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A Local Authority v X, Y and Z (Permission to Withdraw) [2017] EWHC 3741 (Fam)

Judgment of McDonald J in which he considers the local authority’s application for permission to withdraw care proceedings and provides useful guidance on cases involving alleged radicalisation.

In this case McDonald J determined an application by the local authority for permission to withdraw care proceedings in respect of three children:  X, born in 2002, Y born in 2004 and X, born in 2012. 

The local authority's application for care orders arose out of an alleged risk to the children stemming from what are said to be the parents' alleged extremist beliefs and the father's related criminal convictions for terrorism offences including soliciting murder. The local authority was also concerned with findings made in civil proceedings arising out of the father being the subject of a Terrorist Prevention and Investigation Measure (hereafter 'TPIM'). The circumstances in which the father came to be the subject of a TPIM are set out in detail in the open judgment of Nicol J published as Secretary of State for the Home Department v LG, IM and JM [2017] EWHC 1529 (Admin).

Both parents denied being members of the banned terrorist organisation Al-Muhajiroun (ALM ) but neither denied past links with people associated with ALM and Omar Bakri Mohammed.  The parents likewise did not deny the father's offending behaviour, attending demonstrations and the mother did not deny attending 'Sisters Circles' or that the children had accompanied her. 

The local authority's initial approach to the case was criticised by McDonald J who reminds us of good practice at [29] – [30]:

'29. Those dangers are well demonstrated in this case by an initial local authority statement that sets out an alleged generic pattern of behaviour exhibited by a set of families who are said to share common characteristics with this family, and then works hard to make this family fit that pattern, even though, on the local authority's own evidence, in several respects it does not comfortably do so.  This results in an analysis that fails to reflect all aspects of the family's presentation and one which lacks nuance.  

30. It is vital that each family who is the subject of local authority intervention be assessed by reference to its own situation.  Seeking to rely on a subjective model of expected behaviour rather than a careful assessment of what is, in fact, taking place within the subject family is fraught with difficulty, not least the risk that the assessment will commence with a fixed expectation of what is likely to be found.  Such an approach is to be avoided in favour of assessment undertaken by reference to the tenets of good practice plainly established by the statutory guidance in Working Together to Safeguard Children (HM Government March 2015). (Emphasis added)

In the course of the proceedings, fuller investigation by the local authority, guardian and expert risk assessor Mr Jahangir Mohammed produced a unanimous professional view that whatever the parents' views or actions may be, there was no evidence of the children having been radicalised or exposed to extremist material.  The children were relatively disinterested in religion and politics and were well cared for by the mother.

In light of this, all parties supported the application to withdraw proceedings as being in the children's best interests.  The only difference that arose between the parties was whether this was a case which falls into that category of cases where it is plain that the threshold cannot be met, and therefore the application for permission to withdraw must succeed without more, or into that category of cases where the threshold criteria could be met, and therefore the application for permission to withdraw the proceedings falls to be measured against the children's best interests as the court's paramount consideration. The parents considered that the case fell into the former category. The local authority, tacitly supported by the guardian submitted that the threshold criteria are met on the basis of a risk of significant harm to the children.

McDonald J provides a useful review of the law relating to withdrawal of care proceedings at [47] – [53]. In applying the law to the facts the learned judge concluded that this was a case in which the local authority would be unable to satisfy the threshold criteria pursuant to s 31(2) of the Children Act 1989 and, accordingly, the local authority's application for permission to withdraw the proceedings must be granted [55]. The learned judge noted that whilst the evidence in respect of the parents might be capable of grounding serious findings, he reminds us at [58] that:

' …before the threshold criteria can be met s 31(2) of the Children Act 1989 requires the court to be satisfied that the children have suffered or are likely to suffer significant harm attributable to the care given, or likely to be given to them by the parents.  It is in this respect that I am satisfied that the local authority finds itself in grave, indeed insurmountable forensic difficulty.'

His Lordship concludes with a final word of caution in relation to cases of alleged radicalisation at [68]:

'It is easy to assume that a straight line can, without more, be drawn between a parent who is said to hold extremist views, or a parent who is said to be involved in terror related activity and the suffering of significant harm or the risk of significant harm to that parent's child or children.  However, the evidence in this case demonstrates that the position is more complex than that and one that falls to be considered carefully on a case by case basis in light of the evidence in a given set of proceedings.'

Summary by Asha Pearce-Groves,  barrister, St John's Chambers, Bristol.
______________________

Neutral Citation Number: [2017] EWHC 3741 (Fam)
Case No: ZE16C00827

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 08/12/2017


Before:

THE HONOURABLE MR JUSTICE MACDONALD

- - - - - - - - - - - - - - - - - - - - -

Between:

A Local Authority
 Applicant
- and –
A Mother First Respondent
-and-
A Father Second Respondent
-and-
X, Y and Z
(By their Children's Guardian)
 Third to Fifth Respondents
- - - - - - - - - - - - - - - - - - - - -

Mr Christopher Barnes (instructed by a Local Authority Legal Department) for the Applicant
Ms Allison Munroe
(instructed by S A Carr & Co) for the First Respondent
Ms Lorna Meyer QC
(instructed by Fountain Solicitors) for the Second Respondent
Ms Samantha King
(instructed by Freemans Solicitors) for the Third to Fifth Respondents

Hearing dates: 6 December 2017
- - - - - - - - - - - - - - - - - - - - -

Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
.............................

