suesspiciousminds

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.

The Hungarian Games

Posted on July 13, 2016 by suesspiciousminds

A peculiar case where the parents were agreeing to adopt their child and the fight was about whether that would be in the UK or Hungary.

Hence the title. And not by any stretch of the imagination, a cheap opportunity for a Jennifer Lawrence photo. Goodness looking through those photos to find a decent one was a terrible hardship.

I mean, seriously, I had to research the heck out of J Law for this piece

Re AO (Care proceedings) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/36.html

And yes, this Judge was setting me up for an A-O Let’s Go, Ramones * title, and I spurned it. I feel bad and all, but c’mon. J Law!

(*yes I lost my mind in first draft and put the Buzzocks)

In this case then, the parents were both Hungarian, but had been living in England for some time. They had a baby and didn’t feel able to care for the baby, so they contacted the Local Authority to say that they wanted to relinquish the baby for adoption. They understood what was involved and freely agreed to it. The LA felt that the baby should really grow up in Hungary, to be in touch with the parents culture. The parents were adamantly against this. That argument meant that the only way the baby could be adopted in Hungary would be if the LA obtained a Placement Order. And in order to do that, they would need to prove that the section 31 Children Act threshold criteria were met – that the child was suffering significant harm, or likely to do so.

Tricky to do.

Let us see how the LA argued that threshold was met.

In this case, the local authority’s case was that, by failing to care for AO themselves and by relinquishing her to be looked after by the local authority, the parents had caused her to suffer significant emotional harm and to be likely to suffer further such harm, that harm being attributable to the care given to her not being what it would be reasonable to expect a parent to provide. The local authority further contended that the fact that the parents said that they were content for AO to be placed for adoption in England did not reduce the harm in question because the harm and likelihood of harm arose from AO

(a) having to be permanently removed from her mother at birth;

(b) having to be cared for by a foster carer, however caring and competent, rather than her own parents;

(c) having in due course to be moved to another carer, whether in England or in Hungary;

(d) being deprived of any relationship with her birth parents and possibly with their extended family;

(e) being deprived in her early weeks and months of experiences consistent with her Hungarian culture and heritage;

(f) being likely to become an adopted person rather than being brought up by her birth family, and having in due course to learn that her parents chose not to bring her up themselves.

In oral submissions, Mr Stuart Fuller on behalf of the local authority conceded that not every case where a child is given up for adoption would satisfy the threshold criteria. He submitted that in this case, however, the parents’ actions in not only giving AO up but also insisting that she should not be placed in Hungary either with her birth family or with adoptive parents was unreasonable and was causing, or likely to cause, harm to AO in depriving her of the opportunity to live with her birth family and/or in her birth culture.

This position was supported by the children’s guardian. He submitted that neither parent had in fact provided AO with any care at all. He concluded that it was in her best interests to live in Hungary. The parents’ withholding of information concerning the family would prevent her having a complete understanding of her background and history and would impinge on her emotional welfare

I think this is skilfully put together, but it is nowhere near establishing threshold.

Unusually, the parents here shared the same silk, Frank Feehan QC, but each had their own junior counsel. I haven’t ever come across that before. But if you think that Frank Feehan QC (of Re B fame) was going to swallow that threshold, you haven’t been paying attention.

On behalf of the parents, Mr Frank Feehan QC, leading Ms Grainne Mellon for the mother and Ms Katherine Dunseath for the father, submitted that the threshold criteria were not satisfied in this case. They reminded me of the definition of “harm” in section 31 (9), and also reminded me of the provisions of section 31(10):

“where the question of whether harm suffered by a child is significant turns on the chart’s health or development, his health or development shall be compared with that which could reasonably be expected of a similar child”.

Mr Feehan and the juniors representing the parents further cited the well-known observation of Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 at para 70:

“society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.”

