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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> M (Children), Re [2015] EWHC 1433 (Fam) (20 May 2015) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2015/1433.html Cite as: [2016] 1 FLR 1055, [2015] EWHC 1433 (Fam), [2016] FLR 1055 |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
MUNBY
PRESIDENT OF THE FAMILY DIVISION
____________________
In the ![]() ![]() ![]() ![]() ![]() |
____________________
Mr
John Vater QC (instructed by the Joint Legal Team at Reading Borough Council) for the applicant local authority
Ms
Tina Villarosa (instructed by S A Carr & Co Solicitors) for the parents (on 8
May
2015)
Miss
Ciaran Gould (Force Solicitor) for the Thames Valley Police (on 8
May
2015)
Hearing dates: 5, 6 and 8 May
2015
____________________
THIS JUDGMENT WAS HANDED DOWN IN OPEN COURT
Crown Copyright ©
Sir James Munby,
President of the Family Division :
The story as known to the public
What was happening behind the scenes
"it is the belief of the police and Counter Terrorism Unit that the parents intended to cross into Syria with theirchildren
in order to join Islamic State [details were given which I do not propose to recite] … Whilst it is the belief of the police that the family was heading towards Syria, the family has
maintained
that they were on holiday. In any event, that claim
must
be set against the fact that the family had travelled across Europe effectively on public transport, had told no-one of their holiday plans, and were heading towards the Turkish/Syrian border at the point of their arrest.
Upon their arrest by the Turkish authorities, the family's passports were impounded and their Visas withdrawn … As we understand it, a number of attempts weremade
by the British Consulate to negotiate a return to the UK consensually … It was hoped … that the
children
could be returned to the UK consensually. In any event, it had been the intention of the Local Authority to conduct some assessment for itself of the
children's
immediate well-being in the detention centre. It was planned that social workers would fly to the family in Ankara on Tuesday 5th
May
2015 ...
On 4thMay
at about 15:00 hours it transpired that the Turkish authorities had negotiated with the family that they should be deported to
Moldova
via a flight to Chisinau departing Istanbul at 1pm (UK time) on 5th
May
2015 …
It is the Local Authority's broad view that thechildren
have suffered significant harm and are likely to do so in the event that Wardship Orders are not
made.
We take that view for these reasons:
- On the basis of the information the police and SE Counter Terrorism Unit has been willing to share, there are reasonable grounds for believing that this family left Slough on about 8th April 2015 in order to join Islamic State in Syria;
- If that is right, the parents chose to expose their
children
to obvious risks in so doing;
- Also if that is right, the parents removed the
children
from their close and local family, educational and health provision, peremptorily. Whilst we cannot know the impact of this, without further assessment it is reasonable to believe that the
children's
education and emotional well-being has been affected by this peremptory and unplanned removal;
- The deportation to
Moldova
represents another peremptory
move
of the
children
to another State which is entirely alien to them. Neither they nor their parents can communicate in
Moldova;
![]()
- There is no information available in relation to why the parents chose to be deported to
Moldova
or what their plans are for their
children
when they arrive there. Nothing at all is known about the
Moldovan
Government's attitude towards the family, what supports
might
be available, where the
children
will live or how the family will sustain itself;
- According to the FCO's Global Response Centre, once the family sets foot in
Moldova
it will be entirely free to travel wherever it wishes.
In those circumstances, the Local Authority takes the view that it is necessary in thechildren's
interests for them and their parents to remain in a known location (namely the detention centre in Turkey) where they can be accessed by FCO liaison … pending the Local Authority's assessment of the
children's
current and future welfare."
"A UPON hearing counsel,Mr
John Vater QC and
Mr
Edward Devereux for the Applicant local authority ("the local authority") without formal notice to the Respondents and by telephone through the emergency procedures set out in the relevant practice direction;
PENAL NOTICE
TO: ASIFMALIK
AND SARA KIRAN
YOUMUST
OBEY THE ORDERS AT PARAGRAPHS 2 AND 3 BELOW. IF YOU DO NOT, YOU WILL BE GUILTY OF CONTEMPT OF COURT AND YOU
MAY
BE FINED, SENT TO PRISON, OR YOUR ASSETS
MAY
BE SEIZED.
