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That’s when I start promising the world to a brand new girl I don’t even know yet

 

Next thing, she’s wearing my Rolex.

 

I wrote about Part 1 of the Pauffley J hearing about alleged radicalisation where all of the evidence that might prove whether threshold criteria existed or not was in the hands of the security services and they (having originally tipped off the LA that they should do something) decided they didn’t want to cough up the material.

https://suesspiciousminds.com/2016/12/28/cloak-and-dagger-threshold/

I feel very very uncomfortable about this sort of thing.  I fully understand that in order to protect the citizens of this country, the security services will watch individuals and don’t want those under suspicion to know exactly what the security services knows and how they know it. I get that. But by the same token, if a parent is being accused of being a risk to their child and faces the possibility of losing their child, they are entitled to see what the evidence against them is and to test it.

The alternative is that we end up with a set of care proceedings run along the lines that Christopher Booker imagines happens all the time, where the parents aren’t told what they are supposed to have done and don’t get to fight the allegations.

I’m not sure how you square that circle. My gut feeling is that the children probably stay with the family unless and until the security services either have enough to charge the parents with a criminal offence, decide there is no risk, or that the information known can be safely shared without putting others at risk.

Anyway, you may remember from Part 1, that it ended with the Security services telling the Court that they were going to get a Public Interest Immunity (PII) certificate signed by the Secretary of State about the documents.

This is what happened next.

http://www.bailii.org/ew/cases/EWHC/Fam/2017/692.html

C (A Child), Re (No 2) (Application for Public Interest Immunity) [2017] EWHC 692 (Fam) (31 March 2017)

 

Those representing the Secretary of State asked for a CLOSED hearing. In basic terms (and I’m massively oversimplifying to make it possible for normal people to follow) that means that the lawyers for the Secretary of State would address the Judge about the documents and why they could not be shared, and nobody else would be in the room.

 

 

Discussion of procedural steps

 

  • I quite accept that the courts and the SSHD are even now in the relatively early stages of grappling with the problems consequent upon proceedings of this kind. I would be the first to accept that I have been engaged in a learning exercise. I suspect the same may be true for those advocates who have not hitherto had much experience of dealing with cases where PII might be asserted in circumstances such as these.
  • There have been several complicating factors leading to delay identified by Ms Wheeler in CLOSED session which are inappropriate for inclusion within this OPEN judgment.
  • At all events, there are some obvious conclusions to be drawn from events in this case. The first is that where the SSHD is faced with disclosure orders relating to material which is or may be sensitive and where the likelihood is that PII will be asserted, it is incumbent upon the GLD to set up a process for early and definitive decision making.
  • The spectre of a potential PII claim was manifest in this case from as far back as 3 November 2016. On that day, I received an urgent letter from the GLD, indicating there was material which for reasons of national security the SSHD was not at liberty to disclose. A further period of 28 days was requested to further consider the information with a view to either effecting disclosure, advancing a claim for PII or seeking a declaration under s.6 of the JSA 2013.
  • By the time of the 2 December hearing, the indications were that if the SSHD was unsuccessful in her bid to revoke the 4 October 2016 disclosure order, she would claim PII. As I observed towards the end of the December judgment, until there was a PII Certificate containing the SSHD’s judgment as to the harm to the public interest that would be caused by disclosure and the weight to be given to competing public interests, there was no appropriate mechanism for action.
  • It is disappointing to say the least that the PII Certificate was not issued until 7 March 2017, some three months later, and at a time when no fewer than four distinguished legal teams had spent a great deal of time and effort considering a landscape which did not comprise a claim for PII. Had the claim been made sooner, those endeavours would have been largely unnecessary.
  • Doubtless the GLD is an over-stretched organisation with many competing calls upon the time of those who work within. However, with an eye to the future and other similar cases, it seems to me that there must be mechanisms for significantly swifter specialist advice and consequent action. Had there been an application for PII in the autumn of last year, it would have been resolved before Christmas; the hearing of 2 December would have been superfluous to requirements; and the care proceedings would not have been mired in procedural argument for more than three additional months pending resolution of these issues.
  • As Mr Twomey suggests, delays, lack of clarity and inconsistency in the approach of the SSHD are unhelpful and tend to give rise naturally enough to scepticism and suspicion. The earlier there is (can be) precision the better. The stop / start approach of the last four to five months has been distinctly unhelpful. By some mechanism or another, strategies for avoiding anything similar should be devised as a matter of urgency.

