawn by the word ‘right’ in the evidence of those professionals. [Of course what a professional means by ‘right’ does not necessarily mean the same as what a lawyer means – but in any event, the article 8 right to family life seems rather to encompass that the child has a right to the family life that they were born into and should only be deprived of that where it is proportionate and necessary – hence Y v UK, hence Re B, hence Re B-S, so I’d have said there was a legal right as well as the context that social workers and Guardians would have been using the term – a moral right rather than a legal one. If you had to have lived with a person to acquire a family life with them, there’d be no article 8 rights in cases where the child was removed at birth, and that’s just not the way the Court approaches such cases]

So these are the critical passages. They need a LOT of careful reading

“Nothing else will do”

Since the phrase “nothing else will do” was first coined in the context of public law orders for the protection of children by the Supreme Court in Re B, judges in both the High Court and Court of Appeal have cautioned professionals and courts to ensure that the phrase is applied so that it is tied to the welfare of the child as described by Baroness Hale in paragraph 215 of her judgment:

“We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do.”

The phrase is meaningless, and potentially dangerous, if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child’s welfare. Used properly, as Baroness Hale explained, the phrase “nothing else will do” is no more, nor no less, than a useful distillation of the proportionality and necessity test as embodied in the ECHR and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime (ACA 2002 s 1). The phrase “nothing else will do” is not some sort of hyperlink providing a direct route to the outcome of a case so as to bypass the need to undertake a full, comprehensive welfare evaluation of all of the relevant pros and cons (see Re B-S [2013] EWCA Civ 1146, Re R [2014] EWCA Civ 715 and other cases).

Once the comprehensive, full welfare analysis has been undertaken of the pros and cons it is then, and only then, that the overall proportionality of any plan for adoption falls to be evaluated and the phrase “nothing else will do” can properly be deployed. If the ultimate outcome of the case is to favour placement for adoption or the making of an adoption order it is that outcome that falls to be evaluated against the yardstick of necessity, proportionality and “nothing else will do”.

Natural family presumption/right

With respect to them, it is clear to me that both the Children’s Guardian and the ISW fell into serious error by misunderstanding the need to evaluate the question of A’s future welfare by affording due weight to all of the relevant factors and without applying any automatic “presumption” or “right” for a child to be brought up by a member of her natural family. The extracts from the reports of both of these witnesses indicate that they determined their recommendation for A on just that basis. Mrs Fairbairn repeatedly described the child as having a “right” to be brought up by the natural family where there is a viable placement available. The Guardian advised that adoption is not in A’s best interests because the grandparents can provide her with a home. Putting the correct position in lay terms, the existence of a viable home with the grandparents should make that option “a runner” but should not automatically make it “a winner” in the absence of full consideration of any other factor that is relevant to her welfare; the error of the ISW and the Guardian appears to have been to hold that “if a family placement is a ‘runner’, then it has to be regarded as a ‘winner'”.

The repeated reference to a ‘right’ for a child to be brought up by his or her natural family, or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest. No such ‘right’ or presumption exists. The only ‘right’ is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life (in an adoption case) in a manner which is proportionate and compatible with the need to respect any ECHR Art 8 rights which are engaged. In Re H (A Child) [2015] EWCA Civ 1284 this court clearly stated that there is no presumption in favour of parents or the natural family in public law adoption cases at paragraphs 89 to 94 of the judgment of McFarlane LJ as follows:

’89. The situation in public law proceedings, where the State, via a local authority, seeks to intervene in the life of a child by obtaining a care order and a placement for adoption order against the consent of a parent is entirely different [from private law proceedings], but also in this context there is no authority to the effect that there is a ‘presumption’ in favour of a natural parent or family member. As in the private law context, at the stage when a court is considering what, if any, order to make the only principle is that set out in CA 1989, s 1 and ACA 2002, s 1 requiring paramount consideration to be afforded to the welfare of the child throughout his lifetime. There is, however, a default position in favour of the natural family in public law proceedings at the earlier stage on the question of establishing the court’s jurisdiction to make any public law order. Before the court may make a care order or a placement for adoption order, the statutory threshold criteria in CA 1989, s 31 must be satisfied (CA 1989, s 31(2) and ACA 2002, s 21(2)).

…

94. It is clear that for Russell J the outcome of this case did not turn on the deployment of the ‘presumption’ that she describes, and this point was not taken within the appeal. My attribution of some prominence to it is not therefore determinative of the appeal. My aim is solely to point out the need for caution in this regard. The House of Lords and Supreme Court have been at pains to avoid the attribution of any presumption where CA 1989, s 1 is being applied for the resolution of a private law dispute concerning a child’s welfare; there is therefore a need for care before adopting a different approach to the welfare principle in public law cases. As the judgments in Re B, and indeed the years of case law preceding Re B, make plain, once the s 31 threshold is crossed the evaluation of a child’s welfare in public law proceedings is determined on the basis of proportionality rather than by the application of presumptions. In that context it is not, in my view, apt to refer to there being a ‘presumption’ in favour of the natural family; each case falls to be determined on its own facts in accordance with the proportionate approach that is clearly described by the Supreme Court in Re B and in the subsequent decisions of this court.‘

[As a sidebar, I think that particular point rather slid by, and the thrust of it is that threshold is extraordinarily important. Once threshold is crossed, the Court does not have a presumption that the child ought to be placed within the natural family – it is a straight welfare test. My forecast is that disputes about threshold will probably increase once practitioners grasp the full import of that]

In the present appeal the point has more prominence because of the central focus afforded to the ‘right’ or presumption by both the ISW and the Guardian and by the fact that the judge relied upon their evidence without drawing attention to this erroneous approach.

It may be that some confusion leading to the idea of their being a natural family presumption has arisen from the use of the phrase ‘nothing else will do’. But that phrase does not establish a presumption or right in favour of the natural family; what it does do, most importantly, is to require the welfare balance for the child to be undertaken, after considering the pros and cons of each of the realistic options, in such a manner that adoption is only chosen as the route for the child if that outcome is necessary to meet the child’s welfare needs and it is proportionate to those welfare needs.

The total absence of any reference in the evidence of either the Guardian or the ISW to the welfare checklist in ACA 2002, s 1(4) and/or to the need to undertake a Re B-S compliant analysis only goes to reinforce my conclusion that both of these seasoned professionals fell into the trap that I have described and did indeed use the existence of a viable family placement as a hyperlink to the outcome of the case without taking any, in the case of the Guardian, or any proper, in the case of the ISW, regard to any other factor that might weigh to the contrary arising from A having achieved a full and secure placement with Mr and Mrs X.

As Mr Feehan helpfully observed in his closing submissions, it is all very well to purport to undertake a balancing exercise, but a balance has to have a fulcrum and if the fulcrum is incorrectly placed towards one or other end of that which is to be weighed, one side of the analysis or another will be afforded undue, automatic weight. Taking that point up from where Mr Feehan left it, in proceedings at the stage prior to making a placement for adoption order the balance will rightly and necessarily reflect weight being afforded to any viable natural family placement because there is no other existing placement of the child which must be afforded weight on the other side of the scales. Where, as here, time has moved on and such a placement exists, and is indeed the total reality of the child’s existence, it cannot be enough to decide the overall welfare issue simply by looking at the existence of the viable family placement and nothing else.

The problem with that formulation, of course, is that ‘necessary’ in the context of Adoption, means “nothing else will do” or to put it fully from Re B “We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do. ” . It is almost impossible to read that in any way other than there being a presumption that the child should be brought up within the birth family – a rebuttable presumption, but a presumption. If there’s not that overriding requirement, the child would be with the birth family.

One might say, ah well that’s applicable when the Court are considering making the Placement Order, but once one is made, then the presumption or right or starting point is dislodged – the Court have already decided that there is such an overriding requirement when they MADE the Placement Order, so it doesn’t need to be found again. However, the Court of Appeal expressly said in Re B-S that when considering an application for leave to oppose an adoption order, and the making of an adoption order, the Re B test still applies, notwithstanding that the Court earlier made a Placement Order. Para 74 iii) Once he or she has got to the point of concluding that there has been a change of circumstances and that the parent has solid grounds for seeking leave, the judge must consider very carefully indeed whether the child’s welfare really does necessitate the refusal of leave. The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the “last resort” and only permissible if “nothing else will do” and that, as Lord Neuberger emphasised, the child’s interests include being brought up by the parents or wider family unless the overriding requirements of the child’s welfare make that not possible. That said, the child’s welfare is paramount.

After a LOT of chewing, I think the critical passage to understand is the last one, and thank Heaven for Mr Feehan QC putting it in a way that one can understand.

As Mr Feehan helpfully observed in his closing submissions, it is all very well to purport to undertake a balancing exercise, but a balance has to have a fulcrum and if the fulcrum is incorrectly placed towards one or other end of that which is to be weighed, one side of the analysis or another will be afforded undue, automatic weight. Taking that point up from where Mr Feehan left it, in proceedings at the stage prior to making a placement for adoption order the balance will rightly and necessarily reflect weight being afforded to any viable natural family placement because there is no other existing placement of the child which must be afforded weight on the other side of the scales.

At the time that a Placement Order application is being considered then, there is a leaning towards placement within the birth family (not a right, or presumption) – but all things being equal, the scales will tip that way. However, AFTER a Placement Order has been made and the child is placed with prospective adopters

Where, as here, time has moved on and such a placement exists, and is indeed the total reality of the child’s existence, it cannot be enough to decide the overall welfare issue simply by looking at the existence of the viable family placement and nothing else.

So in a post placement case, the issue becomes that of welfare of the child with both sides to be weighed in the balance. (I don’t really know where that leaves the Re B-S pronouncement that post Placement Order, “nothing else will do” applies to making of the Adoption Order. .. Possibly the last sentence of Re B-S para 74 iii) “That said, the child’s welfare is paramount” is doing an awful lot of heavy lifting – meaning that EVEN where there re no overriding requirements for the child’s welfare to be brought up outwith the birth family a simple ‘better for the child’s welfare’ can still make adoption possible. Man, that’s a LOT of weight to carry.)

The Court of Appeal also looked at the article 8 issues

The issue of the lack of an HRA l998 analysis was not argued before this court at the oral hearing. If my Lords agree that this appeal must be allowed and there should be a re-hearing, it will be for the next judge to consider what, if any, HRA evaluation is justified. I shall therefore be both short and careful in the words that now follow. In human rights terms the present case may be unusual and out of the norm. As is well established, the existence of “family life” rights under Article 8 is a question of fact. It must be beyond question, as a matter of fact, that the relationship that now exists between Mr and Mrs X and A is sufficient to establish family life rights that justify respect under Article 8 in relation to all three of them. It does not, however, follow as night follows day, that the paternal grandparents have any Article 8 family life rights with respect to A at all. They have never met her. She does not know of their existence. They have no relationship whatsoever. Their son, A’s father, has never had parental responsibility for A. The same is likely to be the case with respect to family life rights of A with respect to her grandparents. It may well be, however, that A has some “private life” rights with respect to her natural family.
If the tentative formulation offered above is correct, the only relationships which fall to be afforded respect in the context of Article 8 “family life” are those between Mr and Mrs X and A. What effect, if any, that state of affairs may have on the outcome of the proceedings requires consideration at first instance.

[If the grandparents were not caring for A’s two siblings, I think that I would probably agree. But that’s a magnetic fact that I think does give A some article 8 family life with the grandparents as a family unit , despite never having met them or lived with them. Those are two full siblings, whom she might be placed with, or might grow up a stranger from. I’d give that some weight, myself]

So the upshot for this case is that there will be a re-hearing, and of course, the impact on A of moving her only becomes greater with the passage of time. I hope that all involved are looking at the words of Jackson LJ, because that seems to me to represent the best hope for the long-term future of this case.

And get ready for appeal after appeal as to presumptions and rights, and where exactly on the balancing scales Mr Feehan QC’s fulcrum should be in any case. The obvious immediate line of appeals will be the 11th hour relatives, who at the moment, if viable, force an adjournment for full assessment if the alternative is adoption because how are the Court to exclude them as a realistic option and thus be able to say that there are overriding requirements for the child’s welfare which warrant adoption?

The one thing that we REALLY didn’t need with adoption law was more complexity and more uncertainty and we’ve just been handed both.

What’s in the box, Jokey? What’s IN THE BOX?

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Posted in adoption, case law and tagged 2016 EWCA Civ 793, adoption, child's right to be brought up within the birth family, Court of Appeal, nothing else will do, presumption of placement within the family, Re W A child 2016. Bookmark the permalink.

Ellie Butler – Court of Appeal overturn decision to keep family Court judgment from Press

Posted on July 29, 2016 by suesspiciousminds

Just after the Ben Butler conviction about Ellie Butler’s murder, the family Court decided that the judgment of King LJ about Ellie’s death would remain confidential. At the time, nobody quite understood why. And it was a very unpopular decision, many people feeling that the family Court had misjudged the public mood for openness and learning lessons from the case.

Then Pauffley J’s judgment was published and it transpired that the decision was largely about making sure that if Ben Butler appealed and got a re-hearing he couldn’t use the publication of the judgment to get off on a technicality that it had stopped him having a fair trial.

I wrote about that here

Judgment on Reporting Restriction on the Butler/Gray case

The Press appealed that decision and the Court of Appeal overturned it

Re C (A child) 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/798.html

The central issue that arises on this appeal is whether the judgment given by Eleanor King J on 30 June 2014 (“the Judgment”) in care proceedings in respect of a child to whom I shall refer as “C” and which were conducted in private and subject to reporting restrictions should be put in the public domain. C is the younger sibling of Ellie Butler. The parents of the two children are Mr Butler and Ms Gray. On 28 October 2013, Ellie died as a result of catastrophic head injuries at the family home.
Following her death, Mr Butler was arrested on suspicion of her murder. C was removed from the care of Ms Gray and placed into police protection and care. Public law care proceedings were commenced and thereafter orders were made from time to time prohibiting any publication that would enable C to be identified. The first of these was made by Hogg J on 30 October 2013.
In the Judgment, Eleanor King J found that (i) Mr Butler had caused Ellie’s death; (ii) Ms Gray had failed to protect her from Mr Butler; and (iii) C had been the victim of physical and emotional abuse.

That information that Ellie’s younger sibling had been the victim of physical abuse had not been in the public domain until today. The emotional abuse we could have guessed at – given that Ben and Jennie made C find Ellie’s body as part of the cover-up, but the physical abuse is new information, and obviously significant.

