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In which MacDonald J asks the question and answers it in paragraph 1 of the judgment

 

Which is something that I’d like to see more often.

 

The question before me is whether the High Court has power, under its inherent jurisdiction, to make a costs funding order against a local authority requiring it to fund legal advice and representation for a parent in wardship proceedings brought by the local authority where that parent has lawfully been refused legal aid. I am satisfied that the answer to that question is ‘no’.

 

In essence, that question arose because the Local Authority had read some of the previous authorities on radicalisation or alleged radicalisation of children to suggest that they ought to be issued as wardship proceedings (which doesn’t get non-means, non-merits legal aid) rather than care proceedings (which do).  That doesn’t feel right, because parents in such cases really do need legal representation.

A scheme so cunning you could put a tail on it and call it a weasel was devised (either nobody invited the LA to simply issue an application for care proceedings so that there would be legal aid for the parents or they did and the LA refused, I don’t know), but anyway an intricate scheme was attempted instead.

As you can see, MacDonald J said no to that.

HB v A Local Authority & Another  (Wardship Costs funding order) 2017

http://www.bailii.org/ew/cases/EWHC/Fam/2017/524.html

 

However, MacDonald J clarified that in his mind, there was no obligation for an LA on a radicalisation case to issue solely in wardship and not in care proceedings.

In the circumstances, I am satisfied that, contrary to the view taken by the local authority, neither Hayden J nor the President have sought to lay down a general rule, or purport to give general guidance to the effect that the inherent jurisdiction should be used in preference to care proceedings in all cases of alleged radicalisation.

 

MacDonald J shoots up in the league table of my estimation by also dissecting the much discussed homily that the ‘powers of the inherent jurisdiction/magical sparkle powers are theoretically limitless’

 

I am satisfied that the inherent jurisdiction of the High Court does not give the court the power to require a local authority to incur expenditure to fund the legal representation of a litigant in wardship proceedings who has been lawfully refused legal aid in accordance with the statutory legal aid scheme put in place by Parliament.

 

  • Whilst the inherent jurisdiction is theoretically unlimited, it is, in reality, constrained by proper limits. In London Borough of Redbridge v SA [2015] 3 WLR 1617 Hayden J observed as follows at [36]:

 

“The High Court’s inherent powers are limited both by the constitutional role of the court and by its institutional capacity. The principle of separation of powers confers the remit of economic and social policy on the legislature and on the executive, not on the judiciary. It follows that the inherent jurisdiction cannot be regarded as a lawless void permitting judges to do whatever we consider to be right for children or the vulnerable, be that in a particular case or more generally (as contended for here) towards unspecified categories of children or vulnerable adults.”

In R v Central Independent Television Plc [1994] Fam 192 at 207-208 Waite LJ noted:

“The prerogative jurisdiction has shown a striking versatility, throughout its long history, in adapting its powers to the protective needs of children in all kinds of different situations. Although the jurisdiction is theoretically boundless, the courts have nevertheless found it necessary to set self-imposed limits upon its exercise for the sake of clarity and consistency, and of avoiding conflict between child welfare and other public advantages.”

 

  • Within this context, I am satisfied that the limits that are properly imposed on the exercise of the inherent jurisdiction for the sake of clarity and consistency, and of avoiding conflict between child welfare and other public advantages in this case are those that must be applied when considering the nature and extent of the court’s jurisdiction to order a public authority to incur expenditure. As Lord Sumption pointed out in Prest v Petrodel Resources Ltd [2013] 2 AC 415 at [37], courts exercising family jurisdiction do not occupy a desert island in which general legal concepts are suspended or mean something different. Imposing the limits that I am satisfied must apply, I regret that I cannot accept the submission of Mr Hale and Mr Barnes that the inherent jurisdiction of this court is wide enough to encompass a power to order a public authority to incur expenditure in order to fund legal representation in wardship proceedings for a parent who does not qualify for legal aid because that parent does not satisfy the criteria for a grant of legal aid laid down by Parliament, notwithstanding the considerable benefits that would accrue to the parent, and to the child, from such funding.

 

 

 

 

 

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.

 

 

 

Cloak and dagger threshold

 

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

 

Re C a child 2016

 

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

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

 

 

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

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

This is what S015 told them

 

 

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

 

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

 

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

 

The arguments advanced on behalf of the SSHD

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

 

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

 

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

 

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

 

 

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

 

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

 

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

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

 

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

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

 

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

 

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

 

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

 

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

 

 

 

Disclosure to the security services

 

Well, applications for disclosure of care proceedings to the police is something that we are used to, but an application to disclose papers in care proceedings to the Security Services is something rather new – even if with radicalisation we should have seen it coming.