B AND UPON THE COURT CONSIDERING the following:
(i) The applications for wardship ordersmaking
the
children
… wards of court pursuant to the inherent jurisdiction of the High Court;
(ii) The unsworn Affidavit of Sarah Castle, Solicitor and Principal of the Joint Legal Team, Reading Borough Council, Civic Offices, Bridge Street, Reading, Berkshire RG12LU dated 5May
2015 in support of the applications;
C AND UPON THE COURT being informed, by way of the Affidavit of Sarah Castle from that themost
up to date information about the
mother,
the father and the
children
is that they are either in a detention centre in Ankara, Turkey, awaiting transfer to Istanbul, or are in transit to Istanbul whence it is intended that they should be deported to
Moldova
by aeroplane
D AND UPON THE COURT PERMITTING the local authority tomake
these applications without formal notice to the Respondents, the court having been satisfied that the local authority was justified in applying without such notice in the urgent circumstances of this case
E AND UPON THE COURT DECLARING on the evidence presently before it and on a strictly provisional basis (given that this order is beingmade
without formal notice to the Respondents) that:
(i) The courts of England and Wales have jurisdiction to consider the local authority's applications on the basis of Article 8 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments inmatrimonial
![]()
matters
and the
matters
of parental responsibility, repealing Regulation (EC) No 1347/2000 (that is to say that as at the date the court is seised the
children
are habitually resident in England and Wales); and, further to E(i) above,
(ii) The courts of England and Wales have jurisdiction to consider the local authority's applications on the basis of thechildren's
nationality (that is to say that the
children
are British nationals);
(iii) That by reason of the local authority's applications there are now "rights of custody" in the court for the purposes of the 1980 Hague Convention on the Civil Aspects of International Child Abduction;
F AND UPON THE COURT RESPECTFULLY REQUESTING THAT the courts of Turkey do decline to exercise any jurisdiction in relation tomatters
of parental responsibility in respect of the
children;
![]()
G AND UPON THE COURT RESPECTFULLY REQUESTING THAT all judicial, police, security, immigration and other authorities in Turkey do take all steps to cease the current plan to deport the family toMoldova,
and to retain the family in the detention centre in Ankara where they have resided since about 20th April so that the proceedings now issued in England and Wales take place fairly and so that the
mother,
the father and the
children
can engage in and be properly assessed by the applicant Local Authority and so that they
may
engage in and be properly represented in these proceedings;
H AND UPON THE LOCAL AUTHORITY INFORMING THE COURT that its present intention is to arrange forthwith for its social workers to attend upon the family in Turkey in order to assess its circumstances, plans and in particular the wellbeing of thechildren;
![]()
I AND UPON THE COURT BEING SATISFIED THAT in the absence of these Orders thechildren
are likely to suffer significant harm, and because it is in the best interests of the
children,
the court can and should
make
orders in respect of the
children,
and furthermore that such orders as are
made
below are a proportionate interference with the rights of the
mother,
the father and the
children
under Articles 6 and 8 of the 1950 European Convention on Human Rights (as incorporated into the law of England and Wales by the Human Rights Act 1998);
J AND AFTER this court considering that itmust
protect and secure the well being of the
children
so that they
may
be placed in a position where they
may
freely express their wishes and feelings as to their country and place of residence;
K AND UPON Sarah Castle, Solicitor and Principal of the Joint Legal Team, Reading Borough Council, Civic Offices, Bridge Street, Reading, Berkshire RG12LU undertaking to file an originating summons and sworn affidavit by 4pm today the court giving a short judgment today;
IT IS ORDERED THAT:
PURSUANT TO THE INHERENT JURISDICTION
1 Thechildren
shall be
made
wards of court during their
minority
and until further order to the contrary. For the avoidance of doubt, for the purposes of any foreign administrative or judicial authority considering this order, that
means
that the
children
are, immediately upon this order being
made,
protected by the High Court of England and Wales and that no important step in their lives can be
made
without permission being granted by the High Court of Justice of England and Wales.
2 Sara Kiran and AsifMalik
![]()
must
cause or permit their
children
… to remain in the detention centre in Ankara, Turkey, at which they have been staying since 20th April 2015, until further Order or the Court's further hearing of this
matter,
listed on 8
May
2015 at 10.30am.
3 Themother
and the father shall cooperate in and
make
the
children
available for an assessment of the family's circumstances, plans and well-being at the direction of the Local Authority;
4 Thismatter
shall be listed before the President of the Family Division sitting in the Family Division at the Royal Courts of Justice, Strand, London WC2A 2LL on 8th
May
2015 at 10.30am (time estimate, 30
minutes,
subject to confirmation with the Clerk of the Rules), save that in the event that the
children
are returned to England and Wales prior to that date there shall be liberty to the solicitors for the local authority to apply to the Clerk to the President of the Family Division for an early hearing date.