 

Potential for conflict

 

  • Arising out of events on 25 January 2017, there was the potential for unfairness which Mr Twomey was right to identify in his written submissions. As he correctly identifies, on 25 January I met briefly with two members of the GLD to take possession of a bundle of CLOSED material; and I concluded that a hearing in CLOSED would be required. Mr Twomey maintained that the parties were unaware of what was said on behalf of the SSHD on that occasion and what I was shown. In fact, as Ms Wheeler related in her submissions of 6 February 2017, the documents I had read were CLOSED submissions and a Sensitive Schedule (also known as a damage assessment) explaining why the SSHD contends material should be withheld, the nature of the damage were disclosure to be ordered and the reasons for delay in progressing a formal claim for PII. But I was not provided with the material over which a claim for PII is being considered.
  • As for anything discussed between the GLD lawyers and me on 25 January, I can confirm that nothing of any substance was said. The sole purpose of the meeting was so as to comply with the necessary procedures for dealing with CLOSED material. My clerk, for example, is not able to handle CLOSED material. Thus it was necessary for me to meet with Mr Fitzgibbons and Mr da Silva to take possession of and later relinquish the CLOSED file.
  • Mr Twomey asked me to confirm whether or not those documents form part of the PII application. If they did not, then it would be necessary to consider whether I could fairly determine the PII application and / or how those documents could be treated so as to ensure a fair hearing.
  • In response to those submissions, I indicated that Ms Wheeler’s CLOSED submissions from late January had not been made available to me in readiness for the hearing on 15 March. Ms Wheeler’s initial view had been that there was no need for me to consider her earlier submissions afresh given that more pertinent material was now available in the form of the OPEN Certificate. Given the potential for a sense of unfairness if the January submissions were not once more made available, a copy was provided in advance of the CLOSED hearing.
  • No party sought to suggest there was any reason associated with events on 25 January, materials read or discussions with the GLD, which could have prevented me from dealing with the claim for PII. Accordingly, satisfied as I was that there was no reason to recuse myself, I convened a CLOSED hearing at which I heard Ms Wheeler’s oral submissions and probed a number of issues.
  • There was no judgment at the end of the CLOSED hearing. I indicated I would be preparing an OPEN judgment.

 

 

 

The Court considered the principles in deciding whether documents should be withheld from distribution under the Public Interest Immunity process

 

 

 

The three steps involved in making a PII claim – R v. Chief Constable of the West Midlands Police, ex parte Wiley [1995] 1 AC 274

 

  • There are three required steps when the SSHD considers whether to make a claim for PII. First, whether the material is relevant and passes the threshold test for disclosure in the applicable proceedings – (Certificate §11). Second, if the threshold test is passed, whether the material identified as relevant and subject to disclosure attracts PII. The test is whether there is a real risk that disclosure would cause ‘real damage’ or ‘serious harm’ to the public interest – (Certificate §13 and 19). Third, if applying the ‘real damage’ test, the material attracts PII, the question arises as to whether the public interest in non-disclosure is outweighed by the public interest in disclosure for the purpose of doing justice in the proceedings. The factors in favour are set out in the Certificate at §18; those against between §§19 and 26.

 

 

Slightly disappointed that Pauffley J did not indicate that R v Chief Constable of the West Midlands Police, ex parte Wiley is a party guy and he knows it, but bigger fish to fry, no doubt.