The core submission made on behalf of the parents was that the factual assertions made by the local authority and accepted by the mother did not amount to a finding of significant harm. It was submitted that to find that, as a relinquished child born in this country and now highly adoptable, AO would suffer significant harm as a result of growing up English rather than Hungarian would be a distortion of the statutory criteria. These parents took a decision as to the future of their child which many do not take: that they are simply not ready and not able to care for her and others should do so. They were in early contact with the authorities and fully cooperated with arrangements to ensure more than adequate care. In addition, it was submitted that, contrary to the suggestion that no information had been given by the parents as to AO’s background, the parents had in fact given brief but full details of their own families and background and upbringing.

The Judge, Mr Justice Baker, was also mindful of public policy issues – if you make it too difficult and too onerous and too intrusive for a parent who wants to give their child up for adoption to do so, well then you’ll return to the days of children being left in wicker baskets on the doorsteps of hospitals and police stations. There has to be a balance

In my earlier judgement, I considered earlier reported cases in which a child had been given up by parents for adoption. In particular, I cited the observations of Holman J in Z County Council v R [2001] 1 FLR 365 :

“Adoption exists to serve many social needs. But high among them has been, historically, the desire or need of some mothers to be able to conceal from their own family and friends, the fact of the pregnancy and birth. So far as I know, it has not previously been suggested, nor judicially determined, that that confidentiality of the mother cannot be respected and maintained. If it is now to be eroded, there is, in my judgment, a real risk that more pregnant women would seek abortions or give birth secretly, to the risk of both themselves and their babies …. There is, in my judgment, a strong social need, if it is lawful, to continue to enable some mothers, such as this mother, to make discreet, dignified and humane arrangements for the birth and subsequent adoption of their babies, without their families knowing anything about it, if the mother, for good reason, so wishes.”

I observed (at para 47 of Re JL, Re AO)):

“It might be thought that giving up a baby for adoption is a dereliction of responsibility. In many such cases – perhaps most – the truth will be very different. Anyone who has read the accounts of persons who have given up a baby in those circumstances will soon come to see that it is usually a decision taken only after a great deal of thought and anguish, by parents who realise that they cannot look after the baby and wish to give the baby the best opportunity to grow up in a loving home.”

As I pointed out in the earlier judgment, very few babies nowadays are given up for adoption at birth. In the first half of the 20^th century, when illegitimacy still carried great social stigma, the numbers of babies adopted at birth were very much greater. As the stigma has evaporated, so the numbers of deduction so the numbers of babies relinquished for adoption have dwindled. New techniques for reproduction have provided different ways of meeting the requirements of couples who are unable to have children themselves. But there remain a few isolated cases where a mother concludes that she is unable to look after her child. It may be because her past history demonstrates that she is incapable of caring for a child. Or it may be that she feels that she cannot keep the baby for other reasons. A civilised society must accommodate such feelings and decisions, as societies always have. These feelings and decisions come within the range of diverse parenting to which Hedley J was referring in Re L. If society does not tolerate and facilitate such decisions, mothers who feel that they cannot keep them babies will be driven to take other measures.
It follows, therefore, that the fact that the mother has given up her baby does not by itself satisfy the threshold criteria under section 31. When a baby has been simply abandoned on a doorstep, it is likely that criteria will be satisfied – each case will, as always, turn on its own facts. In cases where the mother has reached the difficult decision that she cannot keep the baby, notified the local authority in advance, and made responsible plans for the relinquishment of the baby in a way which minimises the risk of harm, it is in my judgment unlikely to be the case that the threshold criteria will be satisfied. It is likely that a baby deprived of her mother’s care will suffer some form of harm but that will be diminished if the baby is swiftly moved to another carer in a planned way. Even when a baby suffers harm from being deprived of her mother’s care, it does not follow in these circumstances that the harm can be described as being attributable to the care given to the child not being what it would be reasonable to expect a parent to give. A mother who concludes that she cannot care for her baby, and who notifies the authorities and makes responsible plans for relinquished in the baby at birth, is not, in my judgment, acting unreasonably.
The local authority argued that, in this case, the relinquishment has been accompanied by an insistence on the baby being placed in England, and a reluctance to co-operate with attempts to contact the Hungarian extended family or place the child in that country. As a result, A had suffered harm through being deprived of links with her extended family and culture. I agree that on one view this could be considered detrimental, but it is doubtful that it can be regarded as significant harm and, even if it can, I do not consider that the parents can be said to be acting unreasonably. It is not unreasonable for them to want the baby to be placed for adoption in this country. Such views also fall within the range of diverse parenting identified by Hedley J. Unless society tolerates and facilitates such decisions, mothers who want their children to be placed in this country will be driven to take other steps.
Accordingly, I concluded that the local authority has failed to prove the threshold criteria for making a care order under section 31 in this case.

