RSS Feed

Tag Archives: reporting restriction

Children travelling to join ISIS

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

Tower Hamlets v M and Others 2015

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

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

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

 

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

 

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

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

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

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

 

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

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

 

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

 

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

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

Very serious indeed.

 

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

 

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

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

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

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

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

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

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

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

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

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

 

Misrepresenting the views of an expert

 

 

 

X County Council v M and Others 2014
http://www.bailii.org/ew/cases/EWHC/Fam/2014/2262.html

This is a High Court case, involving the application by a Local Authority for a Care Order, and more crucially an Interim Care Order sanctioning continued separation of a newborn baby from her mother.

The child had been removed under an Emergency Protection Order, and prior to birth there had been one of those unusual applications under the Inherent Jurisdiction for permission not to tell the mother that this would be the plan at birth. Those applications had been made on 20th May, and the child was born on 1st June and removed under an Emergency Protection Order.

That application arises from the President’s decision, when he was Munby J in Re D (Unborn Baby) [2009] 2 FLR 313. http://www.bailii.org/ew/cases/EWHC/Fam/2009/446.html .

[That’s not a decision that I like – I think there were extremely peculiar circumstances of that case, but I hoped at the time that we would never see its like again, and I don’t enjoy seeing it being made use of. Frankly, I think the family courts would be better to stick to the traditional view of events that until there’s a subject of the application to litigate about, the Court should stay out of it. No child, no Children Act]

Anyway, that is just to provide the background colour that this was a newborn baby, with features so unusual that one of the most unusual applications one can make in family courts was applied for, together with a Reporting Restriction Order. And the proceedings were being done in the High Court.

None of that is straightforward stuff, so it is a bit surprising that the case ended up being allocated to a very junior and inexperienced lawyer at a time when there were no experienced lawyers around to supervise or guide.

[Of course, I have the luxury of working for a decent sized authority, where there are a lot of childcare lawyers – if this is a very small authority one can see that holidays or illness might have taken the available stock of lawyers out of the equation]

Anyway, Keehan J was not happy with the application and evidence as it appeared before him on the first hearing, and asked for it to come back.
4. The local authority’s application for a care order and for an interim care order was allocated to be heard by me on 3 June 2014. I adjourned the hearing to 6 June, in particular for the following three reasons:
i) I was not satisfied with the evidence relied on by the local authority in support of its application.

ii) Further, the local authority had not notified the mother nor the putative father of the applications. Accordingly, neither were present before the court nor represented.

iii) Before I went into court on 3 June my clerk received an email from one of the mother’s treating consultant psychiatrists Dr Z, setting out that his professional opinion and views had been mis-represented by the local authority in the application for a care order and in the social worker’s statement filed in support of the same.

5. I was dismayed by the actions of the local authority’s legal department subsequent to the hearing on 3 June. The parents were not formally notified of the hearing listed on 6 June until the very late evening of 5 June. Further, Dr Z was not notified of the direction that he prepare an addendum report on the current state of M’s mental health until the late afternoon of 4 June. The Official Solicitor was not given notice of the hearing until the late afternoon of 5 June.

6. At the hearing on 6 June the local authority and the children’s guardian were present. The putative father, F, attended in person. The mother was not present nor represented. Ms Clift of the Official Solicitor’s Office however was present in court, because the mother had been assessed as lacking capacity to litigate, although the Official Solicitor had not yet been formally appointed to act as her litigation friend.
He then asked for the Chief Executive to explain what had gone wrong.
In light of the failings identified in paragraph 4 above, I required the Chief Executive of X County Council to prepare a letter explaining these events. She did so. It appears a very junior and inexperienced member of the legal department was entrusted with preparing the case for the hearing on 6 June. She was unsupervised by a more senior colleague because of holiday commitments. I was assured such events would not occur again and that provision would be made for the supervision of junior members of staff when more senior members were away on vacation.
These are not trivial complaints – not serving the parents with the application is a big deal, particularly where the mother lacks capacity. It is unfair to them, and it leads to them not having the opportunity to put their case and to have the time to prepare their case properly.

But far worse than that is the suggestion that the LA in their application and social work evidence had misrepresented what Dr Z had to say about mother’s situation and condition. Of course everyone makes mistakes, and if you are new, it is easy to make a mistake, but these are things that would trouble most people.  It may have been an honest mistake, but it was an important mistake.

I am a little surprised that the Council is not named here, in accordance with the President’s guidance on transparency, but perhaps there are reasons for that relating to the Reporting Restriction Order or risk of jigsaw identification.
That wasn’t the only issue

When the application first came before me on 3 June, I was dismayed that the local authority had not obtained an up to date report from Dr Z. In my view when considering the local authority’s care plan to continue the separation of mother and child, it was vital to have a report from the mother’s treating consultant psychiatrist.

Further I was extremely concerned to learn that following the baby’s removal to foster care on 2 June, there had been no contact between mother and child. The local authority told me it proposed to undertake a risk assessment of whether contact could take place and in what circumstances. It was suggested the local authority would need two weeks to undertake the assessment. I made it plain that such a delay was wholly unacceptable.
It is hard, when looking at these mistakes, when dealing with a mother who was so vulnerable and when the Courts were being asked to make very important and draconian decisions, and feel anything but dismay and a sense that the parents have been badly treated.

I’m not a local authority basher – but this falls far short of what one would want to see, and a Judge would have been entitled to be less measured than this one has been.