England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Re Y (Children) (Radicalisation: Interim Removal))

		Royal Courts of Justice
		Wednesday, 24th August 2016

MRS. JUSTICE PARKER:

1. I concluded my judgment last week by stating my reluctance to remove these children from their home with their father and from each other, although I did tell him that I would do so if I had to. I have not seen the note of judgment, which I delivered orally and ex tempore last week, but I have retained my list of findings sought by the local authority (heavily annotated), and am assisted by the submissions I have received today.
2. The local authority has given anxious thought to what they say should happen on an interim basis arising out of my conclusions last week. It has not helped that I have had to put off drawing a final conclusion as to what precisely was going on when the children, accompanied by their adult siblings, were stopped at Harwich Ferry Port. I have explained why I have adjourned that issue.
3. I stated why, contrary to Mr. de Burgos' submission, I took the view that there was a prima facie case that there had been an intention to remove to Syria. I set out a number of points upon which I was addressed and about which I heard evidence. These are not conclusive of course, and I may come to the conclusion that it is not proved that this was an attempt to remove to Syria, but if one applies the s.38 test, there are reasonable grounds to believe that the father, as set out in allegation 1 in the agreed schedule, planned to take the children to Islamic State and thus expose them to significant harm.
4. The parties have been talking, I believe, much of today. I have seen care plans that support removal. The proposal is that J, who will be 16 on 9^th September (just two weeks from now), should be placed on her own. This is firstly because of the concern that she may be more aligned with adult viewpoints than the younger boys, secondly, that she may undermine a placement of the younger boys, thirdly, that she may, as it is put, vote with her feet, which would be extremely disruptive in itself of any foster home.
5. It is proposed that the two younger boys remain together. They are 14 and 10. The 14-year old, F is closer in age to J than is L. An almost 16-year old girl has a very different level of social and intellectual maturity, outlook and attitudes, from boys on the verge of adolescence. She seems to align herself with her older sisters. These boys can more readily be seen as a pair than the three can be seen as a triad, so says the local authority, and I agree. I accept that the proposed foster placements are appropriate, culturally, religiously, and in other ways. However, the two families proposed are both a significant distance from the children's present home and school. The children have only been at their present State school for two terms and they could not stay at their present schools if they are moved into foster care.
6. All three are at sensitive times in their schooling. J is just about to start her final GCSE year. F is just about to start year nine, the year before the start of his first GCSE year. L is in his last year of primary school and is due to take SATs. Having said that, there is not really any year in a child's education which is not equally significant in a different way, and which is not before a particular key change. I bear in mind that they have only been in their present schools for a short period of time. In one sense that is an argument for giving them continuity, in another, it is easier to make the break; although I note and share the concern expressed in the papers that the children's schooling has been unacceptably unsettled.
7. The local authority says this case comes fairly and squarely within the formulation set out in both first instance and Court of Appeal authority that the children's safety demands immediate removal; and that the decision as to whether or not to remove, or the removal itself, cannot await the final hearing, because of my findings as to the pervasive radicalisation within this family. As Patten LJ said in the private law holiday removal case of Re R [ 2013] EWCA Civ115, the magnitude of the likelihood of the risk or chance of an event occurring is different from the magnitude of the harm if that chance occurs and the risk of harm becomes a reality. The court is not engaged in what doctors call stratification of risk, that is the extrapolation of statistical data. But the court similarly has to weigh competing factors and assess the likelihood that something may happen, and what harm may occur if it does, against the risk of not intervening at all. It is well established that a risk is not the same as a certainty, nor that I must find that it is more likely than not to happen. I have to take into account whether or not there is a real, significant risk - it does not have to be a high risk - and the extent to which I take it into account depends upon the degree of harm which could eventuate if that risk becomes a reality. To take a very simple example, if there is a chance of one in a hundred that a plane may crash one would not take that risk if the child was simply going on holiday, but might if the alternative was a high risk of a fatality or serious harm if the child remained behind. A 1% chance of an adverse event in surgery would be generally be thought acceptable if it were to alleviate a life-threatening condition but may be not if for a less serious procedure.
8. The local authority says that the risk to all three children of remaining in their current environment is high. The risks are from further exposure to images, ideas, statements and attitudes, including the propaganda freely available in this home, which may be distressing; the warping of their beliefs and attitudes; or harm to themselves or others, and psychological and emotional damage arising therefrom.