 

 

 

Positions of the parties

 

  • The local authority’s position is that it will await the outcome of the PII hearing and will then take stock. Ms Morgan understandably submits there is a limitation upon the assistance she can give in relation to the Wiley balancing exercise, given that she has no knowledge of the material over which the SSHD asserts her claim for PII. Ms Morgan does though make a number of observations particularly as to the sufficiency of primary evidence absent disclosure. Ms Morgan’s overarching observation is that I should approach the balancing exercise on the basis that if the care proceedings conclude for want of established threshold criteria, the likelihood of the local authority being in a position to safeguard the child – or justify interference in his life – in any effective way would be virtually non-existent.
  • Mr Twomey suggests that the very significant delay in making the PII application calls for an explanation and raises a serious issue as to the merits of the claim. Mr Twomey suggested that when I considered the claim there were a number of issues which may be relevant but which might only be probed in CLOSED session. He cited eight matters and asked a number of associated questions – all of them useful to me during the CLOSED session.
  • On behalf of the child’s guardian, Mr Parker suggests there are two points which undermine confidence in the SSHD’s evaluation. First, that the unwillingness to provide disclosure was a position arrived at long before the balancing exercise set out within the Certificate. There is a risk, accordingly, that the Certificate is simply an ex post facto justification of the SSHD’s position. Mr Parker’s second general point is that the premise for the balancing exercise is flawed in that the SSHD understands the local authority’s application is for a supervision order whereas the interim measure does not reflect the true nature of the proceedings.
  • Mr Parker makes four points in relation to the Wiley balancing exercise which, he submits, increase the balance in favour of disclosure – the insufficiency of available primary evidence, the inappropriateness of the Channel programme as an alternative method of safeguarding, the current unavailability of the Desistence and Disengagement Programme and the unreasonableness of requiring the mother to surrender her travel documents permanently.

 

1. Relevance

 

  • The first question, as to relevance, is simply satisfied. The SSHD proceeds on the assumption that the material is relevant and, in principle, disclosable as the result of the 4 October 2016 orders for disclosure. That is clearly right.

 

2. Would disclosure damage the public interest?

 

  • The second issue is confronted within the Certificate in this way. The SSHD identifies that the Government’s approach to PII requires her to focus specifically on the damage that would be caused by the disclosure of the particular material in issue and to assert PII only if satisfied that disclosure of that material would bring about a real risk of real damage to an important public interest. The SSHD expresses herself satisfied that the material referred to in the sensitive schedule would cause serious harm as it includes information of one or more of eleven specified kinds.
  • Within her OPEN submissions, Ms Wheeler explained that the reasons include those relating to national security though it is not possible to be more specific in OPEN about the nature of the harm that would be caused by disclosure. The effect of the material engaging national security considerations was that disclosure would create a real and significant risk of damage to national security (§19 of the Certificate).
  • I have sound reasons for agreeing with the SSHD’s evaluation based upon materials provided to me in CLOSED.

 

3. The Wiley balance – factors for and against disclosure

 

  • The last part of the Wiley exercise involves balancing the factors in favour of and against disclosure. The SSHD when considering the impact of non-disclosure takes into account three specific points – the nature of the material, the open and available material and other powers to protect the child.
  • The SSHD considers the factors in favour of disclosure to fall into two categories. First, the strong public interest in ensuring that children are protected from the risk of harm and that the material of potential relevance should be available to parties to family court proceedings. And second, that in general legal proceedings should be conducted openly; open justice principles are in play and are an important factor in protecting the rights of individuals and maintaining public confidence in the justice system.
  • To my mind, the most significant, weighty and powerful of the factors militating against disclosure is that the material engages considerations of national security. The SSHD formed the view that disclosure would create a real and significant risk of damage to national security. I accord great respect to and share that assessment on the basis of the material made available to me in CLOSED session, namely Ms Wheeler’s CLOSED submissions and the Sensitive Schedule (or damage assessment).
  • The conclusion of the SSHD that national security considerations are engaged, a judgment formed on the basis of comprehensive materials made available to her, in Ms Wheeler’s submission, should properly be accorded great deference. As Lord Templeman observed in R v. Chief Constable of the West Midlands Police, ex parte Wiley [1995] 1 AC 274 @ 281, “As a general rule the harm to the public interest of the disclosure of the whole or part of a document dealing with defence of national security or diplomatic secrets will be self-evident and preclude disclosure.

