Tag Archives: radicalisation

Totally radical, dude

Posted on October 8, 2015 by suesspiciousminds
"Put them in the Iron Maiden"

“Put them in the Iron Maiden”

 

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

 

Click to access pfd-guidance-radicalisation-cases.pdf

 

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

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

 

The guidance goes on

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

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

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

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

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

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

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

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

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

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

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

 

 

 

 

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

 

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

 

"Omar comin' ! "

“Omar comin’ ! “

 

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

 

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

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

 

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

 

The guidance continues

 

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

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

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

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

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

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

 

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

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Radicalisation of children and ISIS – Jihadi Brides

Posted on August 27, 2015 by suesspiciousminds

 

This is a very powerful and disturbing case. As Hayden J says, this is a whole new category of child abuse which professionals and Courts are learning about very quickly, it just wasn’t something that had even entered anyone’s thinking two years ago.

 

London Borough of Tower Hamlets and B 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2491.html

 

It has a somewhat stellar line up of advocates,  indicative of the serious nature of the case.  In broad terms, the issue was this :-

 

Was a 16 year old girl being radicalised to prompt her to travel to Syria and became a “Jihadi Bride”,  if so, were the parents to blame in any way, and what should happen to her and her brothers?

 

In this case, the girl had been caught at the airport trying to catch a plane with that intent – rather like the recent cases before the President that resulted in ankle-tagging.  Unlike those cases, where the President was satisfied that there had been no overt or abusive radicalisation of the child, in this case there was plenty of evidence.

 

14. I have already referred to a very significant amount of what I will for shorthand call ‘radicalising material’ being removed from the household. During the course of this hearing before me I asked Mr. Barnes, on behalf of the Local Authority, to distil the material that had been removed into an easily accessible schedule identifying to whom the material was attributable. The schedule, which has not been disputed, requires to be summarised in detail.

  2. There were a number of devices attributable to B herself:

    (1) A document headed “44 Ways to Support Jihad” with practical suggestions as to the support of terrorist activity;

    (2) “The Macan Minority” urging participation in Jihadi activity;

    (3) Internet searches relating to terrorist manuals and guides to terror activities. That also included queries as to the response times of the Metropolitan Armed Response Team and the Queen’s Guard;

    (4) Internet searches as to the preservation of on-line anonymity, including, as confirmed by a police officer at an earlier hearing, the downloading of software to hide the IP address of the user’s computer when on-line;

    (5) A downloaded version of “Mujahid Guide to Surviving in the West”. Possession of that document is, of itself, a serious criminal offence. It gives guides to weapon and bomb making and to “hiding the extremist identity”.

    (6) “Miracles in Syria”. This contained information as to how to get to ISIS territory and many photographs of what are referred to as “Smiling corpses”.

    I had not understood what that meant, but I have been informed that it involves photographing the corpses of fighters whose faces are set in a smiling repose and said to reveal pleasure at their glimpses of eternal reward

    (7) “Hiraj to the Islamic State”. This contained information and advice as to how to avoid airport security. It had particular advice in relation to females intending to travel to ISIS territory via Turkey.

    (8) Footage of attacks on Western Forces in the Middle East.

  3. On one of the siblings devices there was the following:

    (1) Numerous articles, some in what are referred to as “glossy magazine format” urging flight to ISIS territory and recommending its “lifestyle”.(2) An edition of Islamic State News showing men being prepared for execution and asserting community support for it.

    (3) An edition of Islamic State News showing before and after shots of human executions.

    (4) A video of terrorist training.

    (5) A video containing images of actual executions and beheadings.

  4. On another sibling’s devices there were the following:

    (1) A number of lectures and video biographies encouraging support for ISIS activities, including videos of attacks upon Western Forces in the Middle East.(2) ‘The Maccan Minority’, seen earlier in B’s own devices, suggesting that files had been shared between the siblings.

    (3) A document called “The Constance of Jihad”. This was a five hour lecture on the need to participate in fighting against non-Muslims.

