A speech by Mark Rowley (the outgoing Assistant Commissioner of the Metropolitan Police for Specialist Operations and National Lead for Counter Terrorism Policing) to Policy Exchange has been given the front page treatment with headlines like, “Extremists should lose access to their children.” The speech has been made available in full by the Policy Exchange on their website and on Youtube.
Additionally, The Times quotes Mark Rowley as saying, in response to questions from the press in advance of the speech,
We still see cases where parents convicted of terrorist-related offences, including radicalisers, retain care of their own children.
If you know parents are interested in sex with children, or if you know parents believe that people of their faith or their belief should hate everybody else and corrupt children for it, for me those are equally wicked environments to expose children to.
The speech is phrased more tentatively but included this passage,
The family courts and social services now routinely wrestle with child protection and safeguarding cases arising out of terrorism and extremism. However, we still see cases where parents convicted of terrorist-related offences, including radicalisers, retain care of their own children. I wonder if we need more parity between protecting children from paedophile and terrorist parents.
It is important to stress that this point was developed by the Assistant Commissioner in a speech which covered a broader canvas. His main theme was a call for an, “all-society approach” in response to the growing threat of extremist terrorism (i.e. ISIS & extreme right). However, it is apparent from Policy Exchange’s own twitter feed that even his hosts thought that media had it right in signalling his proposal to treat terrorism as a safeguarding issue was his sole eye-catching idea.
The law in this area is principally concerned with the need to prevent people from being drawn into terrorism and a duty to this effect was placed on public authorities by the Counter-Terrorism and Security Act 2015. It was this that led to the flurry of applications by local authorities for orders to protect children. Establishing the approach of the Courts is not as clear as it could be – in part, because only a fraction of the cases have been the subject of published judgments.
It was Hayden J who identified “radicalisation” as a potential new form of child abuse in London Borough of Tower Hamlets v B  EWHC 1707 . His thinking on the subject is more subtle than many head notes might suggest and is concerned with the suborning of vulnerable children and young adults into perverted thinking and the most profound harm, including death. This has been considered very controversial with some in the field who consider that it is better to examine these problems through the prism of conventional concepts such as the risk of physical, sexual and emotional harm and neglect (see for instance the lecture given by Deirdre Fottrell QC, the co-chair of the ALC at their annual conference in 2017).
Sir James Munby has put out Guidance on this subject in October 2015. At Paragraph 12 he said,
The police and other agencies recognise the point made by Hayden J that “in this particular process it is the interest of the individual child that is paramount. This cannot be eclipsed by wider considerations of counter terrorism policy or operations.”
The first tool to be applied is a threshold of seriousness before orders can be granted (either care or wardship). In re B (A Child) (Care Proceedings: Threshold Criteria)  UKSC 33, Lord Wilson adopted the formulation of Frank Feehan QC,
many parents are hypochondriacs, many parents are criminals or benefit cheats, many parents discriminate against ethnic or sexual minorities, many parents support vile political parties or belong to unusual or militant religions. All of these follies are visited upon their children, who may well adopt or “model” them in their own lives but those children could not be removed for those reasons.’
I agree with [counsel]’s submission”. [para 28]
Bearing in mind that the Prevent strategy also encompasses right wing extremism, it is significant that in the case of Re A (A Child)  EWFC 11, the President was keen to stress (at para ) that membership of an extremist group such as the EDL is not, without more, any basis for care proceedings.
The Courts have applied a particularly high threshold in certain prominent cases involving alleged flight to Syria – including the pudgment of the President of the Family Court in Re X (Children)(No3)  EWHC 3651 (Fam) and MacDonald J in A Local Authority v HB (Alleged Risk of Radicalisation and Abduction)  EWHC 1437 (Fam) (26 May 2017)A Local Authority v HB (Alleged Risk of Radicalisation and Abduction)  EWHC 1437 where in an application to injunct children from being removed from the jurisdiction for the rest of their minority, he refused to make findings against a mother who was said to have sympathies for Islamic State and who had made a trip to the Syrian border and been stopped from leaving the country with large sums of money. MacDonald had been keen to stress that suspicion was insufficient.
Even in cases where the Court has been prepared to make threshold findings – such as Re C, D and E (Radicalization: Fact Finding)  EWHC 3087, the Court had eventually authorized the removal of electronic tags and concluded the proceedings with no order (by agreement). It is striking that even in the most high profile of all the cases, London Borough of Tower Hamlets v B  EWHC 1707, Hayden J proposed a care plan that returned B to her family (after a period in which he had sought to “de-radicalise” her).
It is perhaps unsurprising that Hayden J and others have, emphasised the rigorous preparation that these cases require. They also involve fine judgements by social workers as stressed by Tony Stanley and Surinder Guru.