In what follows, like the judge I shall only refer to Mr Butler. So far as I am aware, Ms Gray has not indicated that she is intending to seek leave to appeal. The letter from Bindmans was written on behalf of Mr Butler. In balancing the article 6 rights of Mr Butler against the public interest in open justice and the article 10 rights of the applicants, I am in no doubt that the judge reached the wrong conclusion. If she had made a proper assessment of the risk that there would be a violation of Mr Butler’s right to a fair trial, she would have been bound to conclude that the risk was minimal and was plainly outweighed by the countervailing considerations to which I have referred.
First, she made no assessment of the likelihood of a retrial. This was not the judge’s fault. It is a striking feature of this case that no attempt was made on behalf of Mr Butler to demonstrate that he had real prospects of being granted permission to appeal, still less that any appeal would be likely to succeed. In these circumstances, the judge should have approached the article 6 issue on the basis that there was at best a speculative possibility that there would be a retrial.
But the second and decisive reason why the judge reached the wrong conclusion is that, even if there is a retrial, there is no real possibility that the publication of the Judgment will prejudice the rights of Mr Butler to a fair trial. This is clearly demonstrated by both our domestic jurisprudence and the jurisprudence of the ECtHR which are entirely harmonious with each other on this point.
Our domestic law is heavily influenced by section 4(2) of the CCA which provides that an order postponing the publication of a report of proceedings can only be made “where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice”. Such an order should only be made as a “last resort”: R (Press Association) v Cambridge Crown Court [2013] 1 WLR 1979 per Lord Judge CJ at para 13.
In assessing whether there is a “substantial risk of prejudice”, it is necessary for the court to have regard to three matters in particular. First, juries “have a passionate and profound belief in, and a commitment to, the right of a defendant to be given a fair trial”: Re B [2007] EMLR 5 at para 31. The importance of trusting a criminal jury to comply with directions made by the trial judge has been underlined repeatedly. For a recent example, I refer to Taylor [2013] UKPC 8 at para 25. Criminal Practice Direction 26G.3 identifies what judges should cover in their opening instructions to jurors. This includes that the jury should try the case only on the evidence and no other material. In particular, juries are directed to make no internet searches relating to the trial and to avoid discussing the case with anyone outside their number, including on social media.
Secondly, broadcasting authorities and newspaper editors should be trusted to fulfil their responsibilities accurately to inform the public of court proceedings, and to exercise sensible judgment about the publication of comment which may interfere with the administration of justice: Re B at para 25.
Thirdly, the “fade factor” that applies in news cases. The “staying power of news reports is very limited”: Judicial College Guidance on Reporting Restrictions in the Criminal Courts, revised in May 2016 at p 29. The significance of this factor may have reduced a little in view of the staying power of the internet. But in my view, it remains a highly relevant factor.
It is clear from the Strasbourg jurisprudence that, even if there were a retrial of Mr Butler, his article 6 rights would not outweigh the article 10 rights of the applicants.
In Beggs v United Kingdom (app. No. 15499/10), the ECtHR adopted an approach which is entirely consonant with that adopted in our domestic jurisprudence: see paras 122 to 129. It noted, in particular, in cases concerning the fairness of criminal trials, the importance of directions given to juries. In that case, there had been a “virulent and prejudicial press and media campaign” against the applicant before his criminal trial took place. The complaint that the impugned publications had influenced the jury was declared inadmissible for a number of reasons. These included that in his directions the judge had warned the jury to disregard the prejudicial material and that it was reasonable to assume that the jury would follow the directions given.
Abdulla Ali v United Kingdom (App. no. 30971/12) was a similar case. There was what was described as “an avalanche of objectionable material” in prominent position in both broadsheet and tabloid newspapers. The court said at para 89 that a direction to the jury to disregard extraneous material “will usually be adequate to ensure the fairness of the trial, even if there has been a highly prejudicial campaign….”. At para 91, the court said that “it will be rare that prejudicial pre-trial publicity will make a fair trial at some future date impossible.” The applicant had not pointed to a single case where the ECtHR had found a violation of article 6 on account of adverse publicity affecting the fairness of the trial itself.
The judge acknowledged that, in the event of a retrial, the risk of prejudice to its fairness occasioned by the publication of the Judgment was “small”. In my view, it was so negligible that it should have been given little or no weight in the balancing exercise. The judge failed to take into account (i) the fact that the jury would be directed to ignore anything they read or heard outside the trial and that it should and would be trusted to follow the directions given by the trial judge; (ii) the fact that broadcasting and newspaper editors should be trusted to behave responsibly; and (iii) the fade factor (it would be many months and possibly more than a year before a retrial would take place). If she had properly taken these factors into account, she would have been bound to conclude that the Judgment should be put into the public domain. Mr Bunting makes the further valid point that it is difficult to see how the publication of the Judgment could create a separate substantial risk of prejudice given that much of what appears in it is already in the public domain. But I do not need to examine this point in detail since the Judgment should be put into the public domain for the reasons that I have already given, subject to the redactions necessary to protect the interests of C. These redactions have been the subject of further submissions and the Court has made an Order determining the way in which the Judgment should be redacted.

Conclusion

For all these reasons, I would allow this appeal and permit the Judgment to be published with the approved redactions.

As far as I understand, the King LJ judgment is now in the hands of the Press, some redactions to it having been made (to preserve C’s anonymity, no doubt). It is not at the time of writing, up on Bailii but I will keep an eye out.

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Posted in case law and tagged Ben Butler, Court of Appeal, ellie butler, jennie grey, King LJ, pauffley j, publication of judgment in care proceedings, publishing care proceeding judgment prior to criminal appeal, Re C (a child) 2016. Bookmark the permalink.

Paperback writer, paperback writer

Posted on July 29, 2016 by suesspiciousminds

The pledging for the book is going really well, and as we start a second month it is looking very positive for getting my book published.

So two bits of news today.

The first is that I have found a way to get a limited number of paperbacks produced once the book is published – and everyone who pledged at Launch Party level or above will get a copy! And the next twenty people to pledge at Super Patron or above will get one as well. (If you don’t live near to me, I’ll get it posted to you and we’ll sort out the details nearer the time. I will sort Norma out with a hard copy too, as I know she wanted one)

The second is that I’m putting up a bit more of a sample – so this contains the bit of the background of where the book is set (which was in the first sample section), and we get to meet some more of the characters – including some of the female characters.

So if you like it, and you want to read the whole thing – please visit and Pledge. Particularly if you want to hold a paperback copy and be able to write comments in the margins or (Heaven forbid) bend the pages backwards, fold over corners to mark your place and crack the spine. Today is a great day to get it done! Next TWENTY Pledges get a paperback copy.

https://unbound.com/books/in-secure

Saffron Park

In 2015, over two hundred children in England and Wales were placed in Secure Accommodation, meaning that they could be locked up for their own welfare without having been convicted of or charged with any criminal offence. Basically, a prison for their own good. Many of the basic freedoms that most children take for granted – being able to go out with friends, to go outside when you choose to, being able to make calls on a mobile phone, being able to use the internet, the ability to sleep in a bedroom that doesn’t have a locked door, these are all things that have to be earned in a Secure Accommodation Centre. These children are locked up because they usually have a history of running away from other sorts of care, from their parents, from foster homes or children’s homes, and when they run away they do things that put themselves, or other people at risk.

Ten such children at a time could be accommodated at Saffron Park, a state of the art Secure Accommodation Centre. Saffron Park had walls that could not be scaled, gate system that could only be released by staff inside a sealed Gatehouse building, which cannot be accessed from outside. Complete security. Complete peace of mind. Built in 2007, located in Dartmoor. Remote location, meaning that in the unlikely event of an escape, the young person will always be quickly recovered – no bus stops or train stations within nine miles. No neighbouring villages where refuge could be sought.

On site educational facilities, even the ability to conduct examinations. Recreational facilities including a gym. All meals provided and cooked on site. In house therapist to deliver bespoke packages of treatment for any form of difficulty. Five trained and qualified members of staff on hand at all times, even during the night. Staff rotated once per week, to maintain freshness and vigilance.

Expensive? Well yes, places like Saffron Park are always very expensive. Managing risks like these doesn’t come cheap, and for the sorts of problems they are dealing with, there’s very limited competition. Children don’t come to places like Saffron Park if there’s a cheaper solution, if their problems can be fixed or contained another way. Saffron Park is the place where they send children who can’t be managed in other Secure Units. The worst of the worst. Saffron Park is where they send you just before they give up on you completely.

It’s where they send the deeply troubled. The runners, the cutters.

All of that, of course, could be read on the Saffron Park website, on their glossy promotional brochure. The thing they didn’t boast about, because they had utterly no idea of it; was that they didn’t routinely have ten prisoners. They had eleven. That eleventh having been in prison for decades longer than Saffron Park had even existed. A prisoner who was hungrier for freedom than any of the children who came and went, and more disturbed and damaged than any of them.

____________________________________________________________________________________________________________________________________

Three

Lauren

Monday 26^th October 7.30pm

Lauren looked up to make sure that Mr King’s attention was elsewhere – it was, of course. It being the meal-time, Mr King [12 stone 5 pounds, has gained 2 pounds in the last fortnight] had to keep a careful eye on Sharp to make sure that no knives surreptitiously left the serving table to come into his possession. He also had to watch Boo, to make sure that she didn’t do anything too unusual. Lauren quickly and with practised ease scraped all of the mayonnaise [90 calories, 24 minutes walking] from her lettuce [15 calories, 6 minutes walking] onto a knife, scraped it off the knife and onto her thumb and then smeared the mayo from her thumb onto the underside of the table where it would not be found.

She dragged her thumb along the wooden slats of the picnic style table, enjoying the roughness of the wood. The closest she got to nature these days was this picnic table, which had probably never seen a forest. That was pretty dispiriting, she thought. She would have given anything to walk in a wood, hear a wood pigeon, feel her foot snap on a twig, look at the oranges and reds of autumn leaves. Hell, she would even settle for a seagull. No nature in Saffron Park. Apart from some scrubby grass and the little herb garden outside. No proper garden. She could understand, to be fair, why a Secure Unit wouldn’t be too keen on giving children access to shovels. That didn’t stop her having pangs for not being able to see nature. Beyond the walls, sure, there was a national park, but what good was that? The walls were too high to see over.

Sheets of glass loomed above them. They’d built Saffron Park to be light and airy, to have this pointed glass roof, like a cross between a church and a greenhouse, so that they could see the sky and not feel squashed and imprisoned. Everything was supposed to make it feel as little like a prison as they could manage. Lots of light, lots of glass, no bars, little discreet pads near the door that the staff would open with a pressed fingerprint. When it was sunset and you could see shrimp streaks of clouds in the sky and the sun hung there like a swollen peach, it was quite a good view looking up, but not in the winter. There were the stars, of course, but she’d never really been good with stars. They just made her feel inadequate. More so.

You could do all sorts with a building, but the fact remained that the only real way to make a building not feel like a prison was to have doors that everyone inside could open any time they liked.

Lauren ate the lettuce which was cold and crisp. She would have preferred celery, but it had been a struggle to even get them to let her have salad at all. She pushed at her prawns [22 calories each, 9 minutes walking] with a fork, pulling a face.

Brick leaned over. His skin was the colour of wine-bottle glass. He was the oldest of all of them, but even allowing that, he looked like an adult. He could grow a beard within a week, and the same day as a shave, he would have re-stubbled. He looked like an adult. Lauren thought sometimes like a younger Idris Elba. Especially in his eyes. Such deep eyes. Went with his tuba of a deep voice, very London, very Street.

“You gonna eat that?”

“Help yourself,” she said, “Just don’t get caught.”

“Lauren, when was the last time I got caught doing anything?” he said, popping four prawns into his mouth with one bite.

Making the vodka in the toilet cistern, getting those mucky films smuggled in, becoming the fifth Daisy tattoo on Sharp’s right arm , cheeking Mr Veal and Miss Litton, trying to germinate cannabis seeds in the airing cupboard, staying up way beyond lights out, dismantling the fan, doing leapfrogs over the sundial and misjudging the height, throwing the soft-ball bat on the roof, the home-made hair dye which accounted for both Brick and Boo currently sporting ink-blue crops and having to wait for it to grow out, borrowing Al’s deodorant without asking, putting a saucepan lid in the microwave and hoping for lightning, she thought. In fact, pretty much anything that Brick attempted to do without Robin being there to plan it tended to go wrong. He had a lot of qualities, Brick, but being discreet or subtle was not on the list.

He read her expression. “Okay, sometimes I get caught. But that’s probably because I’ve not been getting enough seafood to fuel my massive brain”

She laughed. “Massive biceps, I get. Massive brain is news to me.”

“You ain’t seen me code,” said Brick, “If they would let me loose with a computer in here. I’d make the screen dance for you. Blow your mind, what I can make happen.”

She shrugged. Computers didn’t do much for her. Settling down somewhere to be quiet and still to watch birds would be more her thing. Blurring herself into the background, pressing into a hedge, lifting up strings of barbed wire and squeezing through the gap. God, she even missed getting dog muck on her shoe and having to scrape it off with leaves or sticks. How pathetic was that, to be missing dog muck? She scuffed the heel of her shoe along the vinyl tile on the floor to enjoy the sound it made, imagined that she was cleaning the soles. She was day-dreaming about having dog muck on her shoes. Pathetic.

“I’m guessing you’re not going to eat that chocolate pudding,” he said to her.

157 calories, she said in her head. What she said out loud was, “I’d really owe you one. I’ve been feeling sick thinking about it.”

“Load it onto a spoon, and give me a second,” Brick said, “Watch for Jen to make her move.”

Brick gave Jen the signal that a distraction was needed. Jen was too pretty, made-up older than her years but unlike Brick her eyes said that she was young even under the weight of the Maybelline. It was hard for Lauren to look at her without thinking of a six year old tottering around in mum’s high-heeled shoes. Jen yelled out, “Mr King! Boo’s stolen my lipstick!”

Mr King came over to her, looking concerned. “Are you sure? When did you see it last?”

“I had it right here,” Jen whined, “It’s a cerise pink. It’s very expensive. My boyfriend bought it for me, it was a special present. It’s not right that she should steal it.”

“Elizabeth,” said Mr King, looking at Boo, “Is this true? Have you taken Jen’s lipstick?”