  5. Finally, from the parent’s own devices:

    (1) Lectures encouraging participation in armed attacks on non-Muslims.(2) Issues of Islamic State News showing the same executions as those seen on the devices attributed to one of the siblings, again suggesting file sharing.

    (3) Photographs of teenagers holding grenades.

  6. Reducing the material in this way to this stark list was, at least to my mind, an important exercise. The impact of the material set out in this way is both powerful and alarming. It requires to be stated unambiguously, it is not merely theoretical or gratuitously shocking, it involves information of a practical nature designed to support and to perpetrate terrorist attacks. I have noted already bur reemphasise that it provides advice as to how to avoid airport security, particularly for females. In addition, the videos of beheadings and smiling corpses can only be profoundly damaging, particularly to these very young, and in my judgment, vulnerable individuals

 

 

Deep breath. You can see therefore that the material was far beyond a ‘come to syria for a life of glamour’ blandishments that anyone could come across on the internet  – there were very strong and graphic images and terrorist manuals. You can also see that the parents’ electronic devices also contained this sort of material.

 

Importantly, much of this material involved how to conceal extremeist views and that was certainly something which had played out with these parents, who had previously come across as concerned and anxious about their daughter’s actions.

 

20. It is not uncommon in my experience, which I am confident is shared by the experienced advocates in this case, for adults in public law proceedings or child protection proceedings more generally to seek to deceive social workers. Sometimes it can be successful for protracted periods. They may conceal a drinking habit, substance abuse, or a continued relationship with a violent partner. Usually these come to the surface eventually. I am bound to say I do not recall seeing deception which is so consummately skilful as has been the case here. I have found myself wondering whether some of the material may have educated this family in skilful concealment of underlying beliefs and activities.

  2. The parents’ joint statements require revisiting. Thus:

    “We are a very strong family unit and we are doing our very best to help prevent such a situation from reoccurring. We are keeping extremely close eyes on B and trying to be encouraging of her moving without ridiculing her for her actions to the extent that this incident forever haunts and affects her day to day living. I, the mother, am particularly sensitive of how we manage the situation which we view as very serious due to my work…
    I understand how to empathise and assist those in need of support through open questioning techniques and motivational encouragement, and have done this with B at great length since the incident to help understand what went wrong. We had thought that we were nearing a stage of putting the incident behind us, having worked together as a family, convening weekly family discussions and opening up about how to move on…”

    “The police officer ‘x’ offered a piece of technology costing £79 which allows complete monitoring of the computers in the house. The instructions were followed and it was bought and a friend who is technologically minded (which neither if us are) installed it for us. The children are not aware of it. We completely understand the police and Social Service’s concerns, but we don’t want any intervention to further impact our family lives for the unforeseeable future. The risk in our minds is not high at present of B leaving the UK, particularly given that all of our passports are being held by our solicitors. We would agree with whatever measures are deemed necessary to prevent risk to B and following the explanation given at the initial child protection conference have agreed, or already carried out, the protective tasks itemised in the assessment report.”

    They were fulsome too in their praise for the social worker:

    “The new social worker explained her role and again seemed very sensitive to the need to limit and time her visits according to B’s studies. We have readily accepted the recommendations of the conference. We were impressed by the thoughtful and specific thought all there gave B. She did not feel like she was lumped together with other girls for no clear reason. The professionals at the meeting voiced confusion themselves about an initial child protection conference being held whilst the child is warded. The Chair expressed concern that it seemed a decision had been made that there must be a child protection done before the conference. In fact following the open and frank discussion at the conference, all professionals voted unanimously for a time limited Child in Need plan. We were very relieved, and repeat, we will grab with open arms practical and genuine offers of help in getting past this terrible event provided we think they will help. We also repeat we are so grateful to those who stopped S getting to Turkey.”

  3. Evaluating those passages alongside the material that was discovered in this household reveals that much of what was said was in fact an elaborate and sophisticated succession of lies.

 

 

It was a very difficult situation for the Court to deal with. There had been limited opportunity for professionals to talk to the boys.  It is worth noting here that Hayden J acknowledges that Courts are often obliged to take social workers to task for poor practice, but here the work that the social worker had done was to be commended.  Hayden J felt that there was no alternative but to remove the girl, B.  He makes a comparison with the nature of the abuse she was suffering which is a strong and powerful one. I will leave it to others to consider whether they think it is too strong or about right.

