K (Children), Re [2016] EWHC 1606 (Fam)

IMPORTANT NOTICEThis judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.[2016] EWHC 1606 (Fam)Case No LS15C00691
IN THE FAMILY COURT
Date Wednesday, 8 th June 2016
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF: K (CHILDREN)
Before
THE HONOURABLE MR JUSTICE HAYDEN
Re: K (Children)
Transcribed from the Official Tape Recording by
Apple Transcription Limited
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Hearing Hearing dates: 6 th to 8th June 2016
Counsel for the Local Authority: Miss Heaton QC
Counsel for the Mother: Mr Rowley QC
Counsel for the Father: Mr Hayes QC
Counsel for the Children: Mr Tyler QC

JUDGMENT (APPROVED)

[1]These are public law proceedings concerning three children: AH, RH and ZH . Though the children are 15, 14, and 12 respectively, each is represented by their children’s guardian. The proceedings were brought following a criminal investigation into the activities of the parents, which investigation arose from concerns that the parents might have become involved with terrorism and hold radicalised views supportive of ISIS. The parents were arrested following a raid at the family’s home on 21st October 2015. I have been told that something approaching 30 police officers attended, many armed, and they effected a forced entry. The parents were arrested and the children, as I understand it, spent around 48 hours in foster care.[2]Miss Heaton QC, who acts on behalf of the Local Authority, is highly critical of this raid which she condemns as ‘disproportionate, heavy handed, and unnecessary’. The trauma to the children, she contends, was avoidable. Certainly, I am satisfied on the documentary evidence that it left a powerful impression on these children. Whether it was disproportionate I am simply unable to say. I have heard no evidence on the point. I have no idea what intelligence the police were acting upon. These are police operational matters.[3]Some two years earlier, in July 2013, the police had contacted the Social Services to inform them that AH had been taken to the Turkish/Syrian border by his father who asserted that it was a trip taken outside school term time accompanying him on a humanitarian aid convoy. AH was 12 years old at the time. He has been described as a “sensitive child” by which Miss Heaton explained to me that he prefers, apparently, to play with girls in games rather than more masculine rough-housing. Humanitarian convoys, as I have observed in exchange with counsel and which to my mind is self evident, are not protected by virtue of the integrity of their mission. They run inevitably a gauntlet of danger. Their journeys, by their objective, take them to areas of suffering. Quite why it was thought appropriate to take this sensitive 12 year old into such a situation is, to my mind, unclear. However, be that as it may, a section 47 investigation was undertaken and, in the light of that, no further action was taken.[4]AH was spoken to in 2013 on his return from that mission and spoken to subsequently some two years later. He has described himself as “humbled” by what he saw. Miss Heaton highlights this as a word which, she contends, epitomises this young lad’s articulate, descriptive spontaneity. Again, I really have no way of testing her assertion given that I have not heard from him and nobody suggests that I should for reasons that I will come to later in this short ex tempore judgment.[5]In the raid on 21st October 2015, various electronic equipment was seized from this family for analysis by the Counter Terrorism Unit. In the course of these proceedings, various case management directions have been made which have been providing for the disclosure of that police information. Mr Tyler QC, who appears on behalf of the children, has queried whether everything has been made available from the police. Whilst I detect that he is quizzical as to whether there has truly been full disclosure, he ultimately came to the conclusion that there is nothing, from his reading of the documents, which itself identifies missing material.[6]In the light of the available material, the Local Authority put together a Schedule of Allegations in order that these could be litigated at a fact finding hearing. That document was prepared as recently as April 2016. It is not necessary for me to read the schedule into this judgment, the guardian has summarised it succinctly in paragraph 6 of her report. It is alleged that the parents have:(1) Exposed AH to danger by his having been taken to the Turkish/Syrian border, in particular, that the purpose of doing so was to assist the entry of others into Syria to engage in conflict;(2) Provided financial assessment to persons known to be linked to terrorism;(3) Communicated with individuals connected to terrorism and engaged in contacting them; and(4) Disseminated on social media information which glorifies the actions of terrorists and which indirectly, or directly, encourages terrorism and demonstrates support for ISIL.[7]Nobody has contested the interim threshold in this case. Mr Justice Cobb ordered that a fact finding hearing be listed to be heard before me which was to have commenced yesterday, 7th June. To facilitate that hearing, the matter had been earlier listed on 10th May 2016 for a pre-hearing review. At that hearing, the Local Authority sought permission to withdraw the proceedings and to abandon the fact finding hearing. Permission is required, pursuant to the Family Procedure Rules 2010, Rule 29.4. In the course of exchanges, Miss Heaton in common with the other advocates in this case drew my attention to and placed considerable emphasis upon the judgment of the President in Re: X (Children)(No. 3) [2015] EWHC 3651 and, in particular, the observations at paragraph 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.”