THE HONOURABLE MR JUSTICE MACDONALD
This judgment was delivered in private. The Judge has given permission for this anonymised version of the judgment (and any of the facts and matters contained in it) to be published on condition always that the names and the addresses of the parties and the children must not be published.  For the avoidance of doubt, the strict prohibition on publishing the names and addresses of the parties and the children will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain. All persons, including representatives of the media, must ensure that these conditions are strictly complied with.  Failure to do so will be a contempt of court.

Mr Justice MacDonald: 
1. In this matter, I am required to determine an application by the local authority for permission to withdraw care proceedings in respect of three children, X, born in 2002, Y born in 2004 and X, born in 2012.  By reason of separate proceedings in the Queen's Bench Division, there is an anonymity order in force in respect of the father. 

2. The application by the local authority for permission to withdraw the care proceedings is not resisted by any party and I am satisfied that permission should be given.  However, given the circumstances in which the application arises, it is appropriate to give a judgment setting out the court's reasons for granting permission.  Prior to doing so, I have read the totality of the evidence filed and served in these proceedings and heard submissions from each of the parties.  I have also had the benefit of comprehensive Skeleton Arguments from counsel.

3. Both the mother and the father have attended this hearing.  Save when the mother's recent pregnancy prevented her from doing so, both parents have attended each of the hearings during the course of these proceedings.  At the conclusion of this final hearing I announced my decision to grant the local authority permission to withdraw proceedings.  I now set out my reasons for doing so.

BACKGROUND

4. The local authority's application for care orders in respect of the children arises out of an alleged risk to the children stemming from what are said to be the parents' alleged extremist beliefs, the father's related criminal convictions and findings made in civil proceedings arising out the father being the subject of a Terrorist Prevention and Investigation Measure (hereafter 'TPIM'), which measure has recently been extended for a further period of 12 months.

5. [Redacted] the father was convicted [redacted] of soliciting murder contrary to s 4 of the Offences Against the Person Act 1861 and sentenced to [redacted] imprisonment.  Those convictions arose out of [redacted].

6. The father's sentence of [redacted] was reduced to [redacted] on appeal. [Redacted

7. [Redacted] the father was convicted of the offence of inviting another to provide money or property intending it to be used for the purpose of terrorism contrary to s 15 of the Terrorism Act 2000.  [Redacted].  The father was sentenced to [redacted] imprisonment.  [Redacted]. [Redacted] that sentence was reduced on appeal.

8. The father has been the subject of criminal investigation on two other occasions.  [Redacted] he was charged with the offence of incitement to racial hatred.  That charge was not proceeded with.  [Redacted] the father was arrested on suspicion of supporting and being a member of a proscribed organisation.  He was released without charge.  The local authority alleges that a search warrant executed upon the father's arrest [redacted] resulted in the seizure of a laptop and a mobile telephone from the father, later analysis of which revealed possession of material indicative of an interest in, and support for ISIS; the possession of radicalising material, including images of acts of terrorism and violence; and communications with individuals in Al-Muhajiroun (hereafter ALM) and others who had been convicted of terrorist offences.

9. As I have noted, the father is the subject of a TPIM.  TPIMs are deployed in circumstances where a person who is the subject of a TPIM is believed to be involved in terrorism but cannot be prosecuted or deported.  The circumstances in which the father came to be the subject of a TPIM are set out in detail in the open judgment of Nicol J published as Secretary of State for the Home Department v LG, IM and JM [2017] EWHC 1529 (Admin).

10. In summary, pursuant to s 10 of the Terrorism Prevention and Investigation Measures Act 2011, the Secretary of State for the Home Department consulted with the Police as to whether there was evidence which could lead to a realistic prospect of successful prosecution of the father and was told that there was insufficient admissible evidence to provide a realistic prospect of charging him with terrorism related offences.  In consequence, the Secretary of State applied for permission to impose a TPIM notice on the father on 10 June 2016.  Permission was granted by Cranston J on 14 June 2016.  On 20 June 2016, the father was served with a TPIM pursuant to s 2 of the Terrorism Prevention and Investigation Measures Act 2011. 

11. Before a TPIM can be imposed, five conditions must be met as set out in s 3 of the Terrorism Prevention and Investigation Measures Act 2011.  Those conditions are:

(a) That the Secretary of State is satisfied, on the balance of probabilities, that the individual is, or has been, involved in terrorism-related activity.

(b) That some or all of the relevant activity is new terrorism-related activity.

(c) That the Secretary of State reasonably considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for terrorism prevention and investigation measures to be imposed on the individual.

(d) That the Secretary of State reasonably considers that it is necessary, for purposes connected with preventing or restricting the individual's involvement in terrorism-related activity, for the specified terrorism prevention and investigation measures to be imposed on the individual.

(e) That the court gives the Secretary of State permission to issue a TPIM notice or the Secretary of State reasonably considers that the urgency of the case requires terrorism prevention and investigation measures to be imposed without obtaining such permission. 

12. Whilst the threshold governing whether the court gives the Secretary of State permission to issue a TPIM notice is relatively low, the court must thereafter conduct a review of the TPIM to determine whether the conditions which justified the notice were met and continue to be met.  That review is conducted by reference to the principles applicable on an application for judicial review.  At the time of the review, the Secretary of State must be satisfied on the balance of probabilities that the subject of the TPIM is, or has in the past been involved in terror related activity.  It is not however, necessary that the Secretary of State be satisfied that the subject of the TPIM is still involved in terror related activity at the time of the review hearing. The TPIM to which the father is subject was reviewed by Nicol J in June 2017.   On the question of whether the father is, or has been, involved in terrorism-related activity, Nicol J made clear at [42] that he took the following approach to this issue:

"Pragmatically, Ms McGahey submits that, while strictly speaking, I could disagree with the SSHD's conclusion as to Condition A, but nonetheless find that her conclusion was one to which she was entitled to come, she does not seek to rely on such an argument here. On that basis, I shall take the same course as Mitting J. and examine for myself whether, on the balance of probabilities, each of the Respondents is, or has been, involved in terrorism-related activity."

