Civil and Family Justice Centre
B e f o r e :
|In the matter of X (Children) (No 3)|
Mr Karl Rowley QC (instructed by Stephensons Solicitors LLP) for MX (mother of X1, X2. X3, X4)
Miss Ayeisha Khandia (of Fountain Solicitors) for FX (father of X1, X2, X3, X4)
Miss Linda Sweeney (instructed by AFG Law) for GX (the children's guardian of X1, X2, X3, X4)
Hearing dates: 20-23 October 2015
Crown Copyright ©
Sir James Munby, President of the Family Division :
"This case involves four children: X1, a boy born in July 2002, X2, a girl born in September 2008, X3, a girl born in August 2010, and X4 a boy born in March 2012. I shall refer to their parents, who are now separated, as MX (the mother) and FX (the father)."
I went on (para 3):
"On 2 March 2015, the mother and the four children, together with the maternal uncle and maternal grandmother, were detained at an airport in this country as they were about to board a flight to Turkey. The three adults were arrested by the police (they have since been released)."
"The Scott Schedule was set out in 72 numbered paragraphs. Many of these contained what was described as an "agreed context". Paragraphs 13-24, 27, 29, 31-33, 35-45, 48, 51-59, 61, 63-65, 67, 69 and 71-72 contained the findings sought by the local authority which were disputed. The core allegations, set out in paragraphs 53-55, 65, were that MX had no intention of staying in Turkey; that she intended to travel from Istanbul to the Turkish border with Syria with the children; that once she had crossed the border into Syria she intended to join up with ISIS militants and to supply them with items of use to the group's combative activities; and that her sole purpose and intention was to take up arms with ISIS militants and/or live for the foreseeable future in the Islamic caliphate ISIS claims to have established in the region. It was said (paragraphs 57-58) that, in essence, MX's plan was to take the children to a war zone, and that she knowingly and intended to place the children at risk of significant harm. It was further alleged (paragraph 69) that "The mother is a radical fundamentalist with links and contacts with ISIS militants and those who seek to recruit others to their cause.""
The mother's case
"The mother disputes that the threshold criteria is crossed. She says that she was intending to travel to Turkey with the children for the purposes of a legitimate family holiday. She says that although she understands why the Local Authority has intervened, her wish is for the children to be returned to her care as quickly as possible or for them to be placed with a member of their family. Once the children have settled in their current placement, she would also like to have increased contact with them so that this takes place more than twice per week."
"she does not seek to oppose the making of a finding that she was intending to attempt to enter Syria and live in territory governed by the Islamic State. That is not to say that she accepts the truth of the allegations but she does not wish to resist the making of findings on the balance of probability. In these circumstances she does not require cross examination of the local authority witnesses and does not wish to give evidence herself."
"she had travelled to Turkey to meet up again with, and possibly marry, a man" – I shall refer to him as H – "she had met in this country collecting money for Syrian refugees and whom she understood to be a doctor in Turkey. She denied any intention of travelling to Syria and said "I do not agree with or support or favour anything ISIS do … and have no wish to be involved with ISIS in any way.""
The local authority's case
i) The mother's acquaintanceship with various individuals who, it is alleged, had travelled via Turkey to Syria in 2014 to take up arms with ISIS militants (paragraphs 19-27).
ii) Lies the mother told the children's schools on 27 February 2015 about the reasons for their forthcoming absence from school (paragraphs 28-33).
iii) The fact that when stopped at the airport on 2 March 2015 the mother gave a false address (paragraphs 36-37).
iv) The fact that the family's luggage, when searched at the airport, was found to contain a number of suspect items (paragraphs 39-48); as it is put (paragraph 39), "a large number of items not normally associated with any family holiday." It is asserted (paragraph 48) that "There is a striking similarity between the items contained in the … luggage and a list of items a known ISIS operative asked a British recruit to bring to Syria with him (and in connection with the same the said recruit was found guilty of possessing items of use to terrorists)."
v) The fact that, when her house was searched, the items found included (paragraphs 76-77) "ISIS flags" and 'to do' lists, written by the mother, "which indicated that the writer of the list was moving and not intending to return."
vi) The fact that the mother lied to the police when being asked the purpose of their trip (paragraphs 49-55). She described (paragraph 51) "a multi-faceted trip involving a combination of an adventure holiday, culture, sight-seeing and relaxation."
