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Radicalisation: a proportionate response

Sarah Williams, Legal Team Leader, Social Care Team, at London Borough of Tower Hamlets, considers the high-profile cases recently heard in the Family Division of the High Court where children or families have been considered at risk of radicalisation and, in some cases, travelling to Syria or Iraq, together with the judicial responses to those cases.

In February 2015, three schoolgirls from East London travelled from London to Syria to join the so called 'Islamic State' (IS). Though far from the first young men or women to make this journey, the widespread media attention surrounding the case heightened the public's awareness of a serious issue that police, local authorities and schools have increasingly been facing. Whilst further Government measures have just been announced with the intention of tackling the spread of violent extremism, the courts will continue to play a key role in safeguarding young people at risk.

The leading cases that have since come before the courts fall broadly into three categories. First, cases where the identified risk is that older children have become radicalised themselves, including the possibility of attempting to travel unaccompanied to Syria or Iraq. Second, where parents have allegedly attempted to travel to IS-held territories with their children, placing them at risk of physical as well as emotional harm. Finally, where concerns are held that parents or older siblings hold extremist ideologies and may be indoctrinating children into those beliefs, placing them at risk of emotional and psychological harm.

The first category is often addressed through wardship proceedings or other orders under the court's inherent jurisdiction. The latter two categories are typically the subject of care proceedings under section 31 of the Children Act 1989, though there may be additional orders sought under the court's inherent jurisdiction to remove passports or prohibit travel. In circumstances where families are obstructing social services from assessing the child's welfare, an interim supervision order or child assessment order1 may facilitate an assessment whilst taking a least interventionist approach.

An additional layer of complexity in children's cases involving allegations of extremism is in providing sufficient evidence that any proposed legal interventions are necessary and proportionate, without the risk of compromising ongoing police investigations that may relate to national security. All such cases must therefore involve close partnership working between counter terrorism police, local authorities and the courts in identifying what evidence can be disclosed into proceedings and timescales for further disclosures.

The President's Guidance
Guidance on Radicalisation Cases in the Family Courts
('the Guidance') has been issued in October by Sir James Munby, President of the Family Division, to assist the court and practitioners with these complex cases. Importantly, whether issued under the inherent jurisdiction of the High Court or as care proceedings, all cases are now to be heard by a High Court judge if radicalisation is identified as an issue in the case, other than in exceptional circumstances. It highlights that while proceedings will typically be brought by the local authority, there is no reason that the police could not seek orders under the court's inherent jurisdiction in appropriate circumstances.

The Guidance explores the issue of police disclosure and public interest immunity (PII) at length, identifying:

"…the need to avoid seeking disclosure from the police or other agencies of information or material which may be subject to PII, or the disclosure of which might compromise ongoing investigations, damage the public interest or put lives at risk, unless the judge is satisfied that such disclosure is "necessary to enable the court to resolve the proceedings justly"…" [para. 7(e)]

Judges should ensure that police investigations are not compromised by the legal requirement for leave of the court to be obtained for officers to interview a ward of court2.  It is of note that this requirement does not apply where police urgently need to interview a warded child who is the victim of a serious offence or suspected of a criminal act3.

The Guidance also sets out the need to consider the role of the media in these cases, stating that the press should be excluded from hearings only as a last resort. Protection for minors can be provided through use of reporting restrictions and 'anti-tipping-off' orders. It is important that those representing family members prepare their clients for what may be intrusive, if anonymised, media attention, given the heightened public interest in such cases.

Defining radicalisation
Article 9 of the European Convention on Human Rights4 provides that everyone has the right to freedom of thought, conscience and religion. This overlaps with the right to freedom of expression under Article 10 and to freedom of association under Article 11. However, these rights are subject to such legal limitations as are necessary in the interests of public safety, or to protect the rights and freedom of others. The question therefore arises as to how to determine when those rights to freedom of conscience and religion will cross a legal line by impacting on the safety of children.

The first major family court case to consider the issue of radicalisation was decided in March 2014. The judgment of Holman J in private law proceedings M (Children) [2014] EWHC 667 (Fam) gave this thoughtful analysis:

"'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, as appears in paragraph 12 of the draft addendum report that I have already quoted, "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."

