England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/04/2017

Mr Justice Hayden :

1. One of the challenges facing the Courts and Local Authority Social Services Departments in cases involving radicalisation of children and young people is the relatively limited opportunity (in many cases) to effect change or to provide an appropriately rigorous scheme of protection. Though I am resistant to making any kind of generalised observation in these cases, I would note that children or young people in the age bracket 14 – 18 years have appeared to be particularly vulnerable.
2. In public law care proceedings generally, young people in this age group are often perceived as 'hard to reach' or resistant to intervention. The same challenges apply in this new facet of child protection. There is, however, a pressing need to put some kind of supportive measures in place. The contemplated harm is grave i.e. the individual child secretly leaving the UK either to fight jihad or to become a jihadi bride. I have commented in other judgments and need not repeat here, that these cases involve risk of death and, particularly in the case of female children, exposure to degrading and inhuman treatment.
3. Brighton & Hove City Council, the Applicants in this case, have gone to great lengths to keep Y, the young person with whom I have been concerned, safe and secure in the UK. Y is a particularly vulnerable young person who (latterly) has lived in Britain in an extraordinary family, where the male members are all committed to waging jihad in Syria. To that end three brothers travelled to Syria to fight for Jabhat Al Nusra (an Al Qa'ida affiliate) now Jabhat Fateh al-Sham, in the civil war. Two of Y's brothers and one close friend, have died there: Y's brother, 'A' travelled to Syria when aged 17 and was killed aged 18 in 2014; his younger brother, 'B' was also killed later in the same year having travelled to Syria, when he was aged 16 years; a family friend, 'C', again a teenager, who had lived in Y's home with his family, was killed in September 2014.
4. Y's brother, 'D', travelled to Syria, and was injured seriously in the same battle in which A was killed but he has remained in Syria and is sufficiently committed to jihad to have resumed fighting with the reconstituted Jabhat Fateh al-Sham. They are a 'proscribed organisation' within the terms of the Terrorist Act 2000. On 9^th December 2016, Jabhat Fatah al-Sham was designated as another name for Al Qa'ida in the list of proscribed terrorist organisations SI 2016/1187 .
5. The background of this case, including the well publicised fact that Y's uncle was a detainee at Guantanamo Bay Detention facility in Cuba, is set out in my first Judgment, along with my analysis as to why I considered that Y should be made a Ward of Court, with Orders granted under the inherent jurisdiction, preventing him from travelling abroad: Re Y (Risk of Young Person Travelling to Join IS) (No 1) [2015] EWHC 2098 (Fam) [2016] 2 FLR 225.
6. On reviewing the legal framework of the case, in April 2005, I identified the central objectives of this litigation as follows:

a) To preserve Y's life (Art 2 was engaged);

b) As a protective measure to ensure that Y did not travel abroad;

c) To permit a flexible approach that allowed Y to be protected at home with targeted support;

d) To encourage co-operation between the different agencies and the family.

7. I considered that Wardship provided the most suitable vehicle to achieve these objectives: Re Y (Risk of Young Person Travelling to Join IS) (No 2) [2015] EWHC 2099 (Fam) [2016] 2 FLR 229.
8. Eventually and because of the limited timescales involved, I considered that Wardship should continue for the remainder of Y's minority. There have undoubtedly been significant problems in stimulating Y's engagement with the services offered to him. There have also been ongoing concern with this family more widely, but as I have said previously, Y is still here in the UK, and remains safe, for the time being. As Mr Downs, on behalf of the Local Authority, comments 'it is no small achievement to have kept Y alive'. I agree.

Transition to Adulthood.

9. Y turns 18 years of age in 2017 and the Wardship will automatically fall away, as will his legal status as 'a child in need'. The legal mandate of the Local Authority inevitably alters too. I have been concerned that the support and protection offered to Y should not simply evaporate on his 18^th birthday, he does not become less vulnerable merely by chronological age. I raised the question with the advocates as to what obligations fall upon the Local Authority when the Wardship falls away. The answer was by no means straightforward.
10. The Local Authority has filed a Position Statement which deals with the legal obligations to care leavers generally and, in particular, the position of Y. It is to be noted that it has never been necessary for Y to be accommodated by the Local Authority. He has, at all times, remained at home with members of his family. In this case, having regard to the background, the Director of Children's Services has agreed to authorise a bespoke service to Y largely mirroring the support that it would be legally obliged to make available to a care leaver. This, it has been submitted would not be triggered automatically on the discharge of Wardship, in contrast to the automatic support frequently available on the expiry of a Care Order. Brighton and Hove City Council offers a Pledge to care leavers in the City and have developed a special one for Y designed around his own needs. This will last until he is age 21 or potentially longer if he is in further education. It could, however, be withdrawn in the face of persistent non-engagement. Y will also have to agree to 'information sharing', which will involve submitting to a degree of intrusion.
11. Y will have a Pathway Plan until he is 21 and which will be reviewed every six months and Y's current social worker will be appointed his Personal Advisor on his 18^th birthday to provide consistency and reduce the number of people Y has to work with (he sometimes finds arrangements overwhelming).