 

Other available evidence

 

  • Ms Wheeler urges me to consider the other factors put forward in favour of non-disclosure. Firstly, the existence of other available evidence from which the court may be able to draw inferences and find the threshold criteria satisfied. Second, in the event that the threshold criteria could not be satisfied and thus a public law order was unavailable, there could be recourse to other safeguarding measures such as the ‘Channel Programme’ and a new Home Office initiative, the ‘Desistence and Disengagement Programme.’ Thirdly, steps could be taken to disrupt travel plans involving flight to a war zone by continued passport restrictions.
  • It is clear that the SSHD’s contention as to the availability (and sufficiency) of other evidence causes the local authority, in particular, very real anxiety. Unwittingly, I suspect that I have contributed to the problem by observations made in the December judgment which play into the argument that further disclosure from the Home Office was (or is) necessary: see §§ 35, 39 – 42.
  • At that stage, however, I had not been required to consider the Wiley balancing exercise, I was not privy to Ms Wheeler’s CLOSED submissions and I had not considered the Sensitive Schedule. The landscape now is very different and disclosure questions call for a modified response.
  • Ms Wheeler is right to draw my attention to the available evidence. It amounts to a mixture of established facts as well as matters which give rise to likely inferences. It is unnecessary to descend into the particulars beyond observing that both parents have been stopped at airports (father in June 2014 and February 2016; mother in January 2016) and questioned pursuant to Schedule 7 of the Terrorism Act 2000. A police officer from the Safeguarding Unit of the Metropolitan Police Service Counter Terrorism Command (SO15) has made a statement. So, too, other officers who conducted the port stops and interviews.
  • More detail of available evidence is set out within paragraphs 3 to 8 of Ms Wheeler’s submissions dated 14 March 2017. Furthermore, Ms Wheeler makes the valid point that the letter from HM Passport Office dated 3 August 2016 refusing the father’s application for a replacement passport is of significance. It can and should be taken into account, argues Ms Wheeler, as part of the evidential picture.
  • I agree with Ms Wheeler’s submission that the Home Secretary’s decision to exercise the Royal Prerogative so as to refuse to issue the father with a passport (based on the assessment that he is an Islamist extremist who seeks to travel to Syria for jihad) is ‘evidence.’ The Home Secretary’s decision is amenable to judicial review but there has been no challenge.
  • I also agree with the suggestion that the denial of a replacement passport on the basis of the exercise of the Royal Prerogative would not be, of itself, sufficient to establish the threshold criteria. Clearly it is a factor of relevance which could be taken into account as part of the evidential picture though it is impossible to assess quite how much weight might be attached in advance of any hearing.

 

As I said earlier, these cases leave me uncomfortable. Yes, a flimsy and vague threshold could be constructed on the basis that the parents have been stopped at airports and questioned under the Terroism Act and that the Secretary of State has seen material such to persuade them to refuse to issue the father with a passport, but if the parents assert that these actions were wrong, mistaken or the result of some form of racial profiling without foundation in reality, how is an LA to prove likelihood of significant harm?

 

The Judge says something very important about the documents that have not been shared. In essence, they wouldn’t themselves establish threshold even if they could be seen and relied upon

Nature of the material – future progress of litigation

 

  • With the future of these proceedings in mind, it is appropriate that I should discuss a matter which arose during the course of CLOSED session. It seems highly unlikely that the material upon which the SSHD has formed her assessment leading to the application for PII would advance the local authority’s case to any significant degree. On any view, the material could not be provided to (and therefore be used by) the local authority for the purpose of legal proceedings, whether to inform its assessment of risk or for the purpose of commissioning any expert intervention. Moreover, the material does not advance an understanding of the parental relationship or contact with or intentions towards the child.

