The Caliphate’s Women and Children—What Role can the Family Courts play? (Part 2)Rumyana van Ark 26 Aug 2019
The cases considered in Part 1 have illustrated what steps the UK family courts are willing to take in regard to children radicalised at home. In these cases, the courts have demonstrated an ability to be discerning and proactive when faced with new evidence or events impacting on the ongoing welfare of a child. While this type of cases poses new challenges for the family courts, they have not shied away from making difficult decisions in respect of Wardship Orders or custody arrangements as will again be illustrated further below. In threading a careful path between protecting the affected children and preserving the unity of families, the courts have also shown a commitment to cooperating with a range of actors in order to further their understanding of the process and the harm of radicalisation. Such actors have included Local Authorities, social services and external experts. Overall, the family courts have, so far, been highly sensitive to the complexities posed by radicalisation and thus, willing to take an individualised approach to protect the best interests of the child or children involved.
At times, these decisions have been taken under extreme time pressure. Part 2 will first focus on such decision in the context of children who were en route to Syria before they and their parents were prevented from travelling further. As the below discussion will demonstrate, the UK family court has proven willing to act swiftly, outside regular working hours, and in full collaboration with the relevant authorities in order to safeguard children from the complex and dangerous environment in Syria. The final set of cases to be examined is arguably the most challenging one—what is in the best interest of children who were taken to or born in Syria before they were returned to the UK? As the family court’s decisions discussed below will demonstrate, there are circumstances in which the harshest outcome for a family—removing a child from the custody of the parents on a more permanent basis—is considered to be essential in protecting the intellectual autonomy and physical and mental well-being of the child.
Children en route to Syria
The case of Asif Malik and Sara Kiran and their attempt to reach Syria through Turkey with their four children is one of the more notorious and better-known UK examples of disrupted travel. The family left their home in the UK without warning on 7 April 2015. They were detained by the Turkish authorities on 20 April 2015. On 5 May, the family were deported to Moldova from Turkey “of their own will”. No explanation was provided by the parents behind the request to be deported to Moldova during any of the court proceedings. Behind the publicly available information, the British Consulate in Turkey was making a number of attempts to negotiate a consensual return to the UK—especially for the children. These attempts were ultimately unsuccessful. As a result, the Local Authority took the decision to make an ex parte (without notice) application for Wardship Orders for the four children (In the Matter of M (Children)). In general, within ex parte proceedings, there is no notice or opportunity for one of the sides to the legal dispute to be present or heard due to exigent circumstances. In the context of this particular case, the parents were unaware of the urgent application made by the Local Authority for Wardship Orders.
The Local Authority felt that the children had suffered significant harm and were likely to continue to do so unless the Orders were made. Reasonable grounds for believing that the family had left Slough in order to join ISIS in Syria and the subsequent unexplained decision by the parents to be deported to Moldova were listed as part of the reasons for seeking the order. Having assessed all the available evidence including information from the police and the SE Counter Terrorism Unit, the court granted the Wardship Order. The order obliged the parents to permit their children to remain in the detention centre in Turkey until a further order from the court. When it was discovered that the family had travelled to Moldova despite the order, the Local Authority sought further Family Division court intervention.
Sir Munby J, granted another Wardship Order—this time with expanded terms. Aside from making the children wards of court, the parents were ordered to surrender the family’s passports to representatives of the British Consulate. When the family arrived in Moldova, they were all detained in accordance with the order. By 7 May, the children and the parents had been returned to the UK. In outlining the reasons behind granting an ex parte application without notice, Sir Munby J stated that there were “compelling reasons” to believe that the children’s welfare may be compromised if the parents were alerted in advance. Had the parents been aware of the family court’s involvement, the chance that they would return the children voluntarily would have been significantly diminished. In addressing the issue of jurisdiction—at the time of the orders the children were not on UK territory—Sir Munby J strongly stated that the state “has a protective responsibility for its subjects wherever they may be, whether in this country or abroad.”