The 'Prevent' Duty

12. Since these proceedings began, The Counter-Terrorism and Security Act 2015 has come into force. Section 26 and Schedule 6 of the 2015 Act places a general duty on specified authorities to have due regard to the need to prevent people from being drawn into terrorism. In section 26 (2) a specified authority is defined as a person or body that is listed in Schedule 6 - this includes local government, police, health services, education, and child care.
13. The Government defines extremism in the Prevent strategy as: "vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs" (p 2 Prevent Guidance).
14. The Prevent Guidance imposes a duty on Local Authorities to undertake assessments of the risk to children of being drawn into terrorism [Paragraph 67 of the Guidance].
15. Prevent [Para 62] stresses that it should be read with Working Together to Safeguard Children 2015. The Channel Duty Guidance emphasises that participation is voluntary and, in the case of children, that means obtaining parental consent [77].
16. Having concluded that Wardship was the appropriate framework to protect Y, as from March 2015, I was concerned that he might have become ineligible for the Pathway planning options that might have been available had he been, for example, subject to a Care Order. Ms Natasha Watson, Managing Principal solicitor for Brighton & Hove City Council and who has wider advisory roles, has prepared a detailed analysis of the identified issue. Her Position Statement is, if I may say so, a model of its kind. It is a compelling exegesis of the interrelationship of the various statutory regimes that apply in such circumstances. Mr Downs submits that the point generally and Ms Watson's work, in particular, requires to be placed in the public domain so that others involved in these cases will be able to benefit. I agree.
17. Y is currently the subject of interventions from a range of agencies whose objective is safeguarding Y from the risk of following in the footsteps of his brothers, by travelling to Syria.
18. Services to Y are currently coordinated via the children in need process, and in consequence of Y being within the "Channel" project. Y's additional status as a Ward of Court in these proceedings has, I have been told, assisted the Local Authority to galvanise and persuade a number of agencies to regard requests for services to Y as a priority. In addition it has offered a significant additional layer of protection and control by preventing Y from travelling.
19. The coordinated services offered to Y have not merely focused on addressing any beliefs which may have been promoted in his family, Brighton and Hove City Council (BHCC) has also attempted to pursue a more multifaceted approach. Ms Watson describes this as 'recognising that young people may be more susceptible to adopting and acting on radicalised beliefs if they are not invested in their local community; if they are suffering from unresolved trauma; if their life prospects are significantly diminished by involvement in crime; and lack of education. In short if they are vulnerable and lack the tools to make constructive life choices, they will be more susceptible to exploitation and an alternative world view which provides a pathway to acceptance and belonging of a different kind'.

The Statutory Context in which agencies can offer services to young adults

20. In summary there may be entitlement to support, in prescribed circumstances, arising from:

(a) The Care Act 2014;

(b) The Children and Families Act 2014, in so far as the young person is entitled to an Education Care Health Plan (ECHP);

(c) Duties relating to young people in need of employment or training;

(d) Probation, where they are the subject of services arising from sentencing for criminal conviction;

(e) Acceptance as a 'Channel' subject.

21. The Local Authority has identified limitations in the scope of the current statutory framework. I have taken this opportunity to highlight the range of options, closely mirroring the work of Ms Watson but also, where I have considered it relevant, interpolating my own observations:
22. The Care Act 2014 provides the legal framework for the provision of Adult Social Care in England, applying to all adults aged 18 and over. Local authorities must promote 'wellbeing' when carrying out their care and support functions. This is sometimes referred to as 'the wellbeing principle'. 'Wellbeing' is, inevitably, a broad concept, described in statutory guidance as particularly pertinent to the following areas^[1]:

personal dignity (including treatment of the individual with respect)

physical and mental health and emotional wellbeing

protection from abuse and neglect

control by the individual over day-to-day life (including over care and support provided and the way it is provided)

participation in work, education, training or recreation

social and economic wellbeing

domestic, family and personal

suitability of living accommodation

the individual's contribution to society

23. The Act imposes on the Local Authority and its partner agencies (police, health etc.) a duty to co-operate with each other in respect of functions under the Act. The Local Authority is also required to ensure arrangements are in place for co-operation between departments, notably housing and children's services.
24. Pursuant to Section 8 of the Act, there is a duty on the Local Authority to assess whether an adult has need for care and support and if so, what those needs are. The duty is engaged where it appears to the Local Authority that any adult may have needs for care and support in its area, regardless of -whether or not the Local Authority thinks the individual has 'eligible needs' and irrespective of their financial circumstances. Statutory guidance is also explicit in the objective that the imperative to promote 'wellbeing' applies to those who, for a variety of reasons, may be difficult to engage here. This requires particular emphasis in cases concerned with radicalisation where, it requires to be stated, that disengagement or falsified engagement will not negate the duty to provide support.
25. Section 58 establishes an obligation to undertake 'transitional assessment' of a child's needs for care and support where it appears to the local authority that a child is likely to have needs for care and support after becoming 18 and the child consents. A young person is 'likely to have needs' where they have any 'likely appearance of any need for care and support as an adult' – not merely those needs that will be deemed eligible under the adult statute^[2].
26. This framework has some application for a vulnerable young person such as Y. However, where the Local Authority is satisfied, on the basis of the needs assessment, that an adult has needs for care and support, it must then determine whether any of the needs meet the 'eligibility criteria' (section 13). When determining eligibility, local authorities must consider the following three conditions:

Condition 1

The adult's needs for care and support arise from or are related to a physical or mental impairment or illness and are not caused by other circumstantial factors.

