Guardian wins appeal over decision by judge not to make child assessment order in case where father was convicted of terrorism offences

A Children’s Guardian has won an appeal, brought with the backing of a local authority, over a judge’s decision not to make a child assessment order in a case where the father had been convicted of terrorism offences.

The appeal in I (Children: Child Assessment Order) [2020] EWCA Civ 281 related to a family with five children. The children, whose ages range between 18 and 9, were “making excellent progress and have impressed everyone who has met them”, Lord Justice Peter Jackson said.

However the father was convicted under the Terrorism Act 2000, for which he received a substantial prison sentence. His offences consisted of addressing meetings to encourage support for or further the activities of Islamic State.

Following the father's arrest, there was concern about the impact of his beliefs and activities on the family, Lord Justice Peter Jackson said. It was found that one or more of the children had been taken to meetings at which the father had spoken, and an image of a beheading was found on one of the children's phones. More recently, evidence emerged showing one or more of the children holding placards at a demonstration in support of the Caliphate.

In early 2017 the local authority in whose area the family lives therefore carried out an investigation under s.47 of the Children Act 1989. At that stage the mother was assessed as recognising the risks and acting protectively. There was no evidence of her being implicated in the father's views and activities. The local authority's plan was for further assessment when the father was due to be released from prison.

The father was released on licence in late 2018, and was placed in a hostel. A further s.47 assessment was undertaken by the local authority.

“By contrast with the earlier assessment, this raised considerable concerns about the mother's protectiveness,” Lord Justice Peter Jackson said. “She said that the father had strong views but that they were not criminal. She referred to the undercover officer whose evidence had led to the father's conviction as a ‘snitch’.”

The assessment, completed on 13 March 2019, concluded that:

• a Child in Need plan was required (as the father wanted to go home);
• the Probation risk assessment should be obtained to identify the father's current view of his offending;
• the father should be interviewed;
• an Intervention Provider should be instructed to talk to the children;
• fuller work should be carried out to provide the children with clear information about their father's offending;
• the father's interaction with the children should be observed.

The mother opposed these interventions, describing them as a collective punishment driven by religion and not genuine concern.

The local authority convened a Child Protection Case Conference on 20 May and the children became subject to Child Protection Plans. A referral was made to Prevent so that the case could be discussed within the Channel Panel, a multi-agency panel designed to safeguard individuals at risk.

In June, the parents consented to direct work being done with the children but later that month they withdrew that consent. The mother declined to meet a representative from Prevent or engage with a parenting assessment.

As a result, the Probation Service advised that the father's licence conditions had been changed so that the mother was no longer approved to supervise contact.

At the Channel Panel meeting on 5 July it was decided that the children should be assessed by an Intervention Provider to establish whether they required mentoring with the aim of increasing theological understanding and challenging extremist ideas that may be used to legitimise terrorism. The parents declined to consent to this assessment.

These events added to the local authority's concerns, Lord Justice Peter Jackson said. On 22 July, it initiated the process leading to public law proceedings by sending formal letters to the parents, as a result of which they qualified for legal representation. Then, on 20 August, the father's licence was revoked due to a breach of his licence conditions. He remains in custody and his release date is not known.

A PLO meeting took place on 5 September. The mother attended on her own. She refused to consent to unannounced visits, a parenting assessment, direct work with the children, or to work being carried out by an Intervention Provider. Further details of the parenting assessment and the direct work proposed were provided to the mother by letter but on 23 September she responded by saying that she did not consent to any work being carried out.

On 7 October, the local authority decided to apply for a child assessment order, with a view to an assessment being carried out by an Intervention Provider. A final hearing took place on 4 December.

The application was opposed by both parents and by the four older children, who were separately represented (the eldest has since turned 18 and was no longer the subject of proceedings).

The council's application was, however, supported by the Children's Guardian. He considered that it was not known whether the children had been exposed to the risk of radicalisation by their father's actions and beliefs, or whether their mother was fully protective. The family's unwillingness to work with the local authority had prevented it from assessing either the level of risk or what support can be offered.

The judge, Mr Justice Newton, handed down a written judgment on 18 December, refusing the local authority's application. His reasons (as summarised by Lord Justice Peter Jackson) were:

(1) He had no power to make a child assessment order under s.43 of the Children Act 1989.

(2) It was too late. There were probably reasonable grounds for suspicion in 2015, and the local authority should have acted then. After "4 uneventful years" now was not the time to assess the risk.

(3) (Though not said in terms) the local authority did not have reasonable grounds for suspicion. The application needed more than a "historic" foundation. The failure to gather available evidence about the father from the probation and prison service meant that there was no current evidence of the children having been affected by their father's views.

(4) Alternatively, and for the same reasons, the assessment was not required.

(5) In any case, an order would be disproportionate.

(6) It was unlikely that the older children would participate in an assessment. Endeavouring to compel them to be assessed would be heavy-handed, disproportionate and possibly unfair.

(7) Given the children's stance, an assessment would not be likely to produce better information than was presently available.

(8) The local authority could think again once it had more information.

The Guardian, supported by the local authority, appealed.

Lord Justice Peter Jackson said he had “unhesitatingly” concluded that as a matter of law the court had the power to make a child assessment order in this case.

Turning to the merits of the case, the Court of Appeal judge said a child assessment order allowed for a brief, focussed assessment of the state of a child's health or development, or the way in which he or she had been treated, where that was required to enable the local authority to determine whether or not the child was suffering, or was likely to suffer, significant harm and to establish whether there was a need and justification for any further action.

He added: “The purpose of the assessment is to provide a range of information, identifying not only whether harm may exist, but also describing its nature and extent. It is part of the process of gathering information so that any child protection measures can be appropriately calibrated.

“It is the least interventionist of the court's child protection powers and is designed to enable information that cannot be obtained by other means to be gathered without the need to remove the child from home.”

Lord Justice Peter Jackson noted that it was not an emergency power and it might be particularly apt where the suspected harm to the child may be longer-term and cumulative rather than sudden and severe.

The order was compulsory in relation to parents but not for a competent child who refused to participate, he said, adding that the views of an older child were an important consideration when a decision was taken about making an order, “but it cannot be said that opposition makes an order unlikely: it depends on the facts of the case and the nature of the risk and the assessment”.

Lord Justice Peter Jackson said: “Seen in this light, the circumstances of this case might be seen as a paradigm example of a case for which s.43 was intended. More than that, I would conclude that the evidence so clearly pointed to the making of a child assessment order that the judge's contrary conclusion cannot stand.

“The outcome, by which the local authority was told to go away and think again after a process that had already hung over the family for a full year since the father's release, fails to address obvious risks that now require careful assessment.”

Lord Justice Peter Jackson said the only remaining way in which the assessment could be made without the issuing of care proceedings was by means of a child assessment order. “There is no purpose in remitting the decision, and I would therefore allow the appeal,” he said.

The Court of Appeal therefore made the child assessment order in the terms drawn up by the parties.

Lord Justice Peter Jackson then addressed the young people at the centre of the case: “We know that you will give the same serious attention to this order and the reasons for it that you showed when three of you, one now being an adult, attended the appeal hearing.

“Our order has only one purpose: to help to keep you safe. We know that the order is not what you wanted, but we believe that it is the very best way of resolving the present situation and of allowing you to get back to the things that you have been doing so well. Three of you have the right to say no, but we hope that you will allow the assessment to take place, as it will do for the youngest one of you, and that you will all do your best.”

Lord Justice Newey and Lord Justice Moylan agreed.