The children remained wards of court until October 2015 (In the Matter of M (Children) (No 2)). Following an assessment by an independent social worker that the state’s intervention was a “wake up call” for the parents and that they are no longer likely to compromise the safety of their children, the Wardship Order was discharged. The family passports were returned to them by the Local Authority and no further actions were taken to remove the children from the parents’ care. Before proceeding to discuss other similarly striking cases, it is important to stress just how quickly the family court responded to the requests by the Local Authority. Both orders were granted within two days, on very limited notice, and outside regular court hours. The fact that the children were in a different jurisdiction at the time of each order did not perturb the family court but rather quite the opposite. What could be seen as a particularly interventionist approach by the court was however driven by substantial concerns for the welfare of the children. It is unlikely that the court will opt to use such far-reaching measures on regular basis. What is of importance here is that it can, and likely will, if similarly compelling circumstances present themselves. To put it differently, in order to protect the welfare of children, family courts can and should be unflinchingly committed to utilising the full range of powers afforded to them by the relevant statutes—subject to Local Authorities discharging the required burden of proof and evaluation of proportionality.
The In the Matter of X (Children) case involved four children—two boys, ages three and thirteen, and two girls, ages five and seven. On 2 March 2015, the mother, the maternal uncle, maternal grandmother, and all children were detained at an UK airport as they were about to travel to Turkey. The three adults were arrested by the police but were subsequently released. Four days later, the Local Authority applied for and was granted emergency protection orders in respect of all four children. The children were placed together with foster carers and remained in foster care until the hearing. At the core of the Local Authority’s arguments was the claim that the mother’s plan was to take the children to a war zone and thus willingly place them at risk of significant harm. It was further alleged that she was a radical fundamentalist with links and contacts to ISIS militants and those who seek to recruit others to their cause. The mother disputed these claims contending that, having separated with the father, she was travelling to Turkey to meet up and possibly marry a man whom she had met in the UK collecting money for Syrian refugees.
In the Matter of Y (Children), similar issues were raised and the case was heard in conjunction with the preceding one. Here, three adults and four children (ages eleven (Y1), nine (Y2), four (Y3) and three (Y4) originally travelling from the UK, were detained by the Turkish authorities close to the border with the part of Syria controlled by ISIS. Following their detention in Turkey, Newton J approved an urgent application by the Local Authority to make the children wards of courts; one order was issued in respect of children Y1 and Y2 and another for children Y3 and Y4. After the children were returned to the UK, they were placed in two separate foster placements where they remained until a later hearing. In April 2015, the Wardship Orders were discharged and replaced with interim care orders for all four children. The core issue for the court in the July 2015 hearing was whether the children would have been at risk of significant emotional and physical harm had the family reached Syria. The parents argued that they were travelling to Turkey for a family holiday.
As the issues raised in both the X (Children) and Y (Children) case were very similar, the President of the Family Division, made a joint judgment for both. Following representations by the two Local Authorities involved, he made all children wards of court and placed them back in the care and control of their families. The return to the family homes was subject to a range of stringent protective orders. The protective orders included passport orders including a travel and an all-ports alert attached, injunctions restraining the parents from removing the children from the UK and requiring them to live with the children at a specified address, provisions for monitoring the parents and children, electronic tagging, and regular reporting to a specified police station amongst others. The parents were willing to submit to all kinds of restrictions as long as the children were returned to their custody.
Similar to the cases discussed in Part 1, it is clear that the family courts will reassess their previous orders if and when deemed necessary. Ongoing involvement and evaluation by the relevant Local Authorities is crucial in this context to ensure that wardship orders, alternate custody arrangements and protective measures are only utilised for as long as it is appropriate and necessary in the particular circumstances. Further, while cases may present with similar set of facts, the orders and measures imposed may be quite divergent. Due to this divergency, there has been some criticism of the court’s decision-making and the perceived lack of preparation for cases such as these. The latter concern has been particularly emphasised in the face of what has been described as a potential wave of women returning from Syria with their children or indeed, more concerted repatriation efforts. Yet, the complexity and sensitivity of the family court’s purview make it less likely that its jurisprudence will follow a predictable pattern for factually similar cases in comparison to criminal law/civil law for example. In practice, this is true for most, if not all, jurisprudence. And as so many of the family court’s decisions in similar cases are still not publicly available, it is still too early to accurately assess whether the court has indeed been inconsistent.