13. Part of the hearing conducted by Nicol J utilised a closed material procedure in which a Special Advocate represented the father.  The closed material considered by Nicol J has not formed part of the evidence before this court nor has the local authority made an application that it should do so.  Nicol J made the following findings on the balance of probabilities in an open judgment which, as I have noted, has been published:

(a) On the basis of the open evidence, supported by the closed evidence, the father was a senior leader in ALM.  Nicol J recorded that ALM in the United Kingdom was founded by Omar Bakri Mohammed in 1996, that its aim was the establishment of a Caliphate ruled by Sharia law.  He was further satisfied, on the basis of open evidence, in addition to the closed evidence, that ALM continued to exist.

(b) The father had encouraged and, through radicalisation, facilitated the travel of others to join ISIS, Nicol J rejecting the father's case that he had simply believed in a caliphate as an abstract concept.

(c) The father had engaged in conduct amounting to radicalisation.

14. Within this context, Nicol J was satisfied that the TPIM in respect of the father remained necessary for purposes connected with protecting the public from a risk of terrorism.  The TPIM currently requires the father to live in an area some distance from that in which the family home is located.  With respect to the question of the necessity and proportionality of the TPIM, at [51] Nicol J took the following approach:

"I have noted above, the comments by the parties as to the significance of the nature and timing of involvement in TRA for the purposes of Conditions C and D. I have borne these in mind. However, since those two Conditions are concerned with the necessity (and proportionality) of either a TPIM in principle, the whole package of measures or the individual measures, they are not questions of objective fact and, as I have said they are not decisions as to which, even on the basis of the comments in the Court of Appeal in MB, I am required to come to my own conclusion. So far as they are concerned, the issue is whether the SSHD was entitled (on familiar public law principles) to come to the conclusions she did."

15. The father is in the process of appealing the decision of Nicol J.  In his statements before this court he denies that he is a member of any group, proscribed or otherwise.  He also denies that he supports ISIS and denies that his views are extreme or radical.  The father conceded to the social worker and the Children's Guardian that he "crossed the line" in respect of the offences for which he was imprisoned.  He states that he has not been convicted of any offences [redacted] and that the local authority was content for him to move back into the family home [redacted] following a visit to him in prison.  Within this context, the father asserts that there is no evidence that the children have come to, or at risk of significant harm from the care given to them by him or other mother.  With respect to the children, the father asserts that they participate in many activities outside the family home and have a rich and diverse education.

16. With respect to the mother, the local authority alleges that she too holds, or at least is sympathetic to extremist beliefs.  Specifically, the local authority alleges that the mother has actively promoted talks given by, and demonstrations and events involving individuals who have been convicted of terrorism related offences, including Anjem Choudhary and Mohammed Mizanur, who the Secretary of State alleged in Secretary of State for the Home Department v LG, IM and JM were and are senior leaders of ALM.  Further, the local authority alleges that the mother is an active participant in the Sisterhood, a group associated with ALM and that:

(a) The mother regularly attended meetings and lectures at which were expressed radical views justifying and supporting violence towards non-Muslims, acts of terror and the proscribed organisation ISIS. The local authority relies in this regard on a Channel 4 documentary entitled ISIS: The British Women Supporters Unveiled [redacted]. 

(b) The mother led meetings or gave lectures in this context from time to time, including [redacted].

(c) The mother was in regular communication with other active participants in the Sisterhood, including a member who had travelled to Syria.

17. The mother denies that she has any links with ALM.  She accepts that the father has convictions and notes that it was she who informed the local authority in November 2016 that the father was the subject of a TPIM.  She accepts that both she and the father have attended demonstrations and protests.  She disputes that she failed to co-operate with social services.  She denies that she shares extremist views with the father or entertains such views herself.  Both she and the father deny ever having any intention to travel with the children to Syria.

18. Within the context of the matters alleged in respect of the parents that I have set out, in its final threshold document the local authority asserts as follows with respect to the question of significant harm:

"The local authority considers that at the relevant date the children were likely to suffer significant emotional and psychological harm as a consequence of their likely future exposure to radical views justifying and supporting violence towards non-Muslims, acts of terror and the proscribed organisation, ISIS."

The local authority goes on to assert that the children are likely to be exposed to the views of the parents, whether with the active intent of their parents or by their parents failing to protect them from such exposure.

19. In support of this contention, the local authority relies on the following matters it contends would be made out on the evidence before the court:

(a) Having regard to the matters set out above, the family are part of a network of individuals who share similar radical views as demonstrated, variously, by those individuals having travelled to Syria, being convicted of terrorism related offences or by their association with ALM or successor organisations.

(b) The children have been taken by their parents to rallies and demonstrations, including a demonstration outside the Embassy of Bangladesh in London in May 2013 and a demonstration outside the Embassy of Myanmar in London.

(c) The mother has taken the children to meetings and lectures held by the Sisterhood, [redacted…] 

(d) The children "could" be exposed to the violent, graphic and potentially radicalising material found on electronic devices recovered from the family home.