As it was not possible to make a Placement Order without either parental consent or satisfying the threshold criteria, it wasn’t NECESSARY for the Judge to rule whether it might be better for the child to grow up in Hungary rather than England – but Baker J made it plain that he would not have done so in any event

Welfare

In the light of my decision as to the threshold criteria, it was strictly speaking unnecessary to determine whether the local authority plan for placing AO in Hungary would be the best outcome for her welfare, having regard to the provisions of section 1 of the Children Act. As I indicated at the conclusion of the hearing, however, it is my view, having considered the arguments, that such a plan would not be in AO’s overall interests, and I here set out the brief reasons for so concluding.
The local authority’s consistent view throughout these proceedings was that it was in AO’s interests to be brought up in Hungary. She is a Hungarian citizen whose heritage is Hungarian. Other than the place of her birth and placement with her foster carer for the last six months, she has no connection with this country. She has no extended family here. In addition, the local authority submitted that, were she to be adopted here, she would in due course be told of her background and would learn that she has Hungarian parents and extended family. It was argued that, were she then to learn that she had been “turned into” an English child because that was what her Hungarian parents wanted, she would be likely to suffer identity confusion which in turn could lead to emotional harm and stress within her adoptive family. In addition, if she is brought up in England, by the time she learns of a Hungarian background it will be extremely difficult if not impossible for her to make any meaningful connection with her heritage.
In reply, the parents’ consistent view throughout these proceedings has been that it would be better for AO to be brought up in this country. In addition, she was by the date of the hearing nearly seven months old and settled with her English carer. If she was moved to Hungary, she would move to a country where she is unfamiliar with the surroundings and language. In addition, if placed in Hungary, she would be subjected to at least two further moves of family – an initial preliminary foster placement to be followed by a move to a permanent family. In contrast, if she remained in this country, she would stay with the current carers until such time as an adoptive placement has been found.
The children’s guardian supported the local authority’s plan for moving AO to Hungary. He attached particular importance to her cultural heritage which would not be sustained if she was placed with an English family. A further concern highlighted by the guardian was that Hungary would be unlikely to recognise the adoption in England of a Hungarian child. This could create difficulties were AO to visit Hungary. Her ability to get to know Hungarian culture and background would therefore be impeded. The guardian feared that this might impinge adversely on her ability to gain a true sense of her identity, which in turn could lead to a sense of injustice with adverse consequences for her self-esteem, development and behaviour.
Set against that, however, the guardian expressed concern that with every passing week AO was becoming more attached to her current placement. He also pointed out that, if she was to be adopted here, a transition plan would be formulated involving both carers offering reassurance to help her with the change of primary care. In contrast, if she were to be placed in Hungary, the transition timespan would inevitably be much shorter which might cause difficulties in adjustment. Although it had been agreed that her carer and social worker would take AO to Hungary and take part in the transition arrangements, that process would, as the guardian identified, inevitably take place over a shorter period of time than in England. While supporting the local authority’s plan, the guardian was concerned that the details of how a Hungarian adoption would be arranged remained unclear, in contrast to the clarity of the process by which an adoption would be arranged in this country.
I accept that, other things being equal, it would be in AO’s advantage to grow up in her own culture. However, other things are not equal. AO is settled with her English foster carer and a move to Hungary would in my judgment be far more disruptive and damaging than an adoptive placement in this country which will involve only one change of carer, no language difficulties, and a transition that can be arranged at a pace and in a way that best meets AO’s needs. It is, of course, very important that AO should be brought up with an awareness of her cultural background, but in my judgment this can be addressed by carefully selecting adopters who are able and willing to accept that she has such needs which they as her permanent parents will have to meet. I acknowledge the potential difficulties if Hungary refuses to recognise an English adoption of a child that it regards as Hungarian, but in my judgment this factor, and the others identified by the local authority, do not outweigh the clear benefits of proceeding to place her for adoption in this country. Accordingly, had I been required to do so, I would not have accepted the local authority care plan as being the right option to meet AO’s needs.