 

The decision for the boys was much harder.

 

  1. The police found it necessary, as a precaution, to limit professional access to this family. The need for that, to my mind, was self-evident. It has, however, meant that I have limited information into the lives of the male children.
  2. The Local Authority apply to remove each of the children from the household; not just B but the boys too. So corrosive and insidious are the beliefs in this household, it is argued, so pervasive is the nature of the emotional abuse, so complete is the resistance to intervention, and so total the lack of co-operation, that the emotional safety of the boys, the Local Authority says, cannot be assured. I have some sympathy for that view. Nonetheless, in exchanges with Mr. Barnes on behalf of the Local Authority the following, to my mind, important facts have emerged. Firstly, it is conspicuous that radicalised material was not found on the boys’ devices. Secondly, the boys, through a variety of sporting interests, have a much wider integration into society more generally and, on my, as yet, superficial assessment, a healthier range of interests. Between sport and study there is, I suspect, little room in their lives for radicalised interests. Thirdly, it was one of the boys who first sounded the alarm about his sister’s flight. The exact account of that, like everything else this family says, must now be viewed with very great caution, but I strongly suspect there is a core truth that it was the action of one of the brothers that foiled B’s flight to Syria. Fourthly, two of the older boys will be starting 6th Form education at college very soon, and accordingly they will be more exposed to professional scrutiny.
  3. I will require a thorough intense and comprehensive social work assessment of the boys’ circumstances. I will then be able better to decide whether their situation in this household is sustainable or not. Until I have the information I am not prepared to sanction their removal. It may or may not be necessary in the future. The balance of risk, it seems to me is, significantly different in the cases of the boys, at least at this stage. The Guardian supports such a course. Though I hope she will forgive me for saying so, I have not placed very much weight on her view. She was only appointed a few days ago. She has not had any opportunity to meet the children at all. She has an inevitably incomplete knowledge of the background of the case, and virtually no understanding of the wider issues, having, as she told me, never been involved in a case of this nature before. She is in an entirely invidious position. I am sympathetic to her and I do not intend these simple statements of facts to be construed by her in any way as a criticism. They are not.
  4. The social worker appointed in this case, by contrast, has in my assessment
    a deep, well informed and intelligent understanding of the issues. She has been working this case and with this family now for some time. It is in the nature of the proceedings that come before this court, in particular, that the actions of social workers often fall to be scrutinised and are from time to time found to be wanting and deprecated in judgments. The opposite situation arises here. This social worker has, in my judgment, made an outstanding contribution to the case. All those who have encountered her, the lawyers, the police, the guardians, have been impressed both by the extent of her knowledge of this family and by her professionalism. She has formed a very important, and in my judgment, highly effective link between social work and police operations. She has had to absorb and re-analyse her work in a dramatically changing landscape. She gave evidence. She told me she had forged a strong, open, working relationship with B, as she thought. She had been convinced, and she is not, I suspect, unhealthily sceptical, that she had achieved, in effect, a professional result with B.
  5. It is obvious listening to her that despite everything that has happened, she has some affection for B and her professional concern remains. Now, she told me, B will not sit near her or talk to her. The social worker is not deterred. She continues to work to try to engage B in a meaningful dialogue. As she gave evidence, I took the view that this social worker, though saddened by the deception on a personal level, had merely girded her loins and resolved to try to re-forge the relationship. I am not able to identify her by name in this judgment, though I should like to have done so. To do so would only risk compromising the anonymity of the children. I have not lightly rejected her social work assessment in relation to the boys. Her understanding of B is considerable, as I have emphasised, but I have the strong sense, which to her credit she readily acknowledged, that her knowledge of and assessment of the boys was far from complete. As I have said, the balance of risk, at least for the present, is different.
  6. I have no hesitation in concluding that B has been subjected to serious emotional harm, and, at the very least, continues to be at risk of such in her parent’s care. I can see no way in which her psychological, emotional and intellectual integrity can be protected by her remaining in this household. The farrago of sophisticated dishonesty displayed by her parents makes such a placement entirely unsustainable.
  7. I return to the comparator of sexual abuse. If it were sexual risk that were here being contemplated, I do not believe that any professional would advocate such a placement for a moment. The violation contemplated here is not to the body but it is to the mind. It is every bit as insidious, and I do not say that lightly. It involves harm of similar magnitude and complexion.
  8. I approach the Local Authority’s proposals by considering B’s needs at this juncture. I am required to do so by Section 1(1) of the Children Act 1989. What she needs, I find, is to be provided with an opportunity in which she can, in a peaceful and safe situation, be afforded the chance for her strong and lively mind to reassert its own independence. An environment in which there are the kind of vile images that I have described and the extreme polemic I have outlined, can only be deleterious to her emotional welfare. I hope she can be provided with an opportunity where her thoughts might turn to healthier and
    I hope happier issues. I have no doubt, as has been impressed upon me by her counsel, that she will find separation from her parents, particularly her siblings, to be distressing, though I note she was prepared to leave them to go to Syria. I do not doubt that the social worker will struggle to find a placement which meets the full panoply of her welfare needs which has been emphasised on behalf of the guardian, but I entirely see why the Local Authority plans or proposals are, of necessity, only general in outline and, to some extent, inevitably inchoate. However, I am entirely satisfied that this social worker will make every effort to ensure the best possible option is achieved for B. That is the Local Authority’s responsibility.

