Countering Terrorism in the Family Courts: A Dangerous Development
| Published date | 01 September 2023 |
| Author | Fatima Ahdash |
| Date | 01 September 2023 |
| DOI | http://doi.org/10.1111/1468-2230.12812 |
bs_bs_banner
Modern Law Review
DOI:10.1111/1468-2230.12812
Countering Terrorism in the Family Courts: A
Dangerous Development
Fatima Ahdash∗
This article critically appraises the implications of the recent emergence of radicalisation cases
in the family courts of England and Wales and the involvement of the family justice system in
preventing and counter ing terrorism. It identies, and takes issue with, a dominant nar rative
found in case-law, practitioner commentaries,think-tank reports and academic and government
literature, which regards the radicalisation cases as a positive legal development. Challenging
its characterisation of this line of cases as ordinary family law cases, the article uncovers the
signicant inuence of the logic,pr iorities and goals of counter-terrorism policy and practice on
the family courts. After demonstrating that the radicalisation cases have facilitated the extensive,
if surreptitious, involvement of the family courts in the counter-terrorist endeavour, the article
claims that the expansion of counter-terrorism into the family justice system is an unnecessary
and dangerous legal development with worrying implications for human rights, equality and
open justice.
INTRODUCTION
The counter-terrorist state is an ever expanding one.1The family justice system
has recently joined the legal ght against terrorism,2increasing the number of
jurisdictions involved in preventing and countering terrorism.3Over the course
of the last few years, the f amily courts of England and Wales have decided a
growing number of cases, known as the radicalisation cases, which deal with
the child-protection issues arising within the context of counter-terrorism.4
The involvement of the family justice system in counter-terrorism is a re-
markable legal development.For while the family courts have previously con-
sidered the impact of fundamentalist religious, and on rare occasions extreme
∗Lecturer in Law,Goldsmiths University of London, specialising in f amily law,counter-ter rorism and
human rights. This paper is based on research that was conducted for my PhD thesis at the London
School of Economics.I would like to thank the anonymous reviewers for their very helpful feedback.
All errors are my own.
1 Jessie Blackbourn and other s, Accountability and Review in the Counter-Terrorist State (Bristol:Br is-
tol University Press, 2020) 21.
2 Fatima Ahdash, ‘The Interaction between Family Law and Counter-Terrorism: A Critical Ex-
amination of the Radicalisation Cases in the Family Courts’ (2018) 30 CFLQ 389,389-392.
3 Counter-terrorism has been integ rated into criminal justice,administrative law,immigration and
citizenship law and education laws and policies.
4 ‘Radicalisation Cases in the Family Courts’ (Guidance issued by Sir James Munby, Pres-
ident of the Family Division, 8 October 2015) (Family Division Guidance) at https://
www.judiciary.uk/wp-content/uploads/2015/10/pfd-guidance- radicalisation-cases.pdf [https:
//perma.cc/3TV4-24QD].
© 2023 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023) 86(5) MLR 1197–1231
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which permits
use and distribution in any medium, provided the original work is properly cited,the use is non-commercial and no modications or
adaptations are made.
Countering Terrorism in the Family Courts
political, beliefs of parents on the welfare of their children,5this has never taken
place within a national security context. In fact, until recently the family jus-
tice system has been notably absent from the UK’s counter-terrorist landscape,
including in Northern Ireland. Although the legal response to terrorist vio-
lence during the period of the Troubles was extensive and included a range
of statutory and common law powers,6family law was never directly deployed.
That this is an unprecedented legal development is reected in the strong me-
dia and political backlash against recent threats made by the Chief Constable
of Northern Ireland that the children of paramilitaries engaging in ter rorist
activity there could be taken into state care.7The public furore in Northern
Ireland at the idea of ‘using children as pawns in the ght against terrorism’8
and the widespread calls for the Chief Constable to withdraw his threats illus-
trates just how, until very recently,the involvement of the f amily justice system
in counter-terrorism was unthinkable and is, at least outside of England and
Wales, politically controversial.9
In this article I examine the implications of the recent and unprecedented
involvement of the family courts in the counter-ter rorist endeavour.Investigat-
ing whether, and to what extent, the emergence of the radicalisation cases in
the family courts ought to be regarded with concern, I argue that it represents
an unnecessary and dangerous legal development.