 

 

The judgment and story rather fizzles out there. Perhaps there was an application to withdraw the proceedings, perhaps not. We may never know.

 

 

 

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Totally radical, dude

"Put them in the Iron Maiden"

“Put them in the Iron Maiden”

 

The President has published guidance on radicalisation cases within the family Court, which you can find here:-

 

https://www.judiciary.gov.uk/wp-content/uploads/2015/10/pfd-guidance-radicalisation-cases.pdf

 

The Guidance says that ALL radicalisation cases are to be heard in the High Court, and that this specifically excludes Circuit Judges who have a section 9 ticket allowing them to sit as a High Court Judge. [UNLESS an actual High Court Judge explicitly releases an individual case to them]  The cases will purely be in the High Court.

To address the fact that this means that say, the family Judges in Luton would be oblivious to there being a major radicalisation problem in Luton because they won’t see any of the cases, the Designated Family Judge in each area must be notified of each application when they are made.

 

The guidance goes on

Judges hearing cases falling within the description in paragraph 1 above will wish to be alert to:

(a) the need to protect the Article 6 rights of all the parties;

(b) the fact that much of the information gathered by the police and other gencies will not be relevant to the issues before the court;

(c) the fact that some of the information gathered by the police and other gencies is highly sensitive and such that its disclosure may damage the public interest or even put lives at risk;

(d) the need to avoid inappropriately wide or inadequately defined requests for disclosure of information or documents by the police or other agencies;

(e) the need to avoid seeking disclosure from the police or other agencies of information or material which may be subject to PII, or the disclosure of which might compromise ongoing investigations, damage the public interest or put lives at risk, unless the judge is satisfied that such disclosure is “necessary to enable the court to resolve the proceedings justly” within the meaning given to those words when used in, for example, sections 32(5) and 38(7A) of the Children Act 1989 and section 13(6) of the Children and Families Act 2014;

(f) the need to safeguard the custody of, and in appropriate cases limit access to, any sensitive materials provided to the court  by the police or other agencies;

(g) the need to consider any PII issues and whether there is a need for a closed hearing or use of a special advocate;

(h) the need to safeguard the custody of, and in appropriate cases limit access to, (i) the tape or digital recordings of the proceedings or (ii) any transcripts;

(i) the need to ensure that the operational requirements of the police and other agencies are not inadvertently compromised or inhibited either because a child is a ward of court or because of any order made by the court;

(j) the assistance that may be gained if the police or other agencies are represented in court, including, in appropriate cases, by suitably expert counsel.

 

 

 

 

This is a major issue, or potential issue.  Imagine for a moment that the X family come to the attention of the Police or the intelligence services. They are believed to be radicalising their child. That would, when shared with the Local Authority, give rise to the need for care proceedings being initiated, and possibly that an application be made for the removal of that child.  But imagine that the REASON the police or intelligence services have that concern is that they are monitoring the phone calls, text messages or emails of Mr Y, someone who is recruiting for ISIS.  They may very well prefer that the X family don’t learn that Mr Y’s emails are compromised, and that hence Mr Y is alerted and changes his phone, and email account.   Suppose that the REASON is not monitoring emails but that Mr Y has a colleague in the terrorist cell,  Mr Z who is actually clandestinely working with the intelligence services – that really could be a matter of life and death if the X family learned that Mr Z was a spy. Both for Mr Z and for the future intelligence that might save lives whilst he remains undetected. This is big stuff.