20. The family first came to the attention of children's services [redacted] following the father's release from prison, through a Multi-Agency Public Protection Arrangements (MAPPA) alert.  It is of note that at this time the local authority did not see any need to commence proceedings in respect of the family, notwithstanding the nature of the offences for which the father had been convicted and served sentences of imprisonment.  On 11 October 2015, the local authority received a new referral, this time from the SO15 Counter-Terrorism unit of the Metropolitan Police.  This referral followed [redacted].  Following this referral, an investigation pursuant to s 47 of the Children Act 1989 was commenced.  The local authority asserts that the family failed to co-operate with that assessment.  The mother and the father contend that they did co-operate. 

21. Proceedings were finally issued on 7 December 2016.  On the 19 December 2016, the matter came before Moor J.  He refused the local authority's application for an interim supervision order and listed the matter before me for directions on 27 January 2017.  I have been responsible for the case management of these proceedings since that date. 

22. It will be apparent that there has been some delay in the final determination of these proceedings.  In circumstances where the TPIM proceedings in the Administrative Court were listed to commence in March 2017, and with the agreement of all parties, the final hearing of this matter was listed to take place following the conclusion of those proceedings, which proceedings were concerned with many of the factual matters relevant to the decision of this court.

23. The court has the benefit of two statements from the allocated social worker, Ms P, the first prepared together with her Team Manager, Ms H.  During the course of these proceedings the parents have been also been the subject of a comprehensive parenting assessment by Ms P.  The court also gave permission to the local authority to file and serve a risk assessment provided by Mr Jahangir Mohammed.  Finally, the Children's Guardian has also engaged with the family and provided the court with her analysis and recommendations in respect of the children. 

24. As I stated during the course of the hearing, the initial statement of Ms P and Ms H has given the court some cause for concern.  Ms P very properly sets out the criminal convictions of the father and the activity that underpinned those convictions, together with her analysis of the extent to which she considered the family had engaged with children's services.  However, Ms P also sets out a large amount of information gleaned simply from the media and press releases about the father's alleged activities and associations and presents the same as evidence.  Such information presents obvious forensic difficulties. 

25. Of particular concern in relation to the initial statement however, is the section compiled by Ms H.  That section is entitled "Parenting Profile – Al Muhajiroun".  Having set out her experience as a Child Protection Co-Ordinator taking the lead on children who may have been exposed to extremist ideology, Ms H states as follows:

"In undertaking this work, certain similarities or patterns of behaviour have started to emerge which link some of the cases together over and above obvious connections such as the fathers being co-defendants and an association to the prescribed organisation, Al-Muhajiroun.  The patterns of behaviour inform aspects of the local authority's response to these cases."

26. What follows in the subsequent passages of Ms H's part of the statement is, unfortunately, a rather simplistic attempt to 'fit' this family into the "patterns of behaviour" that Ms H purports to have identified.  Thus, Ms H asserts that families in which parents have an association with Al-Muhajiroun are expected to remain as invisible within society, so as to remain under the radar of the authorities.  In this context, Ms H asserts that families in which parents have an association with Al-Muhajiroun don't work and claim benefits.  She does not however mention that the father worked before being the subject of a TPIM or that the mother is educated to degree level and was training as a teacher before having children.  Ms H further asserts, within the context of her assertion that families in which parents have an association with Al-Muhajiroun are expected to remain as invisible within society, that the fact that X and Y are home schooled may indicate an attempt to isolate them and restrict them to differing world views.  She does not however go on to state that Z was enrolled in, and attending nursery or to relate that the Secondary Learning and Assessment Team had assessed X and Y's education as adequate and sufficient in 2013 and 2015. 

27. Ms H goes on to state that families in which parents have an association with Al-Muhajiroun make limited use of general health services and that the parents engagement with the health services is limited to that which is strictly necessary.  Leaving aside for a moment that using health services no more than is strictly necessary is what one might expect of most parents, Ms H's conclusion is drawn in the context, acknowledged by her, of the parents having engaged fully with health services in respect of Z's genetic condition and the mother proactively seeking a CAMHS assessment in respect of Y following concerns regarding her ability to concentrate.  Finally, Ms H cites the fact that families often request greater clarity with respect to the reasons for local authority intervention and the legal basis for that intervention and seek to engage the services of a solicitor.  Neither of these steps is however, in any way inappropriate.

28. It is, of course, important that social workers draw on their professional experience to inform their assessment and analysis.  However, there are obvious risks in relying on general behavioural models to assess a specific family, especially if the model used is based on the subjective experience of a single individual rather than rigorously conducted, peer reviewed research.  

29. Those dangers are well demonstrated in this case by an initial local authority statement that sets out an alleged generic pattern of behaviour exhibited by a set of families who are said to share common characteristics with this family, and then works hard to make this family fit that pattern, even though, on the local authority's own evidence, in several respects it does not comfortably do so.  This results in an analysis that fails to reflect all aspects of the family's presentation and one which lacks nuance.  

30. It is vital that each family who is the subject of local authority intervention be assessed by reference to its own situation.  Seeking to rely on a subjective model of expected behaviour rather than a careful assessment of what is, in fact, taking place within the subject family is fraught with difficulty, not least the risk that the assessment will commence with a fixed expectation of what is likely to be found.  Such an approach is to be avoided in favour of assessment undertaken by reference to the tenets of good practice plainly established by the statutory guidance in Working Together to Safeguard Children (HM Government March 2015).

31. The parenting assessment and final statement compiled by Ms P are comprehensive.  The assessment and statement set out in detail the concerns the local authority has in respect of the alleged conduct of the parents, as summarised above, and the risks to the children that the local authority consider arise from that alleged conduct. 