5 Both themother
and the father
must
be represented at the hearing on [] or such other hearing date that is fixed by the solicitors for the local authority provided that such solicitors giving the father and the
mother
24 hours written notice of such hearing date.
6 There shall be permission to disclose the papers in the case to any lawyers instructed by the father and themother
in England and Wales and in Turkey.
7 There shall be permission to disclose this order and the papers in the case to the following:
(i) The Foreign and Commonwealth Office;
(ii) The British Embassy in Turkey
(iii) The Central Authority for England and Wales;
(iv) The Central Authority for Turkey;
(v) The office of the Head of International Family Justice for England and Wales with a view to that office attempting tomake
contact with the Hague Network Judge for Turkey;
8 A penal notice directed to themother
and father shall be attached to paragraphs 2 and 3 of this order.
9 There shall be permission to the solicitors for the local authority to serve this order and the proceedings on themother
and father by email and by post to their last known address in England and Wales and through the Central Authority to England and Wales and the Central Authority to Turkey.
AND THE COURT FURTHER DIRECTS:
10 The Foreign and Commonwealth Office by a Principal Officer or Principal Lawyer shall be invited to by 4pm on 7thMay
2015 provide a letter to the court (to the clerk to the President of the Family Division) detailing what assistance the Foreign and Commonwealth Office are able to provide to assist in the return of the
children
to England and Wales including what further directions, if any, they would be assisted by in liaising with the Turkish authorities, and in the event that they are unable to assist, to set out their reasons for this, and any other course they suggest to assist in the return of the
children
to England and Wales.
11 There shall be liberty to the Foreign and Commonwealth Office to apply to the President of the Family Division (on one working days notice to the solicitors for the local authority) to vary or to discharge paragraph 10 of this order.
AND THE COURT FURTHER RESPECTFULLY REQUESTS THAT
12 Any person not within the jurisdiction of this court who is in a position to do so to cooperate in assisting and securing the directed assessment of thechildren
who are now wards of the High Court of Justice (Family Division) of England and Wales.
13 All judicial, administrative and law enforcement authorities in Turkey use their best endeavours to assist in taking any steps whichmay
to them appear necessary and appropriate in facilitating the assessment directed herein."
"he was satisfied on the basis of the information provided that (1) it was an appropriate case to permit the local authority to apply without notice to the parents; (2) it appeared that the court had jurisdiction tomake
orders in wardship either because the
children
are habitually resident in this country or as a result of their British nationality; (3) unless the court
made
protective orders the
children
were likely to suffer significant harm; (4) in all the circumstances, the
children's
welfare would be best served if they remained in the detention centre in Turkey pending the proposed assessment, or at least until a further hearing later this week when the
matter
could be considered by the court on notice to the parents."
"I forwarded the court order to our Ambassador inMoldova
who has replied with some good news (see below). I will find out who should be your point of contact to arrange assessment by your social workers and let you know as soon as I can."
The email from the Ambassador read as follows:
"As promised I spoke to the PrimeMinister's
special adviser on Law and Order
matters,
D. He confirmed that he had alerted the Head of the Border Police, P, and they will keep the
children/
family in detention on arrival should they be on the plane this afternoon from Istanbul.
I said that the UK social workers were on their way to Turkey and, if required, would come here to assess the condition of thechildren
so that shouldn't be too long. D was fine with this saying that they would do whatever was necessary and that we could count on their full cooperation. But he said that obviously if they were here for any length of time then we would need to involve the Head of the Bureau for
Migration
and the
MFA.
![]()
If you could let us know when you have confirmation of whether the family boarded the flight to Chisinau at 1500 today or not, we can then let P and D know."
"You are now as I understand it appraised of the rapidly developing situation in this case. Having consideredmatters
and having received an indication from the
Moldovan
authorities that they are willing to cooperate, I attach hereto an Order we invite the Court to
make
this afternoon, as soon as practicable.
The Order is effectively the same as thatmade
by Baker, J. earlier today, but directed at the
Moldovan
authorities (
Moldova
is a Hague signatory) with the addition that upon landing the parents
must
deliver up the relevant passports to the British Consular authorities to be held to the Court's Order.
