The London Borough of Tower Hamlets v M and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 27 March 2015 |
| Neutral Citation | [2015] EWHC 869 (Fam) |
| Docket Number | Case No: FD15P00125, FD15P00126, FD15P00127, FD15P00128, FD15P00129 |
| Court | Family Division |
| Date | 27 March 2015 |
[2015] EWHC 869 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Court 46
The Royal Courts of Justice
Strand
London
WC2A 2LL
Mr Justice Hayden
Case No: FD15P00125, FD15P00126, FD15P00127, FD15P00128, FD15P00129
Mr Barnes appeared on behalf of the Claimant.
Ms Carter-Manning appeared on behalf of the Metropolitan Police.
Ms Mary Hughes appeared for the First Respondent
Mr Sam Momtaz appeared for the Second Repondent
Ms Deirdre Fottrell QC appeared for the Third Respondent
Last week, I heard two cases, both of which were brought by local authorities who were concerned that a number of young people, all minors in their areas, were at risk of leaving the country to travel to ISIS countries, particularly Syria.
The two cases came from different parts of the country. The families of these children were, in each case, in the local authority's assessment, unlikely adequately to protect them from leaving the country.
The cases involved both girls and boys, each of whom was at risk, to my mind self-evidently, of significant harm in the sense contemplated by section 31(ii) of the Children Act 1989.
The risk plainly differs according to gender but is nonetheless grave in both instances and does not need to be spelt out.
In both sets of proceedings, I made the young people concerned wards of this court.
In the first case, the wardship application made by the local authority itself. The application, though of necessity brought before me urgently, sitting then as Applications Judge, was carefully thought through and well prepared.
In the second application, again brought urgently, I invited the authority to consider whether they wished to issue a wardship summons. Wardship, following the introduction of the Children Act 1989, which came into force in October 1991, has now much more limited scope than previously. It is primarily utilised in contemporary family law, in cases involving alleged international child abduction and in cases within the Hague Convention of 25 October 1980 on the civil aspects of international child abduction.
Conscious that this judgment has attracted some public interest, I should perhaps say, by way of short explanation, that the Hague Convention is a multilateral treaty which seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a framework to secure their prompt return.
As such, the status of a Ward of the High Court of England and Wales has achieved international recognition. For this reason, and because it vests parental responsibility solely in the High Court, it is particularly apposite in circumstances such as those contemplated here. All the major decisions relating to such children for the period of the operation of the wardship require the approval of the High Court.
Thus, pursuant to this jurisdiction, I made orders relating to the retrieval of the passport of each of the young people concerned in order to use the full powers at the court's disposal to endeavour to prevent the wards leaving the United Kingdom.
This course, though it arises in circumstances which do not have recent precedent, did not in any way require an evolution in the law itself. For example, the jurisdiction was recognised in Re A-K (Foreign Passport: Jurisdiction) [1997] 2 FLR 569.
Both cases came before me last week on ex parte application. I was satisfied, on the evidence presented to me, both that the measures sought were proportionate and that there were strong grounds for believing the situation was urgent. I remain convinced of both.
The removal of an individual's passport, even on a temporary basis, be that of an adult or child, is a very significant incursion into the individual's freedom and personal autonomy. It is never an order that can be made lightly. Where only the State, in this case through the arm of the local authority, appears in court, it must never be forgotten that the court requires a very high degree of candour on the part of all of those involved.
By this, I do not mean that the evidence should merely be presented with honesty and integrity. Happily, those standards are commonplace in this jurisdiction.
Rather, I wish to emphasise that the fullest possible information must be placed before the court in an entirely unpartisan way. Both the evidence which supports the application and that which runs counter to its objectives. Nothing less than that will suffice.
This duty, in such an application, extends not merely to counsel and solicitors but to all involved: police; social services; whichever professional capacity.
Moreover, the lawyers involved must take great care to emphasise and reinforce this obligation to their lay and professional clients in clear and unambiguous terms. This very high degree of candour must also be accompanied by careful consideration as to whether the facts present a real degree of urgency, which of themselves necessitate an application being made on an ex parte basis.
I should like to take this opportunity to distil a number of core principles.
(i) The lawyers should take care to draft, at very least in outline, the scope and ambit of the orders they seek and in respect of whom they seek it. This should be undertaken before coming to court. That will not only expedite the subsequent service of the orders on those concerned, it is also a crucial forensic discipline, compelling the lawyers to think in a properly focused manner about the specific orders they seek;
(ii) Thought should be given, from the very outset, as to how quickly the case can be restored on notice. This is the essential requisite of fairness in the process, now buttressed by article 6 of the European Convention on Human Rights;
(iii) Even though these cases will, of necessity, be brought before the court in circumstances of urgency, they nonetheless require the instruction of senior and experienced lawyers. The issues have profound consequences, not limited to the individuals concerned, and will frequently require a delicate balancing of competing and potentially conflicting rights and interests;
(iv) All involved must recognise that in this particular process it is the interest of the individual child that is paramount. This cannot be eclipsed by wider considerations of counter terrorism policy or operations, but it must be recognised that the decision the court is being asked to take can only be arrived at against an informed understanding of that wider canvas. It is essential that the court be provided with that material in appropriate detail;
(v) It will never be satisfactory, in applications of this kind, merely to offer verbal assurance, through counsel or any other individual, that the police, security forces or those involved in counter terrorism, are aware of and support the application. There must in future always be 'hard' evidence, i.e evidence which is cogent and coherent, placed before the court and capable of being subject to appropriate scrutiny. The format of the evidence may vary from case to case. It may require a police presence in court. There may be the need for police/counter terrorism officers to be represented, written and sworn statements may sometimes suffice. On occasion evidence may be received by secure telephone or video link;
(vi) Justified interference with the article 8 rights of a minor will always require public scrutiny at some stage in the process. In both cases this week, the press attended. It was only necessary for them to withdraw on one occasion, at the request of a very senior police officer present in court, supported by the local authority. The request was made because sensitive issues of policy and national security arose. Transparency, that is to say the attendance of accredited press officials in court, remains the presumption here, as it now is in all aspects of the work of the family justice system;
(vii) Recognising that there will be an urgency to these applications, careful attention, in advance of the hearing, should be given to the framework of reporting restrictions required to protect the child from publicity. In this exercise, it should be remembered that some of the families involved may already have excited a degree of press coverage. Indeed, they may, on occasion, have sought it out. There is a risk that identification of the children might be revealed by piecing together information already in the public domain, i.e. the 'jigsaw effect'. As, in paragraph 1 above, and for similar reasons, the restrictions contended for should be drafted before coming to court;
(viii) Though it may appear trite to say so, an evaluation of the reporting restrictions, as I have been reminded by the press this morning, should always have at the forefront of the exercise the reality that publicity is not confined to the conventional or recognised media outlets, but extends, with inevitably greater challenges, to the wide range of social media likely to be the primary sources of information for these children, their peers and those with...
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