I start by outlining some of the facts and gures surrounding the radicalisation
cases, discussing the methodology used in this article and identifying the gaps in
the current and rather limited literature on the topic.Here I identify a dominant
narrative which views the emergence of the radicalisation cases in the family
courts positively,regarding these cases as appropriate, proportionate and human-
rights compliant and insisting that these are simply ordinary family law cases as
opposed to counter-terrorism by the ‘backdoor’. I then go on to deconstruct
the claims of this dominant narrative,putting forward three main arguments to
demonstrate why the radicalisation cases ought to be regarded with trepidation
and concern.
Highlighting the extensive inuence of counter-terrorism on the radicalisa-
tion cases,I maintain, rstly,that as a result of this inuence these cases cannot be
regarded as ordinary family law cases.Instead, and by bringing the family justice
system within the fold of the counter-terrorist state, the radicalisation cases have
enabled the state to ‘do’ counter-terrorism, covertly and dangerously, through
the f amily courts. Secondly, emphasising the idea that terror ism is, at its core, a
crime that can and should be primar ily addressed through the criminal justice
5 For example Re B and G (Minors: Custody) [1985] FLR 134 and Re P (Contact:Super vision) [1996]
2 FLR 314.
6 Colm Campbell and Ita Connolly, ‘Making War on Terror? Global Lessons from Northern
Ireland’ (2006) 69 MLR 935, 945-948.
7 Michael McHugh, ‘Children not being used as pawns in ght against terrorism, says police chief’
Belfast Telegraph 5 September 2019 at https://www.belfasttelegraph.co.uk/news/northern-
ireland/children-not-being-used- as-pawns-in- ght-against- terrorism-says-police- chief-
38470617.html [https://perma.cc/K922-A3LJ].
8ibid.
9 Simon Byrne,‘Children “not weapons against terrorism’”BBC News 5 September 2019 at https:
//www.bbc.co.uk/news/uk-northern- ireland-49593061[https://perma.cc/NDJ6-T5X9].
1198 © 2023 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023) 86(5) MLR 1197–1231
Fatima Ahdash
system, I contend that the radicalisation cases have facilitated an unnecessary
and worr ying bypassing of the criminal law. Finally, I highlight the intrusive,
and at times draconian, interventions that these cases have led to,as well as their
rights-curtailing and discriminatory impact on the families and communities
involved.
In critiquing the radicalisation cases and the subsequent involvement of the
family courts in counter-terrorism, this article aims to make a new and im-
portant scholarly contribution. The article disrupts an overwhelmingly posi-
tive dominant narrative which claims that the radicalisation cases are standard
child-protection cases. It unsettles the prevailing idea that in deciding these
cases the family judiciary have been careful to uphold the conventional princi-
ples of family law, thereby protecting the family courts from being co-opted for
counter-terrorism ends. Demonstrating how this line of cases is shaped by and
implement the aims of counter-terrorism policy and practice, dangerously un-
dermine the preferable criminal justice model of counter-terrorism and nega-
tively impact the welfare and human rights of the children and parents involved,
the ar ticle suggests that they represent yet another worrying, if clandestine,ex-
pansion of the state’s already formidable counter-terrorism arsenal. Impor tantly,
moreover, the critique is based on a robust and empirically grounded study of
this emerging legal phenomenon. The claims put forward in this article have
been developed out of a close and comprehensive analysis of the publicly avail-
able radicalisation cases as well as original data generated through the use of
empirical research methods.
COUNTER-TERRORISM IN THE FAMILY COURTS: OVERVIEW,
METHODOLOGY AND THE DOMINANT NARRATIVE
Before I can begin critiquing the recent emergence of the radicalisation cases
in the family courts and unsettling the dominant narrative’s claim that they are
ordinary family law cases rather than a covert expansion of the counter-terrorist
state, it is important to contextualise this study. Therefore, in what follows, I
discuss the methodology deployedin this ar ticle,locating the radicalisation cases
in their broader factual and legal context. I then outline in greater detail the
main claims of the dominant narrative that are contested and challenged in this
article.
Research methodology: facts and gures
The exact overall number of the radicalisation cases is unknown. Between
2013–22, there were 47 cases published in the British and Irish Legal Infor-
mation Institute’s (BAILII) online database where radicalisation concerns were
raised within the context of family court proceedings.10 Although the 47 pub-
lished radicalisation cases provided the primary data-set for the analysis in this
10 A full list of the cases can be found in the appendix to the online version of the paper.
© 2023 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023) 86(5) MLR 1197–1231 1199
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