Boo looked sulky, under her ink-blue fringe, “I wouldn’t touch it. I certainly wouldn’t use it. If it’s been all over her lips, god knows what else has touched those.”

“Oy!” yelled Jen, “You cheeky cow!”

“Could you stand up please Elizabeth?”

Boo stood up and Mr King got her to turn out her pockets to check whether there was any trace of the lipstick. Boo was wearing a cowboy hat complete with sheriff’s badge, a Scooby Doo T-shirt and black and white chequered chef’s trousers. They had given up trying to make sense of Boo’s outfits. At the same time as Mr King was frisking Boo for the non-existent lipstick, Brick finished off the chocolate pudding, and Lauren dipped a finger into it and smeared a tiny amount [5 calories, tops] onto her teeth. Don’t taste it, don’t swallow it. Just enough so that if King checks your mouth, he’ll see that you’ve been eating the chocolate.

“Hey,” said Brick, “You know there are two beds free.”

“Well duh,” said Lauren, “Maths is not a problem for me. Do you know how much maths I have to do in my head every day? How many calories in this, how many carbs in that? How much have I burned by doing 30 crunches? How many chin-ups can I do at night in the time between Litton passing by my door to when she’ll swing back on the next patrol? So yeah, I know that we’re two beds free. They’ll fill them soon enough. Two more boys. Joy. Brilliant. Well, I suppose girls are even worse. At least you boys don’t talk all the time. I’d gladly take two more Caseys. That would be perfect.”

“I rang Robin today,” said Brick, with a big dumb grin on his face, “He’s coming home.”

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Back off War child. Seriously

Posted on July 28, 2016 by suesspiciousminds

Yet another alleged radicalisation case, this time private law.

Amongst the many allegations, that the father had wanted to give the child a name which in Arabic meant “War”

And if you think that a Point Break reference is beneath this blog, then you haven’t been paying attention

Re A and B (Children : Restrictions on Parental Responsibility : Extremism and Radicalisation in private law) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/40.html

There were two children, aged 3 1/2 and 2. The parents are separated. The mother alleged in private law proceedings that the father was showing signs of extremist behaviour and that he presented a risk to the children as a result.

Outwith the extremism allegations, there were some very serious domestic violence episodes, and as a result the father was imprisoned and there was an order for his deportation

On the 13^th June 2014, in breach of the order made the preceding November, F came within the area of M’s address in Cheltenham, he was carrying mobile phones and various other items and wearing protective motorcycle-wear (he had driven there by car). F was found by a police officer in M’s garden behind the shed and he was arrested, charged and remanded in custody. This incident, which ultimately led to F’s conviction, resulted in a multi-agency risk assessment (MARAC) collating evidence about what the local authority and police considered to be a high risk case of domestic abuse. M said in her statement, and I accept, that she was regularly warned by the police and other professionals that they were worried about her safety and that of the children. She and the children were moved from Cheltenham, to a location which remains confidential. M has become highly anxious, has had counselling (to which I have already referred) and CBT. She describes herself as on a constant state of high alert and is frightened to let the children out of her sight; even to the extent that she is too fearful to allow them to go to nursery school.
Following the June incident on 14^th October 2014, M applied for a further non-molestation order without-notice; a further injunction order was made forbidding F from using or threatening violence against M or from going near her property; the order made expires on 14^th October 2016. On 15^th December 2014, while on remand, F applied for CA orders including, somewhat unrealistically, a child arrangements order that A and B live with him and a prohibited steps order. Meanwhile, as arranged by the authorities, M had moved to another address in a different area of the country to stop F attempting to get to her and the children again.
F’s criminal trial took place at Bristol Crown Court on 26^th February 2015 and 2^nd March 2015; he was convicted on two counts of a breach of a non-molestation order and was sentenced by His Honour Judge Tabor QC, on 9^th March 2015, to consecutive sentences of 3 years’ imprisonment. The judge made a 10 year restraining order. The court also made a recommendation for deportation as F is a foreign national who had received a sentence of more than 12 months.

In case you want to know what the ‘various other items’ were:-

On 13^th June 2014 F was in breach of a non-molestation order when he was found by police hiding in the rear garden of M’s home with various items concealed about his person, including a black face covering, a torch, an aerosol spray can, camouflage gloves, a black cutting tool and holder, an eye mask, safety glasses, iPhone and Samsung phone. Another bag containing a hammer and screwdriver was discovered in F’s hiding place behind the garden shed (later found to have traces of F’s DNA) and a search of F’s car revealed two further mobile telephones.

Brrr.

In the criminal trial, father denied everything

F denied having been in M’s garden at all and said that the police had made up all the evidence and that he was the victim of a big conspiracy. As His Honour Judge Tabor said F had, since the moment of arrest, sought to cast the blame on everyone but himself. F had accused practically every person concerned with the case of lying, including M, M’s family, the two arresting officers, the interviewing officers, the social worker who interviewed F on behalf of the court, and the psychologist who F had seen. F accused his family case solicitors of incompetence and his wife’s solicitors of incompetence. This mirrors F’s evidence in the case before me where, when he is not denying everything he is accused of, he systematically seeks to accuse everyone else of lying about him.
In his sentencing remarks, the judge went on to say that the fact was “that no-one really knows who you are. You claim to be Syrian but you came to this country with no passport. You are a man who is a stranger to the truth. It is difficult to believe a word that you say. More concerning is the fact that you appear to be completely unconcerned about the terror that you have inflicted upon your wife, who naturally now fears for her life and that of her children. You are so consumed yourself that you totally ignore the pain that you inflict on others.”
His Honour Judge Tabor made reference to the fact that F had chosen to sack his counsel during the criminal trial (he has done so during these proceedings too); he said “when this case started you were represented by a highly able member of the Bar. He would not have allowed this case to start if it had not been ready. On the second day after your wife had been cross-examined, you chose to dispense with his services. I have no doubt that this was your plan all along as you wished to control proceedings. I believe you are a dangerous man, particularly dangerous to your wife and children. You are devious and self-obsessed. There is no mitigation in this case at all other than the fact that you do not have a criminal record.”
F denied all the evidence against him in the criminal trial, indeed he continues to do so. In respect of all the items found in M’s garden, F said that PC Rogers had lied to the court and made up his evidence about having found F in the back garden, he was never there. He claimed that the glass cutter found in the bag at the scene had come from his car and was in an emergency bag; that the camouflage gloves were his driving gloves for use when he adjusted his tyre pressures; that the black cutting tool was part of an emergency kit from America to cut his seatbelt. He told the jury that the black face covering was a pollution mask which he used because he was very conscious about his health and that the safety glasses were to protect his eyes when driving because he could not use the air conditioning. His DNA had been found on the handle of the screwdriver, but he denied it and would not accept the evidence. Similarly, F denied that the foot spray found at the scene belonged to him and said that the police had made up this evidence to “spice the case up”. Unsurprisingly the jury did not believe F and found him guilty.
The judge passed a total sentence of three years which reflected the seriousness of his offences. These were not minor breaches of a properly imposed injunction but serious and pre-planned breaches which involved another person and F travelling from London having located M and the children. He came fully armed and prepared; as His Honour Judge Tabor said on the 12^th of June 2014, having been foiled in his attempt to use his friend to gain access, “you made a far more sinister plan. You went and hid in the garden of your wife’s home in the late afternoon. You had with you: glasses to protect your eyes; a face mask, which would also prevent you from inhaling noxious fumes; a large pair of gloves – it was June; a glass cutting tool; a sharp-bladed tool; a hammer, screw-driver and torch. I have no doubt that you sat in the garden and waited for an opportune moment to break into the house. Furthermore, I infer from your activity, and with what you had brought with you, you were not only going to force your way into your wife’s house but also to do her harm or abduct the children, or both. You were caught in the act of hiding behind a shed in the garden by a police officer who chased you across several gardens before you were finally apprehended. You were to complain that you suffered from a slipped disc, but as the officer pointed out, you appear to have cleared large fences in your bid to escape. This was one of several maladies that you complain of.”
This feature of F’s evidence, remarked on by the judge in the Crown Court, was replayed in this court. There was no medical evidence in support supplied by the prison doctors despite F’s attempts to get it. In addition to the three-year term of imprisonment there is a ten year restraining order in place until 9^th March 2025. F is forbidden to contact M or the children directly or indirectly (except through a solicitor). He cannot go to any address where she is resident. He cannot enter Gloucestershire except to attend the family court or for pre-arranged visits to see the children. He is not to instruct anyone or encourage in any way any person to contact M or the children (except through his instructing solicitor). On 5^th July 2016 my clerk was sent an email purporting to be from F’s father, from whom the court has heard nothing and who had filed no statement within the proceedings. It had had attached an email to M which, on the face of it, was an apparent attempt at breaching paragraph 4 (set out above) of the restraining order by contacting M through the court.

The radicalisation evidence begins here

M claims that A has been caused emotional harm by F’s behaviour towards him; that while still an infant F exposed A to violent films which he watched and told A of his expectation of how A should fight; F had purchased a replica AK47 with laser as a present for A’s first birthday in October 2013 which was unsuitable for his age, and had then posed with his infant son in a ‘Freedom Fighter’ pose.

It was said by Miss Isaacs, in the schedule prepared by her on M’s behalf, that the evidence in support of this included F’s expressed beliefs that non-Muslims are inferior to Muslims, that homosexuals are unnatural and should be killed and that women are subservient to men; and specifically that F “expressed acceptance of the use of violence as a means of ensuring compliance with his views and beliefs”. That it was F’s “expressed beliefs [sic] that it is acceptable to kill those who have left the Muslim religion”; that F had “expressed admiration and respect for Syrian ‘Freedom Fighters’ and [that it was] his expressed view that he would like to go there and fight with them”.
It was further said that the risk of radicalisation could be found in “F’s expressed glorification of war including wanting his child or children to be called ‘War’ in Arabic and posing for provocative [sic] photographs”; and that F had purchased bullet proof clothing, gas masks, knives, night time goggles for the purpose of sending to friends in Syria, with similar items having been found and seized by police during an authorised search of F’s flat. This was neither confirmed or denied by the police. The email from the Andrew Fairbrother of the MPS Directorate of Legal Services said that M had not provided a witness statement from them and the MPS investigation “came about in consequence of information that [M] provided on or around the 28/01/14 to the Gloucestershire Police that was passed on to the MPS, and also in consequence of a letter the [M] sent to the Secretary of State for the Home Department dated 11/02/14 that was referred to the MPS on or around 21/02/14”.

There was also evidence presented to the Court about father’s controlling behaviour towards mother

It was said by M that F has caused her emotional harm by the use of coercive and controlling behaviour, including financially abusive behaviour. M said that he did so by assuming control of the family finances and isolating M from family, friends and the wider community. In fact, F accepts that M was socially isolated when they lived in London and said in his statement dated 23^rd February 2016 “she did not go out at all”. He then goes as far as to say they had arguments because she would not take her head scarf (hijab) off at all, claiming that he “could see no reason for her to be veiled at all times but she insisted on this.” Later in the same statement he says that the family “went out rarely but sometimes went on outings to shops, parks and museums…” At no point in his written evidence does he mention having friends at the home, but later after he had concluded his oral evidence he attempted to have the case adjourned to have further evidence filed or disclosed, including from some friends who, he claimed would give evidence that they visited F and M at home and that M and F had visited in return. Not only was this never mentioned previously, it contradicts his own evidence.
To return to complaints made by M she said as part of his controlling behaviour F had forbidden her to speak to men without his permission; and that F forced M to walk on the inside of a pavement when in public to avoid attracting male attention; that F shut her in the bedroom to avoid males when they visited the family home. M said that F used the threat of taking A away from M to make her compliant with his wishes. M said that on several occasions F told M that he would kill her and/or her son if she contacted the police or tried to leave him; and that F made reference to the use of violence as an appropriate ‘tool’ to discipline women to ensure her compliance.
F further undermined M both by repeatedly telling her that she was a bad mother and by making complaints to professionals which, in part, led to two investigations by social services departments (which uncovered no reason for concern). M said that his controlling behaviour included F following her to the local social services offices, on 6^th November 2013, and that his presence caused her to feel intimidated and anxious. She complained that F was manipulative and that, specifically, he put her under pressure to agree to A being circumcised, disregarding her wishes and causing the baby pain and infection. His manipulative behaviour extended to his withholding information about his mental health, for which he received treatment and he forbade M from mentioning it; during these proceedings he has continuously made allegations that M is mentally ill or unstable.
It is M’s case that she and the children are at risk of future serious physical and emotional harm from F because of his behaviour and the threats he made during the time they lived together. She places reliance on the occasion on the 14^th October 2013, when F assaulted M while she was pregnant with B, he threatened to get rid of the thing she loved the most, implying that he would kill A if M reported his abusive behaviour to the police. M has said that F frequently implied that he would kill her or A or both of them if she left; he also threatened to take A away from M and to take him to Egypt.
It is M’s case that the action taken by F on 13^th June 2014 constitutes evidence of an advanced plan by F to abduct or cause serious harm or even death to M and the children. This concurs with the sentencing remarks of His Honour Judge Tabor made in February 2015.
As evidence as to the extents that F would go, M relies on what she said that F did during their reconciliation between August and October 2013, when F covertly placed a tracking device in the baby’s pram in an attempt to monitor M’s movements; she says that she discovered by the device on 23^rd October 2013.

The father did not redeem himself in the evidence he gave before the Family Court, deploying as his defence that his wife’s behaviour following pregnancy was so hormonal that it had led her to behave badly towards him but that he now forgave her. You will not be amazed that Ms Justice Russell was not persuaded by this novel defence.

F has filed two statements in these proceedings, dated 23^rd February and 23^rd May 2016. To the first he exhibited certificates from various courses he attended in prison which, he said, meant that he was a changed man. His case remained that M was lying and had “started a conspiracy against me with the bad people to get rid of me completely.” The identities of the bad people remained unclear. According to F, M had abused him throughout their marriage; had behaved in an aggressive way and had racially abused people, in particular he claimed she was “severely anti-Semitic“, when she had ventured out from wherever they were living. His second statement, which he prepared himself, amounted to little more than a lengthy diatribe against M, the “British Justice System” and an exposition of his view of women based on what he said he had learned in prison. “These courses taught me there is no pregnant female in the world who is herself when she is pregnant. This can last for up to two years after she has given birth, she will recover slowly not only physically but psychologically and emotionally therefore I forgive [M] for what she did to me.”
If this is indeed what F was taught in prison those courses are in need of serious and extensive revision and overhaul. His oral evidence was more of the same, an attempt to blame M for everything that happened and to exonerate himself, by applying the platitudinous, misogynistic stereotype of the mentally unstable and emotionally volatile woman, whose behaviour was such that it would have tried the patience of any man to breaking point.