vii) The fact that the mother's most recent account, as I have summarised it in paragraph 10 above, is a lie (paragraphs 56-65).
i) It is said that she met no man in the circumstances she described or at all (paragraph 62). She has (paragraph 63) "manifestly failed to provide any tangible evidence as to his existence and cannot even produce a photograph of him, any contact details or even one of the electronic communications which she claims passed between them." Furthermore (paragraph 64), "In so far as that man is not a point of contact she had in Turkey for another reason, he is a figment of her imagination."
ii) As a separate point, it is said (paragraph 59) that, if her account was true, "it would reveal a mother who was unable to place her children's needs before her own and that she was prepared to sacrifice her children's stability, all they knew and their relationship with their father so that she could fulfil her own desire for a relationship with a man she hardly knew." Furthermore (paragraph 60), if it was true "the extent of her intended folly is revealed by the fact that this man has literally disappeared without trace and left the mother unsupported at a time she needed it most."
iii) It is alleged (paragraph 65) that "She has in essence, weaved this account around the notes secreted in the children's underwear to try to explain away the manifest inherent improbabilities in her first version of events at the eleventh hour and in the face of a growing realisation that no Judge would on the totality of the evidence believe that first account."
"The reality is, the mother, her own mother and her brother had no intentions of remaining in Turkey.
They intended to travel with the children from Istanbul to the Turkish border with Syria.
Once they crossed the border into Syria, they intended to join up with ISIS militants and to supply them with items of use to the group's combative activities.
In all probability, they also intended to meet up with those … who had already travelled … to Syria via Turkey.
In essence, the mother's plan was to take these children to a war zone.
As such, she knowingly and intended to place the children at risk of significant harm.
The sole purpose and intention was … to cross the border into Syria and take up arms with ISIS militants and/or live in the Islamic caliphate ISIS claims to have established in the region for the foreseeable future.
[Neither] she nor [her brother] had any intention of returning to [her house].
That is why she suddenly found the money to buy the above electronic equipment which with one exception she financed on credit in February 2015 and why [her brother] paid for the trip using a £12,000.00 loan."
"In short, the mother is a radical fundamentalist with links and contacts with ISIS militants and those who seek to recruit others to their cause.
Although she is arguably entitled to have whatever view she chooses, she is not however entitled to place her children at risk of significant harm or even death in furtherance of such a cause.
In furtherance of her aims and objectives, [she] is and was prepared so to do and to lie with impunity to conceal her real intentions and motives."
"Work on the judgment has progressed to the point where I can, and therefore should, communicate my decision to the parties.
The local authority has NOT persuaded me of the central core of its case against the mother. Specifically, and focusing for the time being only on the following paragraphs in the local authority's Amended Schedule of Disputed Findings, I do NOT make any of the findings as sought in paragraphs 66-73, 78 and 80.
The parties will obviously need to consider the implications of my decision."
"First, the burden of proof lies at all times with the local authority.
Secondly, the standard of proof is the balance of probabilities.
Third, findings of fact in these cases must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation …
Fourthly, when considering cases of suspected child abuse the court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. The court invariably surveys a wide canvas. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.
Fifthly, … Whilst appropriate attention must be paid to the opinion of … experts, those opinions need to be considered in the context of all the other evidence. It is important to remember that the roles of the court and the expert are distinct and it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. It is the judge who makes the final decision.
Sixth, … The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others.
Seventh, the evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability.
Eighth, it is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas  QB 720)."
In the present case, this last point is of particular importance.
"There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities. If a child alleges sexual abuse by a parent, it is common sense to start with the assumption that most parents do not abuse their children. But this assumption may be swiftly dispelled by other compelling evidence of the relationship between parent and child or parent and other children. It would be absurd to suggest that the tribunal must in all cases assume that serious conduct is unlikely to have occurred. In many cases, the other evidence will show that it was all too likely."
"It is the local authority that seeks a finding that FM's injuries are non-accidental. It is for the local authority to prove its case. It is not for the mother to disprove it. In particular it is not for the mother to disprove it by proving how the injuries were in fact sustained. Neither is it for the court to determine how the injuries were sustained. The court's task is to determine whether the local authority has proved its case on the balance of probability. Where, as here, there is a degree of medical uncertainty and credible evidence of a possible alternative explanation to that contended for by the local authority, the question for the court is not 'has that possible alternative explanation been proved' but rather it should ask itself, 'in the light of that possible alternative explanation can the court be satisfied that the local authority has proved its case on the simple balance of probability'."
