England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		No. FD15P00121 Royal Courts of Justice
		23rd April 2015

MR. JUSTICE HAYDEN:

1. On 17^th March this year I heard an application brought by Brighton and Hove City Council concerning a young man, Y, who is 16 years of age. The local authority were seeking permission to make Y a ward of court and, either alternatively or in addition, to seek to protect him under the inherent jurisdictional powers of the High Court. There was a further application that the mother be joined as a respondent to the proceedings as would Y himself.
2. As I said in my short judgment on that occasion, Y is a particularly vulnerable young person. He has grown up within a family where there has been a passionate commitment to waging Jihad in Syria amongst the male members of the family. It is a striking feature of the history that two of Y's brothers have already died, as the family would no doubt see it being martyred, in that war, as was a close friend of the family. Y's uncle was a detainee in the Guantanamo Bay Detention Centre in Cuba and his incarceration there was the subject of a great deal of media attention, particularly in Brighton where this family are based.
3. Y lives with his mother. In so far as I have a sense of that relationship at all it strikes me as, at least in part, interdependent. The local authority brought these proceedings because they were concerned that, in short, Y might wish to follow his brothers to war and perhaps ultimately also to death.
4. As I observed on 17^th March Y's mother is ground down by all that has happened to her family. The picture that emerges is of a woman who is trying to cope but barely succeeding. Certainly she is unable to effect any real parental control over her son, Y. I have been told that when she is visited, as she is from time to time, by a variety of social workers she lapses into long monologues about her family, and takes that opportunity to vent her grief which has ultimately disabled her.
5. Y regularly either fails to attend school or attends only very briefly. He has been involved in a series of criminal offences, some very serious indeed. There was a plan that he should go to Dubai for Easter. It was clear that his mother had very little input into that plan. The arrangements were nebulous to say the least.
6. Moreover, on 4^th April, the day that the arrangements had been made for Y to travel, he would have been on bail in relation to an allegation of causing grievous bodily harm, the charge he then faced, contrary to section 18 of the Offences Against a Person Act 1861 requiring him to live and sleep at home and be subject to a curfew and report to the local police station.
7. At the very least it seemed there was an assumption that the bail condition would either have fallen away by 4^th April or be changed but there was no evidence at all that this was likely to happen, nor was I able to gain any clear impression as to how this 16 year old, with no obvious source of income, was able to find the funds for the flight to Libya. The best that I could glean was that there was an uncle living in Dubai who forwarded the cash. I do not recollect being given a name or address or any details of the transaction.
8. Although I delivered that judgment on 17^th March in court with press present, I did not release the transcript onto BAILII as during the course of the week in which I was sitting as the urgent applications judge I was to hear a number of similar applications. These are reported at [2015] EWHC 869 Fam In some of those cases I have found it necessary to be critical of some of the professionals involved. This case, unlike those in that report, was and had plainly been the subject of much anxious consideration amongst the social services. There have been clear, open and cooperative discussions with the regional Counter Terrorist Unit and particular thought had been given to the legal framework in which the application should be pursued.
9. In the later cases I was asked if I would not disclose into the public domain a document known as the 'Channel' vulnerability assessment framework. In this case that document had been openly referred to and was regarded by all the relevant professionals involved as a helpful reference for evaluating risk. The local authority, through Mr. Downs, referred to it in their submissions and so did I in my judgment. In the light of the subsequent application in the latter case I did not permit this short extempore judgment to be posted on BAILII, as is my usual practice.
10. I have since discovered, with Mr. Downs' assistance, that contrary to the submission made at the request of a very senior police officer in the other cases, the Channel assessment framework is in fact already a document in the public domain and, perhaps somewhat embarrassingly for the officer concerned, available on the public website of the Metropolitan Police. That application has now been withdrawn and accordingly my earlier judgment of 17^th March will now also be placed in the public domain.
11. I set that history out because transparency is always important, but it is particularly important in these difficult and evolving cases which frequently involve the delicate balancing of competing, and not always reconcilable, rights and interests. Moreover this judgment must be read in the light of my earlier comments.
12. Today at this review hearing the local authority seeks to renew the wardship. Y himself, although somewhat bemused by the existence of it, does not seek to discharge it but the mother, on whose behalf Mr. McCormack of counsel acts, does.
13. Broadly speaking the professionals feel that they have achieved a constructive working relationship with Y and his mother. They also submit through Mr. Downs that the existence of the wardship often acts as a key to unlock professional cooperation which otherwise might be more challenging.
14. No party seeks to say that the wardship is either misconceived in law or otherwise a distortion of the provisions of s.100 of the Children Act 1989. Nonetheless, that has not prevented me from looking quite closely with Mr. Downs at the applicability of wardship in these circumstances.
15. Wardship reduced, very considerably, in its usage following the introduction of the Children Act 1989. It survived in a residual capacity but is widely used in the context of cases involving the Hague Convention. In Re S (Wardship) Guidance in Cases of Stranded Spouses [2011] 1 FLR 319 Hogg J gave some helpful guidance in relation to the applicability of the jurisdiction. In that judgment she indicated that wardship seemed particularly apposite, as she put it:

"Given the international element and the experiences of judges of the Family Division in dealing with cases of this type, child abduction and other international cases, the best vehicle for these types of cases is wardship."

