Maud Davis, Member Partner here at TV Edwards comments for LexisNexis on the growing issue of parents trying to go to Syria with their children and how the family courts should manage the problem. 

Re X (Children) and Y (Children) (Emergency protection orders) [2015] EWHC 2265 (Fam) [2015] All ER (D) 340 (Jul)

In two cases involving the suspected planned removal of children to a war-torn country, the Family Division made findings of fact and accepted the parents’ submissions that the children should be returned to them with stringent protective measures.

Key issues

The key issue in X was identifying and balancing the risks of harm to the children of being taken to Syria–a war zone–by their parents, against the harm caused by continued interim removal from their parents’ care.

The judgment sets out in detail the key issues previously identified by Jackson J (para [5]) in relation to the X case. Standard protective measures were already in place, to manage any flight risk, with orders forbidding the X children’s removal, and regarding passports.

Similar issues arose in Y, albeit the children had already been taken to Turkey, where the Turkish authorities detained them, close to the Syrian border, and from where they had been returned. Again, Jackson J had identified the key issues, with fact finding needed regarding the parents’ intentions in travelling to Turkey.

In both cases, apart from the alleged plans to take the children to Syria, it was accepted that the adults are ‘good parents…bringing up their children lovingly and well’ (para [28]). Sir James Munby, President of the Family Division, decided there was ‘undoubted harm’ being caused to the children by their continued separation from their parents (para [48]). That had to be balanced against the risk of harm created by the possibility of flight, if the children were to be returned in the interim. Although the circumstances may be unusual, and the risk of harm very great, the ‘balance of harm’ exercise is routinely carried out in the family court.

The President applied existing case law, for instance with regard to continuing interim removal of children from their parents’ care (paras [39]-[46]). The facts of these cases are highly topical, and concern a very obvious risk–taking children to Syria, a war zone, to join ISIS fighters–as well as any risk of radicalisation (in the UK or abroad). However, in terms of threshold and welfare decisions, the statutory criteria are applied, as in any care case. The President also used (persuasive) precedent (as set out at para [16]), regarding the availability of electronic tagging in family proceedings as a means of managing flight risk–the possibility having been raised in the Y case.

Having considered the facts and relevant case law, the President identified three central factors:

– the magnitude of the risk that the parents would want to remove the children to Syria, if the children were to be returned to their parents’ care

– the magnitude of the risk that the parents would be able to evade any protective measures, if they did decide to try to remove the children to Syria

– the magnitude of the consequences for the children, if the parents were to attempt to remove them and evade those protective measures

He went on to say that the fundamental issue was ‘the degree of risk of the parents seeking to remove the children and take them to Syria’ (para [68]), and that the question was whether the court could ‘adequately and safely manage what I have to assume is a very grave risk of flight’ (para [74]).

He also considered the possible use of wardship, given that flight risk was the basis for the local authorities’ applications (paras [64], [65]).

The court’s approach to the threshold assessment

Interim care orders had already been made, so the court had already decided that the interim threshold criteria were established in accordance with the Children Act 1989, s 38 (ChA 1989), ie there were reasonable grounds for believing that the ChA 1989, s 31 threshold criteria were satisfied. In both cases, the court had earlier directed a fact finding hearing, to be heard by the President in June, presumably to establish the factual basis for any decision as to the s 31 threshold criteria. Circumstances meant that the fact finding had to be re-listed for October 2015.

In the meantime, both sets of parents wanted the interim care orders discharged and the children returned to their care pending final hearings. They argued that there was to be significant delay, and the President agreed that he should re-visit the issue of interim care orders. The President concentrated on the need for continued removal–a welfare decision–and assessing the risk of harm, as well as the necessity and proportionality of the children remaining in foster care. It is a mistake to confuse the threshold for an interim order with the question of what interim order, if any, should be made (per Re K and H (children) (interim care order) [2006] EWCA Civ 1898, [2007] All ER (D) 303 (Mar)). Equally, Re L-A (Children) [2009] EWCA Civ 822, [2009] All ER (D) 53 (Oct) makes it plain that even where the interim threshold criteria are met and an interim order is needed, the court must be careful to consider separately whether removing a child from parental care is justified at an interim stage–the interim decision must necessarily be limited to issues that cannot await the final hearing and must not extend to issues that are being prepared for determination at that hearing.

The judgment simply records that:

‘No-one disputes, or could sensibly dispute, that interim threshold is satisfied in both the X case and the Y case.’ (para [67])

The judgment goes on to deal with the children’s welfare in the interim, with the ChA 1989, s 31 threshold criteria remaining undecided pending the fact finding.

However, the President does state that–while he should not ‘conduct some kind of pre-trial assessment of the merits’–both local authorities had assembled ‘a very strong prima facie case against the…parents’ (the burden of proof remaining on the local authorities); with the ‘very real’ prospect of each local authority making good its assertions (para [71]). At the very least, he gives an indication of the strength of the local authorities’ evidence as to the facts to be decided.

The court’s approach to radicalisation

The local authority in X did not rely on the risk of radicalisation in arguing the need for continued interim removal. The local authority, and the children’s guardian, in Y did rely on there being such a risk in the interim. The children’s guardian in Y referred the court to ‘The Prevent duty–Departmental advice for schools and childcare providers’ (Department for Education, June 2015). That advice deals with the risk of radicalisation, even of very young children.