The Local Authority's case remains the same, in that we seek a proportionate response to a situation in which it appears that the family is, as it were, 'in flight' from the UK. It does seem to us that in view of the parents' obvious refusal to return to the UK, a proportionate response is to seek their urgent cooperation with an assessment in order that their plans for thechildren
![]()
may
be clearer to us, and about which reasoned decisions
may
be taken. Social workers were on their way to Turkey for that purpose; we are now looking into diverting them to
Moldova.
The flight is due to arrive in
Moldova
at 17:10, which is we think 15:10 UK time."
"Mr
Farmer is entitled to be present unless I exclude him. The
matter
is urgent, and we do not, I am afraid, have time to debate the ins and outs of it.
Mr.
Farmer, what I am going to do is say that you can remain, but I am imposing a reporting restriction order that unless and until I
make
some further direction nothing which is about to be put to
me
is to be reported, even if anonymously."
Mr
Farmer replied: "I quite understand."
"Justified interference with the article 8 rights of aminor
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".
I agree.
"A. UPON hearing counsel,Mr
John Vater QC for the Applicant local authority ("the local authority") without formal notice to the Respondents
PENAL NOTICE
TO: SARA KIRAN AND ASIFMALIK
YOUMUST
OBEY THE ORDERS AT PARAGRAPHS 2, 3 AND 4 BELOW. IF YOU DO NOT, YOU WILL BE GUILTY OF CONTEMPT OF COURT AND YOU
MAY
BE FINED, SENT TO PRISON, OR YOUR ASSETS
MAY
BE SEIZED.
B AND UPON THE COURT CONSIDERING the following:
(i) The applications for wardship ordersmaking
the
children
… wards of court pursuant to the inherent jurisdiction of the High Court;
(ii) The Affidavit of Sarah Castle dated 5thMay
2015 in support of the applications;
C AND UPON THE COURT being informed that themost
up to date information about the
mother,
the father and the
children
is that they are in transit to Istanbul whence it is intended that they should be deported to
Moldova
by aeroplane
D AND UPON THE COURT PERMITTING the local authority tomake
these applications without formal notice to the Respondents, the court having been satisfied that the local authority was justified in applying without such notice in the urgent circumstances of this case
E AND UPON THE COURT DECLARING on the evidence presently before it and on a strictly provisional basis (given that this order is beingmade
without formal notice to the Respondents) that:
(i) The courts of England and Wales have jurisdiction to consider the local authority's applications on the basis of Article 8 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments inmatrimonial
![]()
matters
and the
matters
of parental responsibility, repealing Regulation (EC) No 1347/2000 (that is to say that as at the date the court is seised the
children
are habitually resident in England and Wales); and, further to E(i) above,
(ii) The courts of England and Wales have jurisdiction to consider the local authority's applications on the basis of thechildren's
nationality (that is to say that the
children
are British nationals);
(iii) That by reason of the local authority's applications there are now "rights of custody" in the court for the purposes of the 1980 Hague Convention on the Civil Aspects of International Child Abduction;
F AND UPON THE COURT RESPECTFULLY REQUESTING THAT the courts ofMoldova
do decline to exercise any jurisdiction in relation to
matters
of parental responsibility in respect of the
children;
![]()
G AND UPON THE COURT RESPECTFULLY REQUESTING THAT all judicial, police, security, immigration and other authorities inMoldova
do take all steps to retain the family upon its arrival in
Moldova,
on the 17:10 arrival from Istanbul to Chisinau until further Order of this Court for the purposes of permitting access to the family and the
children
of social workers from the Local Authority;
H AND UPON THE LOCAL AUTHORITY INFORMING THE COURT that its present intention is to arrange forthwith for its social workers to attend upon the family inMoldova
in order to assess its circumstances, plans and in particular the wellbeing of the
children;
![]()
I AND UPON THE COURT BEING SATISFIED THAT in the absence of these Orders thechildren
are likely to suffer significant harm, and because it is in the best interests of the
children,
the court can and should
make
orders in respect of the
children,
and furthermore that such orders as are
made
below are a proportionate interference with the rights of the
mother,
the father and the
children
under Articles 6 and 8 of the 1950 European Convention on Human Rights (as incorporated into the law of England and Wales by the Human Rights Act 1998);
J AND AFTER this court considering that itmust
protect and secure the well being of the
children
so that they
may
be placed in a position where they
may
freely express their wishes and feelings as to their country and place of residence;
K AND AFTER the court giving a short judgment today;
IT IS ORDERED THAT:
PURSUANT TO THE INHERENT JURISDICTION
1 Thechildren
shall be
made
wards of court during their
minority
and until further order to the contrary. For the avoidance of doubt, for the purposes of any foreign administrative or judicial authority considering this order, that
means
that the
children
are, immediately upon this order being
made,
protected by the High Court of England and Wales and that no important step in their lives can be
made
without permission being granted by the High Court of Justice of England and Wales.