A good decision, in my book. And it clarifies the position for other Local Authorities, and indeed parents.

Sometimes the law can be fair and kind, despite all the complex language and mystique.

Oh boy, did someone say “Mystique?”

Yes, these images are completely necessary to convey the legal niceties of the case

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Posted in adoption, case law, international and tagged 2016 EWFC 36, baker j, can a parent decide which county the child should be adopted in?, giving a child up for adoption, re ao care proceedings 2016, relinquish, relinquishing for adoption. Bookmark the permalink.

Plugging away

Posted on July 8, 2016 by suesspiciousminds

I believe that people who have pledged to my book have probably received an email from Unbound that contains a code voucher allowing them a free £10 to another book.

There’s lots of good stuff on Unbound, and that’s basically a FREE book, as well as making another author’s day.

So please visit and use your voucher, which is valid till the end of July.

May I suggest please

All the Perverse Angels by Sarah Marr https://unbound.co.uk/books/all-the-perverse-angels

Which sounds deliciously gothic and has got lovely rich language that made me feel like I was taking a warm bath whilst opening thick perfumed envelopes with a letter opener. And her video is really gorgeous.

Slow Motion by Jennifer Pierce https://unbound.co.uk/books/slow-motion a story of friendships and secrets that intrigued me

Or A Murder to Die For by Stevyn Colgan https://unbound.co.uk/books/a-murder-to-die-for who is like a machine at this crowd-funded book thing, and whose books and talks about intelligent policing are inspiring and make you think about the world in different and better ways.

If you have pledged to me, It is FREE to help one of these authors out, just look in your emails for ones sent by Unbound and the voucher code will be in there. And if you haven’t, then a pledge to me gets you one of these books too if you use the voucher once it arrives. Billy bargain.

https://unbound.co.uk/books/in-secure

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Settlement Conferences

Posted on July 6, 2016 by suesspiciousminds

Settlement Conferences are a new idea in English (and Welsh) family law, though they have been used in other jurisidictions, including Northern Ireland. The thinking is rather like the Financial Dispute Resolution in ancillary relief – you get all of the evidence together, the parties go in front of a Judge who will NOT be hearing any contested hearing and together as a group they try to see if there is a way of agreeing the case that everyone can live with. If they really can’t agree, everything discussed at that hearing is locked away and isn’t used by anyone at the final hearing which will be before an entirely different Judge and all they will know is that agreement wasn’t reached (they won’t be told what the first Judge suggested or indicated, or who gave ground and who didn’t, or what the sticking points were)

The idea is to settle the case by agreement, instead of having the stressful, time-consuming and (for the State/taxpayer) expensive final hearing.

In a money case, that’s always a live possibility – since going to a final hearing costs each side money (even if they are legally aided, their legal costs have to be paid back at some point out of the money they recover) and you know, money has loads of different ways of being divided and some of those ways can result in each side getting something they are happy with. In a Children Act case where the social work plan is adoption and the parents want the child home, there’s rather less room for compromise – it’s not easy to come up with a way where everyone leaves happy. So it can feel a bit more like a Settlement Conference is one side being told that they are LIKELY to lose at final hearing and to give up.