32. However, the parenting assessment also makes clear that, whilst at certain points she had concern regarding the extent to which the children were being open with her, in her involvement with the family Ms P confirms that at no point has she seen any evidence of the children having been radicalised or exposed to extremist material.  The social worker observed a warm and clean home environment with ample toys and books to encourage the children's learning and development.  X stated her dream is to live in Australia because they have swimming pools.  Y was wearing a track suit and a hoody and had a passion for big cats.  Z likes 'Peppa Pig' and was observed to be increasingly open with the social worker. The mother published a blog on home schooling setting out the children's experience of being educated at home, that blog now having been taken over by X and [redacted]. 

33. Within this context, in her final statement, Ms P states that "I am mindful that the children have never during my interaction with them expressed anything that I would consider to be extremist in their ideologies and appeared to have their own interests which includes Marvel comics, superheroes and animals" and "have not expressed anything that I would consider to be extremist views of their religion or about the parenting they receive, or about their peer/family relationships".   The social worker notes that the mother seeks out medical help for the children if required and that the children's health needs have been consistently addressed, that the education that is provided is adequate and sufficient, that the parents demonstrated themselves able to address their children's changing needs and that the children had not made any concerning allegations and spoke of their parents positively and fondly, presenting as respectful and never rude. 

34. Within this context, at the conclusion of the parenting assessment, the social worker recommends that the children are not removed from the care of their parents.  Further, at the conclusion of her final statement, the social worker states her view that the "Threshold of significant harm to the children has not been evidenced during these proceedings".

35. With respect to the home schooling of X and Y, the court also has before it a statement from Ms N, a member of the Secondary Learning and Achievement Team.  Ms N confirms that communications by the mother in 2013 and 2015 evidenced adequate and sufficient educational provision for X and Y by way of home schooling.  Ms N's home visit in October 2016, at the request of children's services, revealed X to be an articulate and thoughtful child capable of the kind of independent study necessary to make a success of home education at the secondary stage.  She demonstrated herself to be an avid reader of fiction books.  Y too was noted to be an avid reader, to the extent that she complained she had read all the suitable books on offer.  She was seen to be working at a level expected for her age and was observed to be creative and energetic.  The mother contended that X and Y go to the library once a week, to baking class once a week, attend a handicraft club and attend a kick-boxing and self-defence class at the weekends.  She contends they mix with non-Muslim children in this context.  As I have noted, X has taken over her mother's blog.  That blog tends to corroborate the assertion that the children engage in multiple outside activities.  The blog indicates that X receives the National Geographic children's magazine, that she is concerned with climate change and has a passion for books and the wider world.  It evidences trips out with a home schooling group, participation in a play group near to the family home and trips to [redacted].  It contains some very impressive poems.

36. In this case, the local authority commissioned a specialist risk assessment by Jahangir Mohammed.  Mr Mohammed records in his report, and in questions put to him in writing, that both parents denied being members of ALM but neither denied past links with people associated with ALM and Omar Bakri Mohammed.  The parents likewise did not deny attending demonstrations and the mother did not deny attending 'Sisters Circles' or that the children had accompanied her.  Both parents continued to defend these actions as lawful.  The father however, acknowledged his offending behaviour.

37. Within this context, and having interviewed each parent at length, Mr Mohammed concluded that the parents share issues that are of concern to many Muslims and widely discussed (in particular Dawah (proselytising of Islam), Kilafah (caliphate), Jihad (striving in God's cause) and democracy) but that the method and expression of those issues adopted by the parents is not mainstream.  Within this context, Mr Mohamed concluded that the events and activities the parents have attended, and the slogans and expressions at them, are rejected by almost all Muslims and are not mainstream and that the parents have been associated with people and activities that are not mainstream and deliberately provocative.  He considered that years of obsession with demonstrations and focus on political events and limited wider contact has produced a fixed focus in the parents' practice and expression of Islam.

38. However, as with Ms P and within this context, Mr Mohammed made clear that at no point had he seen any evidence of the children having been radicalised or exposed to extremist material.   Mr Mohammed was clear in this view that the matters outlined in the foregoing paragraph, the father's conviction and the information from the TPIM proceedings may present a risk to the children if the children were taught the views expressed in these contexts and came to adopt them.  However, he was equally clear that he did not see any evidence that that had happened, with no indication that the children had been affected negatively by any extreme political or religious views.  Mr Mohammed expressed the view that the parents do not appear to have brought the political ideas they have been associated with in public into the family home or to the children.  Within this context, Mr Mohammed noted that in the family home the collection of DVDs was of well-known Hollywood films, the children's bedrooms had posters of cartoon characters on the walls, the children's toys were superheroes and their books were standard children's and education books found in any nursery, with some age appropriate Islamic books.  With respect to the children's knowledge of Islam, Mr Mohammed comments as follows:

"From what I have seen the children in this case do not appear to have much interest in religious and political issues.  They have more interest in cartoon characters and some interest in the cultural/heritage side of Islam…from an examination of their books the mother has focused on Islamic core beliefs, culture and heritage. I think that is the right approach at their age."

39. Within the foregoing context, Mr Mohammed stated that the parents would benefit from an action plan of wider interaction with people, ideas and activities in the Muslim community, as distinct from intervention, a Dawah training course for the parents, a structured course on Islam and discussion with members of the Syrian community on the impact of ISIS in Syria.  However, Mr Mohammed is clear that the desirability of this work must be weighed against the fact that mother is caring alone for children due to the strictures of the TPIM.  Mr Mohammed suggests that the attendance of the children at an Islamic school may relieve some of the pressure on the mother in this regard.  Further, in the absence of any evidence that the children have been affected negatively by any extreme political or religious views Mr Mohammed does not recommend any intervention for the children, contending that such intervention may have the opposite effect to that intended when they are displaying no interest in religion or politics.  