2 Sara Kiran and AsifMalik
![]()
must
cause or permit their
children
… to remain in
Moldova,
at the direction of the
Moldovan
Border police, upon their arrival in
Moldova
(at 17:10 on a flight from Istanbul to Chisinau) until further Order or the Court's further hearing of this
matter
on Friday 8th
May
2015 at 10.30am;
3 As soon as they arrive inMoldova,
Asif
Malik
and Sara Kiran
must
deliver their passports, via the
Moldovan
Border Police if necessary, to representatives of the British Consulate to be held by them at the Court's direction and until further Order;
4 Themother
and the father shall cooperate in and
make
the
children
available for an assessment of the family's circumstances, plans and well-being at the direction of the Local Authority;
5 Thismatter
shall be listed before the President of the Family Division sitting in the Family Division at the Royal Courts of Justice, Strand, London WC2A 2LL on 8
May
2015 at 10.30am (time estimate, 30
minutes,
subject to confirmation with the Clerk of the Rules), save that in the event that the
children
are returned to England and Wales prior to that date there shall be liberty to the solicitors for the local authority to apply to the Clerk to the President of the Family Division for an early hearing date.
6 Both themother
and the father
must
be represented at the hearing on 8th
May
2015 or such other hearing date that is fixed by the solicitors for the local authority provided that such solicitors giving the father and the
mother
24 hours written notice of such hearing date.
7 There shall be permission to disclose the papers in the case to any lawyers instructed by the father and themother
in England and Wales and in
Moldova.
![]()
8 There shall be permission to disclose this order and the papers in the case to the following:
(i) The Foreign and Commonwealth Office;
(ii) The British Embassy inMoldova;
(iii) The Central Authority for England and Wales;
(iv) The Central Authority forMoldova;
![]()
(v) The office of the Head of International Family Justice for England and Wales with a view to that office attempting tomake
contact with the Hague Network Judge for
Moldova;
![]()
9 A penal notice directed to themother
and father shall be attached to paragraphs 2, 3 and 4 of this order.
10 There shall be permission to the solicitors for the local authority to serve this order and the proceedings on themother
and father by email and by post to their last known address in England and Wales and through the Central Authority to England and Wales and the Central Authority to
Moldova.
AND THE COURT FURTHER DIRECTS:
11 The Foreign and Commonwealth Office by a Principal Officer or Principal Lawyer shall be invited to by 4pm on 7thMay
2015 provide a letter to the court (to the clerk to the President of the Family Division) detailing what assistance the Foreign and Commonwealth Office are able to provide to assist in the return of the
children
to England and Wales including what further directions, if any, they would be assisted by in liaising with the
Moldovan
authorities, and in the event that they are unable to assist, to set out their reasons for this, and any other course they suggest to assist in the return of the
children
to England and Wales.
12 There shall be liberty to the Foreign and Commonwealth Office to apply to the President of the Family Division (on one working days notice to the solicitors for the local authority) to vary or to discharge paragraph 10 of this order.
AND THE COURT FURTHER RESPECTFULLY REQUESTS THAT
13 Any person not within the jurisdiction of this court who is in a position to do so to cooperate in assisting and securing the directed assessment of thechildren
who are now wards of the High Court of Justice (Family Division) of England and Wales.
14 All judicial, administrative and law enforcement authorities inMoldova
use their best endeavours to assist in taking any steps which
may
to them appear necessary and appropriate in facilitating the assessment directed herein."
"… this is a case where all the evidence would strongly suggest that until they were stopped by the Turkish authorities these youngchildren,
who are, of course, completely under the control of their parents, were intended by their parents to go through the
middle
of a war zone … That being so the court's first priority
must
be to ensure their safety. The order, if I
may
say so, has been very cleverly and carefully crafted … so as to avoid separation, but it is a rapidly developing situation and it seems to
me
that the priority is to
make
this order in the terms sought …
I am not going to give a judgment, except I will simply say that having read the draft affidavit ofMiss
Castle, the witness statement of the Detective Inspector and the order
made
by
Mr
Justice Baker early this
morning,
and bearing in
mind
the information which has been transmitted to
me
very appropriately and helpfully by you in the form of emails, I am entirely satisfied that this is a case in which the court
must,
although the
children
are abroad, exercise its wardship jurisdiction for the purpose of protecting them. The
children,
on the evidence, are British subjects and are therefore amenable to the wardship jurisdiction wherever they
may
be, and so the fact that they are no longer in the jurisdiction is neither here nor there.