Sarah Philimore sums it all up very well here

Guidance from the Ministry of Justice about ‘Settlement Conferences’

The Association of Lawyers for Children have published guidance to their members and it is strong, punchy stuff

Click to access ALC_Guidance_to_Members_on_Settlement_Conferences_July_1st_2016.pdf

For example

Care and adoption proceedings are a grave interference in family life by a public authority. They can have consequences for several generations.

We believe the scheme may be in breach of the ECHR Article 6 and 8 rights of both parents and children.

The right of individuals to communicate privately with their legal representatives is a cornerstone of access to justice.

The right to professional advocacy is wholly undermined if lawyers are expected to remain silent.

A child cannot have a fair hearing if his parents have not.

and

5…. The essential difference between a conventional IRH and the settlement conference lies in the judge seeking directly to persuade the parties to agree

with his or her view of the likely outcome , and expecting the parent or other parties to speak directly to the judge, without the protection of professional

advocacy and legally privileged advice.

6. The judge taking the settlement conference will not be the allocated judge,and therefore the scheme undermines judicial continuity, which has been a central

aim of the family justice system for many years. The settlement conference judge will not have the depth of knowledge and nuance of the case and may

therefore arrive at the wrong conclusion about the merits.

Apart from the issue of further delay, there is a risk, particularly in the smaller court centres, that the judge who deemed the case suitable for a settlement conference will

communicate their disappointment to the trial judge if the conference fails to produce a settlement.

7.Lawyers are to be present at settlement conferences, but they are discouraged from speaking, and therefore their presence provides only a semblance

of legal representation and due process.

The judge may ask a question directly of the lay client which the lawyer objects to, but the client may answer before the objection

can be made. The judge may attempt to restrict the lawyer’s interventions as an undermining of the process.

The passive presence of lawyers will not best serve the parents’ or child’s interests, but will serve to make appeals from “consent” decisions more difficult

to launch. We believe it will be very difficult if not impossible for our members to discharge their overriding professional duty to

promote the interests of their clients in such an environment.

8.The parents in care cases are usually vulnerable and disadvantaged individuals, a disproportionate number of who have learning disabilities and mental

health problems. They find it difficult to articulate their experiences and present their views effectively in a court room setting. They are inevitably under considerable

emotional stress when attending court about their children. Being directly addressed by the judge and expected to reply is likely to be experienced by the

parent as a form of pressure to make concessions, no matter how tactful and skilled the judge may be. The scheme is intended to produce settlement by

bypassing lawyers and using the judge’s authority and personality toproduce concessions. If it were not, it is difficult to see why the settlement

conference should produce a better rate of settlement than a properly conducted IRH.

9.The scheme will seriously undermine public confidence in the fairness and transparency of judicial decision-making in the family courts.Public confidence in the

“secret” family justice system is shaky.

Final decisions for the permanent removal of children from their parents made “by consent”, without parents having the benefit of legal representation and

privileged advice, will be highly suspect.

This will further damage public trust in family justice.

It would be fair to say that there are still some kinks to work out. Shame that there wasn’t a consultation and dialogue before launch of the pilot to let these issues be ventilated. Whilst the pilot only covers a few local authorities, these are real families and real children who are undergoing a pilot scheme to make these life-changing decisions in a way that is critiqued as savagely as this.

Perhaps the pilots should cease whilst the MOJ get round a table with the ALC to discuss things.

I’d say the ALC response is a takedown that Brock Lesnar would be proud of.

Who is Brock Lesnar?

Only The Beast Incarnate, that’s who.

“My client, BRRRROCK Lesnar”

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Posted in family justice modernisation and tagged ALC, article 6, article 8, family justice reform, Settlement Conferences. Bookmark the permalink.