The Judge made some powerful findings of fact

Findings of Fact

I have considered the evidence of the applicant and respondent and for the reasons I have set out above, and below, I accept the evidence of M and reject that of F. I find that the applicant’s case is made out and that, apart from the allegations regarding radicalisation, to which I shall return, the specific complaints made by M about F’s violence and controlling behaviour I find to have been proved on the balance of probabilities. F has during their short relationship, which lasted little over two years, repeatedly threatened and used violence against M. The violence had not been slight, or at the lower end of any scale; on several occasions he has seized M by the head and neck and attempted to choke or strangle her; once while saying that he would be able to break her neck in one twist. He has slapped her, kicked her, shaken her and thrown her to the ground when she was pregnant. These are all serious assaults and the choking or attempted strangulation must have been terrifying to endure.
These violent assaults took place when A was there and I find that F assaulted M on at least one occasion while she was tending to A which must have caused him distress and probably instinctive fear, even if he was too young to be aware exactly what was going on. I find that he bought the baby a replica assault rifle for his first birthday, which F later posed with himself; and that he watched violent films when the child was there. This behaviour would have caused M to fear for A and that his father was exposing him to, and encouraging him in, the use of violence. I do not accept that F is, as he has said, a peace loving man who would not even harm animals because he is a vegan; as his evidence about this was another example of self-serving evidence which suddenly appeared during his oral evidence without any previous mention of it.
F behaved in a threatening and intimidating way towards M frequently throughout their relationship, this included him threatening to kill A on one occasion and, on numerous occasions, to carry out an “honour” killing on her if she ever left him. He was abusive and controlling of M. This abuse included financial abuse with F controlling the family’s finances. I accept that she only had access to the money in the joint account and that the amount of money available in that account was entirely controlled by F. Even on his own account M was isolated from friends and family, but I do not accept that this was her choice, rather I find that he set out to keep her isolated and refused to allow her to mix with other people. I find that he forbade her to speak to other men without his permission; he intimidated her when they were out by making her walk in the inside of the pavement and avoid contact with other men; he shut her in the bedroom when his friends visited him; he repeatedly threatened to take A away from her to get her to comply with his wishes; he threatened to kill her and A if she left or contacted the police; and, that he explicitly told her that violence was the appropriate way to discipline a woman.
F made repeated claims to professionals that M was not fit to be a mother; this he continued to do throughout these proceedings and in his oral evidence. There have been two social service assessments of the family because of referrals due to domestic abuse. The first was by Kensington and Chelsea in August 2013 when M and A (then 9 months old) were referred by a senior care health advisor, to whom M had disclosed that F had grabbed her round the neck, causing bruising to her throat, amongst other physical abuse. This description corroborates the evidence in her statements. M was interviewed by a social worker and by the police; she was then taken by her mother from the police station to her mother’s home. As M and A were considered to be living in a “place of safety” outside the borough the case was not taken any further. When M and F reunited this triggered a further referral in September 2013; this time the referral was by the health visitor. M told the social worker that she was a practising Muslim, but not as strict as her husband, and that she had not been in agreement with circumcision, however F had gone ahead with it; M had felt it was cruel and painful for the baby and that it was not necessary (further corroboration of M’s evidence). The risk of further domestic abuse was considered to be raised by M’s being pregnant. The risk was assessed as High. These two s47 CA assessments corroborate M’s evidence.
In October 2013 Kensington and Chelsea carried out a further assessment, by which time M had left and gone to Cheltenham, having obtained non-molestation orders against F with support from another agency, Advance. The assessment recorded that the domestic abuse she was experiencing was of the “controlling and intimidation nature [sic]”, such as putting a tracking device in A’s pram, following her when she was out on errands and checking her mobile phone each time she received a phone call or message. F was described as minimising the incidents and that he made out that his wife was “sensitive and over-reacts”. It was recorded that it was not possible to discuss the domestic abuse in detail with M who feared she would be placed at more risk of domestic abuse at home had she done so; as the assessment records the “the fact that [M] fears the consequence of this discussion is evident [sic] of the level of intimidation and worry that his behaviours have had upon his wife.”
Again the assessment corroborates M’s evidence. I find that F did place a tracking device in A’s pram, and that he did follow M when she went out; specifically, I find that he followed her when she went to social services offices. As he had done so it was unsurprising that the assessor made the comment about the evidence of the level of intimidation experienced by M. To go to the extent of putting a tracking device in the baby’s pram is an example of the extreme lengths that F would go to try to control and monitor M’s movements; when this was coupled with following her she must have been left feeling terrified, undermined and powerless. I have no doubt that F intended that she should feel that way.
It is behaviour such as this which then led to F’s planned, calculated and determined attempt to get to M and the children in Cheltenham. The breaches of the non-molestation order were very serious, as was reflected in the sentences handed down, and armed with a plethora of sinister implements F can only have been intending to cause harm to M and the children or intending to abduct them as the judge said in his sentencing remarks. F posed a considerable and a serious risk to M and to the children at that time and there is no evidence before me that would support a finding that the risk is in any way diminished. F continues to use all means at his disposal to try to circumvent the restraining orders, the fact that those means are very limited is only because he remains behind bars. Based on his past and current behaviour, his denial of his criminal convictions and the absence of any remorse the likelihood is that F would again attempt to track M and the children down and to harm M and abduct the children. Abduction causes lasting harm to children and the risk that it is likely to occur must be taken into account by this court when considering how safe it is to allow F’s involvement in the children’s lives now and in the future.
The fear of being tracked down has directly affected the children as it has undoubtedly affected their mother; to live in fear and anxiety will have made her, as their guardian observed, less emotionally available to the children than she otherwise would be. This fear has led to her, and therefore the children, leading much more restricted lives than they otherwise would have done. She was, and is, frightened that F could track her down as he did when she was living down in Gloucestershire and is so fearful that he would manage to do so again that she cannot bring herself to let the children out of her sight. This fear is not ill-founded, it is all too easy to access information on the internet, and F has done this before. For that reason, she has not enrolled A or B in a nursery and it is for that reason that she seeks an order to allow her to change the children’s names.

Changing a child’s surname is not an easy thing to do, where one parent objects, but I am sure that most readers would be 100% satisfied that it was justified in this case, and so was the Judge.

The extremeism elements were more difficult – the police disclosure had not provided any evidence, and as a reader, I was left with the impression that this man was violent, controlling, manipulative and probably a fantasist who enjoyed leading his wife to be fearful of him. In terms of hard evidence that he was connected to Daesh or radicalised, the absence of any police or Counter Terrorism investigation into him made that difficult to prove.

Given the very strong evidence against him in almost every other regard, it wasn’t really necessary to prove those matters. Ms Justice Russell was critical of the attempt to include such matters in the schedule of findings sought.

In private law proceedings where allegations of extremism or radicalisation are pursued as part of the case or findings sought against another party, then it must be based on the evidence. As Lord Justice Munby (as he then was) has said in Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12: “It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation“.
The President’s Guidance: Radicalisation cases in Family Courts issued by Sir James Munby P, on 8^th October 2015 sets out a checklist of factors that the court is to be alert to, and emphasises the need for a co-ordinated strategy predicated on the co-operation between agencies. There was no lack of co-operation in this case, but there was a lamentable lack of a properly constructed and focussed preparation of M’s case, based on the evidence, particularly in respect of the allegations of radicalisation, and the way in which this was prosecuted on her behalf. When applications for disclosure were made by counsel it was not even clear which police service was being asked to disclose information about F; the Gloucestershire Constabulary or the MPS. Draft orders for disclosure were addressed simply to “the _ Police”; which can only indicate the lack of information on which those applications were based. No application was made to make use of the 2013 Protocol, and it is difficult to reach any other conclusion other than that the applications were a speculative attempt to bolster the case on behalf of M.
In cases where there is accusation or allegation of extremism or radicalisation the party making those allegations cannot rely on them without evidence. Where there are current or past criminal investigations it is necessary to wait for disclosure before the schedule of findings is produced and finalised. In private law, as in public law, the party bringing the case carries the burden of proof; it is on them that the duty lies to adduce evidence in a timely fashion and in compliance with the FPR 2010. Any finding of fact in private law or public law family proceedings, and indeed in all civil cases, must be based on evidence. As Lord Justice Munby (as he then was) has said in Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12: “It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation“.
I am not, however, persuaded by any submission on behalf of F that M pursued the allegations of radicalisation to add to the gravity of the case against F “because someone for his background is an easy target.” M had converted to Islam herself before she met F, but from M’s point of view F is someone who has seriously assaulted, attacked and threatened her. He has tried to control and intimidate her even after she left him and I do not doubt that M felt that F had used his religion to justify his appalling behaviour towards her. She probably said so to the police. I did not hear any evidence about how the investigation of F originated in Gloucestershire and it is not possible to exclude the possibility that the police had seen in what M told them evidence of extremism and had escalated the case as a result. Certainly some of his behaviour was bizarre and had included posing in a museum and elsewhere in battle-dress and with weapons; he had purchased night-vision goggles, gas masks and bullet proof clothing and had shown an active interest in the conflict in Syria (but not in the actions of Daesh per se) so it would have been that behaviour about which M properly spoke to the police.
F’s faith and his practice of Islam is a matter for him and his conscience. I was left with no clear idea of the extent and nature of his faith. At first he refused to swear on the Qur’an but when I asked him why he then did so. During his evidence he broke the Ramadan fast, and those, and other aspects of his behaviour, were inconsistent with strict religious observance. I do not doubt, therefore, that he, personally, chose to use his religion both as a means of justifying his violent and controlling behaviour and as a way of intimidating M; such as by saying that women who left the faith would be killed and that if M left him she would be killed.

The father wanted the children to be brought to see him in prison, but the Judge rejected that and made the unusual (but completely warranted) order that father should have no contact.

There is no evidence before the court that would permit me to conclude that F would be able to promote the children’s interests if contact was allowed; or that he is capable of behaving in a manner that would produce a safe and nurturing environment for these two little boys whilst he remains in denial as to his actions and the impact of those actions. Moreover, he has continually been negative and hostile towards M and, even if he were able to have contact without harming M or attempting to take the children, the evidence is that he would use any and every opportunity to undermine her, as their mother, during contact.
The impact of direct contact on M is something to which the court can properly have regard, and I take regard of the considerable impact F’s behaviour has had on M already. I have made findings that the extent of the fear he has induced in M has led to her curtailing the activities she and the children can, and do, participate in and has effectively limited their integration into the wider community in which they live. I have no doubt that any order for contact would have a profoundly negative affect on M and would seriously undermine the quality of care she is able to give the children. The guardian is “of the view that these are exceptional circumstances which would, sadly for the boys, merit there being no direct contact.” It is the conclusion of this court that there is no arrangement or available way in which contact can take place so that the children would be safe from the risk of significant harm from F; it remains a fact he has already harmed their mother and caused them to leave their home on more than one occasion.
F says he wants to have contact with the children in prison, one can see the benefit for him, particularly in regard to his argument against deportation, but any such contact would be without benefit for the children. They have no relationship with F (because of his behaviour) and so these very young children would need to be brought to prison to be introduced to him; there is no-one to carry out this sensitive work with the children. It is highly unlikely, given their previous assessments, that any agency, local authority or child-care professional would undertake this work or consider it to be in the children’s best interests. Moreover, F is likely to be deported to Egypt in the short term so the likely distressing effects on the children and their mother would be for the short term gain for F alone. In any event, the court will not order contact to take place, even if F were to avoid deportation, because the risk he presents is overwhelming.

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Posted in case law, international, private law and tagged 2016 EWFC 40, allegations of radicalisation, change of child's surname, domestic violence, Ms Justice Russell, order for no contact, private law, radicalisation, Re A and B (Children: Restrictions on parental responsibility: Extremism and radicalisation in private law) 2016. Bookmark the permalink.

Jihadi Toddler

Posted on July 27, 2016 by suesspiciousminds

Of course the toddler himself didn’t have any Jihadist inclinations, but this is the judgment from the care proceedings where a mother actually took her toddler to Syria, into the war zone and photos were taken and used by Daesh for propaganda of both her and her toddler. She then came back to England and was arrested and convicted in a criminal Court.

This case contains really valuable information about what really went on in Syria and what awaits these Jihadi brides – it makes a very useful companion piece to the recent Hayden J decision about a teenaged girl who had been sucked into this radicalisation and recruitment.

Re Y (A child : Care Proceedings :Fact finding) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/30.html

This is a judgement deciding issues of fact and welfare concerning a little boy who was born on 22^nd August 2013 and is now two and three quarter years. He was removed by the police from his mother’s care when she arrived back in the UK from Syria in early 2015 and she was arrested by officers of the Counter Terrorism Unit. He was the subject of protective measures for 18^th February 2015 when taken from his mother by the police. He has been the subject of an interim care order since 20^th February 2015. At first he was placed with foster carers then moved and placed with another foster family in June 2015 and there was some delay in the local authority carrying out assessments.
Y’s mother (T) is in prison serving a six-year sentence following her convictions for intentionally encouraging acts of terrorism and being a member of a terrorist organisation (Daesh).