 

X, Y and Z (Disclosure to the Security Service) [2016]

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2400.html

 

In this case which involved not only allegations of radicalisation but also allegations that one of the parents might have deliberately adminstered a harmful drug to the child by way of an intravenous cannula, the Security Services and the police were taking an interest.  There were materials within the care proceedings which were of interest to them and might have assisted in their investigations.

The complicating wrinkle is that whilst we know exactly what happens with documents that are disclosed to the police (the officers in the case read them, they are shared with the CPS and possibly with trial counsel to decide whether there needs to be an application to USE them in the criminal trial), we’re not at all sure what the internal processes of the Security Services are.

And understandably, the Security Services aren’t keen on walking us through their processes and what is involved, particularly to reveal those matters to people they are investigating under terrorism legislation.

The Security Services therefore wanted effective Cate Blanchett to have the documents and make such use of them as they saw fit including sharing them on a ‘need to know’ basis whereas the Court was being urged to not allow such unfettered access.

The compromise that was reached – and the judgment is very helpful on the detail for anyone in this position, was that the papers could be disclosed to the police, the CPS and the Security Services but any onward disclosure by those agencies would have to be with the Court’s permission following an application.

 

The Court set out the principles about how such an application by the Security Services might work (notably whether the parents would be served with it and allowed to attend and make representations)

 

 

  • My decision raises the possibility of the Security Service needing to make an application to this court for permission to disclose the material outside the Service. Whilst such applications are ordinarily straightforward, as set out above, given the nature of the Security Service and its manner of operation, an application in this context presents specific potential difficulties. In particular, the practice of neither confirming nor denying an interest or involvement means that it is unlikely that the Security Service will wish to give notice of such an application in circumstances where, in some situations, simply confirming or denying that an agency is interested in information or seeks information will result in risk that that agency will disclose its interest in, or alert suspects. In addition, the nature of the disclosure sought means that it is likely the Security Service will thereafter wish to adopt a closed procedure. Given the impact of these contentions on the Art 6 rights of the parties, they will need to be the subject of rigorous examination by the court. Within this context, I note that The President’s Guidance recognises that in cases in the family court concerning the issue of radicalisation the court may need to consider the use of closed hearings or special advocates. The Guidance further recognises the need to ensure that the Art 6 rights of all the parties are protected.
  • In seeking to ensure that the Art 6 rights that are engaged are properly protected, as well as fidelity to the common law principles of fairness and natural justice, I further note that both the domestic and European Courts have recognised that proceedings in relation to the intelligence services inevitably raise special problems and might not be capable of being dealt with in the same way as other claims (see Regina (A) v Director of Establishments of the Security Service [2010] 2 AC 1). In the case of R v Shayler [2003] 1 AC 247 Lord Bingham noted as follows in this respect:

 

“The need to preserve the secrecy of information relating to intelligence and military operations in order to counter terrorism, criminal activity, hostile activity and subversion has been recognised by the European Commission and the court in relation to complaints made under article 10 and other articles under the Convention: see Engel v The Netherlands (No 1) (1976) 1 EHRR 647, paras 100–103; Klass v Federal Republic of Germany (1978) 2 EHRR 214, para 48; Leander v Sweden (1987) 9 EHRR 433, para 59; Hadjianastassiou v Greece (1992) 16 EHRR 219, paras 45–47; Esbester v United Kingdom (1994) 18 EHRR CD72, 74; Brind v United Kingdom (1994) 18 EHRR CD76, 83–-84; Murray v United Kingdom (1994) 19 EHRR 193, para 58; Vereniging Weekblad Bluf! v The Netherlands (1995) 20 EHRR 189, paras 35, 40. The thrust of these decisions and judgments has not been to discount or disparage the need for strict and enforceable rules but to insist on adequate safeguards to ensure that the restriction does not exceed what is necessary to achieve the end in question. The acid test is whether, in all the circumstances, the interference with the individual’s Convention right prescribed by national law is greater than is required to meet the legitimate object which the state seeks to achieve. The OSA 1989, as it applies to the appellant, must be considered in that context.”

 