One particular problem about the proposal of the Assistant Commissioner to treat terrorism as akin to paedophilia is that local authorities could not be expected to simply await the outcome of police investigations and trials. They would be expected to intervene and safeguard children from the relevant risks as soon as they became apparent. So far as these involve court proceedings, this would involve advancing some evidence to support the same. Experience shows that this can cause problems for the police and other agencies of the state because of the sensitivity of some of the material and, for example in Re C (A Child) (No 2) (Application for Public Interest Immunity)  EWHC 692 (where Marina Wheeler QC appeared for the Home Secretary), Pauffley J approved an application for public interest immunity by the Home Secretary in a Radicalisation Case. Specifically, the Judge upheld the Home Secretary’s assessment that national security considerations precluded disclosure, and also underlined the importance of examining:
- what other – non-sensitive – evidence might be available in a case such as this which would allow the Court to draw inferences and find the threshold criteria satisfied – the Court agreed that the Home Secretary’s decision to exercise the Royal Prerogative so as to refuse to issue the father with a passport (based on the assessment that he is an Islamist extremist who seeks to travel to Syria for jihad) was ‘evidence.’ The Home Secretary’s decision was amenable to judicial review but there has been no challenge;
- Alternatives to public law proceedings – especially other safeguarding measures such as the ‘Channel Programme’, the new Home Office initiative, the ‘Desistence and Disengagement Programme’ and steps to disrupt travel plans involving flight to a war zone by passport restrictions.
The Family Courts have no family procedural rules equivalent to Part 82 of the Civil Procedure Rules 1998 (‘CPR’) and solutions have had to be improvised – including as to the funding of special advocates (Cobb J found in R (Closed Material Procedure Special Advocates Funding)  EWHC 1793 that the agency that holds the sensitive material should pay the costs of the special advocate).
Child victim or young terrorist?
If terrorism is to be compared with sexual abuse, the question arises as to how to treat children and young people who become involved in terrorism. To what extent should be the state seek to be protective of the child and when should a more punitive approach be appropriate? The speech raised,
the case of the youngest Briton ever to have been guilty of a terrorist offence. 14 at the time, the boy from Blackburn plotted with an Australian jihadist over the internet to behead police officers at an Anzac Day parade in Australia. The “normal” teenager from Blackburn had been “immersed” in online extremist material and “groomed” by adult extremists.
If the language of grooming is to be adopted and the argument taken at face value, it is difficult to understand why the 14 year old was not treated as a victim to be protected rather than a terrorist to be given a life sentence.
An issue for the Family Court?
The principal thrust of the argument by the Assistant Commissioner appeared to be aimed at the families of those convicted of terrorism. Considering the seriousness with which the criminal courts treat these matters, the offenders would have received custodial sentences and it is important to remember that it would then be for the Prison Service to regulate the problem while a serving prisoner and the Probation Service to manage the offender while on licence as confirmed by the Court of Appeal in Re ZX, R (on the application of) v The Secretary of State for Justice  EWCA Civ 155) (where David Manknell appeared for the Secretary of State).
It is important that when considering the protection of children from extremism this does not mean that all other lessons and approaches should be forgotten. Prevent [Para 62] itself stresses that it should be read with Working Together. The Channel Duty Guidance stresses that participation is voluntary and, in the case of children, that means obtaining parental consent . It is only in rare cases where it is sought to persevere despite a lack of parental consent then Local Authorities are directed at their powers – including the possibility of bringing care or wardship proceedings.
As Marina Wheeler QC has already argued on the UKHRB, when considering the judgment of Ouseley J in Butt v Secretary of State for the Home Department  EWHC 1930 (Admin) (in which Oliver Sanders QC and Amelia Walker appeared for the Secretary of State), there is real evidence that Prevent is a programme which is genuinely effective and some of the criticism it receives, overblown.
There will always be some cases which require the intervention of the courts. These are likely to be modest in number and the fact that the Assistant Commissioner in his speech stated that since the start of the Syria conflict around 100 children have been safeguarded through the Family Courts – would tend to confirm that.
As can be seen above, local authorities have been discerning about the cases they bring before the courts and the judges have adopted a rigorous human rights based analysis of the applications that have reached them. To the extent that Mark Rowley’s speech appears to call for an increase in the number of Family Court applications on grounds of terrorism then it is problematic. There is always a danger that the very strategies used to combat extremism may prove to be counter-productive – especially if used indiscriminately – with parents being further alienated and leading to despair and anger. A potent breeding ground for terrorism one might think.
Listen to Martin Downs talking about radicalisation of children in 1 Crown Office Row’s Seminar on Law Pod UK Episode 13
Rosalind English discusses the subject with Marina Wheeler on Law Pod UK Episode 8