The mother’s case, broadly, was that she accepted the facts that she had travelled to Syria and lived there with her little boy, and then came back to England. She had little choice about that, given the conviction, but she disputed that these events had caused significant harm to the boy – with a view to fighting for his return to her care on her release from prison (which will probably be in about 2-3 years time)

Conviction for terrorism offences

T was convicted on 1^st February 2016 at Birmingham Crown Court. The jury found the prosecution case proved that T had been in touch with a known terrorist and was a supporter of ISIS; developing a following on Twitter. T was found to have published statements that encouraged terrorism; images that supported Daesh/ISIS and were intended to encourage people to commit, prepare or instigate acts of terrorism.
T was found to have travelled to Syria via Turkey, in order to travel without arousing suspicion. She had had the assistance of a named member of Daesh and as a result was transported to Raqqa in Syria which is a Daesh/ISIS stronghold; Daesh had declared a caliphate in Raqqa. She had left letters for her family saying that she did not intend to return. In the sentencing remarks of the Recorder of Birmingham, His Honour Judge Melbourne Inman QC, said “Exactly what occurred in Raqqa is far from clear. You told lie after lie to the Police and to the Court between February and November 2015 including that you were kidnapped, were not responsible for any tweets and any incriminating photographs were staged against your will. You pleaded not guilty and told more lies to the jury which they have understandably rejected.”
The judge continued, “What is clear from the evidence is that you had researched and were well aware of what assistance women could provide for ISIS. Your role would not be to fight; it would be to be a wife and mother – to produce the next generation of fighters“. The expert evidence before the Crown Court was to the effect that women, single women in particular, were subject to very strict rules and allowed virtually no personal autonomy and were subject to savage penalties, including death, for disobedience. This was accepted by T in her evidence before this court.
As could be seen from the pictures posted by T she was, as the judge said, “…trusted to have access to firearms and indeed you stated that you had fired one accidentally. You boasted to your family that you had an AK47 and a pistol. The photographs recovered from your phone show you posing with a pistol and at least one form of rifle or automatic weapon”. Unusually for a woman under Daesh control T was allowed to travel alone to Raqqa, it is not clear from the evidence before this court or the Crown Court why this was allowed but T has said that she was married to a fighter.
In the sentencing remarks the judge spoke of the fact that T had taken Y with her; “Most alarmingly however is the fact that you took your son and how he was used. In your own evidence you described Raqqa as the most dangerous place on earth. That is one aspect of the aggravating feature of exposing your son to life with terrorists. The most abhorrent photographs however were those taken of your son wearing a balaclava with an ISIS logo and specifically the photograph of your son, no more than a toddler, standing next to an AK47 under a title which translated from the Arabic means ‘Father of the British Jihad’. Someone else took that photograph and sent it to you but it can only have been done with your agreement. You have no control over that image or reproduction.”
As the judge observed T was “well aware that the future to which you had subjected your son was very likely to be indoctrination and thereafter life as a terrorist fighter”: this was said after a lengthy criminal trial throughout which he had been able to observe her demeanour. The judge continued in his summing up to say “Having seen you give evidence I saw no evidence of remorse about what you had done or done to your son”.
T was found to have intended to encourage terrorism; she had 75 followers on Twitter, the statements she posted were considered to have been focussed, published over a period of two months and concerned with the conflict in Syria and the encouragement of terrorism. The promotion of terrorism via the internet is considered a matter of national concern by the criminal courts. T was found guilty of serious offences. She was convicted of a “course of conduct” in travelling to Syria, via Turkey, to join Daesh. The judge considered that particular factors were of great significance in considering culpability and harm and that taking Y with her was a major aggravating feature. In supporting Daesh/ISIS she had been “willing shamelessly to allow your son to be photographed in terms [or poses] that could only be taken as a fighter of the future.”
In mitigation it was accepted that T had returned to the UK; that she may have been more vulnerable to recruitment as her marriage had ended after considerable unhappiness; and, that there was the possibility that she had had a change of heart; there was some reduction in her overall sentence as a result. Nonetheless T was convicted of terrorism offences and the sentence of six years reflects their seriousness. She is now subject to an order under the Counter Terrorism Act 2008 (s 47) which places a requirement on her to notify the police of personal details, including her address for 15 years.
T will be eligible for release on licence in 2018. She agreed to Y being cared for by his paternal grandmother while she is in prison but it would seem likely that she will seek to have him returned to her care on her release.

It may seem to the casual reader that it would be hard to dispute that taking your two your old to a war zone which was being bombed and associating with terrorists would pose a risk to him, but as the criminal court had not convicted her of child cruelty (no doubt having bigger fish to fry) it was open to her to at least argue it. And she was entitled to a fair hearing, so she had very able lawyers to put her case the best way that anyone could.

The local authority asserted that Y would have been likely to have been frightened by the bombing which took place in Raqqa (which T sent WhatsApp messages about at the time) which would have caused Y to suffer significant emotional harm. T denied that Y had suffered significant emotional harm.

Let us look at a bit of the detailed evidence about the bombing – remember that her son would have been around two years old

It is a matter of common sense that Y was likely to have suffered significant emotional and psychological harm during the three months when he was in Raqqa and that it would have been as a consequence of living in conditions where, not only was his mother in fear and crying during the night, but the house they lived in was in an area that was constantly being attacked and bombed. Before I go on to consider the evidence of the frequency of the bombing, the lack of any real concern displayed or voiced by T that Y might have been affected by his experience is, in itself, worrying. If she remains unable or unwilling to think about the effects of her actions in the future, the risk of future harm to Y will remain.
The evidence before this court was that the level of bombing was very frequent indeed, this is based on T’s oral evidence and on what she put in her messages on WhatsApp, where it (the bombing) was a constant topic of discussion and a regular occurrence. I set out some examples here:

• On the 1^st December 2014 on WhatsApp “no bombs today” and images of buildings on fire.

• On the 13^th December 2014 in conversation with her brother on “They do bomb a lot but we will stay in another place when you visit…”

• On the 17^th December messages with a friend “Do they bomb close to your house?” T answers; “Yes very close to the house – the house shakes” and “they just bomb from the sky“.

• On the 25^th December 2014 at 10.58 from T “they bomb my house every day – – my house shakes…“

• On 25^th December 2014 conversation with her friend who asks “why won’t I like it” – “because too much bombs and not like England – war here never going to end???”

• On the 27^th December from T “they bombed once today – gave number to friend if we die she will WhatsApp u“

• On the 30^th December 2015 a message from M referred to “30 bombs” falling in one day

• When she was interviewed by the police on 19^th February 2015 T is recorded as saying “it’s no place for a child…. when they would bomb we would have to go into the basement – you could see the smoke – close smoke …”

In her oral evidence, however, T tried to minimize the frequency, impact and close proximity of the bombing giving a different picture from the one that had emerged from the messages she had sent in December, including of the house shaking and of bombing being every day (so much so that it was remarked on when there was no bombing on 1^st December 2014). The images on her phone and the messages she sent are of frequent bombing close to the house, and as she said to the police, of close, smoking buildings.
In her oral evidence T said that on the first occasion, when they were in Raqqa, that bombing took place “everyone was ordered to go to another place in the house…we went to the basement and waited…” T said she was “panicked” felt “frightened and scared” and was worried she would be killed. Y was with her while all this was going on; it is inconceivable that her fear and panic was not transmitted to him. She said “All the women had gone to this place and we stood together and there were looks of fear, some were crying. Everyone walked to a basement and waited in fear”
T then tried to minimise the event she had been describing by saying that there had been no immediate panic and that there was a lot of women who were quite content to die as they would have been seen as martyrs. In a further attempt to diminish the dangerousness of their situation she said, when questioned about an image on her phone of a building with a large column of smoke coming from it taken on 1^st January 2015, that the building was not on fire it was just smoke and that the building “looked closer than it was.” To try to reduce the evidence of frequent bombings she said that on occasion they would hear a bang in the distance. As she also said that “on one occasion there was 30 bombs” dropped, this was a further contradiction in her evidence which raised questions as to her credibility. It was her evidence that while she and Y were in Raqqa there were about 15 occasions altogether when bombs were dropped, this contradicts the messages she was sending at the time. Nonetheless she did concede that; “It’s not a place for anybody …I would never want my family there.”
When she was asked during her oral evidence about the effects of the bombing on the children T said that Y would not have been aware of the bombing or upset because “we just distracted them [the children]“. She had and gave no further explanation of how they had distracted the children or why she felt sure or understood Y to have been unaffected by the bombs going off, the noise, the building shaking and the panic and fear surrounding him.
I find it very unlikely that Y, or any of the children, could have been unaware of the bombing. I find it unlikely that he was not upset by it; it is simply not credible. In reality T’s oral evidence amounted to further evidence of a chronic lack of insight, empathy and understanding of what her child must have gone through. T said of Y that “he never cries, on one occasion it startled him but [he] never cried. It made him jump once”. This was in stark contrast to her evidence about the effects on her; when 30 bombs fell she said that the missiles “sounded like when a firework goes off…its very scary…the most scared I have been in my life.” Moreover, I find that it is most unlikely that Y did not wake up and that he stayed asleep as bombs fell all night and the house shook around them as T suggested in her evidence to me.

Even ignoring the risk to her son’s life and limbs in being in a warzone where bombs were being dropped that frequently, the loud noises and panic must have been very frightening for him. One might argue – I don’t think anyone tried here – that surely not all of the children who lived through the Blitz in World War II also suffered significant harm though of course none of them had mothers who deliberately chose to put themselves and their children at such risk. I suspect we really won’t know the impact on this little boy until much later in life. I hope with loving care from his grandmother and the right sort of support he will have very limited memories of the experience.

The mother did describe the impact that it had on her

When she returned to the UK from Syria T said that she had continued to be affected by her experiences “when I first came back a loud bang would make me think what is that!” She went on to agree, when it was put to her, that the bombing did make Y jump and that he was “probably scared“. I find that it is more likely than not that Y was frightened by the bombing in Raqqa. When taken as a whole it is T’s own evidence that she, and therefore Y too, had lived in situation of heightened anxiety and fear, which was also experienced by the other families and children around them. This must have had an emotional impact on Y that was harmful, exposed as he was to frequent bombing, noise, anxiety and the panicked reaction of the other children and their mothers; and, most significantly, given his tender years, the fear and anxiety of his own mother. He was present when, as she told me, she was fearful for her own life. I have little doubt that he suffered emotional harm as a result.
The emotional harm would have been compounded by the fact that his mother had taken him away from all that was safe and familiar to him, and from the rest of his family. T severed those relationships and placed him in what was, on her own account, a harsh, restrictive and punitive atmosphere where he was kept imprisoned in a house full of total strangers. It would be quite remarkable if he was unaffected psychologically. T has never given any evidence, description or detail of how she manged to ameliorate this situation to the extent that Y remained unaffected; at the very least he would have suffered harm as a result of being taken away from home, family and safe and familiar surroundings; when one adds the bombing, fear, panic, restriction and threatening atmosphere along with the effects of fear on his mother it is not credible to suggest that he did not suffer significant emotional harm.
I find on the evidence before me that there was frequent, if not daily, bombing close to the house; so that on occasions the house shook and that the bombing resulted in damage to other buildings that were close enough to be photographed on a phone. The bombing meant that the other people in the house, adults and children alike, were repeatedly panicked, scared and anxious, that Y, too, would have been frightened at the time of the bombing and that afterwards he would have been anxious about it all happening again. He would have been worried, anxious, distressed and frightened by his mother’s fear and panic. I find that Y was emotionally and psychologically harmed as a direct result of his experiences in Syria.
The flight from Syria as described by T must have been a frightening experience for Y, she certainly found it to be so. Later in the detention centre in Turkey, surrounded by yet more strangers, he became ill and was hospitalised. The court was given no details of his illness and treatment by his mother, in what can only be a further attempt to minimise or deflect attention from the effects of her actions on her very young son.

The Court also considered the emotional harm to the child of being drawn into the propaganda and manipulation of Daesh for their own ends.

Y would have been confused and probably caused some anxiety and distress as a result of being photographed in a number of poses which are potentially abusive as they were taken with the intent of promoting violence and terrorism. His image was posted under the title “Abu Jihad Al Britani” next to an AK47 which had been arranged with a caption; it can only have been taken with the purpose of reproducing his image to use as propaganda. There are five images of Y wearing a Daesh logo balaclava and a further three images of Y wearing a Daesh balaclava in the court bundle. There are also images of Y and his mother under a Daesh flag; on the 27^th December 2014 T sent a message to a friend asking that they “send me the pictures of me and Zaeem by the flag at Umm Salama maqar.”
While the fact that Y was only two years old means that he will not have fully appreciated the potentially exploitative and abusive nature of the photographs it does not alter the fact that his mother manipulated him or allowed others to do so. I accept the local authority’s case that there remains risk of emotional harm when the child becomes aware of these images in the future and of his mother’s role in their production.
I find that T was well aware of the use that such images could be put and was aware of the use of children as part of Daesh propaganda as she had stored an image on her own phone of a very young child reading with Daesh flag. T’s explanations in her evidence for the photographs were confused and evasive. T had told me that she had something of a celebrity status in the house in Raqqa because of the activity she had been party to online before leaving the UK and because of the notoriety her case had attracted in the media when members of her family had spoken about her after she left. She attempted to deny knowledge of the pictures such as the “Abu Jihad” photo she said to me “I have no knowledge of this picture…. I didn’t know this photo existed…” She tried to suggest that the picture was a fake by saying, “If there was an expert to tell me this is a real picture…” When she was asked what use the photo may be put to she said “it was never used” thus contradicting her assertion that she did not know of its existence. When it was pointed out to her that she said Y was always in her care and so no-one could have taken pictures of Y without her knowledge the best explanation she could come up with was, “I could have been in the shower…”
T’s evidence about the other pictures was equally unconvincing; she said that those in which Y was wearing the ISIS balaclava had happened because it “it belonged to the man of the house….at the time my son liked to wear hats and things on his head at that time. It was not about what it had written on it”. Once again she betrayed in her evidence an absence of any concern or consideration about the potential harm to her son. T claimed, somewhat bizarrely, that the picture taken under the flag was “to show where I was from.” T claimed that she did not think the person who had it would use it for propaganda. As T had both notoriety and “celebrity” status that it was a wholly disingenuous suggestion.
From the pictures taken in the house in Raqqa and from T’s evidence Y had been living in an environment where there were a range of guns and where those weapons were used and brandished by his mother and others. Self-evidently the risk of physical harm or even death is high in such a situation. The court had before it numerous images of T and others with guns, including images of T next to a firearm, images of T and other women posing with guns on the balcony. In one such picture there is an image of a child in the foreground which is more likely than not to be Y. There were numerous images of T and other women posing with guns. On the 1^st December 2014 she sent a message to M “I have a gun” followed by 11 images of a gun in which a female hand is seen holding the gun and that person is wearing a garment in which T was frequently photographed. On 17^th December T sent a WhatsApp message to M “– Wallah I have the same gun as you – AK 47”. Despite telling M in the WhatsApp conversation she had a gun she then claimed in her oral evidence never to have owned a gun; she then said all people involved in Daesh have a gun and said that the “man of the house” and his wife had a gun but could not explain how she came to be holding it in a photograph.
T told me in respect of a picture of her with an AK 47 “I’m not holding it in this picture…I am taking a selfie and the person next to me is trying to get me to hold the gun”. To say that T’s evidence in respect of this and other pictures lacked credibility would be to understate the case, her oral evidence is directly contradicted by the images in the court bundles which were also seen by the jury in the Crown Court. In one instance T claimed that she had taken a picture of a woman holding a gun rather than accept that she was the woman in the image herself. She had frequently said that Y was not present while insisting in her evidence that Y was always with her and then, finally, said, “not sure if Y would know what a gun is”. The evidence of the social worker is that Y is all too aware of what a gun is and becomes over-excited by the suggestion of guns and shooting, and runs around mimicking shooting and makes noises of gunfire.
T’s evidence regarding the pictures, their use and the role of Daesh “logo” is a brazen attempt to deny something that she is well aware of; when she gave evidence to this court she had not long been convicted of being a member of Daesh/ISIS and of encouraging terrorism (as set out above). The impact of being in the environment of the Daesh household on Y would have been emotionally harmful, and her evidence to the contrary is wholly unconvincing.