[8]I am quite confident that the President was not there in any way seeking to establish some kind of elevated standard of proof in these cases, but merely reiterating and underscoring the legal orthodoxy. What seems to me here, however, to have been lost sight of, is that the President’s observations are based on his evaluation of the case that he was hearing and which was contested before him. Of course, suspicion is not sufficient to substantiate a factual finding. As I have said, though the President plainly considered it needed to be reiterated in that case, it is ultimately trite law. However, to my mind, whilst the Local Authority and the guardian should always, in any litigation, evaluate their evidence and assess what they have a realistic potential to establish, there will always be a strong pull to actually investigating the evidence in the forensic process in order best to protect the interest of the child. At the end of the day, the question is whether, in relation to each discrete part of its case, the local authority has established it, on a balance of probabilities.[9]What has been particularly difficult for me as the judge here is that unusually each of the parties – the Local Authority, counsel on behalf of the parents, and counsel on behalf of the children – have all advanced a proactive case that there should be permission granted to withdraw the proceedings and to abandon the fact finding process. There has been no party arguing the contrary view. That is an unusual situation. Miss Heaton, on behalf of the Local Authority, puts her application in unambiguous indeed bullish terms pitched, it seems to me, at times rather more highly than that advanced by the parents. Thus, at paragraph 28 of her skeleton, she submits as follows:
“The court will note that there is not a shred of evidence available to the Local Authority that the children have been in any way involved or had knowledge of the alleged activities. There is no evidence that the children had been exposed to ISIS related materials. There is no evidence that any of the children have suffered significant harm. The Local Authority cannot produce any evidence that radicalization is the motive for these actions or other evidence that either mother and/or father are radical Islamists. Each parent denies being radicalized or involved with terrorism. Nothing in the assessments of the parents and children shows any of them to be anything other observant Muslims. The Local Authority has no evidence that the family intends to travel to Syria for the purpose of joining ISIS militants. There is no evidence of ‘trade craft’. On the contrary, the evidence is that the family is happy and settled in their home within their community, at their schools, and at their work.”
[10]It may be that there is sufficient evidence for the police to pursue criminal proceedings against the mother for disseminating materials on social media sites, but that, submits Miss Heaton, does not of itself amount to the Family Court being capable of establishing findings of ‘significant harm or risk of significant harm’ to the children. The court must consider separate cases against each parent. The Local Authority also submits that the evidence of the high quality of the parents’ care of their children is clear. At the conclusion of this reasoning process, which is supportive of the Local Authority’s position in the litigation rather than an objective analysis, Ms Heaton is inevitably driven to conclude that the threshold criteria pursuant to s31 (2) Children Act 1989 are not met.[11]Mr Tyler, on behalf of the children, puts their case in a way which is subtly but significantly different. At paragraph 10 of his skeleton, he submits as follows:
“There is evidence of dissemination by ‘retweeting’ of links to two documents which may offend against counterterrorism legislation. There is also evidence that during a particular period, the operator of the ... Twitter account published a number of tweets arguably suggesting views which went beyond vocal opposition of the Assad regime in Syria and western military action in the region and strayed into positive support for the work and ideologies of IS.”
[12]The mother, having initially accepted that she had sole use of the account, later claimed that it had been ‘hacked’ and that she was not responsible for the offending messages. It is noted that the police, despite having known since January 2016, says Mr Tyler, of this claim have provided no evidence to assist in assessing it. Importantly, in my judgment, this leads Mr Tyler to submit that even if the allegation were found to be made out, it is difficult to see how, given all else that is known about the family and, in particular, the characteristics of the children, that a likelihood of ‘significant harm’ could be made out in any event. I paraphrase the submission slightly. That, it seems to me, is the nub of the case; would a finding of likelihood of significant harm necessarily follow?[13]In exchanges, I think, with each of the individual advocates, I have suggested, largely by way of engaging them in a dialectic, that it might be axiomatic that a child brought up by radicalised parents or parent, is by virtue of that fact alone at an unacceptable risk of significant harm. It may be that to frame it in those terms is to tease the point too far, but I doubt it. The question is whether the evidence in fact requires to be tested or whether I should grant the Local Authority’s requested permission to abandon the forensic process and, indeed, the proceedings more generally on the basis that the exercise would be disproportionate to the inevitable outcome. On behalf of the Guardian Mr Tyler says: i. on the current evidence – she cannot foresee circumstances in which she would recommend to the court that the children be removed from their parents’ care. This view is reached in the knowledge of the allegations made against the parents and the evidence said to underpin them. ii. Furthermore, given the cooperation to date, she does not consider that a statutory Part IV order is necessary in order to ensure ongoing engagement. Thus the question is a simple one: is the investigation really necessary?[14]In undertaking this exercise, I have particular regard to the nine points set out in Oxfordshire County Council v DP, RS & BS [2005] EWHC 1593 (Fam) where Mr