Condition 2

As a result of the adult's needs, the adult is unable to achieve two or more of the outcomes specified in the regulations. There are 10 outcomes:

Managing and maintaining nutrition; What to consider

Does the adult have access to food and drink to maintain nutrition and are they able to access, prepare and consume food and drink?

Examples of circumstances affecting the ability to achieve the outcome

If the adult is eating a restricted or unhealthy diet (e.g. only eats toast):

they may have difficulty in getting to the shops to buy food

they may be able to prepare food but have swallowing problems.

Maintaining personal hygiene;

What to consider

What is the adult's ability to wash themselves and launder their clothes?

Examples of circumstances affecting the ability to achieve the outcome

If the adult cannot reach to wash themselves all over, this is not hygienic.
If the adult does not have access to a washing machine and their mobility is poor, clothes and linen may not be properly clean.

If the adult cannot buy cleaning products, or cognitively understand how to operate a washing machine, their clothes and linen may not be properly clean.

Managing toilet needs;

What to consider

Is the adult able to access and use the toilet and manage their own toilet needs?

Examples of circumstances affecting the ability to achieve the outcome

If the toilet is no longer accessible due to mobility problems or if the adult takes too long to get to the toilet, they may not be managing their toilet needs.

If the adult is unable to maintain their night-time continence, they may not be managing from a dignity-of-life point of view.

Being appropriately clothed;

What to consider

Is the adult able to dress themselves and be appropriately dressed, that is, in relation to the weather or the activities they are undertaking, which could include work/volunteering?

Examples of circumstances affecting the ability to achieve the outcome

If the adult cannot put on or fasten their clothes, they are unlikely to be appropriately dressed.
If the adult cannot acquire new clothes when needed, they may not be appropriately dressed e.g. for the change in seasons.

The adult may be able to dress themselves in casual clothes unaided but may not be able to dress themselves in more formal work clothes e.g. put on a tie, zip up a dress or clean their shoes, and so would not be appropriately dressed for their circumstances.

If they are severely visually impaired, for example, they may be able to dress themselves but not know if clothes are appropriate or clean.

Note: This may also affect another outcome in relation to accessing work or volunteering.

Being able to make use of the adult's home safely;

What to consider

Is the adult able to move around the home safely, including climbing steps, using kitchen facilities and accessing the bathroom/toilet?

This includes their immediate environment e.g. access and steps to the home.

Examples of circumstances affecting the ability to achieve the outcome

If the adult cannot reach certain rooms, they may not be using the home safely or be unreasonably confined e.g. having to spend all day in bed.

If the adult cannot get in or out of the front door (e.g. because they cannot manage the steps), they are unlikely to be using the home safely or have proper access to it.

If the adult is unable to use home appliances properly and safely (e.g. cooker, heater), they may not be meeting this outcome.

Maintaining a habitable home environment;

What to consider

Is the adult's home sufficiently clean and maintained to be safe, including essential amenities?

Does the adult require support to sustain the home or maintain amenities such as water, electricity and gas or pay their rent or mortgage?

Examples of circumstances affecting the ability to achieve the outcome

If the adult is unable to pay their rent or utility bills (e.g. due to mental or physical incapacity), they will not be able to sustain their home.

It may not be a habitable home environment if:

the home is damp or in very poor repair

the adult is unable to clean their kitchen, leading to infestation

the adult is hoarding excessively (note: hoarding per se does not determine eligibility; however, the impact of excessive hoarding on the individual's ability to achieve their outcomes, and thereby on their wellbeing, will affect eligibility).

Developing and maintaining family or other personal relationship;

What to consider

Is the adult lonely or isolated?

Do their needs prevent them from maintaining or developing relationships with family and friends?

Examples of circumstances affecting the ability to achieve the outcome

The adult's physical or psychological state may prevent them from making or maintaining relationships e.g. mental ill-health, autism.

If the adult is unable to communicate easily and regularly – e.g. they may not have, or be able to use, a phone or computer, they may be unable to leave their home safely, they may be unable to communicate successfully or interact with others – this may prevent them from maintaining or developing relationships with family, friends and others.

Accessing and engaging in work, training, education or volunteering;

What to consider

Does the adult have the opportunity and/or wish to apply themselves and contribute to society through work, training, education or volunteering?

This includes physical access to any facility and support with participation in the relevant activity.

Examples of circumstances affecting the ability to achieve the outcome

If the adult is unable to leave their home safely, or communicate successfully, or interact with others, they may not be able to access work, training, education or volunteering.

If the adult is unable to access information about opportunities available to them, they are unlikely to be able to engage in activities.

Making use of necessary facilities or services in the local community, including public transport, and recreational facilities or services;

What to consider

Is the adult able to get around in the community safely and able to use facilities such as public transport, shops and recreational facilities?

This includes the need for support when attending health care appointments.

Examples of circumstances affecting the ability to achieve the outcome

If the adult is unable to walk, or to use public transport unattended or to organise alternative transport (e.g. someone giving them a lift), or does not have money for a taxi, they may not be able to access services locally.

As well as formal appointments e.g. health care appointments, this could include informal appointments e.g. being able to go to the library or to meet a friend in a cafe or pub.