On the evidence and given the historical circumstances, it being clear thechildren
were habitually resident in this country until as recently as less than four weeks ago, I am fully justified in
making
the order you seek containing recitals to the effect that, on the evidence before the court and on a strictly provisional basis, this court has jurisdiction on the basis of the
children's
habitual residence …
I do not propose, in the circumstances, to say anythingmore
at this stage. The pressing imperative, since we wish to intercept the
children
when they arrive in
Moldova
at 17.10 local time (15.10 UK time) is for the order I have
made
to be sealed without further delay. I say that, looking at the clock, bearing in
mind
it is now 2.15."
"Thechildren
arrived in
Moldova
and were held with their parents in accordance with the Order (attached). Also in accordance with the Order, the passports are held at the Court's direction by the British Consul.
I am very pleased to say that the social workers found thechildren
safe and well, and their parents completely cooperative. They have agreed to return to the UK with their
children
on a flight into Stansted arriving at 15:10 UK time tomorrow. They will be accompanied by the social workers and arrangements are being
made
for the whole family to be accommodated together whilst plans are
made
in cooperation with them. I ought also to
mention
the extremely hard and effective work of the Ambassador and Consul in cooperation with the
Moldovan
authorities which have been unfailingly cooperative up to the highest levels of Government.
The issue which arises is the Order (attached) currently directs the British authority inMoldova
to retain the passports to the Court's Order; and also the FCO is directed to file evidence relating to the
children's
return (para 11). Events have now
moved
on and the Consulate is telling us they need paras 11 and 12 discharged, and a variation of para 3 as follows:
'the representatives of the British Consulate in possession of the passports pursuant to paragraph 3 of the Order of 5thMay
2015 have permission to deliver the passports to the social workers accompanying the family during its return to the UK. Thereafter, the passports
must
be retained by the Applicant Local Authority until further Order of the Court.'
I have spoken to both the Ambassador and Consul this evening and they are content simply to be told by telephone that you are willing tomake
that Order. Because of the need to get the family onto the flights, those Orders need to be
made
(according to the Consul) by about 10.30 at the latest. In those circumstances I felt it necessary to ask if you would deal with the
matter
by email. In the event that, for unforeseeable reasons, that Order cannot be
made
in time, I have taken the view that the Consul should simply hand the passports to the social workers for them to hold for the time being, and I will apply for a retrospective variation. I have said so for pragmatic reasons which intend no disrespect to the Court. It is obviously important in these circumstances that the family returns by agreement.
After the family's arrival in the UK the plan is, in view of their total cooperation so far, to keep them together but to ensure that for the time being at least they are accommodated in a safe and neutral environment, protected from the inevitable external pressures.
We hope to file and serve (with your leave) some short evidence about our plans before Friday's hearing."
"UPON HEARING Leading Counsel for the Local Authority, Counsel for the parents, and Solicitor for the Thames Valley Police;
AND UPON the Court indicating that the Chief Constable of the Thames Valley Police should not hesitate to indicate if any Order, Directions or step in these proceedings raises or is likely to raise any potential issue of PII, or impinges upon any operationalmatter
such that it
might
compromise any active investigation;
AND UPON the Local Authority indicating its gratitude towards the parents for their willingness to co-operate and assuring the Court and the parents of its intention to continue to work in partnership with these parents to assess and safeguard the welfare of thechildren;
AND UPON the Court indicating its approval for release to the Press Association of the agreed 'statement' attached hereto:
AND UPON the Court indicating its gratitude towardsMiss
Gould, Force Solicitor of Thames Valley Police (TVP); DCI Doak of TVP; DI Horsburgh and DC Taylor of the South East Counter Terrorism Unit for their attendance today and assistance in these proceedings;
AND BY CONSENT IT IS ORDERED AND DIRECTED THAT:
1 Thechildren
shall remain Wards of Court during their
minority
and until further Order to the contrary;
2 The Local Authoritymust
retain the parents' and
children's
passports until further Order to the contrary;
3 CAFCASS (notice of these proceedings having already been given) shall appoint a Guardian for thechildren
forthwith;
4 By 4.00pm on 27May
2015, the Local Authority
must
file and serve (if so advised) its Part 25 application for the instruction of a forensic expert;
5 Thismatter
is listed for a Case
Management
Hearing (at which it is anticipated that a final hearing window will be identified) on 2 June 2015, at 2.00pm time estimate 1 hour;
6 Any further application in thismatter
is reserved to the President."