The issue and the forensic context in that case differ from what confront me in the present case, but the point identified by Judge Bellamy is quite general, as exemplified, for example, by what Lord Brandon said in The Popi M, 951:
"… the burden of proving, on a balance of probabilities, that the ship was lost by perils of the sea, is and remains throughout on the shipowners. Although it is open to underwriters to suggest and seek to prove some other cause of loss, against which the ship was not insured, there is no obligation on them to do so. Moreover, if they chose to do so, there is no obligation on them to prove, even on a balance of probabilities, the truth of their alternative case."
Submissions on behalf of the local authority
i) Neither the mother, nor her brother nor H did any of the things the mother asserts. Her story about how she and H met and what was intended is simply false.
ii) I can and ought to find that, although the mother knows someone called H who has at least some Turkish contact details (a) he is not the person she has said and has described as being H, (b) they were not in some long distance relationship as she claims, and (c) he was simply a contact she had in Turkey and with whom she intended to make contact when she arrived there.
iii) As such, the fundamental foundation on which the mother's case is built has collapsed.
iv) The mother is now in a bind, because it is, he says, not now open to her to revert to her first account of a simple holiday, for that would be the equivalent of her saying, 'When I told you I lied, I lied because what I said was a lie is actually the truth.'
i) The numerous electronic devices with chargers, either new or wiped clean proximate to the trip, and the substantial amount of new outdoor clothing in size large and extra-large, found in the luggage. Mr Crabtree submits that this fits the 'tradecraft' pattern. He points out that much of this was purchased on credit which was not repayable until long after the trip had commenced and draws attention to the absence of suitable clothing of that nature for X1 (if they were both intending to participate in adventure sports and the like, he needed but did not have what his uncle needed and had).
ii) The pieces of paper with notes of numbers, Kik, WhatsApp and email log on and password details. This again, he says, follows known 'tradecraft' and guidance issued in the e-book, Hijrah to the Islamic State, and comes against a backdrop of implausible explanations from the mother as to how and why she had these.
iii) The false address the mother provided when first asked for her details by DS SH.
iv) The false notes containing her reasons why the older children would not be at school in those crucial three days on 2, 3 and 4 March. Those notes also set the scene of the mother fabricating – as she admits – stories to conceal her true intentions. Mr Crabtree adds that there is simply no logic in the mother's explanation that this was a story to avoid a fine for taking her children out of school in term time for the purpose of a holiday, given she says she intended to tell all when they returned. If anything, she says, what she supposedly says she planned to do would (if true) make things worse not better.
v) X2's disclosure to her foster carer that she was going to a secret place before she whispered Syria. Mr Crabtree says this sets the scene in which I can and ought to view X1's intervention at this point and X2's distress immediately following his intervention.
vi) The vast array of medication. On the one hand, Mr Crabtree says, the mother was described by herself and her mother as extremely unwell and dependent on medication but there are, he says, clear discrepancies between what the mother now says about her health and what she had previously said in response to the threshold document and the subsequent Scott Schedule.
vii) The mother's claim that one of the large new rucksacks was for her. How, Mr Crabtree asks, was she going to carry that on her back with such an array of problems which meant pain radiated through her entire body to the extent that she was part dependent on X1 to wake her and the father to take the children to school at times?
viii) The creation of the DVDs. Mr Crabtree accepts that they may be genuine but says that the local authority knows not, given they cannot be authenticated. The mother attempts to do so but, he submits, she has no credibility. The grandmother might do so but the mother has not called her to give evidence (just as she has not called her brother on the supposed phone calls to Turkey).
ix) The presence of items for which there is no cogent explanation in suitcases packed by the mother, who told the court she was conscious of weight restrictions, yet the absence of even the most basic of equipment connected with rock climbing.
x) The flags and other things found when the mother's home was searched – though he submits that, in reality, the local authority's case can be and is made out without reference to them.