Carrying out any caring responsibilities the adult has for a child

'Being unable' to achieve an outcome includes any circumstances (includes where an adult would be unable to do so even when assistance is provided) where the adult is unable to achieve the outcome without assistance but doing so:

causes the adult significant pain, distress or anxiety;

endangers or is likely to endanger the health or safety of the adult, or of others;

.

Condition 3

As a consequence of being unable to achieve these outcomes, there is, or there is likely to be, a significant impact on the adult's wellbeing.

27. Section 18 links the duty on the local authority, to meet the adult's needs for care and support, with the eligibility criteria.
28. Ms Watson considers that 'in this case Y's needs will not fulfil the first condition: His needs for care and support do not arise from nor are they related to a physical or mental impairment, or illness'. However, Section 19 establishes a basis on which those needs may be addressed notwithstanding the fact that they do not meet the 'eligibility criteria'. An adult with capacity to make the relevant decisions can of course refuse an assessment and/or service.
29. Further provision is made for services and facilities in what are described as 'preventative measures' in section 2 of the Act:

Preventing needs for care and support

(1)A local authority must provide or arrange for the provision of services, facilities or resources, or take other steps, which it considers will—

(a) contribute towards preventing or delaying the development by adults in its area of needs for care and support;

(b) contribute towards preventing or delaying the development by carers in its area of needs for support;

(c) reduce the needs for care and support of adults in its area;

(d) reduce the needs for support of carers in its area.

(2) In performing that duty, a local authority must have regard to—

(a) the importance of identifying services, facilities and resources already available in the authority's area and the extent to which the authority could involve or make use of them in performing that duty;

(b) the importance of identifying adults in the authority's area with needs for care and support which are not being met (by the authority or otherwise);

(c) the importance of identifying carers in the authority's area with needs for support which are not being met (by the authority or otherwise).

30. The local authority's responsibilities for 'prevention' apply to all adults, including:

• people who do not have any current needs for care and support

• adults with needs for care and support, whether their needs are eligible and/or met by the local authority or not

31. The Care and Support Statutory Guidance^[3] describes the term 'prevention' or 'preventative' measures as covering many different types of support, services, facilities or other resources. There is no single definition for what constitutes preventative activity and this can range from macro measures aimed at promoting health, to more targeted, individual interventions aimed at improving skills or functioning for one person or a particular group. The Guidance advises that in considering how to give effect to their responsibilities, local authorities should consider the range of options available, and how those different approaches could support the needs of their local communities.
32. This approach is aimed at individuals who have no current particular health or care and support needs. These are services, facilities or resources provided or arranged that may help an individual avoid developing needs for care and support needs by maintaining independence and good health and promoting wellbeing. The Guidance describes these services as generally universal services which may include, but are not limited to, interventions and advice that:

• provide universal access to good quality information

• support safer neighbourhoods

• promote healthy and active lifestyles (for example. exercise classes)

• reduce loneliness or isolation (for example: befriending schemes or community activities such as the case study below)

• encourage early discussions in families or groups about potential changes in the future (for example: conversations about potential care arrangements or suitable accommodation should a family member become ill or disabled)

33. Safeguarding duties under Section 42 of the Care Act 2014 apply^[4] to an adult who:

• has needs for care and support (whether or not the local authority is meeting any of those needs)

• is experiencing, or is at risk of, abuse or neglect

• as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect

34. The aims of adult safeguarding are to:

• prevent harm and reduce the risk of abuse or neglect to adults with care and support needs

• stop abuse or neglect wherever possible

• safeguard adults in a way that supports them in making choices and having control about how they want to live

• promote an approach that concentrates on improving life for the adults concerned

• raise public awareness so that communities as a whole, alongside professionals, play their part in preventing, identifying and responding to abuse and neglect

• provide information and support in accessible ways to help people understand the different types of abuse, how to stay safe and what to do to raise a concern about the safety or well-being of an adult

• address what has caused the abuse or neglect

35. A safeguarding enquiry effectively seeks to promote the autonomy, safety and wellbeing of the capacitous adult who falls within the scope of the Act. This does not preclude the sharing of information with relevant professional colleagues. Ms Watson analyses this as 'the object of which is to enable professionals to assess the risk of harm and to be confident that the adult is not being unduly influenced, coerced or intimidated and is aware of all the options. This will also enable professionals to check the safety and validity of decisions made. There are examples of where the issue of coercion in cases such as Y's are of particular relevance.'

Mental Capacity Act 2005

36. I have not heard any evidence in this case which suggests that Y lacks capacity, in any sphere, in his decision making. It is however important, at very least, to contemplate that children and young adults in radicalised homes may have had their will overborne to such a degree that their capacity to make decisions concerning their own safety may have become distorted. I, for my part, am not prepared to exclude such a possibility. More significantly however, there remains the scope of the inherent jurisdiction to protect a class of vulnerable adults who whilst vulnerable, nonetheless retain capacity. Munby J (as he then was) anlaysed this in: Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam). The following passages from that judgment require to be stated in full:

"76. In the light of these authorities it can be seen that the inherent jurisdiction is no longer correctly to be understood as confined to cases where a vulnerable adult is disabled by mental incapacity from making his own decision about the matter in hand and cases where an adult, although not mentally incapacitated, is unable to communicate his decision. The jurisdiction, in my judgment, extends to a wider class of vulnerable adults.