What a world we live in, when a mother could even contemplate this being a suitable life for a toddler. I despair.

If you found this piece interesting, or you’ve enjoyed the blog generally, please pre-order my book, which should be out around December with your support. Many thanks!

https://unbound.com/books/in-secure

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Posted in case law, international and tagged 2016 EWFC 30, daesh, isis, mother taking child to syria, Ms Justice Russell, radicalisation, radicalisation and care proceedings, re y a child care proceedings fact finding 2016, syria. Bookmark the permalink.

Woo Woo Woo (You know it)

Posted on July 26, 2016 by suesspiciousminds

A sad case, where parents found themselves in care proceedings and if they had worked with professionals or taken the advice their lawyers would have given them, they probably would have overcome the problems and left the proceedings with the child, or at least with the child placed with grandparents.

Re A Child 2016

http://www.bailii.org/ew/cases/EWFC/OJ/2016/B50.html

However, they instead took the route that shouting during the hearings that the Court had no power or authority over them was going to be the best approach. That and getting heavily involved with the Freedom of the Land movement, and thinking that their magic words and spells could save the day. They can’t. They never do.

This is all just Woo – pseudo-science dressed up as something real, selling an idea or a substance that’s too good to be true. [What, I just walk into Court and call myself “He who is Named David of the Family Hasslehoff” and the Court has no power over me at all? Awesome! Not true. Woo.]

Instead of taking up the free legal advice from people who know how to conduct care proceedings, know how best to get your child back and understand English law, they instead took advice from self-styled Federal Judge David Wynn-Miller.

If the fact that David Wynn-Miller is NOT a Federal Judge, but instead an American welder doesn’t raise some alarm bells about his suitability, just look at how many people who followed his suggestions ended up in prison. I counted eleven. Of twelve.

If even that doesn’t worry you, how about this, from his own words Miller remarked that the genesis of Truth-language was when he “turned Hawaii into a verb”

https://en.wikipedia.org/wiki/David_Wynn_Miller

I know that there are good and bad lawyers, and some people have had awful experiences with lawyers that they had no confidence in or felt were lazy. That does happen. You can sack them and get a better one. But there really are not any lawyers who claim to have ever turned Hawaii into a verb.

Woo. Woo. Woo.

The parents in this case followed this lead. With the usual results. (On the plus side for them,they didn’t get sent to prison, so that counts as a major plus by Wynn-Miller’s usual track record)

The application was listed for hearing before myself on the 14^th March 2016. On that occasion the parents represented themselves having dispensed with the services of their legal representation. Sadly on that occasion neither parent would respect the authority of the Court. The Father shouted at myself and was ejected from the Court. The parents were removed from the Court on 2 occasions. After the first occasion they were informed that they could re-enter the Court provided they respected Court procedures but sadly despite assurances that they would, they did not do so and they were ejected again from the Court. It was quite frankly impossible to hold any form of a hearing with them being present as they refused to respect the authority of the Court or the Court’s procedures. I asked the Mother at one point whether they were going to register the birth of their child (those assurances having been given to the Court on the 19^th February 2016 that they would do so without delay) but at that point the Mother commenced reading a prepared script when she questioned the authority of the Court. As a consequence of that she was removed from the Courtroom as she refused to stop reading her script, and clearly had no intention of answering my questions or respecting the courts authority.
At that hearing the Court was very concerned about the evidence produced by the Local Authority, documented in the Social Worker’s statement of the 7^th March 2016. The parents had entered into a Contract of Expectations on the 11^th February 2016 which set out the expectations of the parents during contact sessions and the role of the contact practitioners to ensure that contact ran smoothly and was a positive experience of the child. However the social workers statement documented that the parents had failed to comply with that contract in that in almost every contact session that had taken place there was a refusal by the parents to accept or act on advice, they were being disrespectful to the contact supervisors and there was an increasing concern about the Mother’s presentation during contact sessions and the impact that this was having on the quality of contact. The Local Authority were also concerned about the behaviour displayed by both of the parents which was becoming increasingly threatening and disruptive to the contact which, in turn, impacted on the quality of the contact and the emotional experience for their baby.
The Court was clearly concerned given the age of this baby that the parents should be given an opportunity to reflect on the position in the hope that further contact between themselves and their baby could take place. The order therefore of the 14^th March records the Local Authority agreement to arrange contact between the baby and the parents twice a week provided the parents attend a meeting with the Local Authority to discuss the management and arrangements for the contact and that they sign a Contract of Expectations. It was on that basis, the Court taking that agreement into account, made the order under Section 34(4) Children Act 1989 which was of course a permissive order only, permitting, if appropriate, the Local Authority to refuse contact. The anticipation of the Court and the expectation of both the Guardian and the Local Authority was that following that hearing the parents would meet with the Social Worker, sign a free contract of expectations and that then further contact would take place.
Sadly that has not been the case and these parents have not attended the Social Services offices nor have they made any attempt to re-instate contact and therefore they have not seen their baby since the 4^th March 2016. Some four and a half months ago.
On the same day the Local Authority made application to Mr Justice Baker under the Inherent Jurisdiction for orders as the parents were publishing information on Facebook and other social media outlets concerning these Court proceedings.
From documents that the Court considered on that occasion it was apparent that the parents had dispensed with legal representation in this country and had consulted with a self-styled Chief Federal Judge, David-Wynn Miller.
Various documents have been served on parties and the Court and on that occasion the court considered a document headed “Educational – Correspondence – Claim. It is a bizarre document which makes quite frankly not a word of sense but is a clear claim by them that the Local Authority have kidnapped their child. This has been a theme which has run through the documentation which has been on Facebook and on YouTube and has persisted throughout despite the injunctions which were made by Mr Justice Baker on the 14^th March 2016.

A hint as to why the parents might have fallen for this Woo can be found in the concerns about them

Given the father’s medical beliefs, there are concerns that the child may have been treated indirectly with harmful alternative medication through the mother’s breast milk or may be treated with harmful medication in future:

3.1 . An investigative journalism piece in 2015 discovered that the father was selling Master Mineral Solution (MMS) as a treatment for cancer and autism. MMS is a sodium chlorite solution equivalent to industrial-strength bleach; the Food Standards Agency has warned it should not be consumed as to do so as directed could cause severe nausea, vomiting and diarrhoea, potentially leading to dehydration and reduced blood pressure;

3.2. The father advocates the use of MMS and his personal website includes paraphernalia for the administration of such products to babies.

Yes, let’s treat cancer and autism with industrial-strength bleach. And let’s give this to babies.

This website debunking MMS explains the science very clearly and carefully – note particularly ‘one hundred thousand times the amount for safe drinking water’ calculations.

https://thechronicleflask.wordpress.com/2015/03/30/a-horrifying-story-autism-miracle-mineral-solution-and-the-cd-protocol/

This is nasty, nasty stuff, preying on people who are sick and desperate. It is super nasty when it is pushed as a cure for children.

(some of my sympathy for these parents has evaporated. I remain very sorry for them, but not anywhere near as sorry as I do for anyone who purchased some of this cancer treatment. By the way, it remains a criminal offence under the Cancer Act 1939 to advertise for sale a substance or treatment that purports to cure cancer. If you are thinking of posting a comment about how it is just Big Pharma that has supressed MMS as a cure for cancer because they know it works and they want to keep it off the market, don’t bother. )

The Judge set out that the concerns about the parents were quite capable of being resolved, if they had engaged with assessments, but their bizarre behaviour meant that there was no alternative save for adoption in the case.

This is an extraordinary case where there could well have been an alternative option or outcome for this child. Whilst the circumstances which resulted in the care proceedings being instituted by the Local Authority were concerning there was certainly a real prospect that the concerns of the Local Authority could have been allayed during the course of the assessments which were to be undertaken by them of the parents and grandparents.

In addition to the health concerns and the parents’ conduct towards those in those early days of the baby’s life there were of course the other particularly worrying concerns in relation to the Father’s beliefs and in relation to the administering of Master Mineral Solution (MMS). Those concerns again could have been allayed by the Local Authority and Court being satisfied that despite his beliefs such a solution would not be provided to the baby and/or that the Mother would be a sufficient protective factor to ensure that nothing untoward was ever administered to the baby. Also as a backstop position if the Court were not sufficiently satisfied in relation to the Father it may well be given the Mother’s position at the commencement of proceedings that she, herself, could have cared for the baby on her own. All of these seemed very realistic options available to the Court at the commencement of these care proceedings.

Sadly in this case however as can be seen from the chronology which has been detailed in this judgment the parents and the parents’ family have left this Court with no other realistic options other than the one proposed by the Local Authority.

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Posted in adoption, case law and tagged 2016 EWFC B50, David Wynn-Miller, freeman of the land, Master Mineral Solution, Re A Child 2016, woo. Bookmark the permalink.

“Fell far short of the promise foreshadowed in her CV” (radicalisation, Tower Hamlets)

Posted on July 19, 2016 by suesspiciousminds

This is the Hayden J judgment in the Tower Hamlets case involving the girl who had tried to go to Syria having been exposed to extremist videos and propaganda of the most alarming kind.

I wrote about the early stages of it here, https://suesspiciousminds.com/2015/08/27/radicalisation-of-children-and-isis-jihadi-brides/ when Hayden J learned that the parents (who had been saying that they were shocked and appalled by what was happening to their daughter) seemed by the analysis by security services of what was being accessed in the home to be more implicated than one might imagine.

Part 2 is here : – London Borough Tower Hamlets and B 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1707.html

It makes for extraordinary and shocking reading – and you will learn a LOT about radicalisation cases and how ISIS goes about manipulating and recruiting young people by reading this judgment. I could not recommend it more highly for any professional working within the field, any lawyer who thinks that radicalisation is a feature in one of their cases, or a concerned parent.

This is some of the material removed from the family home (bear in mind that by this stage, the girl had already made the attempt to go to Syria to become a jihadi bride)

The following material was removed from the household:

Document Title	Device
“A Muhajid’s Guide to the West” this document contravenes section 58 TACT 2000 Chapter 1 “Hiding the extremist identity”	B’s SD card
“Miracles in Syria”	B’s SD card
“Hijrah to the Islamic State”	B’s SD card H’s Apple Mac Laptop L’s hard-drive
“The Dust Will Never Settle Down” an audio lecture by Anwar Al-Awlaki est. 2008	B’s Sony Vaio Laptop H’s Apple Mac Laptop J’s Samsung Laptop L’s hard-drive
“The Book of Jihad” an audio lecture by Anwar Al-Awlaki 2003	H’s Apple Mac Laptop J’s Samsung laptop L’s hard-drive
“44 ways to support jihad” by Anwar Al-Alwaki	B’s Sony Vaio Laptop
DABIQ and ISN publications	H’s USB storage device L’s hard-drive
Videos	Exhibit IDK/36 ‘For the Sake of Allah – Fisabilillah’ Exhibit MAE/5 ‘Upon the Prophetic Methodology – AlFurqaan Media’ Video DSCN2418.AVI – Home video that shows an ALM march

Some of the material on these videos, all agree, depicts behaviour of appalling human depravity. It includes mass killings, sadistic torture (which I have been advised has symbolic significance and is not merely gratuitous), random killings by youths in a car by using AK47 machine guns, scenes of mass graves and bloodied lakes and killings videoed in such a manner as to create the impression that the viewer is the killer looking through the cross hairs of a telescopic sight attached to a rifle. The written material includes sinister polemics designed to rally ‘good Muslims’ to the cause of jihad. Some of these documents deliver sophisticated messages to the reader, advising them how best to create the impression of social compliance whilst participating in an anarchic agenda. I have personally read much of that material in order to try to equip myself to evaluate the evidence in an informed way, and to alert myself to any potential subterfuge. I cannot imagine how it is that the officers of the CTU manage to view the material I have described whilst remaining inured to it. I feel constrained to observe that which is obvious from the above, that the public owes them a debt of gratitude.

The girl’s own description of just one video. (skip this if you are squeamish. In fact, just skip it. You don’t need to read it. You have my permission not to)

“I saw a video of men chained together one by one after what was said to have been a battle, who were said to be the prisoners they had taken. They took them to something like a dock/or a sea wall straight onto the sea. They unchained them one by one and shot them in the back of the head so they fell into the water. They sought to portray this like the story of Commander Khalid Bin Waleed who was fighting against the Jews and he made a promise that the river would run red with blood if he won. The water in this video by the end of it was red; they had killed so many people. I’m not sure they were even soldiers at all now, they may well just have been people, ordinary civilians, who didn’t agree with IS coming in and taking over. “

“I saw a lot of videos and scenes of violence. When I first started seeing them I was shocked at the violence. I didn’t like to watch it. I was also accessing a lot of video and other on line material that I now realise was just propaganda. “

First of all, the Court is scathing of the independent social worker who came with high recommendations to this field. (I don’t want to wish any professional ill, so let’s say that she was perhaps out of her depth on this sort of case)

33.It was pressed upon me by all the advocates for the family, that Ms Rukhsana Thakrar should be appointed as an independent social worker. I was assured that she was well regarded and as a professional Muslim woman not associated with the Local Authority, or the Guardian for that matter, she seemed to me to be well placed to undertake what I identified in my earlier judgment as the need for an ‘intense, thorough and comprehensive assessment’. I must also admit to my aspiration that Ms Thakrar would provide an example to B of the opportunities open to independent Muslim women in the UK. Ms Thakrar has an LLB (Hons), a MA in social work, a CQSW and is an accredited social work practice teacher. She has also worked in the capacity of Guardian ad Litem, CAFCASS officer and asserts in her CV that she ‘specialises’ in ‘working with Muslim families’.