Justice McFarlane identifies the following relevant features:

“(1) The interests of the child... (2) The time that the investigation will take; (3) The likely cost to public funds; (4) The evidential result; (5) The necessity or otherwise of the investigation; (6) The relevance of the potential result... to the future care plans for the child; (7) The impact of any fact finding process upon the other parties; (8) The prospects of a fair trial on the issue; (9) The justice of the case.”
Paragraphs (4), (5) & (6) are different facets of the issue in focus here.[15]Yesterday, I was shown the printouts of the mother’s Twitter account. I emphasise, for the avoidance of any doubt, that she now denies that the material recorded from those accounts is hers, claiming that her Twitter account has been hacked, as I have previously mentioned. Having read this material overnight, I am satisfied that its author reveals a radicalised and extreme perspective on the world. Those words are sadly now so much a part of contemporary life – ‘extremism’ and ‘radicalisation’ – that they scarcely need definition. Nonetheless, to avoid ambiguity I adopt the July 2015 Revised ‘Prevent Duty’ Guidance for England and Wales: Guidance for specified authorities in England and Wales on the duty in the Counter-Terrorism and Security Act 2015. There, radicalisation is defined as referring to the process by which a person comes to support terrorism and extremist ideologies associated with terrorist groups. It is perhaps important to emphasise that within that definition there is recognition that the process is not a static one. It evolves. Moreover, it is a process by which a person comes to support terrorism as opposed to merely extreme religious beliefs. This is a key distinction which should never be lost sight of.

Mr Justice Holman settled upon a similar definition in Re: M [2014] EWHC 667 (Fam) see paragraph 23.