I draw attention to what is said in the third recital.
"Statement:
The President of the Family Division of the High Court confirms that theMalik
family has returned to the jurisdiction of England and Wales. The family is safe and well. The
children
are wards of court and the family continues to be supported by appropriate social care services, whilst the Family Court continues to ensure the welfare of the
children
in co-operation with their parents. Police enquiries will continue in the
meantime."
i) First, in a case that had already attracted media
attention it was important that the public should know what had happened, and why.
ii) Secondly, it is important that the public should be able to understand, and I trust appreciate, just how quickly, effectively and flexibly the family courts are able to respond, if need be outside normal court hours, in urgent cases and where events may,
as here, be changing 'on the ground' very rapidly but far away. There is always, every
minute
of every day and night throughout the year, a judge of the Family Division on duty, 'out of hours', to deal with cases so urgent that they cannot wait. This case, I believe, shows the system working well. The court became involved in the early
morning
of Tuesday 5
May.
The
children
had returned to this country by the
middle
of the afternoon of Thursday 7
May.
For another example of the family court system working as it should and reacting promptly to rapidly changing circumstances see Re Ashya King (A Child) [2014] EWHC 2964 (Fam).
iii) Thirdly, I wish to place on record my
gratitude and thanks, as recited in the order I
made
on 8
May
2015, for the assistance afforded by the police. In the Tower Hamlets case, Hayden J drew attention (para 18(ix)) to "The importance of coordinated strategy, predicated on open and respectful cooperation between all the safeguarding agencies involved". He went on to observe (para 58) that "only open dialogue, appropriate sharing of information,
mutual
respect for the differing roles involved and inter-agency cooperation is going to provide the kind of protection that I am satisfied that the
children
subject to these applications truly require." I agree with all of that. The present case is a clear demonstration of just how effective the good inter-agency cooperation which was so evident here can be.
iv) Fourthly, I wish to place on record my
gratitude and thanks for the prompt and unstinting assistance the court has received from the FCO, from the Ambassador and from the Consular authorities in both Turkey and
Moldova.
Here, as so often in so
many
other fields of international family law, the court's concern for a child's welfare requires the ready, and on occasions speedy, cooperation and assistance of the FCO and its officials if the child's welfare is to be safeguarded and the court's plans for the child brought to fruition. In this as in so
many
other cases down the years the court has been able to turn with confidence to King Charles Street for prompt and effective assistance.
v) Finally, and most
important of all, I wish to place on record
my
gratitude and thanks, as President of the Family Division of Her
Majesty's
High Court of Justice and Head of Family Law in England and Wales, for the prompt assistance the court has received from the public authorities of the Republic of
Moldova.
The Republic is a sovereign state within which, of course, I have no authority at all. The English court
must
always be astute to ensure that no order it
makes
could possibly be construed as an interference with the sovereign rights of another State. These are
matters
to be dealt with in accordance with the well-established principles of international comity between friendly States. That is why the order I
made
was deliberately expressed in terms of this court "respectfully requesting" the assistance of the various public authorities in
Moldova
to which I referred. I am, as I have said, very grateful for the assistance afforded to the English court by the Republic of
Moldova.
The use of the wardship jurisdiction
"57 The family court system, particularly the Family Division, is, and always has been, inmy
view, in the vanguard of change in life and society. Where there are changes in
medicine
or in technology or cultural change, so often they resonate first within the family. Here, the type of harm I have been asked to evaluate is a different facet of vulnerability for
children
than that which the courts have had to deal with in the past.
58 What, however, is clear is that the conventional safeguarding principles will still afford the best protection."
"it has always been the principle of this court, not to risk the incurring of damage tochildren
which it cannot repair, but rather to prevent the damage being done."
These words are as apposite today as they were over 180 years ago: see M
v B, A and S (By the Official Solicitor) [2005] EWHC 1681 (Fam), [2006] 1 FLR 117, para 108, and Re SA (Vulnerable Adult with Capacity:
Marriage)
[2005] EWHC 2942 (Fam), [2006] 1 FLR 867, para 103.