16. While the effects of s.100(2) is to prevent Orders in wardship being used to require a child to be placed in the care or under the supervision of a local authority, the provisions of the section do not either explicitly or implicitly preclude the court from making a child a ward of court where the child has been voluntarily accommodated by the local authority. As Mr. Downs submits, that itself indicates the reach of the wardship jurisdiction.
17. It is submitted it has a flexibility to it that enables it to make interventions into the lives of children which can, when required, have a lightness of touch, and equally when required can have very draconian reach indeed, for after all it removes parental responsibility from either parent or local authority and places it in the hands of the High Court judge.
18. Tellingly the test of the effect of that intervention is, in my view, seen most closely in Y's own words to his guardian. He says that whilst he cannot really see why the application by the local authority was necessary, he has observed on more than one occasion that the court's decision has had very little impact upon him in practical terms. He does accept that the local authority now hold his passport and in consequence understands that he would need to apply to the court should he plan any trip abroad in the future. He also understands that this is essentially an investigative and protective jurisdiction where his best interests are the paramount consideration.
19. I do not know but it seems to me reasonable to speculate that he, on some level, understands the limitations of his mother in her present diminished circumstances and her obvious lack of ability to influence his behaviour. It may be that on some level he appreciates the need for others to assume some aspect of that role. In any event he does not instruct his guardian to oppose the wardship Order and, as I have said, in his somewhat bemused way he yields to it.
20. There are a number of cases to which I have been referred which emphasise the subtlety of the scope of wardship and its capacity to tailor bespoke solutions to complex and challenging situations. Where circumstances are unusual the court will consider warding a child within care proceedings to maintain control over decisions relating to children that require these carefully crafted individual solutions.
21. The decision of Hedley J in Re K (Children with Disabilities: Wardship) [2012] 2 FLR 745 is a particularly striking example of the thoughtful and creative use of wardship in what the judge referred to as "a unique solution for a unique case", an approach which was later reviewed in the Court of Appeal and endorsed as an apposite solution by Thorpe LJ in Re E [2012] EWCA Civ 1773. There is no doubt therefore that the jurisdiction exists, no doubt in my view that it is particularly appropriate to this extremely sensitive and sad situation, and no doubt either that it seems to be working effectively.
22. Although it deprives the mother of parental responsibility it is, to my mind, a less substantial intervention impractical terms than would be the instigation of public law care proceedings under the Children Act 1983 Act. It has not been necessary to trigger the vast panoply of investigations, assessments, statements, meetings, reviews, etc. that public law care proceedings inevitably and rightly involve.
23. In the light of the background history, which I have summarised above, it seems to me inevitable that the risk identified here is both real and insidious in the sense that it is not easy to identify clearly on a day to day basis and therefore inevitably requires a challenge to manage. In those circumstances it must be regarded therefore as a significant risk.
24. Risk does not exist as a concept in a vacuum. Sometimes a small risk of some very serious consequence is an unacceptable risk. Sometimes by contrast a significant risk of something with really rather minor consequences may be acceptable. Here it seems to me is the classic case of a high risk of very serious harm. It is important not to lose sight of the fact that two brothers have already died in this war.
25. One of the circumstances in which wardship is frequently used is to prevent the contact of a vulnerable child with an unsuitable adult, in other words when a very specific risk arises. Here we are not dealing with a risk arising from an unsuitable human being but there is a clear parallel, for the process of radicalisation that goes on within families committed to this type of belief, or to youngsters vulnerable to those outside the family with such beliefs, is strikingly similar to the process of grooming that one sees in the context of sexual abuse. Here we are concerned with 'distorted belief' but it is nonetheless pervasive and challenging to resist. In these circumstances therefore with a high risk of serious outcome it seems to me that the court is entitled to use the fullest measures at its disposal.
26. I have indicated that the mother has opposed the continuance of the wardship. She says that the wardship should be discharged because she will not allow Y to travel, and she asserts that she has made it clear that she has learned, in what her counsel describes as the 'hardest possible way', how she needs to ensure that her son will not be able to get hold of his passport or travel documents. I regret to say that whilst I do not question the sincerity of her assertion I see no evidence at all that she has empowered herself to put down the kind of boundaries that Y needs in this regard or more widely. Indeed, on the contrary, I am satisfied that she is entirely unable to control her son's behaviour.
27. However, she does recognise that the local authority is endeavouring to work with her and to protect her son. I detect that she has found some solace from their involvement on some level, and I confess I am slightly perplexed as to why it is she challenges this Order, but she does so with diffidence and with great respect to the court and the legal process, indicating through Mr. McCormack that if the court took a different view, as I plainly have, she will unhesitatingly accept it. She also asserts that she will encourage Y to engage with the contemplated experts and with the process itself. As Mr. McCormack puts it in his written submission, she will accept the will of the court.
28. I should add that in this relatively short extempore judgment I do not seek to set out a paradigm approach for applications of this kind. I am quite sure that there will be cases, particularly with younger children, perhaps when they are of necessity separated from their family, where only care proceedings under the Children Act will be appropriate.
29. I would like Y and his mother to know that I have given their views very considerable thought but I am entirely satisfied that what I regard as a 'light touch' intervention in their lives has been very effective and I hope will continue to be so.

Post script

Since I delivered this judgment the President has handed down his judgment in the matter of M [2015] EWHC 1433 (Fam) which addresses the scope of the wardship jurisdiction.