77. It would be unwise, and indeed inappropriate, for me even to attempt to define who might fall into this group in relation to whom the court can properly exercise its inherent jurisdiction. I disavow any such intention. It suffices for present purposes to say that, in my judgment, the authorities to which I have referred demonstrate that the inherent jurisdiction can be exercised in relation to a vulnerable adult who, even if not incapacitated by mental disorder or mental illness, is, or is reasonably believed to be, either (i) under constraint or (ii) subject to coercion or undue influence or (iii) for some other reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent.

78. I should elaborate this a little:

i) Constraint: It does not matter for this purpose whether the constraint amounts to actual incarceration. The jurisdiction is exercisable whenever a vulnerable adult is confined, controlled or under restraint, even if the restraint is only of the kind referred to by Eastham J in Re C (Mental Patient: Contact) [1993] 1 FLR 940. It is enough that there is some significant curtailment of the freedom to do those things which in this country free men and women are entitled to do.

ii) Coercion or undue influence: What I have in mind here are the kind of vitiating circumstances referred to by the Court of Appeal in In re T (Adult: Refusal of Treatment) [1993] Fam 95, where a vulnerable adult's capacity or will to decide has been sapped and overborne by the improper influence of another. In this connection I would only add, with reference to the observations of Sir James Hannen P in Wingrove v Wingrove (1885) 11 PD 81, of the Court of Appeal in In re T (Adult: Refusal of Treatment) [1993] Fam 95, and of Hedley J in In re Z (Local Authority: Duty) [2004] EWHC 2817 (Fam), [2005] 1 WLR 959, that where the influence is that of a parent or other close and dominating relative, and where the arguments and persuasion are based upon personal affection or duty, religious beliefs, powerful social or cultural conventions, or asserted social, familial or domestic obligations, the influence may, as Butler-Sloss LJ put it, be subtle, insidious, pervasive and powerful. In such cases, moreover, very little pressure may suffice to bring about the desired result.

iii) Other disabling circumstances: What I have in mind here are the many other circumstances that may so reduce a vulnerable adult's understanding and reasoning powers as to prevent him forming or expressing a real and genuine consent, for example, the effects of deception, misinformation, physical disability, illness, weakness (physical, mental or moral), tiredness, shock, fatigue, depression, pain or drugs. No doubt there are others.

79. I am not suggesting that these are separate categories of case. They are not. Nor am I suggesting that the jurisdiction can only be invoked if the facts can be forced into one or other of these headings. Quite the contrary. Often, indeed, the facts of a particular case will exhibit a number of these features. There is, however, in my judgment, a common thread to all this. The inherent jurisdiction can be invoked wherever a vulnerable adult is, or is reasonably believed to be, for some reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent. The cause may be, but is not for this purpose limited to, mental disorder or mental illness. A vulnerable adult who does not suffer from any kind of mental incapacity may nonetheless be entitled to the protection of the inherent jurisdiction if he is, or is reasonably believed to be, incapacitated from making the relevant decision by reason of such things as constraint, coercion, undue influence or other vitiating factors.

80. It will be noticed that I have referred to the inherent jurisdiction as being exercisable not merely where a vulnerable adult is, but also where he is reasonably believed to be, incapacitated. As I have already pointed out, it has long been recognised that the jurisdiction is exercisable on an interim basis "while proper inquiries are made" and while the court ascertains whether or not an adult is in fact in such a condition as to justify the court's intervention. That principle must apply whether the suggested incapacity is based on mental disorder or some other factor capable of engaging the jurisdiction. As Singer J put it in Re SK (Proposed Plaintiff) (An Adult by way of her Litigation Friend) [2004] EWHC 3202 (Fam), [2005] 2 FLR 230, at para [9], and I agree, the court has power to make orders and to give directions designed to ascertain whether or not a vulnerable adult has been able to exercise her free will in decisions concerning her civil status.

81. Before parting from this topic I should explain what I have in mind when I refer to a vulnerable adult. This is not a term of art, though as Mr Gupta has helpfully pointed out, the authors of Young people & vulnerable adults facing forced marriage: Practice Guidance for Social Workers published in March 2004 by The Foreign & Commonwealth Office (in conjunction with the Association of Directors of Social Services, the Home Office, the Department for Education and Skills and the Department of Health) borrow at page 38 the Law Commission's broad definition of a vulnerable adult as a person over the age of 18:

"who is or may be in need of community care services by reason of mental or other disability, age or illness and who is or may be unable to take care of him or herself, or unable to protect him or herself against significant harm or exploitation."

On the same page it is said that:

"a young person is considered disabled if they are deaf or blind (both of which require medical evidence), suffer from a mental disorder of any kind, or are substantially and permanently handicapped by illness, injury or congenital deformity or other … disability".

82. In the context of the inherent jurisdiction I would treat as a vulnerable adult someone who, whether or not mentally incapacitated, and whether or not suffering from any mental illness or mental disorder, is or may be unable to take care of him or herself, or unable to protect him or herself against significant harm or exploitation, or who is deaf, blind or dumb, or who is substantially handicapped by illness, injury or congenital deformity. This, I emphasise, is not and is not intended to be a definition. It is descriptive, not definitive; indicative rather than prescriptive.