The President finds the risk of radicalisation to be of marginal, or no, relevance, in the interim. With regard to the Y children, he finds the risk to be ‘fanciful’ in relation to the two youngest children (notwithstanding the Department for Education advice), and ‘modest’ in relation to the two older children (para [34]). That played a part in the President’s assessment of where the balance of harm lay, in the interim, in relation to the children in Y. Doubtless this issue will be revisited at the final hearing.

The issue of flight risk

The President was very clear that the risk of flight could not be entirely eliminated, and the questions to be asked were:

How great is the risk that the parents would be able to flee with the children?
Is that a degree of risk the court is prepared to accept as tolerable?

The President emphasised the potential, and very serious, risks (‘death or mutilation’, para [70]), if the parents did take the children to Syria, and the need for ‘a high degree of assurance, albeit falling some way short of absolute certainty’ that protective measures would thwart any attempted flight (para [87]).

The President heard expert evidence on managing flight risk, from detective sergeants from regional counter-terrorism units, and an expert in electronic tagging, as well as the social workers and children’s guardians (as to the effect on the children’s welfare of continuing separation from their parents). The President was persuaded that–in these two cases–the ‘comprehensive and far-reaching package of protective measures’ proposed on behalf of the respective mothers would provide adequate protection. Clearly, such decisions are fact specific (as far as facts can be agreed, in the interim, and allowing for there being ‘unknown unknowns’ at that stage), and have to be made on a case-by-case basis. Essentially, it is a matter of risk management, given that in real life risk cannot ever be reduced to zero.

It was accepted by all parties that the parents are otherwise bringing up their children ‘lovingly and well’ (para [28]). In assessing the flight risk, the President decided that the benefit to the children of being with their parents clearly outweighed the contrary welfare arguments put forward by the local authorities and the children’s guardians.

The coda to this concerns the Ministry of Justice’s (MoJ) position on the provision and funding of electronic tagging–see the President’s second, short judgment (at [2015] EWHC 2358 (Fam)). The MoJ had argued that the use of GPS (as opposed to radio frequency–RF) tagging in family proceedings had not been contemplated by the MoJ when preparing the relevant guidance, and that the court had no power to order the MoJ, or the National Offender Management Service, to bear the cost of any tagging. Exceptionally, the MoJ agreed to facilitate the use, and bear the cost of, GPS tagging, ‘in this case’, on the basis that this was not to create any precedent (paras [2]-[7]).

Points to bear in mind

The facts of the case are unusual, but there is nothing entirely novel in this decision. Rather, the judgment develops and adapts existing case law, applying it to unusual facts.

The judgment highlights the existence of the HMCTS Guidance on the use of tagging or electronic monitoring in family cases (revised guidance having been issued in April 2015), as set out in the annex to the judgment. The guidance confirms practical information, including forms of order, and details of the current service provider. If practitioners have to act quickly, it is vital that they already know how to set up tagging, including making enquiries in advance of any possible tagging order, in accordance with the guidance.

Having discharged the interim care orders, the President made the children wards of court, giving the court the fullest possible range of powers to impose safeguards: ‘the courts, when exercising the parental power of the Crown, have, at any rate in legal theory, an unrestricted jurisdiction to do whatever is considered necessary for the welfare of a ward’ (Re X (A Minor) (Wardship: Restriction on Publication) [1975] 1 All ER 697 at [706G]). Wardship gave the court custody of the children, facilitating their recovery, within the UK or abroad, if necessary (there being family links with Pakistan, as well as the risk of flight to Syria). Practitioners need to be alert to the appropriate use of the inherent jurisdiction in child protection cases (bearing in mind, of course, the restrictions, including ChA 1989, s 100), as well as in cases with an international element.

Practitioners also need to be able to advise clients–whether local authorities, parents, or children–on the full range of powers available to the court, including what can be done to adapt existing provisions to circumstances. For instance, the MoJ is clearly unlikely to agree to GPS tagging, and/or to funding the cost of any tagging, but there will be certain cases in which tagging has to be explored as an option (especially if the judge makes it clear that it is needed). Working imaginatively may encourage agreement between parties, even where they are polarised, particularly if that enables children to remain or be returned home in the interim.

Importantly, the judgment reminds us of Lord Eldon LC’s still relevant observation (in Wellesley v Duke of Beaufort (1827) 2 Russ 1) that ‘it has always been the principle of this court, not to risk the incurring of damage to children which it cannot repair, but rather to prevent the damage being done’–fundamental to any family proceedings.

Finally…

This is a first instance decision, so is persuasive only, as are the two earlier ‘tagging’ decisions. Given the MoJ’s position on electronic tagging, practitioners need to be careful in relying on these judgments.

The timetable for these proceedings has had to be extended well beyond 26 weeks, not an issue that the President deals with in the judgment.

There are clearly good reasons to publish the judgment. However, some of the details included could lead to ‘jigsaw’ identification, not least because of the unusual facts of these cases. Practitioners need to be alert to the complexities of anonymisation of judgments, to ensure that children’s identities are protected.