There is an important commonality to be emphasised on in respect of these and the preceding cases (discussed in Part 1). The temporary loss of family unity can act as a strong catalyst for change in the home environment and lead to acceptance of a range of protective (and restrictive) measures to reduce certain risks—in essence, an acceptance of the lesser evil. The decisions do make it clear that a drastic measure such as placing a child in foster care is a measure not taken lightly, easily, or with regularity; still, it may be necessary on a temporary or even more permanent basis. The necessity aspect is driven by considerations as to how best (or most effectively) to support a child or children in regaining or preserving their intellectual autonomy and protecting their physical well-being. The decision for temporary or permanent removal in particular is largely factually based and relies on extensive fact-finding and numerous contributing factors. While the preceding cases have focused on alternative short-term custody arrangements, the following two cases will demonstrate why the family courts have opted for more permanent separation of a child from their parents.
Children taken to/born in Syria
In A Local Authority and T and M and Y (A Child), the Family Court had to decide whether a two-year-old boy (Y) should be separated from his mother (T) during and after her imprisonment following her return from Syria. T had travelled to Syria in 2014 when Y was one in order to start a new life after her relationship with M (the father) ended. On return to the UK, she was arrested by the Counter Terrorism Unit and subsequently convicted for six years for encouraging acts of terrorism and being a member of a terrorist organisation. She is further subject to an order under the Counter Terrorism Act 2008 (Section 47) to notify the police of personal details including her address for fifteen years. Y became the subject of protective measures and an interim care order in February 2015; he was then placed with a foster family. T was eligible for release on licence in 2018 and has made it clear that she would like to be reunited with her son upon release from prison. As such, the court had to decide what would be in the best interests of Y in the future. The core issue in the case was what harm Y had suffered when he was taken to Syria by his mother.
In her evidence, T refused to accept that she had completely lost sight of Y’s basic needs for physical and emotional safety. She did however acknowledge that she had exposed him to extreme danger during certain periods; she also described Raqqa—where she took her son—as the most dangerous place in the world. Separately, she allowed her son to be used as part of various propaganda materials used by ISIS online. Despite her inconsistent testimony, there was clear evidence that she had allowed this voluntarily and was an active participant. The judge in T’s criminal trial for terrorism offences observed that T was very well aware that the future she was subjecting her son to was very likely to be one of indoctrination and thereafter a life as a terrorist fighter. The court observed that there was some evidence that after his return from Syria, Y had displayed signs of being emotionally disturbed. His language and his ability to speak were noticeably delayed and he was showing a marked and persistent interest in guns and “shooting people”.
In conclusion, the court found that the risk of harm to Y was foreseeable. More damningly, it was clear that, at best, T had chosen to ignore it. Thus, it was more likely that she had deliberately disregarded it as part of her plans to join ISIS. The court found that the Section 31 Children Care Act 1989 threshold had been met—Y was placed within the care of the Local Authority with parental responsibility shared between the Local Authority and the paternal grandmother. As the judgment was heavily redacted—the full anonymised decision was given in private—it is unclear what the most current care arrangements for Y are. As no other open judgment regarding Y is available at present, it can be assumed that parental responsibility is still shared between the Local Authority and the paternal grandmother.
In a more recent case involving similar issues, A Local Authority and A Mother and A Father and J (A Child), the eighteen-month-old J has been subject to an interim care order and has been placed with foster carers since her arrival in the UK from Turkey in 2018. Her father, who had been radicalised, travelled to Syria to fight for ISIS and to engage in terrorism related activity. He is currently in detention in another jurisdiction where criminal proceedings are ongoing. The mother shared the ideology and travelled to Syria with the father. J was born in Syria and lived there with her parents until she was ten months old. Following a fact-finding hearing, Knowles J felt that there was a risk that the mother would radicalise her daughter and inculcate her in extremist ideology. The risk was such that the mother would seek to remove J from the UK to an unsafe jurisdiction in pursuit of extremist ideology. There was an additional risk that the mother would behave in a manner consistent with extremist ideology within the UK. Most importantly, perhaps, the mother did not seem to have any understanding of the risk of significant physical and emotional harm, which the father posed to J and was thus unable to act protectively. Further, the court received evidence that the mother had not been engaging meaningfully with the Home Office’s Desistance and Disengagement Programme (DDP). The DDP is a highly specialised and, until recently, secret programme, which was developed to assist individuals who are already engaged in terrorism or who are suspected of engaging in terrorism to disengage and reintegrate safely, back into society.