83. The inherent jurisdiction is not confined to those who are vulnerable adults, however that expression is understood, nor is a vulnerable adult amenable as such to the jurisdiction. The significance in this context of the concept of a vulnerable adult is pragmatic and evidential: it is simply that an adult who is vulnerable is more likely to fall into the category of the incapacitated in relation to whom the inherent jurisdiction is exercisable than an adult who is not vulnerable. So it is likely to be easier to persuade the court that there is a case calling for investigation where the adult is apparently vulnerable than where the adult is not on the face of it vulnerable. That is all."

37. This approach has been approved by the Court of Appeal in: DL v A Local Authority [2012] EWCA Civ 253. The observations of McFarlane LJ also require to be recorded:

"63. My conclusion that the inherent jurisdiction remains available for use in cases to which it may apply that fall outside the MCA 2005 is not merely arrived at on the negative basis that the words of the statute are self-limiting and there is no reference within it to the inherent jurisdiction. There is, in my view, a sound and strong public policy justification for this to be so. The existence of 'elder abuse', as described by Professor Williams, is sadly all too easy to contemplate. Indeed the use of the term 'elder' in that label may inadvertently limit it to a particular age group whereas, as the cases demonstrate, the will of a vulnerable adult of any age may, in certain circumstances, be overborne. Where the facts justify it, such individuals require and deserve the protection of the authorities and the law so that they may regain the very autonomy that the appellant rightly prizes. The young woman in Re G (above) who would, as Bennett J described, lose her mental capacity if she were once again exposed to the unbridled and adverse influence of her father is a striking example of precisely this point.

64. For the reasons given by Munby J at paragraph 77 and elsewhere in Re SA, it is not easy to define and delineate this group of vulnerable adults, as, in contrast, it is when the yardstick of vulnerability relates to an impairment or disturbance in the functioning of the mind or brain. Nor is it wise or helpful to place a finite limit on those who may, or may not, attract the court's protection in this regard. The establishment of a statutory scheme to bring the cases in this hinterland before the Court of Protection would (as Professor Williams described) represent an almost impossible task, whereas the ability of the common law to develop and adapt its jurisdiction, on a case by case basis, as may be required, may meet this need more readily."

Education Care & Health Plans (ECHP) pursuant to the Children and Families Act 2014

38. An education, health and care (ECH) plan is for children and young people, who need more support than is available through special educational needs support. ECH plans identify educational, health and social needs and set out the additional support to meet those needs. These plans envisage the potential for a degree of coordinated service up to the age of 25.
39. There are different duties which arise depending on whether a particular element of provision in an ECH plan is health care provision, social care provision or special educational provision. Section 21 (4) of the Children and Families Act 2014 clarifies that "social care provision" means the provision made by a local authority in the exercise of its social services functions.
40. Where an ECH plan is in place, under the 2015 Code of Practice^[5] Local Authorities must ensure that the ECH plan review at Year 9, and every review thereafter, includes a focus on preparing for adulthood. Preparing for adulthood planning in the review of the ECH plan should include:

• support to prepare for higher education and/or employment. This should include identifying appropriate post-16 pathways that will lead to these outcomes including training options, support in finding a job, and learning how to do a job (for example, through work experience)

• support to prepare for independent living, including exploring what decisions young people want to take for themselves and planning their role in decision making as they become older.

• support in maintaining good health in adult life

• support in participating in society, including how to find out about social and community activities, opportunities for engagement in local decision-making, and . support in developing and maintaining friendships and relationships

41. Under Section 20 (1) of the Children and Families Act 2014 a child or young person has special educational needs if he or she has a learning difficulty or disability which calls for special educational provision to be made for him or her. It is only special educational provision which is relevant in terms of determining whether or not a child has special educational needs. If they only need health care provision or social care provision – no matter how significant – they will not be eligible for an ECH needs assessment or to have an ECH Plan.
42. Though there is no question of Y being diagnosed with any 'special educational needs' which might merit an ECH plan, his education has been severely disrupted by the chaos that has engulfed his family and he has fallen far short of his academic potential. However, it will always be worth while considering the reach of The Children and Families Act 2014 in the kind of circumstances we are considering.
43. Ms Watson has considered three further routes, two of which I propose to incorporate into this judgment verbatim:

