X (Children) (No 3)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 16 December 2015 |
| Neutral Citation | [2015] EWHC 3651 (Fam) |
| Docket Number | Case numbers omitted |
| Court | Family Division |
| Date | 16 December 2015 |
[2015] EWHC 3651 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Civil and Family Justice Centre
Vernon Street
Liverpool
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)
Hearing dates: 20–23 October 2015
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 2–17. I need not set it all out again and take my earlier judgment as read.
For present purposes I need only quote what I said in that judgment (para 2):
"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)."
I went on (para 3):
"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 have referred to as local authority A) applied for, and was granted, emergency protection orders in relation to all four children. The children were placed with foster carers, together, where they remained until I returned them to their mother's care in August 2015: Re X (Children), Re Y (Children) (No 2) [2015] EWHC 2358 (Fam). In relation to those hearings, the local authority explicitly disavowed any reliance on a risk of radicalisation for the purposes of determining the interim placement of the children.
Threshold
The local authority's initial threshold statement dated 11 March 2015 listed a variety of concerns. In due course, and in accordance with orders made by Peter Jackson J, its case was set out in a Scott Schedule, which I summarised as follows in my first judgment (para 10):
"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 and 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.""
The final version of the Scott Schedule is dated 17 October 2015. Expanded in response to the mother's revised case (see paragraph 10 below) it now runs to 80 numbered paragraphs.
The mother's case
An order made by Peter Jackson J on 22 April 2015 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 mother disputed the local authority's case as set out in the original Scott Schedule. Her position, as encapsulated in her response to the local authority's allegation in paragraph 69 (paragraph 78 in the final Scott Schedule), 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 at that stage listed to start before me on 29 June 2015. Shortly before, the mother's counsel, Mr Karl Rowley QC, circulated a position statement on her behalf. 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."
That radical shift in her position gave rise to a certain amount of discussion in court when the hearing began on 29 June 2015. It was left that she would prepare and file a statement. The statement was circulated the next day, 30 June 2015. It represented another radical shift in her position. She acknowledged that she had not been fully open with the court and professionals. Her case now, in short, was (judgment, para 13) that:
"she had travelled to Turkey to meet up again with, and possibly marry, a man" — I shall refer to him as H — "she had met in this country collecting money for Syrian refugees and whom she understood to be a doctor in Turkey. She denied any intention of travelling to Syria and said "I do not agree with or support or favour anything ISIS do … and have no wish to be involved with ISIS in any way.""
That remains her stance.
The local authority's case
As I have mentioned, the final version of the Scott Schedule is dated 17 October 2015 and now runs to 80 numbered paragraphs. Much of this sets out the "agreed context". Paragraphs 13, 16–20, 22, 24–27, 32, 34b, 36–37, 39–44, 46–48, 51–53, 55, 57–76 and 78–80 contained the findings sought by the local authority which were disputed by the mother. In his final submissions, Mr Simon Crabtree on behalf of the local authority made clear that it no longer sought findings in relation to paragraphs 13–18.
The local authority's case has seven strands, which can be summarised as follows. In support of its overarching case, the local authority relies upon what it asserts were:
i) The mother's acquaintanceship with various individuals who, it is alleged, had travelled via Turkey to Syria in 2014 to take up arms with ISIS militants (paragraphs 19–27).
ii) Lies the mother told the children's schools on 27 February 2015 about the reasons for their forthcoming absence from school (paragraphs 28–33).
iii) The fact that when stopped at the airport on 2 March 2015 the mother gave a false address (paragraphs 36–37).
iv) The fact that the family's luggage, when searched at the airport, was found to contain a number of suspect items (paragraphs 39–48); as it is put (paragraph 39), "a large number of items 1 not normally associated with any family
holiday." 2 It is asserted (paragraph 48) that "There is a striking similarity between the items contained in the … luggage and a list of items a known ISIS operative asked a British recruit to bring to Syria with him (and in connection with the same the said recruit was found guilty of possessing items of use to terrorists)."v) The fact that, when her house was searched, the items found included (paragraphs 76–77) "ISIS flags" and 'to do' lists, written by the mother, "which indicated that the writer of the list was moving and not intending to return."
vi) The fact that the mother lied to the police when being asked the purpose of their trip (paragraphs 49–55). She described (paragraph 51) "a multi-faceted trip involving a combination of an adventure holiday, culture, sight-seeing and relaxation." 3
vii) The fact that the mother's most recent account, as I have summarised it in paragraph 10 above, is a lie (paragraphs 56–65).
This last part of the local authority's case is further elaborated as follows:
i) It is said that she met no man in the circumstances she described or at all (paragraph 62). She has (paragraph 63) "manifestly failed to provide any tangible evidence as to his existence and cannot even produce a photograph of him, any contact details or even one of the electronic communications which she claims passed between them." Furthermore (paragraph 64), "In so far as that man is not a point of contact she had in Turkey for another reason, he is a figment of her imagination."
ii) As a...
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