  • There is in my judgment no need to set up any new or elaborate procedure to account for the particular difficulties raised by any permission application that may be made by the Security Service. Rather, it is a question of adapting the existing, well established procedure for such permission applications. The key adaptations will be the need to recognise the greater likelihood that the initial hearing will need to be without notice to the parties to the proceedings (although it will remain incumbent on the Security Service in each instance to justify a without notice application by reference to the principles set out in Re S (Ex Parte Orders) [2001] 1 FLR 308, KY v DD [2012] 2 FLR 200, and Re C (A Child) [2013] EWCA Civ 1412) and the possible use thereafter of some species of closed procedure involving the deployment of special advocates when determining the application for permission.
  • As to the applicable principles for determining whether a closed procedure should be adopted (if requested), the Justice and Security Act 2013 s 6(11) provides for the making of a declaration in any proceedings (other than proceedings in a criminal cause or matter) before the High Court that the proceedings are proceedings in which a closed material application may be made to the court. No such provision is made however, in respect of proceedings in the Family Court. Further, the rules of court which govern the determination of an application for such a declaration, and any subsequent closed material application are those set out in the CPR Part 82. By CPR r 2.1(2), CPR Part 82 does not apply to family proceedings and CPR Part 82 is not otherwise incorporated into the FPR 2010.
  • In the circumstances, whilst it would appear possible to transfer family proceedings to the High Court in order to secure for the court a statutory jurisdiction to consider an application for a declaration pursuant to the Justice and Security Act 2013 s 6 that those family proceedings are proceedings in which a closed material application may be made, absent the incorporation of CPR Part 82 into the FPR 2010 there are at present no procedural rules for determining that application or any subsequent closed material application in the context of family proceedings.
  • Historically however, and notwithstanding it being seemingly well-established that the fundamental principle that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party can only be qualified or overridden by statute, and even then only expressly and not by implication (see R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115 at 132 and R (Morgan Grenfell & Co Ltd) v Special Comr of Income Tax [2003] 1 AC 563 at [45]), it is clear that special advocates have been utilised on a limited number of occasions in family proceedings to deal with issues of disclosure of sensitive material (see Re T (Wardship: Impact of Police Intelligence) [2010] 1 FLR 1048 at [31]-[34] and [112] and BCC v FZ, AZ, HZ and TVP [2013] 1 FLR 974 at [13] to [48]). In A Chief Constable v YK and Others [2011] 1 FLR 1493 at [112], whilst declining the use of special advocates in that case, Sir Nicholas Wall observed that “there will be undoubtedly be circumstances in family proceedings in which they are appropriate”. The President’s Guidance entitled Radicalisation Cases in the Family Courts dated 8 October 2015 and the President’s Guidance entitled The Role of the Attorney General in Appointing Advocates to the Court of Special Advocates in Family Cases dated 26 March 2016 contemplates the use of closed hearings and special advocates in family proceedings.
  • In the circumstances (and whilst there may remain an argument to be had as to whether the use of some species of closed procedure in the Family Court is permissible absent express statutory provision for the same, or in family proceedings in the High Court pursuant to the Justice and Security Act 2013 absent any rules of procedure governing the same having been promulgated) at any initial hearing of an application by the Security Service for permission to disclose the court will need to consider, inter alia, the following matters:

 

i) Whether the application for permission is properly made without notice in the first instance. The application should contain brief reasons for seeking to pursue the application initially without notice to the parties by reference to the principles set out in Re S (Ex Parte Orders) [2001] 1 FLR 308, KY v DD [2012] 2 FLR 200, and Re C (A Child) [2013] EWCA Civ 1412;

ii) Whether the Security Service invite the court to determine the application for permission on the basis of a closed procedure utilising special advocates;

iii) Whether the application is appropriate to be dealt with by means of the use of a closed procedure utilising special advocates having regard to the guidance set out in Re T (Wardship: Impact of Police Intelligence) [2010] 1 FLR 1048, A Chief Constable v YK and Others [2011] 1 FLR 1493 BCC v FZ, AZ, HZ and TVP [2013] 1 FLR 974, the President’s Guidance entitled Radicalisation Cases in the Family Courts dated 8 October 2015 and the President’s Guidance entitled The Role of the Attorney General in Appointing Advocates to the Court of Special Advocates in Family Cases dated 26 March 2016.

iv) Any further directions for the hearing having regard to the court’s decision in respect of the foregoing matters, again having regard the guidance in the authorities and Practice Guidance enumerated at (iii).

 

 

And here’s a photo of Rupert Penry Jones for Spooks fans  (gratuitous, yes, but I’m sure that a Margot Robbie tenuous connection will come up soon enough to balance it out)

 

Richard Armitage was good, but Rupert was THE GUY

Richard Armitage was good, but Rupert was THE GUY

Back off War child. Seriously

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

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 13th 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 14th 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 14th October 2016. On 15th 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 26th February 2015 and 2nd 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 9th 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 13th 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 12th 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 9th 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 5th 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 23rd 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 6th 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 14th 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 13th 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 23rd 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 23rd February and 23rd 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 8th 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.

 

 

 

 

 

 

 

Jihadi Toddler

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 22nd 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 18th February 2015 when taken from his mother by the police. He has been the subject of an interim care order since 20th 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 1st 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 1st December 2014 on WhatsApp “no bombs today” and images of buildings on fire.

•    On the 13th 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 17th December messages with a friend “Do they bomb close to your house?” T answers; Yes very close to the housethe house shakes” and “they just bomb from the sky“.

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

•    On 25th 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 27th December from T “they bombed once today – gave number to friend if we die she will WhatsApp u

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

•    When she was interviewed by the police on 19th 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 1st 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 1st 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 27th 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 1st 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 17th 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

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

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.