Judgment on Reporting Restriction on the Butler/Gray case

Posted on July 5, 2016 by suesspiciousminds

This was the request of the Press to be able to have access to material from the family Courts relating to Ellie Butler, Ben Butler and Jennie Gray and to be able to report it. They made the application following the conviction of Mr Butler for murder and the conviction of Ms Gray (having pleaded guilty) to lesser counts

London Borough of Sutton v Gray and Others 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1608.html

It is worth noting that at the start of the hearing, the Local Authority and Guardian were in support of release of materials and publication (subject to some minor redactions for anonymity) but during the course of the hearing became concerned, as the Judge was, that publication might result, if an appeal were lodged, in a mistrial claim for any criminal re-hearing

“It would be horrific if these parents were to avoid a retrial on the basis of publication at this stage”

[Despite everyone’s desire for transparency and information and a proper public debate, I think all of us can agree that we would not want Mr Butler to be freed on a technicality – as opposed to convincing a fresh jury of his innocence]

The Press application was put in this way

A number of principles are, as Mr Bunting suggests, applicable. Open justice is at the heart of our system of justice and vital to the rule of law. It promotes the rule of law by letting in the light and allowing the public to scrutinise the workings of the law for better or for worse. There is a particular need, I altogether accept, for the media to act as a public watchdog in care proceedings in the Family Court because of the intrusion or potential intrusion into the family lives of those concerned and what could be a serious interference by the state in family life.
Accordingly, while there is no presumption in favour of open justice, in private proceedings concerning the welfare of children there is a fundamental need for the press to play a scrutiny role in family proceedings. That is a matter enshrined within the President’s Practice Guidance (Family Courts: Transparency) [2014] 1 WLR 230. All of that I altogether accept.
The foundation of the jurisdiction to restrain publicity in a case such as this is derived from rights enshrined within the European Convention on Human Rights. A balancing exercise is required between competing rights. The balancing exercise as between Articles 8 and 10 has been addressed in a number of authorities; they are well described within paragraph 17 of the application. There is no need for me to read them into this judgment. I accept Mr Bunting’s analysis.
It is suggested that the proceedings before Eleanor King J are of the utmost public interest. There should therefore be, it is said, a strong presumption in favour of publication. There is an important public interest in the press being able to follow and understand those proceedings for the reasons described by Mr. Bunting; and there is a profound public interest in the press being able to investigate and, as necessary, report the varying approaches of the Family Court to the care proceedings relating to Mr. Butler and Miss Gray. These care proceedings, it is said, and I accept, place the Family Court under a particular spotlight and cry out for public exploration.
Mr. Bunting then goes on to say that in so far as the judgment and order of 30th June 2014 have been withheld from the press to protect against injustice in the criminal proceedings, this justification falls away upon the verdict given yesterday at the Old Bailey by the jury.

The Judge, Mrs Justice Pauffley, was rightly concerned with the prospect of an appeal being lodged and if successful it being argued that disclosure of material which a jury would not ordinarily see being used as a technical argument for that Mr Butler could not get a fair trial at any such re-hearing.

