M (Children)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 20 May 2015 |
| Neutral Citation | [2015] EWHC 1433 (Fam) |
| Date | 20 May 2015 |
| Court | Family Division |
[2015] EWHC 1433 (Fam)
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr John Vater QC (instructed by the Joint Legal Team at Reading Borough Council) for the applicant local authority
Ms Tina Villarosa (instructed by S A Carr & Co Solicitors) for the parents (on 8 May 2015)
Miss Ciaran Gould (Force Solicitor) for the Thames Valley Police (on 8 May 2015)
Hearing dates: 5, 6 and 8 May 2015
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.
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
This judgment was handed down in open court
Sir James Munby, President of the Family Division:
I am concerned in this case with the welfare of the four children of Asif Malik and Sara Kiran. They are all British citizens. Their ages range from 20 months to 7 years. They were made wards of court by Baker J on 5 May 2015. They remain wards of court. Section 12(1)(a) of the Administration of Justice Act 1960 therefore applies.
Part of the history is already in the public domain. That part is not and never has been subject to any reporting restrictions. The other part of the history has not hitherto been in the public domain – in large measure because of a reporting restriction order which I imposed on 5 May 2015 but which I can now discharge.
The case involves important questions in relation to the proper ambit of the court's wardship jurisdiction and the use of what are commonly called super-injunctions. I accordingly give judgment in open court.
The story as known to the public
The story as known to the public can be set out very shortly. The story seems to have broken in the United Kingdom on Sunday 19 April 2015 and was extensively reported in the United Kingdom media. The family had apparently left home, without warning and without telling the wider family, on 7 April 2015. They were caught on CCTV going through customs at the Port of Dover at about midnight the same day, leaving the United Kingdom on a ferry that departed very early next morning. Some days later (in fact on 16 April 2015) they were reported missing to the Police. On 19 April 2015 the Police appealed for information about their whereabouts. The acting Deputy Chief Constable of the Thames Valley Police was quoted in media reports as voicing concern that the family might be travelling to Syria, though "not suggesting for one moment that they are intending to join Islamic State." The same day, as it subsequently transpired, the family crossed the border into Turkey. They were detained by the Turkish authorities in Ankara on 20 April 2015, a fact reported in the United Kingdom media later the same day.
Late on 5 May 2015 the United Kingdom media reported that, having been deported "of their own will" from Turkey to Moldova, the family had been detained in Moldova.
On 8 May 2015 the United Kingdom media reported a hearing before me earlier that day in which I disclosed that the family had returned to this country.
What was happening behind the scenes
Behind the scenes there had been extensive collaboration between the local authority, Slough Borough Council, the Police and the Foreign and Commonwealth Office (FCO). Proceedings were drafted on Monday 4 May 2015. Early the following morning, at about 5.40am on Tuesday 5 May 2015, the decision was taken by the local authority to make an ex parte (without notice) application later that morning. At about 7.00am the local authority was informed by the FCO that it would be "pointless" if an order was not obtained by 11.00am. At about 7.30am, Mr John Vater QC, on the instructions of the local authority, contacted the 'out of hours' duty officer, saying that an urgent telephone hearing with the 'out of hours' judge was required. The draft order and the unsworn affidavit of the solicitor acting for the local authority, Miss Sarah Castle, were emailed to the duty officer for onward transmission to Baker J, the 'out of hours' judge. Exhibited to the unsworn affidavit were a statement of Detective Inspector Horsburgh dated 30 April 2015 and a briefing note dated 24 April 2015 produced by the Police for the purpose of family court proceedings. The telephone hearing before Baker J commenced at about 8.15am.
Miss Castle's unsworn affidavit contained additional information, including the following:
"it is the belief of the police and Counter Terrorism Unit that the parents intended to cross into Syria with their children in order to join Islamic State [details were given which I do not propose to recite] … Whilst it is the belief of the police that the family was heading towards Syria, the family has maintained that they were on holiday. In any event, that claim must be set against the fact that the family had travelled across Europe effectively on public transport, had told no-one of their holiday plans, and were heading towards the Turkish/Syrian border at the point of their arrest.