Youth Employability Services

44. "Y is subject to a raised participation age in relation to his education. Under the Education and Skills Act 2008 pupils who left year 11 in summer 2014, or later, have to continue until at least their 18th birthday in some form of education or training.
45. Maintained schools and pupil referral units (PRUs) have a statutory duty under section 42A of the Education Act 1997 to ensure pupils from Year 8 until Year 13 are provided with independent careers guidance. Academies, including 16-19 academies, and free schools are subject to this duty through their Funding Agreements. FE colleges also have equivalent requirements in their Funding Agreements – their duty applies for all students up to and including age 18 and will apply to 19- to 25-year-olds with EHC plans.
46. Aged 18, Y will still be entitled to a degree of support to assist him if he is not in education, employment, or training (sometimes described as NEET). The Learning and Skills Act 2000 as amended by the Education and Skills Act 2008, together with statutory guidance published in September 2016^[6], provides that local authorities have broad duties to encourage, enable and assist young people to participate in education or training. Specifically local authorities should secure sufficient suitable education and training provision for all young people in their area who are over compulsory school age but under 19, or aged 19 to 25 and for whom an Education, Health and Care (ECH) plan is maintained.
47. Local authorities are expected to pay particular attention to young people who are NEET or whose current activity is not known. Jobcentre Plus should take a lead role in supporting young people who are NEET and on benefits to re-engage with education and training or to find work – particularly at age 18.
48. In BHCC this duty will mean that Y has continuing entitlement to the Youth Employability Service. However aged 19, Y would ordinarily only be entitled to this service with a statement of special educational needs. The local service has strong links to the probation service and so it is likely that Y will be able to access this if he so chooses. The issue will be the extent to which he engages. His engagement to date has required persistence from his social worker including setting up appointments and then taking him to them.

Probation

49. In the context of criminal offending behaviour where there have been convictions, probation services will offer a degree of coordinated support to adult offenders.
50. The probation service have confirmed that Y will be supervised by the National Probation Service on his transition from the Youth Offending Service (YOS) to the adult system. The transition process will commence in January and they will assume supervision in February.
51. The Youth offending Service (YOS) currently assess Y as a medium risk of harm to the public and he is at the lower end of risk of re-offending. He is currently being seen weekly. Given his current risk levels, that may continue but may be extended to perhaps once a fortnight, or longer. This depends on up to date risk assessments and individual circumstances, so reporting frequency has been provided as a general guide around reporting levels for offenders with Y's profile.
52. Supervision sessions with his probation officer would involve monitoring his possible illicit substance use, assistance in understanding the nature of negative peer group influence and how to resist this, building on his motivation to change, assistance in securing employment or training and if, he is willing, discussions with him about family relationships and bereavement. Probation have indicated that alongside one to one work with him, they would be communicating with partnership agency colleagues with regard to Prevent services.
53. Y's Youth Rehabilitation Order is due to terminate five months after Y's eighteenth birthday, so this will see an end to this oversight, unless there is a further conviction."

The Channel Project

54. Sections 36 to 41 of the Counter-Terrorism and Security Act 2015 (CTSA 2015) set out the duty on local authorities and partners of local panels to provide support for people vulnerable to being drawn into terrorism. In England and Wales this duty is known as the Channel programme. Channel forms a key part of the 'Prevent' strategy.
55. The statutory guidance for Channel panel members and partners of local panels recognises that the way in which Channel will be delivered may often overlap with the implementation of the wider safeguarding duty, especially where vulnerabilities have been identified that require intervention from social services, or where the individual is already known to social services.^[7]
56. Section 36 (4)(b) of the Counter-Terrorism and Security Act 2015 predicates the provision of support measures on the consent of the adult concerned, or a parent or Guardian in the case of a child. The requirement for 'consent' has, in certain cases, in my experience, removed an important raft of support. That said, the scheme has to balance fundamental civil liberties alongside forensic evaluation of risk in circumstances where 'hard evidence' might be in short supply or, alternatively, too sensitive to national security to disclose.
57. In this context it is important to consider the scope of section 36 (4) (e) CTSA 2015:

Assessment and support: local panels

"(4)The functions of a panel referred to in subsection (1)(b) are—

(a) to prepare a plan in respect of identified individuals who the panel considers should be offered support for the purpose of reducing their vulnerability to being drawn into terrorism;

(b) if the necessary consent is given, to make arrangements for support to be provided to those individuals in accordance with their support plan;

(c) to keep under review the giving of support to an identified individual under a support plan;

(d) to revise a support plan, or withdraw support under a plan, if at any time the panel considers it appropriate;

(e) to carry out further assessments, after such periods as the panel considers appropriate, of an individual's vulnerability to being drawn into terrorism in cases where—

(i) the necessary consent is refused or withdrawn to the giving of support under a support plan, or

(ii) the panel has determined that support under a plan should be withdrawn;

(f) to prepare a further support plan in such cases if the panel considers it appropriate"

58. In the light of these provisions, I agree with Mr Downs, that any plans to protect Y in the future must assume that he will disengage with the Prevent Project and that whilst that disengagement will not lead to the immediate cessation of support, it may lead to its discontinuance in what could be a short period. Nonetheless, the potential of the Channel Project to be effective, even in the absence of consent, requires to be emphasised. This has not always been fully understood. For completeness I would also note that where consent is withdrawn some panels (such as Brighton & Hove) have identified 'continual review' at a minimum of 6 months. By way of illustration Y's brother (D) had been accepted on the Channel scheme, following the death of his brothers, but following his discharge from prison, declined to engage. I am satisfied that there is no support or encouragement, within his family to help Y to escape the pattern of behaviour that has developed.

