Re Y (Children) (No 3)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 05 April 2016 |
| Neutral Citation | [2016] EWHC 503 (Fam) |
| Docket Number | Case numbers omitted |
| Court | Family Division |
| Date | 05 April 2016 |
[2016] EWHC 503 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Case numbers omitted
Mrs Jane Crowley QC and Miss Rhian Livesley (instructed by the local authority) for local authority B
Miss Jane Cross QC and Miss Alison J Woodward (instructed by Stephensons Solicitors LLP) for MY1 (the mother of Y1, Y2 and grandmother of Y3, Y4)
Mr Karl Rowley QC and Miss Elliw Roberts (instructed by Linder Myers Solicitors LLP) for MY2 (mother of Y3, Y4) FY2 (father of Y3 and Y4) appeared in person
Miss Julia Cheetham QC and Miss Elizabeth Morton (instructed by Temperley Taylor) for GY (the children's guardian of Y1, Y2, Y3, Y4)
Hearing dates: 5–8, 12–16, 27 October 2015
This judgment (delivered in private on 7 March 2016) was handed down in open court on 5 April 2016
Sir James Munby, President of the Family Division:
This is the judgment following a finding of fact hearing in a case in which I have already given two judgments, the first on 30 July 2015 and the second on 4 August 2015: Re X (Children), Re Y (Children) [2015] EWHC 2265 (Fam); Re X (Children), Re Y (Children) (No 2) [2015] EWHC 2358 (Fam).
Background
I set out the background and the history of the litigation down to that point in my first judgment: Re X (Children), Re Y (Children) [2015] EWHC 2265 (Fam), paras 18–27. I need not set it all out again and take my earlier judgment as read.
For present purposes I need only quote two short passages. The first (para 18) was as follows:
"These two linked cases involve four children: Y1, a girl born in February 2004, Y2, a boy born in July 2006, Y3, a boy born in July 2011, and Y4, a boy born in November 2013. I shall refer to the mother of Y1 and Y2 as MY1. Their father is dead. I shall refer to the mother of Y3 and Y4 as MY2 and their father as FY2. The children are related, because FY2 is an older son of MY1"
I went on (para 19):
"On 27 March 2015 MY1, FY2, MY2 and the four children left this country and flew to Turkey. On 1 April 2015, they were detained by the Turkish authorities close to the border with that part of Syria controlled by ISIS. On 3 April 2015, Newton J, on the application of a local authority which I shall refer to as local authority B, made an order making Y1 and Y2 wards of a court and a separate order likewise warding Y3 and Y4. The three adults and the children returned to this country in the early hours of 15 April 2015. The three adults were arrested and remained in custody until 18 April 2015. In accordance with the orders made by Newton J, the children were placed in two separate foster placements."
I shall refer to MY1, FY2, MY2 and the four children, together with FY2's brother M, who accompanied them to Turkey, as the "Y group". In circumstances I shall describe below, the Y group were joined in Turkey by W, who had travelled to Turkey with B (I shall refer to this as the "W/B group").
The children remained in foster care until I returned them to their parents' care in August 2015: Re (X Children), Re Y (Children) (No 2) [2015] EWHC 2358 (Fam).
Threshold
In an order dated 22 May 2015, Peter Jackson J described the question for determination at the finding of fact hearing as being:
"whether in April 2015 it was the children's respective parent's intentions to go to a war zone in Syria controlled by Islamic State with the children and for them to remain there on a permanent basis."
In due course, and in accordance with orders made by Peter Jackson J, the local authority's case was set out in a Scott Schedule, which I summarised as follows in my first judgment (para 24):
"The Scott Schedule is a long and detailed document. It seeks five findings: (1) The adults made plans and travelled to and across Turkey with the intention of entering an ISIS controlled war zone with their respective children and so putting them at risk of physical and emotional harm. (2) They made complex travel arrangements in an effort to conceal their intention to enter Syria. (3) They lied about their travel plans in order to conceal their intention to enter the ISIS controlled Syrian war zone. (4) They made practical arrangements prior to their departure demonstrating their intention to leave their homes permanently and enter / move to Syria. (5) None of them has provided a plausible explanation for their travel plans and arrangements."
I continued (para 25): "In essence, the answer to all this was that the family had gone to Turkey for a holiday and that there was never any intention to enter Syria."
The final version of the Scott Schedule emerged during the finding of fact hearing (see below). In response to a question from me as to whether the local authority was in a position to prove that the area of Syria adjacent to the border where the family was detained was controlled by ISIS, the local authority indicated that it was not able to do so, and amended the Scott Schedule accordingly.
The local authority now seeks the following eight findings as set out in the final version of the Scott Schedule:
"Finding 1: The [adults], or some of them, made plans and travelled to and across Turkey, with other adult family members, with the intention of entering an active war zone, namely Syria, with their respective children and so putting them at risk of physical and emotional harm.
Finding 2: The adults made complex travel and other arrangements in an effort to conceal their intention to enter Syria in the company of two other men.
Finding 3: The adults lied about their travel plans in order to conceal their intention to enter the Syrian active war zone.
Finding 4: The adults made practical arrangements prior to their departure … demonstrating their intention to leave their homes permanently and enter / move to Syria.