34.I very much regret to say that Ms Thakrar fell far short of the promise foreshadowed by her CV. In her very lengthy report, which is essentially simple reportage of what the family has said to her, Ms Thakrar missed the opportunity to confront them with my earlier findings and to challenge their various belief structures. Though I am satisfied that her instructions were clear and supplemented by a further set of instructions specifically directing her to the court’s concerns, she appeared to have very little understanding of the nature of the task she was engaged in. Her view of the family was expressed with fulsome positivity, though I have found it impossible to identify any analysis in her report upon which her optimism could be founded. More than that, within a report spanning over 130 pages I have struggled to identify any analysis of any issue in the case. Rather unusually despite the glowing conclusions she advanced, I had no sense that the family had forged any kind of constructive relationship with her either.

39.I am constrained to say that Ms Thakrar has fallen, by some distance, below the standard that this court is entitled to expect from an expert witness. In so doing she has failed the children (primarily), the parents and the other professionals in this case who have worked extremely hard to manage a very challenging situation. I have noted that Pauffley J made criticisms of equal magnitude and of similar complexion in Re A, B C & D [2009] EWHC 2136 (Fam) and Re S (A child) (Care Order) [2014] EWHC 529 (Fam).

(That case can be found here http://www.bailii.org/ew/cases/EWHC/Fam/2014/529.html – some key extracts It seemed to me that Ms Farooqi – Thakrar’s evidence was far from even handed and less than helpful.

This aspect of Ms Farooqi – Thakrar’s recommendation seems to me to be extremely poorly thought through. There was a sense, as she gave her evidence, of her almost making it up as she went along

It was a further defect in the evidence of Ms Farooqi – Thakrar that she had failed to consider S’s considerable behavioural difficulties. When asked about that aspect, she simply said, `Well, all of this will just disappear when S has been reunited with her mother and I’ve seen it happen in other cases.’ I am surprised, even amazed, that Ms Farooqi – Thakrar was prepared to make forecasts about what would happen in this case relying exclusively upon her experiences in other cases. I do not share her optimism. Moreover I consider such an experiment would be thoroughly risky and altogether ill-advised at this juncture.

If you are unwrapping a brief tonight and underneath the pink tape is a part 25 application to instruct this ISW tomorrow, I’m sorry that I’ve just ruined your evening )

The Judge was, however, very complimentary about the social work evidence in the case

45.Ms Thelma Ukueku is the key social worker in the case, employed by Tower Hamlets. When the deficiencies in Ms Thakrar’s report came to light Ms Ukueku agreed, in the time remaining, to plan and undertake an assessment addressing the risk matrix referred to above. This report was undertaken with a Mr Brian Sharpe and a Ms Juliette Thompson. I heard from Ms Ukueku and Mr Sharpe in evidence. It is an unfortunate fact that Judges have, from time to time, to be critical, sometimes highly critical of social workers. Too often good social work goes without comment or commendation. This case provides some opportunity to remedy that. This family is extremely fortunate that Ms Ukueku was allocated to this case. She has shown unstinting commitment to them, she has been tireless in her determination to help them, she has unhesitatingly sacrificed her own personal time and displayed an impressive mix of intellectual rigour and compassion. Perhaps most importantly, whilst trying to work effectively with the family, she has not shied away from confronting them robustly and directly where she perceives there to be error or inappropriate behaviour. She has, in my view, ‘worked’ the case, in the sense that she has not merely recorded the attitudes or behaviours of the adults, rather she has actively intervened to try to change them where, in her assessment, they are contrary to the interests of the child.

46.I have mentioned above that I elected not to see the video material in this case. It is rarely necessary for the Judge or the lawyers to do so. It is probably desirable that we should not. The danger that we become inured to it is greater than might initially be thought. Some of the material here is, plainly profoundly shocking. Ms Ukueku took the view that if she were truly to understand what harm B had been subjected to she ought to look at some of the material herself. She told me that on reflection she wished she had not done so. It had caused her real, not merely superficial, distress. She told me how some of the images are lodged in her mind and have from time to time intruded unexpectedly into her thoughts. She twice needed to pause to maintain her composure, as she outlined this to the Court. She told me, at this point, slightly tearfully, that she had been terribly shocked and deeply upset that B had been regularly exposed to such images. It was a powerful and memorable moment in the hearing. I noted that it had some impact on B which seemed to me to be chiefly one of real surprise. I think this was both as to the effect the images had on Ms Ukueku as well as some realisation of the great effort made on her behalf.

Powerful stuff. You’ll note from the earlier portion that the Judge himself did not view the material – and I think that he was right not to. There were clear descriptions available from those brave souls in the police and counter-terrorism who did have to watch them. I myself would not feel the need to watch the videos, and if my social workers asked me whether they should, I would tell them not to. If they felt extremely strongly about it I would have asked the Court for an indication that they need not watch them and would not be criticised for failing to do it. I say this not to make any criticism of anyone involved in this case – but to avoid the risk that because this social worker did so (and now regretting it) puts a benchmark up that others should be expected to do so. If there’s a description of the content of such material and that description is not disputed, I am with Hayden J that it is not necessary for professionals to see it and that it is desirable that we should not.

It became apparent during the hearing that the father, who had seen terrible attrocities in Gaza that had profoundly affected him, had shown his children images that they should not have seen.

It occurs to me that the reason that the father may be so eloquent in articulating the emotional harm caused by such images is that he sustained a similar kind of harm himself as a child. He told Ms Thakrar that as a Berber male from the Algerian community he held some negativity towards the French in their use of tanks in Algeria in the 1950’s. He explained that his family had shown him photographs of this period which he considered revealed French tactics to be ‘unjust and upsetting’ and which plainly had stayed in his memory. In evidence, he drew a comparison with these grainy, black and white photographs of a conflict which pre-dated his birth and the videos seen by B. The moving, ‘living’ pictures in colour and so much more clearly defined were, the father said, much more searing.
During the course of the Mother’s evidence the Local Authority applied for permission to produce material from social media. The application, which I granted, was made before the Father went into the witness box. The material included photographs of charred bodies and the cracked skull of a dead infant. These were produced into evidence, I think, during the course of the cross examination of the Father. In any event I did not look at them until the Father was asked to comment on them. I was not expecting to see the kind of images they contained, indeed it took me a moment or two, from the rather poor quality photocopies, to realise what I was looking at. I found them disturbing.
The Father told me that he was motivated by the photographs to participate in humanitarian work. I accept that he was. Nonetheless, I had the strong impression, as he responded to questions, that he too had, albeit in a different way to his daughter, become numbed to images of death. Such photographs may well have triggered moral outrage in him, an entirely different dynamic to B’s objectives in looking at the material I have considered above, but for all that I sensed that something of his own ‘pity’ and ‘mercy’, to use his expressions, had been compromised. I do not think that he contemplated that the image of the child might not merely shock people, but that it might provoke a simple human distress reaction for the child which eclipsed the underlying humanitarian objective that he intended. I consider that this resonates with something that he is reported as having told Ms Thakrar:

“He stated that when he was in Gaza he had watched what was going on in Gaza. This appears to have been a turning point for [the father]. He stated that he watched Aljazeera Arabic as he felt that Aljazeera gave an accurate picture of what was going on in the world. He also brought back videos and pictures of Muslims being killed and burnt alive. He stated that Palestines (sic) were being killed by Israelis. He found this very haunting and upsetting. He explained to me that his children saw these pictures and they were all upset and crying. It was very clear from his body language and how he spoke that these atrocities had left a deep and lasting impression on him. It also appears from his descriptions that all the children had been deeply moved and upset. Certainly they would have left a deep impression on [B].”

Once again the father challenges the accuracy of the ISW report, he denies that he told Ms Thakrar that he showed photographs or videos to his children, claiming that she has misreported him. I reject that. There is much in that passage which is plainly accurate. The father was fulsome in evidence about the atrocities in Gaza, as he sees them. He plainly, in my assessment, was affected by what he had seen. He confirmed that he watched Al Jazeera on the basis that he felt that was a reliable chronicler of world events and certainly accepted that he had brought back pictures. All of this is essentially accurately recorded. It is also very much of a piece with his evidence more generally. I may have been critical of Ms Thakrar’s lack of focus and forensic rigour but, as I have already said, I have no reason at all to doubt her integrity. Neither have I found evidence of regular misreporting, in what I remind myself were 84 hours of interviews.
I am satisfied that the father did indeed show these children videos or pictures of Muslims being killed and burnt alive. I consider that in the heat of his own outrage he was motivated to do so by what I have loosely referred to as humanitarian instincts. Having been shown disturbing photographs of death himself as a child I do not think that he has ever extrapolated from that, that it is entirely inappropriate to present children with such images. He does not appear to have absorbed that childhood innocence needs to be protected and that he as a father has that responsibility. His failure to rise to those obligations is, in my assessment of the evidence, critical to what has happened to B. I also consider that like B, he too has become desensitised, on a basic human level, to images of child and adult suffering. His response is ideological rather than visceral.

Hayden J also makes some important points about the standard of proof in these cases (I think most readers know my views about the cases of radicalisation decided by other Judges, where admittedly the analysis and evidence done by the security services came nowhere near the amount of detail that Hayden J had available to him)

52.Cases involving allegations of radicalisation do not require any greater standard of proof than any other allegation in Family Law proceedings. Any impression to the contrary requires to be dispelled

56.In Re X (Children) (No 3) [2015] EWHC 3651 (Fam) the President said §110 ‘There are, as I have noted, many matters on which I am suspicious, but suspicion is not enough, nor is surmise, speculation or assertion.’

57.I am confident that the President was there intending to emphasise the importance of evidential discipline and forensic rigour. He was not, for a moment, suggesting that in the application of the civil standard of proof the Court is in anyway prohibited from drawing reasonable inferences from ascertainable facts. There is plainly an important distinction between suspicion and inference, the two should not be conflated.

It is pleasing to hear that this girl is drawing back from the extremist position that she was once being seduced by and was showing some insight and reflection into what was wrong with the material that she was seeing (that has to be hedged by the knowledge that material was being accessed in that house that taught how to lie, conceal, suppress your views and pacify those investigating them, but let us be optimists rather than gloomy pessimists)

The Judge had the unenviable task of deciding where B should live. He looked hard at all of the issues (this blog doesn’t have space to go into all of it, but if you are having a reaction to his conclusion I would suggest that you take the time to read the judgment itself) and how B had fared in care over the last nine months.

Unsurprisingly, B wants to go home, she is rather desperate to do so. She is sad and lonely and misses her siblings, particularly her younger brother. She is being phlegmatic about life with Mr and Mrs J but I think she senses a loneliness for her there too. So do I. Mr & Mrs J have their own interests and commitments, these are understandably not structured around a teenage girl and will require much renegotiation in their lives. I was told that their commitments do not enable them to allocate a great deal of time to helping B make the transition to their home over the summer months, were that to be the plan.
Many teenagers of this age, who find themselves in the care system, simply take matters into their own hands or to use the term frequently heard in these Courts ‘they vote with their feet’. For the duration of the Care Order i.e. until she is 18 (in just over 12 month’s time) I think it unlikely that B would do so. To some extent, her experience of the Court system has been salutary. After that I do not know. She will be beyond my remit and able to exercise her own adult autonomy. Should she return to her parents home at that point and there may be pressure for her to do so, she will once again interrupt her education and potentially damage her academic prospects. Though it may not seem the obvious solution, in the light of my findings above, I have come to the conclusion that the plan most likely to meet B’s needs is to return her home. I identify the following reasons:

i) The circumstances of B’s radicalisation involved a combination of factors and influences unique to her situation;

ii) B’s brothers and sisters do not share her beliefs and are likely to be resistant to them;

iii) B is most likely to rediscover her own intellectual autonomy in a home environment where she is happy and loved;

iv) I think it likely that the siblings will challenge B’s extremist beliefs, even without intending to do so;

v) B will enrol in a local college if she returns home;

vi) I think it likely that B will respond enthusiastically to a wider social group at college, holding inevitably different opinions and beliefs. Her lively intellect is likely to be stimulated by the exchange of ideas. It is worth emphasising that B has never attended school before;

vii) Whilst I consider that B’s admissions in this court are driven by her pragmatic evaluation of the evidence against her, as she herself volunteered, there is nonetheless an underlying sincerity to her own description of the numbing effect that these awful videos have had on her. This has the potential to be a breakthrough in combating what she has described as her ‘addiction’ to violent and death related images;

viii) In the last 9 months the Local Authority’s Care Plan has been able to provide a sustained period in which B has not seen the kind of images that have caused her such harm. This occurred at a crucial stage in her development and has enabled her to gain the tentative insights I have referred to above. (As I know B will read this judgment carefully, I wish her to appreciate a simple and unvarnished truth: those who do not empathise with human pain and suffering will never make effective doctors, it is intrinsic to the core motivation of the profession);

ix) The family has a proactive social worker who has demonstrated that she will not be naïve and will not be deflected by controlling or manipulative behaviour. The plans for all the children should enable them to get space from their mother. In particular, the mother should not attend the children’s Prevent sessions and neither should she collect the children from school;

x) Having recognised the impact of death related images on his daughter, I have some confidence that the father will restrain from sharing such images with her in the future. This he might like formally to undertake to the Court, knowing that he might be sent to prison should he breach his own undertaking;

xi) I also consider that this family can be more easily monitored when together rather than separated. I have no doubt that the police and the social services will be vigilant concerning the use of computers in this household;

She was therefore placed at home under a Care Order. All we can do now is wish her and her family well and hope that their lives take a different course than might have developed by exposure to such dreadful, graphic imagery which would give the most robust adult terrible nightmares.

At the very end of the judgment, the Judge records the general advice given by Professor Silke and Dr Brown in radicalisation cases, and that’s really something to be circulated to absolutely any professional working in this area – it contains invaluable information and guidance, in a very clear and easy to follow style and language.

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Posted in case law and tagged 2016 EWHC 1707, dr brown, hayden j, isis, isw dealing with radicalisation, jihadi bride, london borough tower hamlets v b 2016, professor silke, radicalisation. Bookmark the permalink.

Like I care – anonymous defamation on the internet

Posted on July 18, 2016 by suesspiciousminds

I don’t write about Queen Bench Division cases very often (not least because I usually can’t understand a single word of them), but this one seemed pertinent.

