X (Children) and Another
| Jurisdiction | England & Wales |
| Judge | Sir James Munby,FAMILY DIVISION |
| Judgment Date | 30 July 2015 |
| Neutral Citation | [2015] EWHC 2265 (Fam) |
| Docket Number | Case numbers omitted |
| Court | Family Division |
| Date | 30 July 2015 |
[2015] EWHC 2265 (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
Mr Simon J G Crabtree (instructed by the local authority) for local authority A
Mr Karl Rowley QC (instructed by Stephensons Solicitors LLP) for MX (mother of X1, X2. X3, X4)
Miss Ayeisha Khandia (of Fountain Solicitors) for FX (father of X1, X2, X3, X4)
Miss Linda Sweeney (instructed by AFG Law) for GX (the children's guardian of X1, X2, X3, X4)
Mrs Jane Crowley QC and Miss Rhian Livesley (instructed by the local authority) for local authority B
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 (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: 1–2 July 2015 (Re X)
–8 July 2015 (Re Y)
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
The proceedings were heard in private but this judgment was handed down in open court
Sir James Munby, President of the Family Division:
I have been hearing two cases, which I shall refer to respectively as the X case and the Y case (the initials have been selected at random). The two cases are quite separate and involve different families but there are, as will be seen, many points of similarity, so it is convenient to give one judgment.
The background – the X case
This case involves four children: X1, a boy born in July 2002, X2, a girl born in September 2008, X3, a girl born in August 2010, and X4 a boy born in March 2012. I shall refer to their parents, who are now separated, as MX (the mother) and FX (the father).
On 2 March 2015, the mother and the four children, together with the maternal uncle and maternal grandmother, were detained at an airport in this country as they were about to board a flight to Turkey. The three adults were arrested by the police (they have since been released).
On 6 March 2015 the local authority (which I shall refer to as local authority A) applied for, and was granted, emergency protection orders in relation to all four children, the parents having refused to sign an agreement under section 20 of the Children Act 1989. The children were placed with foster carers, together. They remain, together, in foster care. On 9 March 2015 the local authority applied for care orders in relation to all four children. Interim care orders were made by the Circuit Judge on 12 March 2015. The order made by the Circuit Judge records that "The mother neither consents to nor opposes the making of interim care orders in respect of the children." The matter came back before the Circuit Judge on 26 March 2015 and then before Peter Jackson J on 22 April 2015. Peter Jackson J directed that there was to be a finding of fact hearing before me on 29 June 2015.
Local authority A's initial threshold statement dated 11 March 2015 listed a variety of concerns, reflected in what was set out in recitals to the Circuit Judge's two orders. One of the orders made by Peter Jackson J on 22 April 2015 recited the key issues in the case as being:
"(a) When the mother was stopped boarding a plane for Turkey with the children on 2 March, was it her intention to travel there for a legitimate holiday or did she intend to travel for some other reasons and if so, was this to cross the border into Syria to join ISIS fighters?
(b) Have any of the children been radicalised and if so, by whom?
(c) The father's background and mental health.
(d) The parents alleged involvement in serious criminal activity.
(e) The capacity of the parents to meet the children's needs.
(f) Assuming the mother intended to travel with the children other than for a legitimate holiday, did any members of the extended family know of her plans and if so, who?
(g) Is the threshold satisfied for the making of final orders?
(h) If so, can any or all of the children be placed in the future care of the mother and/or the father and/or with a family member and/or friend and if not, what is a reasonable, necessary and proportionate response in terms of their future placement and future sibling, parental and extended family contact?
(i) If the threshold is crossed, whether a public law order is required and if so, what order is it reasonable, necessary and proportionate to make?"
The order recorded the mother's position as follows:
"The mother disputes that the threshold criteria is crossed. She says that she was intending to travel to Turkey with the children for the purposes of a legitimate family holiday. She says that although she understands why the Local Authority has intervened, her wish is for the children to be returned to her care as quickly as possible or for them to be placed with a member of their family. Once the children have settled in their current placement, she would also like to have increased contact with them so that this takes place more than twice per week."
