Radicalism and the Family Courts

schoolgirls_3208827bMarina Wheeler

Remember the three girls from Bethnal Green Academy, who in February slipped through Gatwick security to join so-called Islamic State of Iraq and the Levant (ISIL)? If, watching the footage, you exclaimed, “how can we stop this?”, then read on. Eight months and a massacre in Tunisia later, the Courts have intervened in more than 35 cases to prevent the flight of children to Syria or to seek their return.

In the very first cases, in which Martin Downs of these Chambers appeared, the High Court’s inherent jurisdiction was invoked to make the children wards of court. The value of this mechanism, previously used in child abduction cases and to thwart forced marriages, is that the ward requires permission of the Court to leave the jurisdiction, and passports can be seized. (See, for example, Re Y (A Minor: Wardship) [2015] EWHC 2098 (Fam)).

In other cases, where whole families have left together, local authorities have issued care proceedings under the Children Act 1989, on the basis that the parents’ action have caused or risk causing their children significant harm.

For example, in Re X; Re Y [2015] EWHC 2265 (Fam) a mother (said to be a “radical fundamentalist with links and contacts with ISIS militants”), her four children and other family members were detained just before boarding a flight to Turkey. After an emergency protection order was obtained, the four children were placed with foster carers.

The President of the Family Division, Mr. Justice Munby, noted that apart from the alleged journeys to Syria, the parents were caring for their children lovingly and well, and determined to return the children pending final resolution. To manage the flight risk, the parents were required to swear on the Quran to comply with the terms of the order and to submit to electronic tagging. The reaction of the Ministry of Justice in Re X; Re Y (No 2) [2015] EWHC 2358 (Fam) seeking to put brakes on the use of tagging in family cases, highlights the novel territory we are in.

The President’s Guidance

Responding to this escalating caseload, in early October, the President, Munby J issued Guidance, Radicalisation Cases in the Family Courts, directing, among other things, that such cases be heard in the High Court.

The Guidance recognises that legally, forensically, and in policy terms, these cases are complex. First, there is the question of evidence. Highly intrusive state intervention requires cogent and compelling evidence. However, information on which the factual case is based, may have been gathered covertly by the police and other agencies, or may emanate from anonymous sources. Where disclosure may credibly be said to damage the public interest or even put lives at risk, the courts may have to determine a claim for public interest immunity (PII) or consider hearing evidence in closed session.

The Guidance also envisages the appointment of a Special Advocate to assist a family in mounting a defence. The Special Advocate will communicate with the families only before sensitive material is served. Thereafter, they will make submissions and challenge the material in closed sessions from which the family would be excluded. As with electronic tagging, to date their use by family courts has been rare [see Re T (Wardship: Impact of Police Intelligence) [2009] EWHC 2440 (Fam). Although used extensively in SIAC and criminal hearings, the courts (domestic and Strasbourg) continue to debate whether the mechanism sufficiently safeguards the right to a fair trial.

The Guidance also underlines that complex decisions also need to be taken about publicity and involvement of the press.

In the matter of M [2015] EWHC 1433 (Fam) was a case in which police were alerted that a family of 6 (parents and 4 children aged between 20 months and 7 years), missing from Slough, might be heading to join so-called Islamic State. Once they were located, the Court made an “anti-tipping off” order or “super injunction”: in effect a temporary news black out, so as to permit urgent, behind-the-scene efforts by the FCO and authorities in Turkey and Moldova, to bring about the family’s return.

More commonly, the courts are likely to impose a reporting restriction order (RRO), permitting the essence of the case to be reported without details which might identify the parties. The Guidance does not rule out orders excluding the press altogether, and while framed as a last resort, self-evidently closed hearings will be just that.

More difficult cases to come

In the cases published to date (a fraction of those decided), the court intervened where the evidence and risk of harm was relatively clear cut: flight – planned or executed – to war-torn Syria where boys face death in combat, and girls, sexual exploitation, slavery and forced marriage. But, as the government continues to legislate against “extremism” more broadly, increasingly difficult and controversial cases will be heard.

Provisions of the Counter-Terrorism and Security Act 2015 now require a wide-range of public bodies to act to prevent people from being drawn into terrorism: identifying those considered vulnerable to radicalisation, and, where judged appropriate, providing support to address such vulnerability. These are the Prevent and Channel duties contained in sections 26 and 36 of the Act.

Published Guidance directed to the public bodies affected, including local authorities, schools, universities, the police, and health services, flesh out these “Prevent” and “Channel” duties.

The target for intervention is the “ideology of extremism”, defined broadly 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… [and] “calls for the death of members of our armed forces”.

According to the Channel guidance, support offered will be tailored to the individual and the nature of the risk. It may be provided by health and education services; or take form of “specialist mentoring and guidance to increase theological understanding and/or challenge the claims of violent ideologies”. It might even offer “wider diversionary activities” such as training.

Currently, engagement with Channel support is said to be voluntary. However, if the parent of a child identified as vulnerable and offered Channel support, does not consent to support, the local authority may activate child protection measures if the child is considered at risk from significant harm. Harm may be physical, emotional, mental, intellectual, social or behavioural: s.31(9) Children Act 1989.