Upon their arrest by the Turkish authorities, the family's passports were impounded and their Visas withdrawn … As we understand it, a number of attempts were made by the British Consulate to negotiate a return to the UK consensually … It was hoped … that the children could be returned to the UK consensually. In any event, it had been the intention of the Local Authority to conduct some assessment for itself of the children's immediate well-being in the detention centre. It was planned that social workers would fly to the family in Ankara on Tuesday 5 th May 2015 …
On 4 th May at about 15:00 hours it transpired that the Turkish authorities had negotiated with the family that they should be deported to Moldova via a flight to Chisinau departing Istanbul at 1pm (UK time) on 5 th May 2015 …
It is the Local Authority's broad view that the children have suffered significant harm and are likely to do so in the event that Wardship Orders are not made. We take that view for these reasons:
• On the basis of the information the police and SE Counter Terrorism Unit has been willing to share, there are reasonable grounds for believing that this family left Slough on about 8 th April 2015 in order to join Islamic State in Syria;
• If that is right, the parents chose to expose their children to obvious risks in so doing;
• Also if that is right, the parents removed the children from their close and local family, educational and health provision, peremptorily. Whilst we cannot know the impact of this, without further assessment it is reasonable to believe that the children's education and emotional well-being has been affected by this peremptory and unplanned removal;
• The deportation to Moldova represents another peremptory move of the children to another State which is entirely alien to them. Neither they nor their parents can communicate in Moldova;
• There is no information available in relation to why the parents chose to be deported to Moldova or what their plans are for their children when they arrive there. Nothing at all is known about the Moldovan Government's attitude towards the family, what supports might be available, where the children will live or how the family will sustain itself;
• According to the FCO's Global Response Centre, once the family sets foot in Moldova it will be entirely free to travel wherever it wishes.
In those circumstances, the Local Authority takes the view that it is necessary in the children's interests for them and their parents to remain in a known location (namely the detention centre in Turkey) where they can be accessed by FCO liaison … pending the Local Authority's assessment of the children's current and future welfare."
Baker J made an order in the following terms:
"A UPON hearing counsel, Mr John Vater QC and Mr Edward Devereux for the Applicant local authority ("the local authority") without formal notice to the Respondents and by telephone through the emergency procedures set out in the relevant practice direction;
PENAL NOTICE
TO: ASIF MALIK AND SARA KIRAN
YOU MUST OBEY THE ORDERS AT PARAGRAPHS 2 AND 3 BELOW. IF YOU DO NOT, YOU WILL BE GUILTY OF CONTEMPT OF COURT AND YOU MAY BE FINED, SENT TO PRISON, OR YOUR ASSETS MAY BE SEIZED.
B AND UPON THE COURT CONSIDERING the following:
(i) The applications for wardship orders making the children … wards of court pursuant to the inherent jurisdiction of the High Court;
(ii) The unsworn Affidavit of Sarah Castle, Solicitor and Principal of the Joint Legal Team, Reading Borough Council, Civic Offices, Bridge Street, Reading, Berkshire RG12LU dated 5 May 2015 in support of the applications;
C AND UPON THE COURT being informed, by way of the Affidavit of Sarah Castle from that the most up to date information about the mother, the father and the children is that they are either in a detention centre in Ankara, Turkey, awaiting transfer to Istanbul, or are in transit to Istanbul whence it is intended that they should be deported to Moldova by aeroplane
D AND UPON THE COURT PERMITTING the local authority to make these applications without formal notice to the Respondents, the court having been satisfied that the local authority was justified in applying without such notice in the urgent circumstances of this case
E AND UPON THE COURT DECLARING on the evidence presently before it and on a strictly provisional basis (given that this order is being made without formal notice to the Respondents) that:
(i) The courts of England and Wales have jurisdiction to consider the local authority's applications on the basis of Article 8 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial...
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