Judge sets out approach to cases where risk of children travelling to ISIS countries

A judge has set out a number of core principles relevant to cases where it is proposed to make young people at risk of travelling to ISIS countries, and particularly Syria, wards of the High Court and remove their passports.

In Tower Hamlets v M & Ors [2015] EWHC 869 (Fam) Mr Justice Hayden said he had heard two cases in the same week in March where local authorities were concerned that minors were set to leave the country.

In each case the councils’ assessment was that the families were unlikely adequately to protect the children from leaving.

The judge said that the cases involved both girls and boys, each of whom was at risk, “to my mind self-evidently”, of significant harm in the sense contemplated by section 3(ii) of the Children Act 1989.

In both sets of proceedings Mr Justice Hayden made the young people concerned wards of the High Court.

He said the status of a ward had achieved international recognition and, because it vested parental responsibility solely in the High Court, it was “particularly apposite in circumstances such as those contemplated here”.

The judge made orders relating to the retrieval of the passport of each of the young people concerned.

He said the cases had come before him on an ex parte application and he was satisfied, on the evidence presented before him, both that the measures sought were proportionate and that there were strong grounds for believing the situation was urgent.

Mr Justice Hayden noted that the removal of an individual's passport, even on a temporary basis, be that of an adult or child, was a very significant incursion into the individual's freedom and personal autonomy.

“It is never an order that can be made lightly,” he said. “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.

“By this, I do not mean that the evidence should merely be presented with honesty and integrity. Happily, those standards are commonplace in this jurisdiction. 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.”

The High Court judge said this duty, in such an application, extended not merely to counsel and solicitors but to all involved: “police; social services; whichever professional capacity”.

Mr Justice Hayden added that 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,” he said.

The judge then distilled a number of core principles:

1. 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;
2. 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;
3. 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;
4. 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;
5. 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;
6. 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;
7. 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;
8. 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;
9. 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.

The judge also said that measures should be taken to comply with the guidelines set out by Mr Justice Munby, as he then was, in Re S (Ex Parte Orders) [2001] 1 FLR 308 in relation to undertakings to be given by the applicant and, where appropriate, the applicant’s solicitor.

Mr Justice Hayden said one set of proceedings had been a model of good practices. However, he added that in the second the application fell short of this and in some aspects “by a considerable distance”.

He accepted that the applications had been properly brought and that the evidence was cogent. He also said the measures identified to ameliorate risk were proportionate.

But the judge criticised the local authority after it emerged that the court had been misled as to whether the police supported the council’s applications.

The court was initially told that the police supported the authority’s applications but later received a call from the police that they had not had proper chance to evaluate the risk in the local authority’s application.

The judge was told that the police wanted to see if it might be possible to secure the surrender of the passports by cooperation with the families.

In view of the fact that the information came from a team specialist in counter terrorism, and reportedly authorised at a very senior level, Mr Justice Hayden immediately suspended his earlier order.

Mr Justice Hayden subsequently received a letter from the Corporate Director of Education and Social Care at the council apologising for the presenting of misleading evidence and admitting that more effective consultation with the police at an appropriately senior level should have taken place.

“Failings of this kind are, in my experience, very rarely attributable to one individual,” the judge said. “Occasionally, the sincere and real determination to achieve what is thought to be necessary and in the interests of a child can overwhelm the obligation to strive for fairness and proper process. It must never be allowed to. Reinforcing these principles is the responsibility of senior management and the legal advisers.”

At a later hearing, the police were unclear about what position they should take. Senior officers told the court they supported the council’s applications but that on the ground at least one police constable held strongly differing views.

The judge decided then to further adjourn the hearing to see what could be done cooperatively on the ground.

This adjournment had proved to be productive, Mr Justice Hayden said. “Through what I find to be a constructive process of reflective social work, sensitive policing and, in some cases, where the families are concerned, access to extremely experienced senior lawyers, a considerable number of passports were ultimately lodged safely with solicitors where they will remain until further order of this court. This simply would not have occurred, I find, without the local authority making the applications it did.”

He added: “In my judgment, perhaps because what is being focused on here by the local authority is specifically the needs of the individual children at the centre of the process, rather than more general considerations of community policing, the local authority's risk assessment has, in my view, been far more searching, more healthily sceptical and more thorough in its harnessing of material than has that of the police.”

Mr Justice Hayden concluded his judgment by saying: “The family court system, particularly the Family Division, is, and always has been, in my view, in the vanguard of change in life and society. Where there are changes in medicine or in technology or cultural change, so often they resonate first within the family. Here, the type of harm I have been asked to evaluate is a different facet of vulnerability for children than that which the courts have had to deal with in the past.

“What, however, is clear is that the conventional safeguarding principles will still afford the best protection. Once again, this court finds it necessary to reiterate that only open dialogue, appropriate sharing of information, mutual respect for the differing roles involved and inter-agency cooperation is going to provide the kind of protection that I am satisfied that the children subject to these applications truly require.”