Finding 5: None of the adults has provided a plausible explanation for their travel plans and arrangements.
Finding 6: The planning and execution of the journeys of both groups involved, ie the Y and W/B groups, were undertaken in manners consistent with online guidance given to prospective migrants to Syria.
Finding 7: If Finding 1 is proved, the plan was ideologically driven. The absence of any explanation for making plans and travelling to and across Turkey, with other adult family members, with the intention of entering an active war zone, namely Syria, combined with the [adults'] untruthfulness about the true purpose of their journey through Turkey, makes it likely that there was an ideological motivation.
Finding 8: Whatever the parents' travel intentions, the journey undertaken by them, which resulted in their interception and detention, caused the children to experience emotional harm through fear and distress. In particular, if the journey was indeed an innocent holiday, such harm was avoidable, arising from reckless decision making which failed to prioritise the children's wellbeing."
The basis upon which those findings are sought is elaborated in the Scott Schedule, a document running to 65 pages. (References hereafter to the Scott Schedule are in the form S/2/e, where the number refers to the relevant finding sought and the letter to the particulars given in relation to that finding.)
In its final written submissions, the local authority makes clear that
"its case on radicalisation is largely dependent upon whether or not the court accepts its initial case that the family was in fact in the process of crossing, or about to cross the Turkish/Syrian border into Syria."
Very significantly, however, as it seems to me, the local authority accepts that
"Whether [the ideological influence motivating the family] was to join ISIS, or some other religious, political, or other organisation involved in the conflict in Syria, or indeed for another, ideologically driven purpose, [it] cannot say."
The evidential implications of this will become clearer in due course, but the key point is this. The local authority does not seek to establish, in truth, as we shall see, the local authority cannot establish, some pre-existing ideological mindset as the evidential foundation for its case that the family intended to go to Syria. It does not rely upon motive to establish intention; on the contrary, it relies upon intention to establish motive. How, then, does it seek to prove intention? That is the central issue in the case.
The hearing
The finding of fact hearing began on 4 October 2015. The evidence finished on 16 October 2015. I heard final submissions on 27 October 2015. The local authority was represented by Miss Jane Crowley QC and Miss Rhian Livesley, MY1 by Miss Jane Cross QC and Miss Alison J Woodward, MY2 by Mr Karl Rowley QC and Miss Elliw Roberts and the children by Miss Julia Cheetham QC and Miss Elizabeth Morton. FY2 appeared in person. He was, throughout, courteous and reasonable in his manner and presentation, including when giving evidence or addressing the court.
In major part the local authority's evidence, both written and oral, came from the police. That evidence went to four broad topics: evidence as to what was found when various properties were searched; evidence of what was said by the various adults in interviews; evidence as to 'tradecraft'; and evidence as to what was discovered from analysis of various mobile phones. In the course of this I watched the video recordings of parts of the interviews given by M. I heard oral evidence from (in this order) MY1, MY2 and FY2. None of M, W or B was present in court; none of them gave evidence. The hearing of the evidence concluded on 16 October 2015. Immediately following this hearing I commenced the finding of fact hearing in the related case of Re X, in which I handed down judgment on 16 December 2015: Re X (Children) (No 3) [2015] EWHC 3651 (Fam)....
To continue reading
Request your trial
-
Hertfordshire County Council v Mother
...[2011] 1 FLR 990, at para [203]. 7 Re S (Children) [2014] EWCA Civ 1447 at [10] 8 See for example Re X No3 [2015] EWHC 3651 & Re Y No3 [2016] EWHC 503 9 Lord Hoffmann in Re B at para 15 10 Re W [2010] UKSC 12 11 Lancashire County Council v C, M and F [2014] EWHC 3 (Fam) 12 Re A (A Child)......
-
Re B (Care Proceedings: Finding of Fact Hearing: Skull Fractures)
...credible for the court to be able to say that the local authority has not made out its case to the requisite standard. In Re Y (Children) (No 3) [2016] EWHC 503 (Fam) Sir James Munby P made the point that, '20. Thirdly, that the fact, if fact it be, that the respondents (here, the parents) ......
-
Re A, B & C (Children: Adoption) v A Local Authority
...of the party to establish the alternative case on the balance of probabilities does not, of itself, prove the other party's case, Re X (Children) (No 3) [2013] EWHC 3651 Fam, and Re Y (No 3) [2016] EWHC 503 Fam. 10 Counsel for the mother referred me to a number of leading authorities in he......
-
B v C
...case on the balance of probabilities does not of itself prove the other party's case, Re X (No 3) [2013] EWHC 3651 Fam and Re Y (No 3) [2016] EWHC 503 Fam”. 33 I also remind myself of Practice Direction 12J and the presumption that any such incident of domestic violence must be harmful to ......
-
Interdiction and Indoctrination: The Counter‐Terrorism and Security Act 2015
...EWHC 2265 (Fam). See further Re X and Y (No 2) [2015] EWHC 2358; Brighton &Hove CC vAMother[2015] EWHC 2098 (Fam); In re Y (no 3) [2016] EWHC 503 (Fam).70 ibid at [50].71 [2015] EWHC 2491 (Fam). See further [2016] EWHC 1707 (Fam).72 For future guidance, see Radicalisation cases in the Famil......