 

[If you ever watched The Wire, you’ll be familiar of the constant battle with the police and drug dealers to get the information from the phone taps but without tipping the drug dealers hand to the fact that their communications are compromised, and thus that the drug dealers would ‘change up’ their systems. And if you have never watched The Wire, then I recommend that you remedy that. ]

 

"Omar comin' ! "

“Omar comin’ ! “

 

This puts the debate into really clear terms – if there’s information that is relevant to the proceedings – for example those representing the parents are likely to want to know exactly why the parents are suspected of radicalisation and what the evidence-base is, but it might impact on national security, then the Judge is going to have to ensure that the disclosure requests are very focussed, and that if there’s to be an argument that the documents should not be disclosed, that a proper Public Interest Immunity hearing takes place which balances the article 6 arguments in favour of disclosure with the national security PII arguments.

 

Because let’s not foreget, that parents in this situation are entitled to a fair trial. The allegations or information might be a mistake, or malicious, or mistaken identity.  We can’t lose sight of the fact that it is the State who have to prove that these parents have radicalised the child, not for the parents to prove their innocence.

Where this happens in crime, the Judge generally sees the documents in order to conduct what is called an “Air Canada” exercise, to consider them on a line by line basis to see what can be disclosed and what might have to be withheld. You cannot assume that article 6 will trump national security always or vice versa, it will be very case and fact specific.   Might this procedure even eventually extend to police or intelligence witnesses giving evidence behind closed doors, with the parents not hearing it?  How do we feel about that?

 

It is worth noting that in this guidance, when the phrase “Special Advocate” is used, it may not be simply meaning a ‘specialised’ or ‘specialist’ advocate, but rather that at the hearing where the documents are considered and arguments deployed, that the Court would appoint a barrister specifically to make those arguments on the parents behalf – NOT the ones representing the parents in care proceedings, and ones who would not have a duty to share that information with the parents.  That would be a very big deal in care proceedings. It is somewhat controversial generally, but as far as I’m aware, we haven’t done it in care proceedings before.  [I’m not absolutely sure that we can even do it without a statutory basis or a strong precedent that it can be done. But I’m no expert on the Special Advocate jurisprudence]

 

The guidance continues

 

11 This is a two-way process. The court can expect to continue to receive the assistance it has hitherto been given in these cases by the police and by other agencies. But there must be reciprocity.

12 The police and other agencies recognise the point made by Hayden J  that “in

this particular process it is the interest of the individual child that is paramount. This

cannot be eclipsed by wider considerations of counter terrorism policy or operations.”

The police and other agencies also recognise the point made by Bodey J that “it is no part of the functions of the Courts to act as investigators, or otherwise, on behalf of prosecuting authorities … or other public bodies.” But subject to those qualifications, it is important that the family justice system works together in cooperation with the criminal justice system to achieve the proper administration of justice in both jurisdictions, for the interests of the child are not the sole consideration. So the family courts should extend all proper assistance to those involved in the criminal justice system, for example, by disclosing materials from the family court proceedings into the criminal process.

13 In the same way, the police and other agencies will wish to be alert to the need of the court for early access to information, for example, information derived from examination of seized electronic equipment, so far as such information is relevant to the issues in the family proceedings. Accordingly, the court should be careful to identify with as much precision as possible in any order directed to the police or other agencies: the issues which arise in the family proceedings; the types of information it seeks; and the timetable set by the court for the family proceedings.

 

I have been worried about the balance between confidentiality and national security on the one hand and fairness and article 6 on the other for a long while in relation to radicalisation. I think that it is helpful to have published guidance as to the very difficult issues that Judges dealing with these cases are faced with.  How they will be dealt with in practice is something I’ll be very interested to read about (assuming that I’m allowed to)

Children travelling to join ISIS

The Tower Hamlets case attracted quite a bit of media attention, and the judgment is now out. It contains quite a bit of practical guidance for all agencies where there is a concern that a child is going to be sent or going under their own volition to a country such as Syria with an intention that they join a terrorist organisation such as ISIS.

Tower Hamlets v M and Others 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/869.html

The case was heard, alongside another one mentioned in paragraph 6, by Mr Justice Hayden.