"All involvedmust
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."
The reporting restriction order
"2.20 A non-disclosure or anti-tipping-off order prohibits the publication or disclosure of the fact of the proceedings, and any order,made
for a short period to ensure that the purpose of the order is not frustrated through publicity. Such an order contains what can be characterised as the super-injunction element. Examples of such orders in the context of civil proceedings are, for instance, search orders … and freezing injunctions. In such cases, temporary secrecy is essential in order to ensure that alleged wrongdoers are not tipped-off to the order's existence, which would then enable them to frustrate its primary purpose. As Lord Judge CJ put it, where, for instance, 'a defendant is committing fraud, and you believe that he has a number of associates, an order preventing him from reporting the fact that an injunction (that is to say a freezing injunction) [is] issued against him . . . because without it, he would be able to inform his dishonest colleagues, and they would immediately take steps to hide away assets. Once the order is served, and by their very nature such orders are served as soon as practicable, and its purpose carried into effect, the secrecy provisions lapse.
2.21 In the context of family justice, non-disclosure orders are a well-establishedmeans
to prevent tipping-off in proceedings concerning the location of
missing
![]()
children.
Again, tipping-off in such cases would frustrate the purpose of such proceedings. Temporary secrecy via non-disclosure of the fact of proceedings and the order is thus an essential feature of the proper administration of justice in such cases."
"[36] It has long been recognised that, quite apart from any statutory jurisdiction … the Family Division has an inherent jurisdiction tomake
orders directed to third parties who there is reason to believe
may
be able to provide information which
may
lead to the location of a
missing
child. Thus orders can be
made
against public authorities … requiring them to search their records with a view to informing the court whether they have any record of the child or the child's parent or other carer. Similar orders can be directed to telephone and other IT service providers, to banks and other financial institutions, to airline and other travel service providers … and to relatives, friends and associates of the abducting parent …
[37] Since, for obvious reasons, it is important that the abducting parent is neither alerted to the investigations being carried out by the court nor informed of the identities of those from whom information is being sought nor informed of their answers, such orders are almost invariablymade,
and oral evidence taken, at hearings held in private from which the abducting parent's representatives are excluded and of which, typically, they will be wholly unaware, the applications being
made
ex parte and without notice.
Moreover,
and for the same reason, the orders themselves typically provide that they are not to be served on the abducting parent, just as they typically forbid those to whom the order is directed from informing the abducting parent of the existence of the order. Accordingly, and for reasons which in the nature of things are compelling, this small, discrete and necessarily discreet part of the Family Division's jurisdiction is, in distinction to the vast bulk of the Division's work, carried on not
merely
in private but typically in secret. The justification is that explained by Sir John Donaldson
MR
in R v Chief Registrar of Friendly Societies ex parte New Cross Building Society [1984] QB 227, [1984] 2 WLR 370 at 235 and 376 respectively, namely that unless it adopts this particular procedure in this particular type of case the court will be unable to achieve its paramount object of doing justice according to law; for abjuring secrecy in such circumstances is likely to lead, directly or indirectly, to a denial of justice and, not least, justice for the innocent child."
"Whethermade
in civil, criminal or family proceedings, the temporary secrecy provided by a non-disclosure order is required and justified where, without it, the court would not be capable of fulfilling its primary constitutional duty of doing justice … The use of non-disclosure orders in such cases is entirely sensible, justified and unobjectionable as long as, and only insofar as, they provide a form of short-lived, temporary, secrecy which lasts no longer than strictly necessary."
The Report emphasised (para 3.7) that an anti-tipping-off order must
be "kept under active and close scrutiny by the court".
"Until service of the Order / the return date / [ ] the Defendantsmust
not use, publish or communicate or disclose to any other person the fact or existence of this Order or these proceedings and the Claimant's interest in them, other than:
(a) by way of disclosure to the Defendants' legal advisers for the purpose of obtaining legal advice in relation to these proceedings; or
(b) for the purpose of carrying this Order into effect."
Paragraph 14 of the Model
Order ("Only to be granted in an exceptional case where hearing the application in private is strictly necessary") is in the following terms:
"The Judge considered that it was strictly necessary, pursuant to CPR r 39.2(3)(a),(c) and (g), to order that the hearing of the Application be in private and there shall be no reporting of the same."
The future