Holman J's definition of radicalisation as "negatively influencing [a child] with radical fundamentalist thought, which is associated with terrorism" is a helpful one, distinguishing traditionalist beliefs from those connected to violent extremism.

Section 26 of the Counter-Terrorism and  Security Act 2015 has now placed a duty on specified authorities, including local authorities and schools, to have "due regard to the need to prevent people from being drawn into terrorism" in the exercise of their functions. The supporting Prevent Duty Guidance5, provides this definition:

"'Radicalisation' refers to the process by which a person comes to support terrorism and extremist ideologies associated with terrorist groups." [page 21]

Wardship: a measured response
The ancient prerogative of the High Court's inherent jurisdiction to make orders about any matters that are not covered in legislation, has long been used to safeguard children through wardship. The court may make any order to promote the welfare of a child as long as this is not prohibited by statute, in particular section 100 of the Children Act 1989 ('the Act'), which prevents use of wardship to resolve any issue which can be dealt with under the Act. Practice Direction 12D explains the nature of wardship. Custody of the child vests in the court and no important steps can be taken without the court's consent.

In Re Y (A Minor: Wardship) [2015] EWHC 2098 (Fam), Hayden J expressed his clear view that where there was a risk that a young person may travel to Syria, wardship was a proportionate response to the "very specific nature of the risk contemplated." This enabled him to remove the young man's passport. Hayden J commented:

"…In the case of a minor the protective obligation to the minor himself weighs in the balance in a way that simply does not apply when considering an adult. When balancing the competing rights and interest required under the Human Rights Act, to my mind the balance falls down clearly in protecting this young man, ultimately from himself." [para 13]

In a subsequent hearing on the same case, Hayden J referred to wardship as a 'light touch' intervention in a case where there was a 'high risk of very serious harm'6.

This was further explored in London Borough of Tower Hamlets v M and ors [2015] EWHC 869 (Fam), where an application was brought under the court's inherent jurisdiction in respect of five girls for passport orders. During the initial hearing of the case (unreported), Hayden J noted that, although there may a low risk that the girls would attempt to travel to Syria, the consequences if they were to do so would be of the utmost gravity, potentially placing their lives at risk. In his view, this low risk of very serious harm warranted the court intervening to safeguard the children's welfare.

Hayden J invited the local authority to apply for wardship orders, as the authority of the High Court was recognised internationally which may be of assistance if the children left the jurisdiction, and would vest parental responsibility solely in the High Court. He considered this to be a proportionate response in light of the concerns.

Hayden J provided guidance in preparing ex parte applications and reinforced the importance of cooperation between agencies and that, even when issued in urgent circumstances, it was incumbent on the local authority to present the case with a high degree of candour. To summarise the core principles outlined at paragraph 18 of the judgment:

(i)  Lawyers should take care to draft, at very least in outline, the scope and ambit of the orders they seek and in respect of whom they seek it, before coming to court.

(ii)  Thought must be given to how quickly the case can be restored on notice.

(iii)  Instruction of senior, experienced counsel is essential.

(iv)  The interest of the individual child that is paramount and cannot be eclipsed by wider considerations of counter terrorism policy or operations, with that material provided in appropriate detail.

(v)  The need for direct evidence that police, security forces or those involved in counter terrorism, are aware of and support the application and the need for hard evidence capable of scrutiny, either by court attendance or sworn statement.

(vi) Press attendance at hearings is likely.

(vii)  Reporting restriction orders should be drafted in advance of hearings.

(viii) Include consideration of social media.

(vi) A co-ordinated strategy, an ongoing dialogue and respect between different safeguarding agencies are crucial.

Interestingly, at a subsequent hearing of the case, the court gave leave for the press to identify the name of the school attended by four of the five girls as he considered that the public interest in this information outweighed the risk that it would result in identification of the children involved. This reinforces the need for the local authority to give consideration to the broader publicity issues when bringing proceedings and to ensure a comprehensive communications strategy is in place.