Submissions on behalf of the mother
Submissions on behalf of the father
Submissions on behalf of the children's guardian
i) The guardian, having listened carefully to the mother's oral evidence on 21 October 2015 and read the notes of her oral evidence on 22 October 2015, remains concerned at the conclusion of that evidence by the mother's explanation for the purpose of the trip.
ii) He remains concerned by the mother's explanations for the presence of items in the family's luggage that were not consistent with a family holiday.
iii) He continues to be very concerned about the mother's lack of openness and honesty with professionals.
Miss Sweeney adds that, should I make the findings of fact sought by the local authority in relation to the mother's actions as a parent in March 2015, such findings would raise serious questions about her ability to care for her children safely, despite her evident qualities as a parent.
i) I accept the various points made by Mr Rowley as summarised in paragraphs 59-64 above so far as they go.
ii) As against that, there remains the fact, which Mr Rowley (see paragraph 75) was, in my judgment, unable effectively to challenge, that the luggage did contain a significant number of items which, as Mr Crabtree correctly submitted (paragraphs 46, 47(i), 47(ix)), cry out for explanation in circumstances where the only explanation proffered by the mother is tied to her story about H which, as I have already explained, I am unable to accept.
So, Mr Rowley has not succeeded in destroying the local authority's case on 'tradecraft', but it is much shakier than first appeared.
i) The mother is a proven liar. The mother has not, in the past, been frank and honest either with the local authority, the guardian or the court and I not satisfied that she is being now.
ii) H (if that is his true name) is someone known to the mother and who has some connection with Turkey. The mother has wholly failed to persuade me, however, either that she met H in the circumstances she describes, or that their relationship was as she asserts, or that the role (if any) he was to play in Turkey was as she says. I am unable to accept her as being either a reliable or indeed a truthful witness. The mother, in my judgment, has not proved her case in relation to H.
iii) The mother is an observant Muslim, but the local authority has been unable to prove either that the materials found at her home have the significance which was suggested or, more generally, that she is a radical or extremist.
iv) The luggage contained a significant number of items which cry out for explanation in circumstances where the only explanation proffered by the mother is tied to her story about H which, as I have already explained, I am unable to accept.
Postscript (17 December 2015)
Permission to appeal
i) First, the point simply does not arise in the present case. I explained in my first judgment (Re X (Children), Re Y (Children)  EWHC 2265 (Fam), paras 49, 100) why a time came when the interim care orders were replaced with interim protective orders in wardship, including, I might add, orders that could only be made by the High Court. There was no challenge at the time to my order. This judgment relates to a finding of fact hearing. Although I accept that a local authority's formulation of the facts which it invites the court to find may differ depending upon whether it is pursuing one kind of proceedings rather than another (though that is not the case here, where the local authority's Scott Schedule was formulated in terms of 'threshold'), the forensic process when the court is conducting a finding of fact hearing is precisely the same whether the finding of fact hearing is part of care proceedings, part of wardship proceedings, part of private law proceedings, or indeed part of any other kind of family proceedings. So the dichotomy between care proceedings and wardship proceedings, as Mr Crabtree refers to it, has nothing whatever to do with the judgment which he seeks to challenge.
ii) Secondly, I do not see what formulation of principles or guidance from the Court of Appeal Mr Crabtree can have in mind. Cases of this kind inevitably vary. Sometimes recourse to the inherent jurisdiction will be necessary, for example if the court is to be invited to make orders directed to the return to this jurisdiction of children who are abroad. The present is an example of a different set of circumstances where recourse to wardship was appropriate. In other cases, it will be neither necessary nor appropriate to invoke the inherent jurisdiction, care proceedings being appropriate and enabling the court to make whatever orders are required. The present case, in my judgment, is simply not an appropriate vehicle for debating largely abstract questions which do not in fact arise and which are thus both hypothetical and academic.
Continuation of the wardship
"No application for any exercise of the court's inherent jurisdiction with respect to children may be made by a local authority unless the authority have obtained the leave of the court."
Section 100(4) provides that:
"The court may only grant leave if it is satisfied that –
(a) the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and
(b) there is reasonable cause to believe that if the court's inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm."
Section 100(5) provides that:
"This subsection applies to any order –
(a) made otherwise than in the exercise of the court's inherent jurisdiction; and
(b) which the local authority is entitled to apply for (assuming, in the case of any application which may only be made with leave, that leave is granted)."