40. Mr Mohammed's CV indicates that he has a range of roles, one of which is providing reports in criminal and family cases involving alleged radicalisation, extremism and terrorism based on his experience of these fields.  His assessment is based on a discussion with each parent and visit to family home.  I of course bear in mind that I have not had the benefit of hearing oral evidence from Mr Mohammed.  However, I accept Mr Barnes' submission that, on the face of it, a greater degree of challenge to the parents might have been expected by an assessor in light of the findings of Nicol J.  I likewise accept Mr Barnes' submission that Mr Mohammed's characterisation of ALM is difficult to square with what is known about the organisation (and successor organisations) proscribed under the Terrorism Act 2000 and its members.  That said, overall, Mr Mohammed's risk assessment provides some useful insights in the context of the application that is before the court, particularly in relation to question of the extent of the impact of the parents' alleged conduct on the children.

41. Finally, the court has the benefit of the assessment of the Children's Guardian.  The Children's Guardian found both X and Y to be extremely welcoming and happy to talk about their lives and what they liked.  She had no concerns regarding Z.  Once again, and consistent with the experience of Ms P and Mr Mohammed, it is of note that in her involvement with the family the Children's Guardian has at no point seen any evidence of the children having been radicalised or exposed to extremist material.  Indeed, the mother expressed concern to the Children's Guardian that Ms P had asked the children on a number of occasions about their views in relation to ISIS and wearing the Hijab, and the children told the Children's Guardian that they did not get on with Ms P.

42. I have not heard evidence about these matters and it would not be appropriate for me to decide issues of disputed fact at a hearing of this nature.  However, I note that Ms P's parenting assessment does make clear that she questioned X, who was 14 at the time, about wearing the hijab and what her parents would do if she did not wear it, and that X and Y were questioned by her about ISIS and matters of religion.  The mother related to Mr Mohammed that this had forced her to explain to X and Y what ISIS was, which the mother states was an unpleasant experience in circumstances where children had heard of ISIS but did not know a lot about it.  This raises at least the unfortunate possibility that the first time the children were exposed in detail to the significance and aims of ISIS was as a result of the social worker seeking to establish whether the children were at risk of radicalisation.

43. In the final Position Statement prepared on behalf of the Children's Guardian, the Guardian reiterates her view that she has seen no evidence that any of the children have been radicalised.  The Children's Guardian saw the children ahead of the final hearing and also reiterates the fact that she has no concerns about the care presently being offered to the children by their mother and is aware of the children's close relationship with the father.

44. As I have noted, within the foregoing context all parties now support the application to withdraw these proceedings as being in the children's best interests.  The only difference that arises between the parties is whether this is a case which falls into that category of cases where it is plain that the threshold cannot be met, and therefore the application for permission to withdraw must succeed without more, or into that category of cases where the threshold criteria could be met, and therefore the application for permission to withdraw the proceedings falls to be measured against the children's best interests as the court's paramount consideration. 

45. The local authority submits this this is a case in which it is possible that the court could conclude, having heard evidence, that the threshold criteria are met on the basis of a risk of significant harm to the children and, accordingly, its application for permission to withdraw the proceedings falls to be determined by reference to the children's best interests.  The Children's Guardian lends tacit support to this approach.  The parents submit that on the material before the court, the local authority is unable to satisfy the threshold criteria and, accordingly, the court must grant the local authority's application for permission to withdraw the proceedings on that basis.

46. Immediately ahead of the hearing, a further issue developed regarding a proposal by the local authority to continue involvement with the family under s 17 of the Children Act 1989 on the basis that the children are 'children in need'.  The final statement of Ms P sets out an outline of a 'Children in Need' plan.  The parents have expressed reservations in respect of the plan and it is clear that it was not discussed with the father prior to its formulation.  As I have noted, Mr Mohammed sets out an alternative plan of support.  Whilst I will make some brief observations regarding these issues later in this judgment, this court has no jurisdiction to dictate the approach of the local authority, or indeed of the parents, to these matters. During submissions, both the local authority and the Children's Guardian made clear that the application to withdraw is pursued independent of any indication by the parents that they will or will not engage with the 'Children in Need' plan.

THE LAW

47. The law that the court must apply when considering whether to grant permission to a local authority to withdraw care proceedings can be summarised as follows.

48. Pursuant to FPR r 29.4(2), a local authority may only withdraw an application for a care order with the permission of the court. Where an application for permission to withdraw is mounted in proceedings in which the local authority is unable to satisfy the threshold criteria pursuant to s 31(2) of the Children Act 1989, then that application must succeed.  However, where on the evidence before the court the local authority could satisfy the threshold criteria, then the court must consider whether withdrawal is consistent with the welfare of the child such that no order is required pursuant to s 1(5) of the Children Act 1989 (see Redbridge LBC v B and C and A (Through His Children's Guardian) [2011] 2 FLR 117).  An application made pursuant to FPR r 29.4 involves the court determining a question with respect to the upbringing of a child for the purposes of s 1(1) of the Children Act 1989.  In the circumstances, when considering an application for permission to withdraw an application for a care order, the child's welfare is the court's paramount concern (see London Borough of Southwark v B [1993] 2 FLR 559 at 572). However, an application for permission to withdraw proceedings falls outside the scope of s 1(4) of the Children Act 1989 and therefore there is no requirement to have regard to the welfare checklist in s 1(3) of the Children Act 1989.