Services that would have been available to Y if he had been subject to a Care Order

59. The Children (Leaving Care) Act 2000 introduced, for the first time, requirements on local authorities to: assess the needs of the young person once they left care; appoint a Personal Adviser for them; and develop a pathway plan. This support was available to care leavers up to age 18, or to age 21 if the young person was in education.
60. In 2008, the Children and Young Persons Act introduced provisions that required local authorities to provide assistance to care leavers in education (including a £2,000 bursary for those in higher education); and extended support from a Personal Adviser to age 21 for all care leavers; and to 25 if they remained in education.
61. The Children & Families Act 2014 introduced the 'Staying Put' duty. This requires local authorities to support young people to remain with their former foster carers to age 21 where both the young person and carer want the arrangement to continue.
62. The first cross-government care leaver strategy was published in 2013^[8]. This has since been updated and in July 2016 'Keep On Caring: Supporting Young People from Care to Independence' was published. ^[9]This envisages further reform which describes how the State, as corporate parents, will support care leavers to achieve 5 key outcomes as follows:

i) Be better prepared and supported to live independently;

ii) Have improved access to education, employment and training;

iii) Care leavers should experience stability in their lives, and feel safe and secure;

iv) Have improved access to health support ... including mental health);

v) Care leavers should achieve financial stability.

63. In BHCC, Care Leavers are the beneficiaries of a Pledge from the Council. A copy of the BHCC pledge to care leavers can be found in electronic format here:

http://www.brightonandhovefosteringhandbook.org.uk/Key-Documents/the-16-and-leaving-care-pledge.html

64. Care Leavers are entitled to a range of financial support, including setting up grants to assist them into independent accommodation and a number of allowances. In addition the Council is in the process of setting up a charitable trust for care leavers whereby they will have the opportunity to apply for access to discretionary funds for areas which fall outside of their statutory entitlement, the premise being this will be something akin to "the bank of Mum and Dad".

Conclusions

65. The Local Authority has considered the extent to which, exceptionally, Y can be offered services which replicate the entitlements he would otherwise have had if he had been subject to a Care Order rather than being made a Ward of Court. This, of course, may be something which will have to be borne in mind when considering which legal framework is most appropriate to protect young people who have been radicalised or who are in danger of it. As MacDonald J rightly emphasised in HB v Local Authority and the Local Government Association [2017] EWHC 524 (Fam) neither I in Re Y (A Minor: Wardship) [2015] EWHC 2099 (Fam) and LB Tower Hamlets v M and Others [2015] EWHC 869 nor the President in Re M [2015] EWHC 1433 (Fam) had intended to set out a paradigm approach for applications of this kind. Mr Downs, in a submission which predated MacDonald J's judgment, observed:

"This authority has experience of working with a number young people in circumstances where there is a risk of travel, but the background to why this is the case, and the potential approach to secure their safety, can in our experience by no means be a 'one size fits all' approach. There are circumstances with which this court is already familiar where care orders are the right legal approach, and these have the advantage of potentially acting as a gateway to the duties to care leavers. The authority consider that it would be a most unfortunate consequence of wardship if this were to mean that similar levels of vulnerability were treated quite differently in terms of ongoing services into adulthood. "

66. He concludes:

"The caveat that the authority expresses is that where the child is a ward of court what is required is the careful exercise of discretion applied to each case. This authority has had a different set of circumstances where it became evident that any attempt to impose a relationship upon the young person that went beyond the Channel mechanism was likely to be entirely counterproductive: Just as wardship presented a unique solution to a unique case, the authority have concluded that what is required at the conclusion of wardship is a further bespoke exercise of the local authority's discretion, in such a way as to prioritise the welfare of the young person, and where possible to ensure that they are not disadvantaged by the legal route which had been taken in childhood to secure their welfare. "

67. The bespoke package proposed by BHCC in this case, addresses Y's needs across a broad range. I do not propose to incorporate the detail of it into this judgment chiefly because to do so risk comprising his privacy as well as his safety but I approve those arrangements.
68. As I said earlier in this judgment I have set out, with the inestimable advantage of Ms Watson's research, the range and scope of the available support for young people in Y's situation. I have emphasised where such support is an obligation of statute and illustrated something of its application to these particular facts. Once again however, I would wish to make it very clear that, in these challenging and evolving cases, a universal truth must not be forgotten: every child is different and every radicalised child is different. The applicants in this case, under Mr Downs guidance, have demonstrated this in a case which has been worked with conspicuous professional skill and commitment.
69. As Mr Downs has pointed out, having conferred with the other parties, so many of the facts of this case are in the public domain that no purpose would be served by any attempted anonymisation or redaction. I entirely agree with that sensible and pragmatic approach.

Note 1   Care and support statutory guidance, revised February 2017, Chapter1 , Paragraph 1.5    [Back]

Note 2   Care and support statutory guidance, revised 2016. Paragraph 16.9    [Back]

Note 3   Care and support statutory guidance, updated 24th February 2017    [Back]

Note 4   See also Care and support statutory guidance, updated December 2016, Chapter 14     [Back]

Note 5   Statutory guidance published January 2015: Special educational needs and disability code of practice: 0 to 25 years . Of note para 8.51 of the code provides that 19- to 25-year-olds with EHC plans should have free access to further education in the same way as 16 to18-year-olds.    [Back]

Note 6   Participation of young people in education, employment or training: Statutory guidance for local authorities, published September 2016     [Back]

Note 7   Channel Duty Guidance: Protecting vulnerable people from being drawn into terrorism (2015)     [Back]

Note 8   https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/266484/Care_Leaver_Strategy.pdf     [Back]

Note 9   https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/535899/Care-Leaver-Strategy.pdf     [Back]