 

 

I note that the parents in this case have been charged with an offence,

 

On 12th August the parents and other siblings were arrested on suspicion of “possessing information likely to be useful to a person committing or preparing an act of terrorism.” That is an offence contrary to s.58 of the Terrorism Act 2000 and carries a substantial custodial sentence.

 

 

What this case really shows is just how sophisticated the grooming process for radicalising young people and families can be, and that over and above the grooming and information about going to Syria and practical arrangements there is sophisticated material and advice on deceiving professionals and allaying professional suspicion.  These things represent completely new challenges and Tower Hamlets (amongst some other authorities) have got really valuable insights and experiences to share with other agencies who might encounter these issues. I hope that there are some joined up discussions to take place about the best way to share these insights and new found expertise.

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ISIS and children being taken to Syria

Posted on May 21, 2015 by suesspiciousminds

I have to say, even after years and years of doing child protection law, I never actually thought I’d see cases in Court where parents were trying to get their children to become terrorists and fight in a war. But we are seeing these cases, and as I understand it, the reported cases are the tip of an iceberg.

If you are advising someone in this situation, or advising a Local Authority where such a thing is suspected, the President’s decision in Re M (Children) 2015 is going to be mandatory reading. It is particularly useful since it sets out in detail the orders made to protect the children and to recover them, and is an excellent route-map for future cases. Rather than drafting from scratch and having to invent what needs to be done  (and I’ve an inkling of just how hard that is in such cases), there’s now a source for how to assemble a workable order that will do the job.

 

Click to access re_m_20_5_152.pdf

There is one final point I must emphasise in this connection. It is the point made by Hayden J in the Tower Hamlets case (para 18(iv)):
“All involved must recognise that in this particular process it is the interest of the individual child that is paramount. This cannot be eclipsed by wider considerations of counter terrorism policy or operations, but it must be recognised that the decision the court is being asked to take can only be arrived at against an informed understanding of that wider canvas.”

There’s a very good summary by Marilyn Stowe here, and I recommend that also  http://www.marilynstowe.co.uk/2015/05/21/high-court-considers-family-who-vanished-with-their-children/

 

All agencies worked amazingly quickly and creatively to get these children back into the UK and save them from what would really be unthinkable, that they be pushed by their parents into taking up arms in a war zone.

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Children travelling to join ISIS

Posted on April 1, 2015 by suesspiciousminds

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

Tower Hamlets v M and Others 2015

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

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

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

 

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

 

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

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

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

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

 

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

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

 

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

 

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

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

Very serious indeed.

 

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

 

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

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

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

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

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

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

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

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

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

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

 

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