In Re M (Children) [2015] EWHC 1433 (Fam), Baker J held that wardship orders were an appropriate response in circumstances where the parents and four children had been detained in Turkey, allegedly on their way to Syria. The matter subsequently came before Munby P when the family returned to the UK. He confirmed well established authority that wardship could apply even where the children were outside the jurisdiction of the UK, but discharged reporting restrictions as these had been designed to avoid the risk of the parents recognising that the case related to their children and thus preventing their return.

In confirming that ex parte orders had been warranted, Munby P referred to his earlier judgment of X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam):

" '…there are compelling reasons to believe that the child's welfare will be compromised if the parents are alerted in advance to what is going on.' The point is obvious: if the parents were alerted to what the court was doing, the chance that they would return the children voluntarily must have been significantly diminished." [para. 36]

On 20 October 2015, with the agreement of the local authority and the guardian, Munby P discharged the wardship orders following an assessment by an independent social worker which advised that '…the intervention of the state has been a wake-up call for this couple' who were now fully cooperating with professionals7

When making submissions on the scope of a wardship order, the parties should carefully consider whether to seek to limit the court's authority to specific issues relevant to the welfare concerns. For example, the order may be drafted so that the exercise of parental responsibility in relation to particular issues are reserved to the court (such as control of passports and travel outside England and Wales), and that save those matters specifically reserved, exercise of parental responsibility is delegated to the parents. The level of risk should be kept under review to ensure that the orders in place are proportionate in the circumstances of the case.

The threshold criteria in care proceedings
The 'threshold criteria' for making a care or supervision order are set out in section 31(2) of the Children Act 1989, namely that the court must be satisfied that the child concerned is suffering, or is likely to suffer, significant harm attributable to the care given to the child not being what it would be reasonable to expect a parent to give to him; or the child being beyond parental control. The threshold criteria on an interim basis require a lower standard in that the local authority is required to show reasonable grounds to believe that threshold is met8.

When considering whether allegations of extremist ideologies reach the threshold criteria, it is relevant to consider the authority of Munby P in Re A (A Child) (Rev 1) [2015] EWFC 11. Although this related to a parent who was alleged to be a former member of the English Defence League (rather than supporting IS as in the majority of the cases discussed in this article), the distinction made by the President between the 'morality' of supporting such groups and significant harm applies in all cases:

"The mere fact, if fact it be, that the father was a member, probably only for a short time, of the [English Defence League] is neither here nor there, whatever one may think of its beliefs and policies. It is concerning to see the local authority again harping on about the allegedly "immoral" aspects of the father's behaviour... Membership of an extremist group such as the EDL is not, without more, any basis for care proceedings." [para 71]

The issue for the court therefore is not the moral aspect of an extremist ideology, of any religious or political persuasion, but rather whether there is evidence that this ideology presents a current or future risk to the children that meets the threshold for significant harm. A distinction must be made between holding a particular personal view and imposing that view on a child, and whether that view poses a risk to the child, for example by advocating violence or taking the child to live in a warzone.

In the case of London Borough of Tower Hamlets v B [2015] EWHC 2491 (Fam), Hayden J took the view that the threshold criteria were made out in circumstances where there was evidence that older siblings in the family had already been radicalised as a consequence of the parents' own extremist views. This had resulted in one child, a 15-year-old known as B, attempting to travel to Syria. Hayden J found:

"I have no hesitation in concluding that B has been subjected to serious emotional harm, and, at the very least, continues to be at risk of such in her parent's care. I can see no way in which her psychological, emotional and intellectual integrity can be protected by her remaining in this household. The farrago of sophisticated dishonesty displayed by her parents makes such a placement entirely unsustainable.

I return to the comparator of sexual abuse. If it were sexual risk that were here being contemplated, I do not believe that any professional would advocate such a placement for a moment. The violation contemplated 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 similar magnitude and complexion."