9. I also have to assess what is likely to happen in their present environment as a result of the findings I made last week. I cannot come to a conclusion on that, it is somewhere between a risk and a prediction, but there is a risk of further resentment and anger, and reinforcement of the ideas which I have found to be prevalent in that household. That is supported by what the local authority reports as the father's unwillingness to fully to accept my findings, seeking to chip away at the individual micro findings leading to my overall conclusions; his attempts after the hearing to cast doubt on the reliability of the evidence of the undercover officer Z; and to put forward excuses and justifications.
10. The father has also said that he had not done himself justice in his oral evidence. He has tried to exonerate himself or to excuse what he said by saying that that he was not feeling very well during long court days. In fact, although my findings were partly based upon the answers that he gave in cross-examination to questions, skillfully but not unfairly or oppressively put on behalf of the local authority, my acceptance of the local authority's case came mainly from looking at the whole picture presented by them on the basis of evidence much of which was incontrovertible. That was built up from the material obtained from the family's electronic devices and other documents; the evidence about how the family reacted to the important and in-depth investigation by RX, the expert witness; the extent to which the children's denial of obvious facts, supported the conclusion that they had been put under pressure to reject the obvious and supported the inference that they had been educated to mislead; and, importantly, the evidence of the undercover officer.
11. There is a significant risk that further barriers will be raised against intervention, including by the presentation that this family has been victimised. Without some acceptance, there is little possibility that my concerns, and findings, about what these children have been exposed to in the home, remain unaddressed.
12. I recognise that the children wish to remain part of their family group. As the children of a widower father, they are, of course, sensitised to loss and have been drawn very closely together.
13. There are a number of indications that the father has not coped well from time to time with looking after this family and a lot of responsibility has been thrown on to the older children, especially and of late B. She has been assiduous in attending court with her father, a model daughter, and clearly wants to support him very much.
14. The local authority perceives, and I accept, that there is a flight risk in this case. Mr. de Burgos has submitted to me that since the father and the children's passports are held, there is little prospect of this happening. Unfortunately, this cannot provide a guarantee against departure from the jurisdiction. It depends upon the degree of motivation and ingenuity and the degree of commitment to evade the authorities. Also and very unfortunately, I cannot rely on anything that I have been told, as RX himself found as a result of his lengthy investigation into this family. RX was misled earlier in the case, as were the local authority and the court.
15. The father and Band A were cooperative litigants. I commend their model behaviour in difficult circumstances. At the same time I am quite satisfied that I have not been told the truth about what has been happening. I cannot rely on any presentation by the father about what he truly believes, what he truly does not believe, what his true motivations are or what he truly wants for his children's belief systems.
16. Even without having made any findings on the attempted removal to Syria on 20 March 2016, what I have found is very serious indeed. The children have been exposed to extreme pro-terrorist radicalised ideas and coercive attitudes. My findings in respect of the 4 July incident in particular, are the most serious of several. Again, the father has attempted to distance himself from this.
17. I do not regard the children as reliable, in the sense of being able to (a) recognise the dangers that they face, and (b) express or to tell the truth about what really is going on at home. I again point to RX's assessment.
18. My finding is that attitudes, belief systems and behaviours are such in this family; the effect of radicalisation so pervasive; and the dangers of further infection of views so great; that it does not matter that some individual incident might be picked out of the collection of asserted incidents, and possibly dissected out and discarded. I have made a number of very specific findings of fact on detailed evidence. There was a general approach in this family, as described in my judgment, self-evidently harmful to the children. Then there is the incident of the youngest child being forced to eat a raw chilli, as punishment. I found this not only highly inappropriate but a cause of extreme concern about attitudes towards and treatment of children generally and a delight in the infliction of pain.
19. I have reflected upon this case in the interval since this case was before me last week, but I cannot ignore the immediate high risks to these children in this family, which far outweigh the loss and grief and perhaps outrage that they will feel at being removed from their family environment, and the high degree of disruption this will cause not only to their family relationships and their daily lives but very importantly to their education.
20. Mr. de Burgos submitted to me that as the wishes and feelings of the children had only been expressed to their Guardian, almost a year ago, when they said that they did not want to be separated and leave their family home, that there needs to be a further Guardian's inquiry before I could contemplate removing the children. When I asked him what precisely needed to be investigated, he told me that it was, amongst other things, the extent to which the children had been more recently exposed to less isolationist views and to the attitudes of wider society generally. Mr. de Burgos makes the point on behalf of the father that the children are likely to be far more integrated into society at large than they were when they were being educated in their religious school. That may or may not be so.