In this context, J’s young age and her vulnerability only heightened the concerns about the risks to which she would be exposed in her mother’s care. J’s right to a safe and loving home was thus found to prevail over a return to the care of her mother who continues to pose an ongoing risk to her child. The court placed J in the care of her paternal grandmother under the auspices of a special guardianship. This guardianship is intended to be permanent. In addition, the court made a child arrangements order defining the ambit of the mother’s interaction with J. While the mother had expressed a desire to see her daughter as often as she had done so far, her involvement in the future had to support a permanent placement order away from her. The contact had to be reduced to a monthly frequency.
The cases of Y and J have arguably posed one of the most challenging and complex question for the family courts—should a young and vulnerable child be permanently taken away from the custody of their mother. The decisions made in both cases clearly distinguish them from the cases previously examined. In all cases discussed, the parents themselves were suspected of radicalisation or of being radicalised. However, their travel or attempted travel was disrupted before the children were subjected to further harm or risk of harm. In Y’s and J’s cases, as the children had spent time in Syria, and were thus being socialised within a highly volatile and violent environment by radicalised parents and their associates, it is unsurprising that the court took the most drastic option available. In addition to the already multidimensional sensitivities and difficulties of cases involving radicalisation, the court had to take into consideration the additional complications arising from the children’s socialisation in Syria and lack of harm awareness by the mothers. As seen in the first two types of cases, the temporary separation of the children and parents was a strong catalyst for change in the home environment, which resulted in the subsequent return of the children to their family. Thus, perhaps, the same will follow in the cases of Y and J—the mothers will feel compelled to engage fully and meaningfully with the relevant reintegration and de-radicalisation programme. For now, one can only speculate.
As time progresses, and if further similar cases arise or become published, the impact of such separations—on the children and on the (de-)radicalisation of the parents—is likely to become better known. If, as expected, a wave of returning or repatriated women and children make their way back into Europe, the family courts in various countries may find themselves at the forefront of, in essence, countering radicalisation and terrorism. Naturally, the question of whether this is a welcome and appropriate development arise. The UK’s High Court Family Division has itself acknowledged cases such Tower Hamlets and B and others, arose in circumstances without recent precedent. The type of harm, which the court was asked to evaluate, was “a different facet of vulnerability for children than that which the courts have had to deal with in the past”. In many respects, this is not surprising as changes in society often tend to resonate first within the family. As such, family courts are and can be “in the vanguard of change in life and society” and thus need to both anticipate and adapt quickly to new challenges.
So far, the UK family court appears to have adjusted quickly to these challenges. As the decisions discussed in Parts 1 and 2 illustrate, the court has become more accustomed to imposing intrusive measures disruptive of the existing family environment, daily pattern of living and, at times, family unity. But these powers and the court’s inherent jurisdiction have nevertheless been exercised in a manner that seeks to achieve “proportionate objectives of child protections”. Thus, while there was limited professional experience or available training when this new facet of child protection first appeared in front the UK family court, the approach demonstrated by the decisions above suggests a strong commitment to protecting children from current and future risk of serious harm by radicalisation.
In conclusion, although there may be areas for improvement in respect of the consistency of the decision-making process and preparedness, it is rather palpable that the UK family court has and will continue to play a significant role in cases of potentially radicalised children and their families and returning families of FTFs. As such, instead of the current inaction, the outsourcing of trials to Iraq and the reluctant repatriation of particularly vulnerable orphaned children, other European states facing comparable challenges could instead make provisions—if not willing to fully facilitate—the return of the women and children of FTFs trusting the domestic family courts to then make the appropriate provisions. In anticipation of such returns, rather than relying on other countries or circumstances to solve the problem, states could focus on how best to train and equip their domestic family courts, local authorities and social services with the necessary expertise to most effectively address the challenges posed by the Caliphate’s returning women and children.
About the Author
Dr. Rumyana van Ark (née Grozdanova) is a Research Fellow and a Coordinator at the International Centre for Counter-Terrorism – The Hague. She is also a Post-Doctoral Researcher in Terrorism, Counter-Terrorism and International Law at the T.M.C. Asser Institute within the Research Strand ‘Human Dignity and Human Security’. Her work focuses on the impact of counter-terrorism measures on the individual terror suspect and the long-term implications for the rule of law.