Removing a child from the care of their parents at an interim stage
Even where the interim or final threshold criteria are made out, the court must be satisfied that it is in the best interests of the child to make an order. The threshold for removing a child from the care of their parents pending final determination of care proceedings was authoritatively clarified by Thorpe LJ in Re LA (Care: Chronic Neglect) [2009] EWCA Civ 822, quoting the case of Re K and H [2006] 1 FLR 2043:

"… at an interim stage the removal of children from their parents is not to be sanctioned unless the child's safety requires interim protection." [para. 7]

The President addressed the issue of interim removal in a case where the parents were alleged to have attempted to travel with the children to Syria in his judgment of Re X (Children); Re Y (Children) [2015] EWHC 2265 (Fam). There, Munby P considered that the risk to the children arose primarily from the risk of flight: in Re X (Children) the local authority specified that it did not rely on this as a ground for interim removal; in Re Y (Children), Munby P judged the risk of harm from radicalisation pending final determination of the case to be of 'marginal impact'. He considered that by fitting the parents with electronic tags that could monitor their whereabouts, this would mitigate the risk of flight sufficiently to enable the children to be returned to their parents in the interim. It was necessary for the parents to consent to being tagged.

The subsequent judgment of Re X (Children); Re Y (Children) (No. 2) provided guidance on the wording for an electronic tagging order. Munby P provided more details in his risk analysis resulting in the children's return to their parents' care, which he explained as:

"…two linked inquiries: how great is the risk that the parents will, if so minded, be able to flee with the children, and is that a degree of risk which the court is, in all the circumstances, prepared to accept as tolerable?" [para. 86]

"…my considered assessment is that the degree of that risk is very small, indeed, so small that it is counter-balanced by the children's welfare needs to be returned to parental care." [para.89]

However, the issue of interim or final threshold was not addressed in his judgments on these cases. As such, the case was listed for a fact finding hearing, the outcome of which is imminent.

In the case LB Tower Hamlets v B [2015] set out above, the court had no hesitation in concluding that B, who had already been radicalised, should be immediately removed from the care of her parents. Hayden J distinguished the issue of interim removal in respect of B from Munby P's decision in X & Y:

"…The risk here though is not primarily or indeed exclusively one of flight; it is of psychological and emotional harm from which tagging cannot protect her. Only a safe and neutral environment free from these powerful influences can, for the time being, secure her welfare interests and accordingly I endorse the Local Authority's proposals in respect of her." [para.32]

However, in respect of the younger children in the home, where there was no evidence that radicalised material had been found on their personal computers and professionals had not yet had an opportunity to assess their welfare needs, the judge reinforced the need to consider the welfare needs of each child as an individual. The issue of interim removal on those children was therefore adjourned, pending an 'intense and comprehensive social work assessment'.

Looking forward
Like all areas of safeguarding, despite the attention given to a select group of high profile cases, there are many more that are being managed through child protection procedures and where interventions are provided through social care, schools or the Prevent or Channel programmes. This is a sensitive balancing act for local authorities, between taking robust measures to protect children and potentially further alienating not only families at risk, but the vast majority of moderate Muslims who may perceive the intervention of the state to be disproportionate.

Identification of experts to undertake assessments in these cases can be difficult, as although considerable research has been undertaken into the causes of radicalisation and external grooming of young people via the internet, little is available in respect of extremism as a children's safeguarding issue, or where grooming has taken place within the family. As stated by Hayden J in Tower Hamlets v M & Ors [2015] "…the risk assessment of potentially vulnerable children is the professional skill set of the experienced social worker." [para.48]. However, those with expertise in radicalisation are unlikely to be those with expertise in child protection. Nor are risk assessments aimed at identifying those at risk of committing criminal offences likely to fully address risks to children. Multi-disciplinary assessments may therefore be necessary, where the social workers evaluating children's needs and parenting capacity consult with experts in violent extremism to better understand the dynamics of how the radicalisation process has operated with the family, and importantly, options for deradicalisation.

As this area of law continues to develop, it is important to note that few of the leading cases have reached the point of final hearing and further judicial commentary in respect of assessments and final threshold are keenly awaited to guide practice.



1 Section 43, Children Act 1989
Practice Directions made in support of the Family Procedure Rules 2010, Practice Direction 12D, para. 5.2
3 Ibid, para. 5.5
4 Incorporated into UK law by the Human Rights Act 1998
Pursuant to s29 of the Counter-Terrorism and  Security Act 2015
6 Re Y (A Minor: Wardship) [2015] EWHC 2099 (Fam)
7 In the matter of M (Children) (No 2) [2015] EWHC 2933 (Fam)
8 Section 38, Children Act 1989