The order directed that the question to be determined at the finding of fact hearing was:
"When the mother was stopped boarding a plane for Turkey with the children on 2 March 2015, was it her intention to travel to Turkey for a legitimate holiday or to make contact with rebel fighters and/or those assisting them and/or to cross with the children into Syria where they would join the ISIS caliphate and/or join ISIS fighters."
The local authority was directed to file and serve "a detailed schedule of findings it will seek at the finding of fact hearing and in a Scott schedule format." The parents were directed to respond to the schedule of findings, using the Scott schedule.
Reflecting provisions contained in previous orders, another of the orders made by Peter Jackson J on 22 April 2015 provided that:
"4 The UK Passport Agency is requested until 16:00 hours on the 22.04.2016 or until further order not to issue any passport relating to the children … and to notify the local authority of any attempt by any other person and/or body to do so.
5 The mother is forbidden to remove or to attempt to remove [the children] from England until 16:00 hours on the 22.04.2016 or until further order.
6 The mother is forbidden to retain, obtain or to attempt to obtain any passport, identity card or papers or any other travel document and relating to [the children] until 16:00 hours on the 22.04.2016 or until further order.
7 The father is forbidden to remove or to attempt to remove [the children] from England until 16:00 hours on the 22.04.2016 or until further order.
8 The father is forbidden to retain, obtain or to attempt to obtain any passport, identity card or papers or any other travel document relating to [the children] until 16:00 hours on the 22.04.2016 or until further order."
A further order made by Peter Jackson J on 22 May 2015 identified the key issues in the same terms as in the order of 22 April 2015; recited that the parties' positions remained as set out in that order; and provided that the question to be determined at the finding of fact hearing remained as set out in that order.
The Scott Schedule was set out in 72 numbered paragraphs. Many of these contained what was described as an "agreed context". Paragraphs 13–24, 27, 29, 31–33, 35–45, 48, 51–59, 61, 63–65, 67, 69 and 71–72 contained the findings sought by the local authority which were disputed. The core allegations, set out in paragraphs 53–55, 65, were that MX had no intention of staying in Turkey; that she intended to travel from Istanbul to the Turkish border with Syria with the children; that once she had crossed the border into Syria she intended to join up with ISIS militants and to supply them with items of use to the group's combative activities; and that her sole purpose and intention was to take up arms with ISIS militants and/or live for the foreseeable future in the Islamic caliphate ISIS claims to have established in the region. It was said (paragraphs 57–58) that, in essence, MX's plan was to take the children to a war zone, and that she knowingly intended to place the children at risk of significant harm. It was further alleged (paragraph 69) that "The mother is a radical fundamentalist with links and contacts with ISIS militants and those who seek to recruit others to their cause."
None of this was accepted by MX. Her position, as encapsulated in her response to the local authority's allegation in paragraph 69, was that "I am a practising Muslim. I do not regard myself as a radical fundamentalist and have no links or contacts with ISIS militants."
The finding of fact hearing was listed to start before me on 29 June 2015, a Monday. On the previous Thursday, 25 June 2015, MX's counsel, Mr Karl Rowley QC, circulated a position statement on behalf of MX. This set out her position in relation to the findings sought by the local authority as being that:
"she does not seek to oppose the making of a finding that she was intending to attempt to enter Syria and live in territory governed by the Islamic State. That is not to say that she accepts the truth of the allegations but she does not wish to resist the making of findings on the balance of probability. In these circumstances she does not require cross examination of the local authority witnesses and does not wish to give evidence herself."
Unsurprisingly, that radical shift in MX's position gave rise to a certain amount of discussion in court when the hearing began on 29 June 2015. There is no need for me to go into that here. In the upshot, it was left that MX would prepare and file a statement, pending which I had no alternative...
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