Note 1 Including, it is alleged, 9 battery powered or other powered torches, 4 hand-wound torches, 3 solar charger units or power-packs, 4 emergency blankets, 3 new and 2 used rucksacks, 5 mobile phones in excess of the 3 mobile phones chargers carried by the group as a whole, unused computer equipment comprising 6 machines (including 3 identical Samsung devices) and 5 chargers, 3 unused sim cards, 5 Multi-tools devices and power converters etc, what is described as “a large quantity of substantially if not entirely new size ‘large’ and ‘extra-large’ outdoor clothing including coats, waterproof bottoms, breathable t-shirts, gloves and so on”, what is described as “a large amount of medication and panty-liners and tampons”, and “telephone numbers, e-mail addresses and passwords … found on pieces of paper secreted in the children’s underwear in one of the suitcases.” [Back] Note 2 It is further said (paragraph 42) that “By contrast, the luggage did not contain outdoor clothing of a sort which might have been associated with an adventure or camping holiday for (amongst others) 4 children”, (paragraph 43) that “Although there was a large quantity of large and extra-large outdoor clothing there was bar one piece, an absence of such clothing in sizes that would fit any of the children and in particular, X1”, and (paragraph 44) that “Those and most of the other supposedly camping equipment was or appears to be completely new.” [Back] Note 3 It is said (paragraph 52b) that this was “a lie which the mother maintained from February until the end of June 2015” and (paragraph 55) that in the light of the events as I have described them in paragraphs 9-10 above, “It inevitably follows that for several months she lied to the police, to the local authority, to the children’s guardian, to the court and to FX in what she claimed was true.” [Back] Note 4 Mr Crabtree draws attention to the suggestion in some of the police evidence, based on ‘tradecraft’, that some of the luggage might be abandoned at or before crossing the border into Syria. But that, even if a well-founded general speculation, does not meet the points Mr Rowley is making as I have summarised them in paragraphs 51 and 53. [Back] Note 5 I make clear for the avoidance of doubt that this observation relates only to the police evidence in relation to the al-Awlaki material. There was much police evidence, which I have had very much in mind, relating to the significance of the contents of the family’s luggage and, more generally, in relation to ‘tradecraft’. [Back]
Note 1 Including, it is alleged, 9 battery powered or other powered torches, 4 hand-wound torches, 3 solar charger units or power-packs, 4 emergency blankets, 3 new and 2 used rucksacks, 5 mobile phones in excess of the 3 mobile phones chargers carried by the group as a whole, unused computer equipment comprising 6 machines (including 3 identical Samsung devices) and 5 chargers, 3 unused sim cards, 5 Multi-tools devices and power converters etc, what is described as “a large quantity of substantially if not entirely new size ‘large’ and ‘extra-large’ outdoor clothing including coats, waterproof bottoms, breathable t-shirts, gloves and so on”, what is described as “a large amount of medication and panty-liners and tampons”, and “telephone numbers, e-mail addresses and passwords … found on pieces of paper secreted in the children’s underwear in one of the suitcases.” [Back]
Note 2 It is further said (paragraph 42) that “By contrast, the luggage did not contain outdoor clothing of a sort which might have been associated with an adventure or camping holiday for (amongst others) 4 children”, (paragraph 43) that “Although there was a large quantity of large and extra-large outdoor clothing there was bar one piece, an absence of such clothing in sizes that would fit any of the children and in particular, X1”, and (paragraph 44) that “Those and most of the other supposedly camping equipment was or appears to be completely new.” [Back]
Note 3 It is said (paragraph 52b) that this was “a lie which the mother maintained from February until the end of June 2015” and (paragraph 55) that in the light of the events as I have described them in paragraphs 9-10 above, “It inevitably follows that for several months she lied to the police, to the local authority, to the children’s guardian, to the court and to FX in what she claimed was true.” [Back]
Note 4 Mr Crabtree draws attention to the suggestion in some of the police evidence, based on ‘tradecraft’, that some of the luggage might be abandoned at or before crossing the border into Syria. But that, even if a well-founded general speculation, does not meet the points Mr Rowley is making as I have summarised them in paragraphs 51 and 53. [Back]
Note 5 I make clear for the avoidance of doubt that this observation relates only to the police evidence in relation to the al-Awlaki material. There was much police evidence, which I have had very much in mind, relating to the significance of the contents of the family’s luggage and, more generally, in relation to ‘tradecraft’. [Back]