49. With respect to the former situation where an application for permission to withdraw is mounted in proceedings in which the local authority is unable to satisfy the threshold criteria, in considering whether the threshold criteria can be made out it is important to recall the reminder given by the President in Re A [2015] EWFC 11 at [12] of the need to link the facts relied upon by the local authority with its case on threshold:

"The second fundamentally important point is the need to link the facts relied upon by the local authority with its case on threshold, the need to demonstrate why, as the local authority asserts, facts A + B + C justify the conclusion that the child has suffered, or is at risk of suffering, significant harm of types X, Y or Z. Sometimes the linkage will be obvious, as where the facts proved establish physical harm. But the linkage may be very much less obvious where the allegation is only that the child is at risk of suffering emotional harm or, as in the present case, at risk of suffering neglect. In the present case, as we shall see, an important element of the local authority's case was that the father "lacks honesty with professionals", "minimises matters of importance" and "is immature and lacks insight of issues of importance". May be. But how does this feed through into a conclusion that A is at risk of neglect? The conclusion does not follow naturally from the premise. The local authority's evidence and submissions must set out the argument and explain explicitly why it is said that, in the particular case, the conclusion indeed follows from the facts."

50. With respect to the latter situation, where on the evidence before the court the local authority could satisfy the threshold criteria, in J, A, M and X (Children) [2014] EWHC 4648 (Fam) at [30], Cobb J considered that in order for a case to fall into the category of cases in which the local authority is unable to satisfy the threshold criteria, and hence into the category of cases in which the application for permission to withdraw must be granted, the inability on the part of the local authority to satisfy the threshold criteria should be "obvious". 

51. Within this context, in J, A, M and X (Children), Cobb J considered the proper approach to an application for permission to withdraw care proceedings in a case where it was possible that the threshold might be crossed, depending on the court's construction of the evidence.  In such a case, Cobb J concluded that, before considering whether the local authority should be given permission to withdraw, the court must first determine whether or not it should proceed with a fact-finding exercise by reference to the factors set out by McFarlane J (as he then was) in A County Council v DP, RS, BS (By the Children's Guardian) [2005] 2 FLR 1031.  Those factors, which in their totality embody the concepts of both necessity and proportionality, are as follows:

a) the interests of the child (relevant not paramount);

b) the time the investigation would take;

c) the likely cost to public funds;

d) the evidential result;

e) the necessity of the investigation;

f) the relevance of the potential result to the future care plans for the child;

g) the impact of any fact-finding process upon the other parties;

h) the prospects of a fair trial on the issue;

i) the justice of the case.

52. Having considered the factors set out in A County Council v DP, RS, BS (By the Children's Guardian) within this context, and determined whether a fact-finding enquiry should be undertaken, the court should then cross-check the conclusion reached having regard to the best interests test under s 1(1) of the Children Act 1989 in reaching its decision on the application for permission to withdraw proceedings (J, A, M and X (Children) at [35]).

53. Finally, it is important to note that, notwithstanding the emotive subject matter of these proceedings, the courts power under FPR r 29.4 to grant a local authority permission to withdraw proceedings constitutes, to paraphrase Cobb J in J, A, M and X (Children) an objective and dispassionate check on whether the local authority should be entitled to disengage from proceedings.

DISCUSSION

54. Having reviewed thoroughly the evidence in this matter, and having heard full submissions from counsel, as indicated at the conclusion of the hearing I have decided that the local authority should be given permission to withdraw its proceedings in respect of the children.  My reasons for so deciding are as follows.

55. I was initially attracted to the local authority's submission that this was a case in which it was possible that the threshold might be crossed, depending on the court's construction of the evidence and, accordingly, that the process set out by Cobb J in J, A, M and X (Children) should be adopted in determining the local authority's application for permission to withdraw.  However, having thought further about the matter and having reviewed the evidence and submissions in this case carefully, I am satisfied that this is a case in which, on the evidence I have summarised above, the local authority would be unable to satisfy the threshold criteria pursuant to s 31(2) of the Children Act 1989 and, accordingly, that this is a case in which the local authority's application for permission to withdraw the proceedings must be granted.

56. Making clear that I do not make any findings in the context of determining the application that is before me, I accept that it would be open to the court to make findings regarding the conduct of the father based on his convictions that are a matter of record and, subject to any appeal being successful, based on the findings made by Nicol J in the Administrative Court.  Both the father and the local authority accept that the findings of Nicol J, whilst not determinative, are persuasive in these proceedings and that the court is entitled to place some reliance on the same.  Within this context, I am satisfied that, in respect of the father, it would be open to the court to make findings consistent with the findings made by Nicol J in the Administrative Court, placing the father is a very small cohort of individuals against whom exceptional measures are deemed to be required, and to make findings consistent with his criminal convictions for fundraising for terrorism and soliciting murder.

57. The position of the mother is somewhat different in circumstances where she has no criminal convictions and is not the subject of a TPIM.  However, and again making clear that I do not make any findings in the context of determining the application that is before me, it is at least possible that the court would be able to make findings in respect of the mother based on her concessions.  Finally, it would be open to the court, again on the parents' concessions, to find that the mother took the children to meetings of the 'Sisterhood' and that the parents took the children to public demonstrations on two occasions. 

58. However, whilst the evidence in respect of the parents might be capable of grounding serious findings, before the threshold criteria can be met s 31(2) of the Children Act 1989 requires the court to be satisfied that the children have suffered or are likely to suffer significant harm attributable to the care given, or likely to be given to them by the parents.  It is in this respect that I am satisfied that the local authority finds itself in grave, indeed insurmountable forensic difficulty.