To date, the case law has only touched on the concept of radicalisation.

In Re M, which involved a dispute between a Muslim father from Libya and Christian mother of seven, Holman J considered (without determining) an allegation that the father was radicalising the children:

“”Radicalising” is a vague and non-specific word which different people may use to mean different things. There is quite a lot of material in this case to the effect that the elder of these children are committed Muslims who like to attend, and do attend at a mosque and wish to display religious observance. This nation and our culture are tolerant of religious diversity, and there can be no objection whatsoever to any child being exposed, often quite intensively, to the religious practices and observance of the child’s parent or parents. If and insofar as what is meant in this case by “radicalising” means no more than that a set of Muslim beliefs and practices is being strongly instilled in these children, that cannot be regarded as in any way objectionable or inappropriate. On the other hand, if by “radicalising” is meant … “negatively influencing [a child] with radical fundamentalist thought, which is associated with terrorism” then clearly that is a very different matter altogether. If any child is being indoctrinated or infected with thoughts involving the possibility of “terrorism”, or indeed, hatred for their native country, which is England, or another religion, such as Christianity which is the religion of their grandparents and now, again, their mother, then that is potentially very abusive indeed and of the utmost gravity”.

It is notable that the abuse referred to by Holman J, included a parent’s action in turning a child against its mother. But what if that element – damage to the familial relationship – were absent? Is communicating an (extremist) political or ideological world view, abuse of a kind that would justify the state using coercive powers to remove a child from its parents?

In Re X and Re Y, the children’s guardian, referred to the Prevent Duty, and argued against immediately uniting the family partly on the basis they risked being radicalised during the six months prior to the hearing. At this interim stage, the Court considered the risk to be modest. However, it is not known whether, or how, the case has been finally decided.

By contrast in London Borough of Tower Hamlets v B [2015] EWHC 2491 (Fam), Hayden J sanctioned removal of a sixteen year old girl from her home after police discovered “information of a practical nature designed to support and perpetrate terrorist attacks” as well as graphic images of “smiling corpses”, and beheadings. Following her unsuccessful flight to join ISIL, the Court found that the family’s engagement with the authorities disguised “an elaborate and sophisticated succession of lies”. Hayden J considered the circumstances revealed serious emotional harm comparable to sexual abuse: “the violation here is not to the body but it is to the mind. It is every bit as insidious, and I do not say that lightly. It involves harm of a similar magnitude and complexion”. Having thus identified serious risk to her “psychological, emotional and intellectual integrity” the Judge ruled that removal to a “peaceful and safe situation” would “afford the chance for her strong and lively mind to assert its independence”.

The Prevent and Channel Duties

In many public services: such as health and education, strong views are being exchanged about the aims and scope of these duties. In family law circles, there is a particular, indeed acute, concern that we are imposing responsibilities on social workers which they are ill-equipped to fulfil.

As it is, social workers are under almost intolerable strain. Routinely they suffer violence and with one in ten posts standing vacant, average caseloads far exceed levels considered safe. When things go wrong, as inevitably they do, we cut them loose and condemn them. (Indeed, recently the government has mooted jailing social workers for child protection failings).

Contrary to popular belief, classic child protection involves extremely difficult judgments. But determining when and how to intervene in cases of suspected radicalisation, will require judgments of even greater sophistication and sensitivity.

It is little wonder then that Community Care is formally surveying its social work readership asking “are you clear about your local areas’ threshold for intervention where radicalisation is a concern?”; “how confident are you in your ability to assess an individual’s vulnerability to being drawn into terrorism?” and “has your employer offered training in the Prevent duty, and how it affects social work practice?”.

Next Steps

There is much to commend in the Prevent and Channel programmes. However, some pitfalls are obvious: they impose complex duties on front-line staff with little additional money to support their delivery; and unless their aims are pursued with great sensitivity, we risk alienating the very communities we are trying to engage.

So in implementing these well-intentioned measures, it is vital that we remain alert to the dangers. If after honest and sober appraisal of the work, it appears that the cost – not just financially but in the loss of liberty and social cohesion – exceeds the benefits, we must be brave enough to admit it, and change tack.

As things stand however, there is little to suggest a cautious or reflective approach. On the contrary, in October the government published its Counter-Extremism Strategy, foreshadowing further legislative measures. These will appear in an Extremism Bill designed to counter non-violent as well as violent extremism, and disrupt those working “just within existing legal parameters”. For those “further down the path to radicalisation”, intensive mandatory “support” is envisaged. This “new de-radicalisation programme” will not appear until 2016, but it is hard to imagine coercive re-education being likely to succeed.

In his book “Radical”, Maajid Nawaz, former recruiter for Hizb ut-Tahir and co-founder of think tank Quilliam, relates how he was radicalised by racism (in 1970s Southend), political grievances and indoctrination. A key step in reversing that process occurred when, languishing in Egyptian jail, he was adopted as a “prisoner of conscience” by the Buckingham branch of Amnesty International, spearheaded by “a frail Christian man in his 80s”. This, Nawaz recounts, showed him the superiority of the values espoused in the west (rule of law, freedom of speech) and how we practise the values we preach.

Just a thought.

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