The Judge recognised that the seizure of the children’s passports did not require any evolution or extension of the law, but could be done under existing provisions, but did set out some practical recommendations to be followed.

 

  1. This course, though it arises in circumstances which do not have recent precedent, did not in any way require an evolution in the law itself. For example, the jurisdiction was recognised in Re A-K (Foreign Passport: Jurisdiction) [1997] 2 FLR 569.
  2. Both cases came before me last week on ex parte application. I was satisfied, on the evidence presented to me, both that the measures sought were proportionate and that there were strong grounds for believing the situation was urgent. I remain convinced of both.
  3. The removal of an individual’s passport, even on a temporary basis, be that of an adult or child, is a very significant incursion into the individual’s freedom and personal autonomy. It is never an order that can be made lightly. Where only the State, in this case through the arm of the local authority, appears in court, it must never be forgotten that the court requires a very high degree of candour on the part of all of those involved.

 

The Judge went on to explain that by candour, he did not just mean honesty and that this was a given, but that the evidence presented to the Court for such an application must be the fullest possible, and that even evidence that would seem to be harmful or hinder the application must be shared with the Court.

  1. Rather, I wish to emphasise that the fullest possible information must be placed before the court in an entirely unpartisan way. Both the evidence which supports the application and that which runs counter to its objectives. Nothing less than that will suffice.
  2. This duty, in such an application, extends not merely to counsel and solicitors but to all involved: police; social services; whichever professional capacity.
  3. Moreover, the lawyers involved must take great care to emphasise and reinforce this obligation to their lay and professional clients in clear and unambiguous terms. This very high degree of candour must also be accompanied by careful consideration as to whether the facts present a real degree of urgency, which of themselves necessitate an application being made on an ex parte basis.

There were a couple of points in the Tower Hamlets case that prompted that – the first being that the orders made necessarily required the police to take a number of actions – the Court had understood that the police were aware and supportive, only to learn at a later stage that the police were unhappy about some of the things they had been asked to do.

This was very serious. Counsel for the Local Authority had specifically addressed the Court on this, and his instructions had been plain that the police supported the Local Authority applications and said so unequivocally to the Court twice. [I will make it really plain that the Judge was satisfied that Counsel had been sold a pup, rather than was intentionally misleading the Court]

 

  1. I had been told by Mr Barnes, counsel who appears on behalf of Tower Hamlets, at the first hearing, on 20 March, when the Local Authority appeared alone, that the police supported the Local Authority’s actions. In fact, I twice asked whether that was the case, and twice Mr Barnes reassured me, unequivocally, that it was. I have no doubt at all that those were his instructions.

Hoerver, after the orders were made, it had become obvious that the police had not been as involved in the process as the Court had been led to understand. To the point that the police had been liaising with the High Court tipstaff about wanting to see if the passports could be handed over voluntarily by the families, and the Judge suspended his orders.

 

  1. However, on Saturday afternoon, I received a telephone call from the High Court Tipstaff to inform me that the police considered that they had not had proper chance to evaluate the risk identified in the Local Authority’s application. And insofar as they had, they considered that enforcement of the orders might not be required.
  2. In essence, I was told, they wished to see if it might be possible to secure the surrender of the passports, as contemplated by the orders, by cooperation with the families.
  3. In view of the fact that this information, given to the High Court Tipstaff, came from a team specialist in counter terrorism, and I have been told authorised at very senior level, I ordered the immediate suspension of my earlier order.

 

That is obviously extremely serious, and the Judge rightly explored it further on the return date.

  1. However, during the course of that hearing, Mr Barnes confirmed that a misleading impression had indeed been given by the Local Authority to the court on 20 March.
  2. Whilst it is correct to say that the police had been informed of the applications, as I was told, investigation of how and when they were told, undertaken at my insistence, revealed that they had only been notified of the application at around 2 o’clock on 20 March by email and had, therefore, no real chance to consider their response.
  3. I pause to say that by 3.30 that afternoon the Local Authority were already before me.
  4. I regret to say that I have concluded that the Local Authority consciously misrepresented the extent of the police awareness of this application. I do not reach that conclusion lightly. It is for this reason that I have felt it necessary to restate that which, to my mind, ought properly to be instinctive to every professional in this field, that is to say the very high degree of candour required in applications of this kind.