It relates to a McKenzie Friend operating in the family Court sphere, who is also a blogger. And a satirical website that took a disliking to him. It also relates to whether anonymity is a thick shield or a flimsy one in a defamation case.

Smith v Unknown Defendant Pseudonym ‘Likeicare’ and Others 2016

http://www.bailii.org/ew/cases/EWHC/QB/2016/1775.html

There is before the Court today an application for default and summary judgment against the Second Defendant. The Claimant is a former borough councillor in Welwyn, Hatfield. He is active as a McKenzie friend. The Defendants are, so the Claimant asserts, users and operators of the website EncyclopediaDramatica.se (ED). ED is a satirical website which uses the Wiki software. The site is, to put it mildly, controversial and it takes steps to anonymise itself. This enables the site administrators to hide the country in which the site operates from and the real IP address of the servers. Editors and staff use pseudonyms.
In his particulars of claim the Claimant states that whilst the website is satirical much of what ED publishes is accurate and this accounts for its widespread popularity. The site exposes genuine wrongdoing and other material of interest. Mr Smith, who appeared as a litigant-in-person before the Court upon this application, describes the site as “...a more vulgar online Private Eye magazine“.
For some time, the site has published articles about the Claimant calling him a “zealot” in child protection matters. The Claimant operates a blog which, from time to time, deals with child protection matters. The position of the Claimant is that the original publications about him were satirical but not objectionable.

That’s part of the deal with satire – if you’re in the public domain, you might have to develop a thick skin about what is said about you.

However, things went quite a bit further than that

However, between 10^th May 2016 and 12^th May 2016 users of the site known as “KiwiDynastia” and “LikeICare” (an administrator) amended various articles to state that the Claimant was a paedophile and a child rapist. The website is accessible in the United Kingdom and has been viewed here. The Claimant has set out in particulars the specimen words complained of and what he alleges is the defamatory meanings to be imputed to them. These are, upon any view, vile allegations. The version of the material which was published on the website was copied and is in evidence before the Court. In this material the Claimant is accused of being a “KNOWN CHILD MOLESTOR”. It is said that “…his salivating lust for young ass is apparent”. It is said that he loves being able to have violent sex with his mother (the actual text uses more evocative language) which she forgets 5 minutes later. The heading to the article is “Samuel Collingwood Smith is a paedophile and child rapist”. The material has graphic mock-ups of the Claimant engaging in sexual activity. In his particulars of claim the Claimant denies the imputations which flow from these words. The Claimant denies having any criminal convictions, cautions or warnings which are remotely relevant to the words used.
The Claimant discovered these articles on 13^th May 2016 and he, as he puts it, complained politely. The normal way to effect a complaint on a Wiki is to write on the talk pages of officials. The Claimant posted his complaint to several of the highest of the officials on the site, known as Bureaucrats. He received a prompt reply from an administrator “LikeICare” delivered on his own talk page which stated: “Fuck off LOL”. Another administrator “DarkLordTR” amplified stating that if the Claimant continued his course of action he would be banned and they would see to it that their article came higher up in the Google page rankings.
The Claimant responded by the service of a notice pursuant to section 5 of the Defamation Act 2013 and also a letter before claim which he posted, once again, to the talk pages of the Bureaucrats and to his own talk page. He received a response again delivered by the administrator “LikeICare”. The response was in the following terms:

“**** Official response from myself, and on behalf of KiwiDynastia and entirely of ED staff **** LOL Don’t care faggot, go for it”.

Subsequently, the Claimant was unable to respond to the site which displayed what the Claimant describes as “...a montage of revolting, gory and sexual images” which is, he understands, the response communicated to banned persons.

I think that most people would consider that satire and accusing someone of being a child rapist are not quite the same thing.

Mr Smith sued for defamation – obviously it was problematic that the website were not willing to communicate with him and were anonymous.

The Court set out the position with defendants who were anonymous

B. The availability of relief against unknown persons

The ability of the Court to provide protective injunctive relief against persons unknown has been acknowledged for a considerable period of time: see for example Bloomsbury Publishing Group Plc v News Group Newspapers Limited [2003] 1 WLR 1633. It is necessary, however, for the person unknown to be capable of identification by description in such a way as to identify with sufficient certainty those who are included within the order and those who are not. In Brett Wilson LLP v Persons Unknown, Responsible for Operation and Publication of the website http://www.solicitorsfromhelluk.com [2015] EWHC 2628 (QB) (“Brett Wilson“) Mr Justice Warby stated that it was sufficient to describe a defendant as “Persons Unknown Responsible for the Operation and Publication of the website […]” (cf ibid paragraph [8]). In that case, Mr Justice Warby pointed out that the Court had jurisdiction not only to grant interim relief but to grant final injunctive relief against persons unknown, including upon a summary judgment basis pursuant to CPR 24.2 (ibid paragraph [10]). The relevant procedural safeguards must, of course, be respected and this includes ensuring that the unknown defendants have been duly served with the proceedings and with any application for interim or final relief. In the present case, there can be no possible query or doubt as to the fact that service was effected since the administrators of the site not only responded to the pre-action documents but also published the same on the internet site itself. In my judgment, it is clear that the proceedings in the present case were duly served and brought to the attention of the relevant defendants. None of the Defendants have sought to file an acknowledgement of service or a defence by the deadline for so doing. Indeed, the Defendants have not formally responded in any way, shape or form to the threat of litigation. Their heads are well below the parapet.

So the fact that the architects of a website conceal their names and identities is not necessarily a protection against civil litigation

Pursuant to section 1(1) of the Defamation Act 2013 a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the Claimant. In the case of harm to the reputation of a body that trades for profit harm is not “serious” unless it causes or is likely to cause that body serious financial loss. The Claimant in the present case is someone who claims to trade for profit. He advances his case upon the basis that the website, which is widely read and enjoyed for its satirical comment, commands respect and attention. Accordingly, the fact that manifestly untrue and malicious content is directed at the Claimant is likely to cause him serious reputational harm and also make him less likely to receive fee-paying work. That harm will be exacerbated by the fact that the Claimant’s photograph is plastered all over the website. Indeed, false photographs of the Claimant, naked, engaging in sexual activity with multiple other males simultaneously were also included. There can be no doubt but that the Claimant’s reputation will have been substantially and deleteriously harmed by the publication of this material and that this was precisely the intention.
In my view, there is sufficient for me to make an order for judgment for damages. The Claimant’s application seeks summary disposal pursuant to sections 8 and 9 of the Defamation Act 1996. Section 8 empowers a Court to grant judgment to the Claimant in a defamation case and grant “summary relief” where it appears that there is no defence to a claim which has a realistic prospect of success and no other reason why the claim should be tried. Pursuant to section 9(1)(c) damages not exceeding £10,000 may be ordered by way of summary relief. In Brett Wilson Warby J observed that this was a relatively little-used procedure not least because summary judgment pursuant to CPR 24 was available in defamation cases and the damages recoverable pursuant to section 9 remained capped at £10,000. In that case Warby J observed that the procedure could be invoked in order to bring a swift end to a matter to avoid an assessment procedure which might be disproportionately expensive. He observed that the procedure had been used in similar circumstances in other cases, for example in Robins v Kordowski [2011] EWHC 1912 (QB). In Robins, Tugendhat J held that the jurisdiction to grant summary disposal was available after a Court had entered default judgment for damages to be assessed and on a summary basis he awarded the sum of £10,000. In Brett Wilson, Warby J also considered that a summary assessment at the maximum level was appropriate. The Judge in that case did not consider it necessary to undertake precise quantification of the loss. He was satisfied with general evidence that the firm in question would suffer financial loss but as he observed “quite apart from this, the award needs to serve the purpose of vindication“.
In my judgment, given the popularity of the website and the vile and offensive publications thereon, and the need for vindication, it is appropriate to make an order in the sum of £10,000. I will, however, in order to enable the Defendant to have a chance to put his side of the case on quantum, include as part of the order a liberty on the part of the Defendant to apply to vary the quantification if he considers that it is excessive or otherwise unjustified. The Defendant will have 14 days in which to lodge an application with the High Court for variation of that part of the order. If no such application is made within 14 days, then the sum of £10,000 will remain definitive. In this way, in my judgment, the interests of the Defendant are adequately protected. Any such application must however adhere to the normal procedural rules. It cannot be anonymous. The true name and address of the Defendant must be provided.
I am also satisfied that the pleaded allegations establish a case for the grant of injunctive relief against the Defendants. The Defendant has deliberately declined to participate in any process whereby the offending material was removed from the website. There is reason to believe that the Defendant would, unless enjoined, persist in the offensive campaign against the Claimant. In coming to this conclusion I have regard, as I have already observed, to section 12 of the Human Rights Act. The injunctions are prohibitory and mandatory. I have considered whether it is appropriate to grant relief in both forms. On the facts of this case I am satisfied that it is.

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Posted in case law and tagged defamation, defamation by an anonymous source, website defaming an individual. Bookmark the permalink.

Banged up

Posted on July 14, 2016 by suesspiciousminds

I thought I’d write a little about the setting for In Secure, my book that you can pledge for here

https://unbound.com/books/in-secure

(Hope you enjoy – if you do, please visit and support, and share this with others. We are nearly half-way to the Pledge target – and this is week 3 of 13, so huge thanks to all of those who have helped)

My book is set in a Secure Accommodation Centre, called Saffron Park, which is located on Dartmoor. Secure Centres are a special sort of children’s home where children can be locked up – they aren’t the same as a juvenile prison or Borstal, in that a lot of the children there won’t have committed any crime – they are there because they run away from home generally. Sometimes their own home, sometimes foster homes or other children’s homes. And because when they run away they put themselves in danger, they hurt themselves or other people hurt them, or sometimes they hurt other people.

These places really exist, and there are children much like the ten children that I write about in them.

I was interested in writing a book where, well, if you imagine the Harry Potter series but now imagine that Draco Malfoy would be considered the goody-two-shoes of the book. A lot of fiction for young people, the characters are heroic – sometimes with flaws, but nonetheless straight heroes. You know Katniss is going to stand up for the weak, you know Harry is going to fight evil, you know Cyril and Robert and Anthea are going to try to pay for the ginger beer they drank when they were stuck in the Church after their wings wore off.

I thought it would be more interesting to read about characters where you weren’t sure, perhaps could never be sure which way they might react in a given circumstance – because their circumstances mean that they aren’t heroic or noble. They might be capable of those things, but they each might be capable of out-Voldermorting Voldemort, if the opportunity arose. Especially if wicked author that I am, I put tools and power and temptation in front of them. (There were quite a few times when writing it that I wasn’t sure what particular characters might do, and when they did it, they’d faked me out too)

So, a set of children all with problems and worries and flaws and secrets – big secrets, all locked up together seemed like a good starting point.

And then I was thinking about two memories I had.

The first was being seven years old. My bathroom had a lock on it. A chubby silver lozenge of a lock that you would turn to the right and it would lock the door. Turn it back to the left, and it would unlock. Easy peasy, lemon squeezy.

I was always told not to lock the door – the lock was for grown-ups and I wasn’t to use it. I don’t really remember what was in my mind when I did lock it. I remember how scared I was when I tried to unlock it and the lozenge was too stiff and heavy to move back. I remember panic that went up through my feet, made my chest pound like something inside was knocking to get out and gave me the taste in my mouth I’d only ever got from accidentally eating a bit of Kit-Kat that had a shard of tinfoil still stuck to it. (Michael Stipe was right – aluminium really does taste like fear).

I waited and waited. I tried the lock again. And again. I wrapped a towel round my hands, hoping that I’d get more leverage and the dampness of my hands would be counteracted. It didn’t work. I took off my shoes – trainers that were yellow and black and had pictures of jungle cats around the outside just above the sole (cheetah, lynx, puma, leopard), and hit the lock with those. What I didn’t do was shout for help, or bang on the door.

Because as scared as I was of being locked in that room, of never getting out, of being in there, I was just as scared as having to tell my parents that I’d turned the lock. Broken the rule, and not only that, been too weak to get away with it.

Eventually, it emerged that I was trapped in there. I think someone came to try to use the bathroom, found it locked and asked a series of questions that didn’t take away that tinfoil taste on my tongue one bit. None of the suggestions for how to get out worked.

And then my dad got his window-cleaning ladders and climbed up to the bathroom window, which I had to open. I was too scared to climb down the ladder so he had to climb in and open the lock.

I left that house 12 years later, and I still never wanted to look directly at the lock the whole time.

THEN the second memory. I was about 26, and starting out as a care lawyer. One of the things I had to do from time to time was advise on Secures – should such and such a child be locked up for their own good, were the tests met, was it the right thing to do. And my boss decided it would be a good thing for us all to visit a Secure home, to see what it was like. I really didn’t want to go. I knew I wouldn’t like it. Like I know without having to do it that I wouldn’t enjoy sword-swallowing.

I had to go. We got there, and a member of staff took us to the first door. She opened it up with two keys, and we went into a little vestibule. Ten of us in there, a rectangular room with that door at one end, and another door at the other. Nothing else there. The member of staff locked the first door with those two keys and moved past us to the other door.

And I thought, “I can’t get out of here. I can only get out if that person wants me to get out.”

Obviously I crushed that down with “She’s going to open the door now, you’re not really locked in, she’s opening it right now with two different keys”

But really I was just that seven year old stuck in the bathroom again.

There are all sorts of fears to write about or think about – you can scare people with snakes, or falling, or men with hooks for hands hiding in the back seat of your car – my friend Matt is so afraid of sharks he can’t take a shower without putting the plug in (yes, because sharks can obviously come up through the plug hole, that’s exactly how sharks work). But I knew that I understood the fear of being locked in, and I think most other people can react to it too.

So, that’s why the book is set in something like a prison.

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Posted in Uncategorized and tagged In Secure, my book!. Bookmark the permalink.

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Author Archives: suesspiciousminds

Absconding and secure accommodation

Re W – no presumption for a child to be brought up by a member of the natural family

Ellie Butler – Court of Appeal overturn decision to keep family Court judgment from Press

Paperback writer, paperback writer

Back off War child. Seriously

Jihadi Toddler

Woo Woo Woo (You know it)

“Fell far short of the promise foreshadowed in her CV” (radicalisation, Tower Hamlets)

Like I care – anonymous defamation on the internet

Banged up

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