21. My findings as to the extent of the influences to which they were subjected in their family of origin are such that exposure to different cultural influences would be likely to make little impact in their present environment, particularly, as I have found, since they have already been given cause to mistrust and to denigrate persons from other backgrounds.
22. Mr. de Burgos submitted to me that I should wait until the conclusion of the fact-finding as to precisely what was intended on 20 March (when they were stopped at Harwich) and what this means. He said that no harm would be done and it would give me an opportunity to look at the case in the round. To that Mr. Poole and Mr. Hinchliffe submitted that the immediate dangers now are stark and now exposed to view, which they previously were not because of the degree of deception of the court and the expert witness at the earlier stage in the proceedings. They say that the court cannot ignore those risks which are now so very firmly under the searchlight.
23. Mr. de Burgos also submitted to me that if I do make findings that this was an attempt to remove to Syria, that is the end of the father's case to retain the children in his care, unless exceptional counter measures can be put in place.
24. I cannot avoid taking into account my conclusion that I have "reasonable grounds to believe" within the meaning of s 38 Children Act 1989 that such an attempt was made. Separately, I have made findings of fact on evidence that in many respects surpasses the civil standard, and this includes that the children have either suffered or been exposed to the risk of very significant harm.
25. I have to look at interim measures. The fact that the local authority has not until now sought to press for removal and nor has the court encouraged them to do so, should not inhibit me from intervening now as so many threads have been brought together notwithstanding that I have not made findings in respect of the Harwich incident. My reasonable grounds to believe what was intended strengthens my conclusion.
26. I have considered the welfare checklist. I have considered the characteristics of the children, including, importantly, their wishes and feelings to stay where they are and not to be separated. I bear in mind that they have not been given the opportunity of separate representation, which they may wish to seek, and nor have their current views been assessed. This is a decision that has become urgent because of the subject matter. Sometimes such decisions have to be made without having the opportunity to carry out an assessment which will be essential for the final stage.
27. As in so many of these cases, two key features counter the wishes and feelings of the children, which are not determinative and need to be considered in the context of their ages and understanding. Their capacity to understand is affected by the nature of the influences and pressures to which they have been subjected. This is particularly important when considering J, to an extent F, and a lesser extent L, as I might in other circumstances have accorded their wishes and feelings greater weight. In this case I regard all of the children as unable to take an objective view of the circumstances in which they find themselves.
28. I must have specific regard to the risk of harm, which as I have said I regard as high, and am likely to continue to do so; and the capacity of the father to care for the children. The father's capacity does not necessarily mean his intellectual or physical capacity but includes his character, personality, attitudes, actions and attributes. I regard his capacity as impugned by the findings that I have made.
29. This case will be resumed on the dates in October which have already been scheduled. My findings in respect of the adult children have been limited so far and I still have available to me the prospect of placement within the wider family in the form of B and A. That will depend upon my findings as to their respective roles but at the moment I have to work on the basis of risk assessment. The risks of placement with either are unacceptable. Another person has been put forward (a cousin, I think) but that person has not yet been assessed and requires to be.
30. Finally, I am quite satisfied that no measures which might be put in place to address the father's beliefs and the way in which they may be inflicted on the children could possibly be effective at present. RX feels unable, for a number of reasons, particularly since the last interview with the father, which he told me he had found highly intimidating, to carry on working with him. The father has not followed through a number of proposals or offers that he made to try and redress matters within the home, such as introducing the children to Sufism. Mr. V, proposed by RX at some point, is so far not fully evaluated. There is presently no counter evidence to persuade me that the father's attitudes are capable of or susceptible to change.
31. Contrary to what I thought at some points in the evidence, and with a very heavy heart, I have no option but to order that there be an interim care order in respect of all three of these children, on the basis of the local authority care plans for removal.
32. I appreciate this will be difficult for the children. There may be a point, CG, when I need to see them. That is not an offer made during the fact-finding but may possibly be appropriate now; I leave that to you and Mr. Hinchliffe to decide whether it is. It will, of course, have to be explained to them, and it is a difficult enough concept to be managed by adults, that what they tell me is so they may unburden themselves to me rather than because I can place any weight on it. However, they have you, and possibly may have their own lawyers at some point, to assist with that explanation.