My starting point is the President’s guidance of 16 January 2014 – ‘Transparency in the Family Courts: Publication of Judgments’ and particularly paragraph 19 where he makes clear that in deciding whether and, if so, when to publish a judgment, a judge shall have regard to all the circumstances, the rights arising under any relevant provision of the European Convention, particularly Article 6, respect for private and family life, Article 8 and Article 10 freedom of expression. The guidance then, materially, continues thus, “And the effect of publication upon any current or potential criminal proceedings”.
All the signs are that the criminal processes involving Ben Butler are not yet over. Yesterday, as is reported on the BBC website, after the guilty verdict, Mr. Butler shouted out, “I’ll fight for the rest of my life. Unbelievable” before adding, “I want to be sentenced now so I can fight in the appeal court”. He added, “I’ll fight for ever to prove this wrong. My daughter was jumping in the house. I am 100% not guilty.” Miss Gray added, “Big mistake. Spend another ten years proving you wrong”. Those expressions of view, albeit uttered in the heat of the moment and immediately after the verdict, give some solid indication that the criminal proceedings are likely to extend to the making of an application for permission to appeal and to a submission that his conviction should be overturned.
The reporting of King J’s judgment, were I to give permission to release it to the media, is likely to be very extensive indeed. It will be, if I am able to forecast anything, front page news. I am fully aware of the extent of public interest in the circumstances of this case, the background, the extent to which the Family Court has been involved as well as to the many legal processes leading to yesterday’s verdict.
It is instructive, to my mind, to recall the manner in which there was reporting of the very sad circumstances of Khyra Ishaq’s pitiful life and terrible death in the aftermath of her mother’s conviction for causing that child’s death in about February 2010. There was, in the immediate aftermath of the criminal trial widespread front page, very prominent and extensive references to the judgment given many months, even perhaps years, previously by Eleanor King J.
There is a very high likelihood, indeed it is inevitable, in my assessment, that there would be the most widespread and extensive reporting of the content of King J’s judgment in this instance. Would there be repercussions for the criminal appeal’s process? Mr. Bunting invites me to significantly doubt that there would be prejudice. He says there is a long way to go before any retrial. It is unclear as to whether one would be ordered. There may be a slender prospect, he argues, and it may be in the distant future and it is insufficient to outweigh the public interest in favour of publication.
I would suppose that three options exist for the appeal which Ben Butler made clear yesterday he is intent on pursuing: firstly, that it is dismissed; second, that it is allowed and the conviction quashed; and, third, that the appeal is allowed to the extent that a retrial is ordered. I have no means of forecasting, no one has any means of predicting with any degree of accuracy, or at all, what will happen in connection with the proposed appeal. If there is any potential for a retrial then it seems to me that for exactly the same reasons as underpinned the decision of Eleanor King J not to release her judgment in 2014, I must do likewise.
It is useful to reflect upon the words of Mr. Justice MacDonald in the case of H v A No. 2 [2015] EWHC 2630 when he said, albeit in a slightly different context:

“In the age of the Internet, … today’s news story no longer becomes tomorrow’s discarded fish and chip wrapper, but rather remains accessible in electronic form to those with the requisite search terms …”.

We are, I would observe, in a very different environment to that which existed even ten years ago. There is the potential for prejudice to, even the derailing of, the criminal process. That, to my mind, is manifest. The risk may be, as Mr. Bunting suggests, small but the consequences for the criminal process could be incalculable.
One scenario, quite obviously, is that Mr. Butler might seek to argue that consequent upon the publicity accompanying the publication of Eleanor King J’s judgment, which is bound to contain a great deal more material than is currently in the public domain, he could not be assured of a fair trial. That possibility, the potential for that eventuality, inevitably compels me to dismiss this application.
One thing though should emerge and be made abundantly clear. The arguments in favour of the release of King J’s judgment are powerful and strong. They will remain so. I fully expect that so soon as the criminal appeals’ process is at an end a full, suitably redacted version of the 30th June 2014 judgment will be published. That is my judgment.

Unless an appeal is brought on fresh evidence, a criminal appeal must be lodged within 28 days of conviction (if appealing against conviction) or 28 days of sentence (if appealing on sentence), so the appeal window expires at the end of July. If Mr Butler does not lodge such an appeal, I would expect the Press to revive their request to see the judgments and to be able to publish stories that provide detail from them. If an appeal IS lodged, then the publication and release of the material will have to wait until that appeal runs its course, which could be many months.

Frustrating, particularly given how much material came into the public domain after conviction (for example Mr Butler’s previous convictions, which a jury would not normally see or hear about) but absolutely nobody would want this case to be determined on a technicality. If Mr Butler does appeal and gets a re-hearing, it must be decided on the facts of the case and its merits, not by a technicality.

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Posted in case law and tagged 2016 EWHC 1608, Ben Butler, ellie butler, Jennie Gray, london borough of sutton v butler 2016, mrs justice pauffley, reporting restriction order. Bookmark the permalink.

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