59. As I have recounted, Ms P, Mr Mohammed and the Children's Guardian each make clear that they have at no point seen any evidence of the children having been radicalised or exposed to extremist material.  In her final statement, the social worker confirms that the children "have not said anything that I would consider to be extremist views of their religion or about the parenting they receive, or about their peer/family relationships."  Further, this has been the position over the course of nearly eight years, notwithstanding that social services, home education services and, latterly, health services and CAMHS have been involved with this family at regular intervals [redacted]. At no point during this period is there evidence from professionals or others contradicting the assessment of the social worker, Mr Mohammed and the Children's Guardian in this respect. 

60. Further, the detailed and comprehensive assessment in this case that I have recounted not only reveals children who display no signs of having been drawn into a radical or extremist view of the world, or of having been exposed to material propounding such views, but children who present as well balanced, articulate, thoughtful, keen on learning about a whole range of diverse subjects and with their own passions and interests, including superheroes, reading, writing and the natural world.  The evidence further suggests that the children are actively involved in outside activities, have sufficient and adequate education and a supportive family network.

61. Within this context, there is no evidence before the court that the children have suffered significant harm whilst in the care of their parents.  Whilst it is correct that a final hearing would involve the challenging of the parents in cross-examination about the impact of their alleged views and beliefs on the children, on the evidence before the court there is no proper evidential basis to put to the parents that they have radicalised their children or exposed them to extremist material.  Further, beyond some evidence of a reluctance on the part of the children to engage with the social worker, which Ms P accepts could be an ordinary reaction to the presence of a social worker in the family home, there is no proper evidential basis for putting to the parents that the children are part of a scheme to disguise the true position in the family home, such a scheme in any event having to span years and rely on the complete co-operation and word perfect compliance of all three children over that time. 

62. In my judgment, the same position is reached in respect of the question of risk of significant harm.  In the circumstances that I have set out in the foregoing paragraphs, and having regard to the fact that the local authority can point to no evidence of the children having suffered significant emotional harm, in my judgment the local authority would be unable to make out a finding of a risk of significant harm on the evidence before the court.  In the absence of any evidence of the children having been drawn into a radical or extremist view of the world or having been exposed to material propounding such views, the only basis for finding that they are at risk of significant harm would be if the court were to conclude that parents in the contended for position of these parents must, a priori, constitute a risk of significant harm to their children.  I accept Ms Meyer's submission that risk of significant harm must be established on the basis of evidence and not assumptions or speculation on future behaviour. Further, even if it were accepted as valid, the proposition that the parents must, a priori, constitute a risk of significant harm to their children is wholly undermined by the evidence in this case of an absence of harm to the children over the eight years in which professionals have been involved with this family.  In this case, the evidence before the court demonstrates that a risk of significant harm does not inevitably follow from the contended for position of these parents.

63. Whatever the nature of the allegations before the court, any findings the court makes must be rooted in the totality of the empirical evidence before the court, and any inferences it is reasonable to draw therefrom.  This fundamental principle applies as much in a case of alleged radicalisation as it does in other cases brought under Part IV of the Children Act 1989.  Further, as in all other cases brought under Part IV of the Children Act 1989, in cases of alleged radicalisation and in order to meet the threshold criteria under s 31(2) of the 1989 Act, the local authority must be able to demonstrate that the facts relied on justify the conclusion that the child has suffered, or is at risk of suffering, significant harm of the type alleged.  I am satisfied that, on the evidence before the court, the local authority would not be able to do that in this case.

64. I am reinforced in my conclusion by the social worker's own evidence, set out in her final statement dated 21 November 2017, in which the social worker states her view in terms that the "Threshold of significant harm to the children has not been evidenced in these proceedings".   I am further reinforced in my conclusion by the fact that, at its highest, Mr Barnes was compelled, in his carefully weighed Skeleton Argument, to put his case that the court "might" be able to find a risk of significant harm on a basis that took no account of the evidence concerning the children's position and presentation as set out above, Mr Barnes realistically further accepting that that evidence militates against a positive finding on threshold.

65. Finally, as I have already noted, this court has no jurisdiction to dictate the approach of the local authority, or indeed of the parents, to the issue of any intervention in the family pursuant to s 17 of the Children Act 1989 or consequent 'Child in Need' plan.  In the circumstances, I limit my observations as follows.  I endorse the submission of Ms Munroe that, if such a plan is pursued, there is a need for clarity, with a plan that is written down, that provides the name or names of the professionals who are responsible for its implementation, that has a clear stated purpose, that sets out what the family agrees to do and what the local authority agrees to do, that that is kept under regular review and that has a clear timeframe for completion.  I also endorse Ms Meyer's submission that any work undertaken by the local authority with the children as 'children in need' pursuant to s 17 of the Children Act 1989 must not be used as a means of securing supervisory powers in circumstances where the local authority has accepted that it cannot succeed in its application for a supervision order under Part IV of the 1989 Act. 

CONCLUSION

66. Having conscientiously, scrupulously, and fairly analysed the evidence available to it, the local authority has decided that it is proper to seek permission to withdraw these proceedings.  Having undertaken the analysis set out in this judgment, I agree with the conclusion that the local authority has reached in this case. 

67. It is easy to assume that a straight line can, without more, be drawn between a parent who is said to hold extremist views, or a parent who is said to be involved in terror related activity and the suffering of significant harm or the risk of significant harm to that parent's child or children.  However, the evidence in this case demonstrates that the position is more complex than that and one that falls to be considered carefully on a case by case basis in light of the evidence in a given set of proceedings. Applying the well-established legal principles that I must to the evidence available in this case, and for the detailed reasons I have given, I am satisfied that it is appropriate to grant the local authority's application for permission to withdraw these care proceedings on the basis that the local authority is unable to satisfy the threshold criteria in this case, and I do so.

68. That is my judgment.