Very serious indeed.

 

The second was that there had been an issue over whether one of the children’s passports was (a) missing and (b) whether it was expired in any event. This was obviously a very critical point, given that what was being sought was orders to prevent the children leaving the country. The Court had been given information about this, in good faith, that later turned out not to be accurate. (It is all set out at the end of the judgment if you want to know more)

 

I should like to take this opportunity to distil a number of core principles.

(i) The lawyers should take care to draft, at very least in outline, the scope and ambit of the orders they seek and in respect of whom they seek it. This should be undertaken before coming to court. That will not only expedite the subsequent service of the orders on those concerned, it is also a crucial forensic discipline, compelling the lawyers to think in a properly focused manner about the specific orders they seek;

(ii) Thought should be given, from the very outset, as to how quickly the case can be restored on notice. This is the essential requisite of fairness in the process, now buttressed by article 6 of the European Convention on Human Rights;

(iii) Even though these cases will, of necessity, be brought before the court in circumstances of urgency, they nonetheless require the instruction of senior and experienced lawyers. The issues have profound consequences, not limited to the individuals concerned, and will frequently require a delicate balancing of competing and potentially conflicting rights and interests;

(iv) All involved must recognise that in this particular process it is the interest of the individual child that is paramount. This cannot be eclipsed by wider considerations of counter terrorism policy or operations, but it must be recognised that the decision the court is being asked to take can only be arrived at against an informed understanding of that wider canvas. It is essential that the court be provided with that material in appropriate detail;

(v) It will never be satisfactory, in applications of this kind, merely to offer verbal assurance, through counsel or any other individual, that the police, security forces or those involved in counter terrorism, are aware of and support the application. There must in future always be ‘hard’ evidence, i.e evidence which is cogent and coherent, placed before the court and capable of being subject to appropriate scrutiny. The format of the evidence may vary from case to case. It may require a police presence in court. There may be the need for police/counter terrorism officers to be represented, written and sworn statements may sometimes suffice. On occasion evidence may be received by secure telephone or video link;

(vi) Justified interference with the article 8 rights of a minor will always require public scrutiny at some stage in the process. In both cases this week, the press attended. It was only necessary for them to withdraw on one occasion, at the request of a very senior police officer present in court, supported by the local authority. The request was made because sensitive issues of policy and national security arose. Transparency, that is to say the attendance of accredited press officials in court, remains the presumption here, as it now is in all aspects of the work of the family justice system;

(vii) Recognising that there will be an urgency to these applications, careful attention, in advance of the hearing, should be given to the framework of reporting restrictions required to protect the child from publicity. In this exercise, it should be remembered that some of the families involved may already have excited a degree of press coverage. Indeed, they may, on occasion, have sought it out. There is a risk that identification of the children might be revealed by piecing together information already in the public domain, i.e. the ‘jigsaw effect’. As, in paragraph 1 above, and for similar reasons, the restrictions contended for should be drafted before coming to court;

(viii) Though it may appear trite to say so, an evaluation of the reporting restrictions, as I have been reminded by the press this morning, should always have at the forefront of the exercise the reality that publicity is not confined to the conventional or recognised media outlets, but extends, with inevitably greater challenges, to the wide range of social media likely to be the primary sources of information for these children, their peers and those with whom they interact more generally;

(ix) The importance of coordinated strategy, predicated on open and respectful cooperation between all the safeguarding agencies involved, simply cannot be overstated. An ongoing dialogue in which each party respects, and I make no apology for repeating the word respect, the contribution of the other, is most likely to achieve good and informed decision making.