[17]By way of completeness, the definition of ‘extremism’ that I adopt is that set out in the ‘Channel Duty Guidance. Protecting vulnerable people from being drawn into terrorism. Statutory guidance for Channel panel members and partners of local panels 2015’. There, extremism is defined thus as a:
“....vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs. We also include in our definition of extremism calls for death of members of our armed forces, whether in this country or overseas.”
Terrorist groups often draw on extremist ideas developed by extremist organisations.[18]I recognise that transmitting material from tweets to hard copy can sometimes be challenging but I am bound to say that the evidence, as presented on this particular aspect of the case, is not in the most helpful format. I have not found it easy to read the photocopies. I have not found it easy to identify whether individual transmissions are tweets or retweets and I have struggled to identify the dates, in most cases largely because the photocopying on apparently all the available photocopies is so poor. It is surprising how frequently this happens and how great an impediment it can be to the trial process.[19]All that said, there are over 100 pages of this information. Cumulatively, the information tells its own clear story. This is, I am satisfied, the work of a radicalised or extremist ideologue. I do not propose to quote extensively from the material, it can be inflammatory, but I must record that it expresses support, seemingly by way of direct tweet rather than retweet, to the Mujahideen. It expresses congratulations to, for example, the Turkish prime minister, for his acknowledgement that the Islamic State ‘treats hostages very well’. It expresses ‘salaam’ to him. It also involves material concerning the killing of Corporal Lee Rigby to which I will not refer.[20]This material, as all the advocates have been very much aware, has caused me real anxiety. If it were to be found that it was the mother sending these tweets or retweeting them, then I consider that may establish her as holding radical beliefs and supporting terrorism, it would certainty call for an explanation in evidence. No explanation has been forthcoming so far because the mother disavows those Tweets. I have already indicated that was not her position initially. Also, I remind myself that these children are not infants. They are all of them, I think, teenagers or very nearly. Is it really likely that if the mother held the views expressed or endorsed on her Twitter account in the way that I have characterised, that these intelligent teenagers in this ‘close and loving family’ would not be alert to those beliefs or at least vulnerable to their influence?[21]The present situation, summarised by Mr Rowley, is that there is no evidence to date that the children have absorbed such radicalised views. Either, he says, they are perpetrating a deception on the various authorities involved in this family’s life by concealing their true beliefs, or they are not radicalised at all. The latter, says Mr Rowley, is the more likely. Having read this evidence extensively I am inclined to agree.[22]For the avoidance of doubt, I am satisfied, contrary to the Local Authority’s analysis, that there is here (for the reasons set out above) a very real prospect that the threshold criteria might be met. The question then falls to be considered, as to whether the investigation is proportionate. As I understand the way Mr Tyler advances his case on behalf of the children, this is, in the Guardian’s view, the key issue. In paragraph 12 of his submissions, he states:
“Perhaps more importantly [than other matters that I have been setting out], acknowledging that the findings may perhaps be made of parental conduct of a nature and degree to establish the likelihood of future significant harm,[i.e. that which I have just stated], the response to this must be proportionate to the likely harm and the probability of its occurrence taking into account both the positive aspects of the parenting given to the children and the undoubted harm corollary to their removal from their parents’ care.”
No-one here is contemplating the removal of the children from the parents’ care, but the point articulated by Mr Tyler seems to me to capture the essential issue.[23]By way of completeness, the analysis of ‘significant harm’ (at paras 19 - 21 above) is contemplated by Mr Rowley as “an intensely debatable point.” He submits that over the years there have been instances of many children being brought up indoctrinated with thoughts involving the possibility of terrorism or hatred for another religion or section of the community. He points to the situation that obtained for so many years in Northern Ireland. He states that one only need think of the more radical elements in Irish Nationalism and their opponents amongst the loyalist cause. There is, he observes, not a single reported case of ‘radicalisation’ within the context of those Christian communities.[24]Mr Rowley develops this by making the very challenging point that if the approach of our courts is, or is seen to be, partial, then it may unintentionally serve to feed the narrative of the more extremist Islamic thinkers who see Muslims as being unfairly targeted. In consequence, the court process may achieve no positive welfare outcome but merely alienate the family further. However, powerful though this submission may first appear, I do not consider that it truly withstands scrutiny. In the radicalisation cases that the Courts have recently been considering (and it must be emphasised that each case and each child is unique), it is the combination of both radicalisation and the active promotion of terrorism that presents the distinctive danger to these children. It goes beyond intolerance of different faiths or beliefs; territorial disputes or disputation of sovereignty. It involves the absolute rejection of all alternative morality or religious principle, in addition to which children are not merely affected obliquely by the views of adults, living within the same household, but are actively targeted to participate directly in a jihadi agenda, the nature of which role will differ according to the gender of the child. This is harm of a wholly different complexion to that caused by even the most radical elements in Irish nationalism or amongst the loyalist cause (i.e. the example which Mr Rowley has posited).[25]Given that each of the experienced legal teams advances the same proactive argument, I have tested the submissions more than I would ordinarily do. I have ultimately come to the conclusion that I can grant the Local Authority’s application for permission to withdraw the proceedings and therefore the fact finding hearing. The ambit of the dispute it seems to me on the evidence, when properly tracked down, is narrow but nonetheless important. I do see that the evidence in relation to it risks disappearing or may become more difficult to establish with the progression of time. For these reasons and particularly bearing in mind the potential relevance of that issue to the future care plans for the children, I propose to reserve any applications in this case in the future to myself in order to ensure that this key information is not lost sight of as events unfold in the future. I specifically order that the case is not to be released to any other judge of the Division. I propose to order a transcript of this judgment so that there is an easily accessible record of the issue. [Judgment ends]