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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> A Local Authority v HB (Alleged Risk of Radicalisation and Abduction)  EWHC 1437 (Fam) (26 May 2017)
Cite as:  1 FLR 625,  EWHC 1437 (Fam)
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Strand, London, WC2A 2LL
B e f o r e :
|A Local Authority
ML and BL
(By their Children's Guardian)
Third and Fourth Respondents
Mr Christopher Barnes (instructed by Irvine Thanvi Natas Solicitors) for the First Respondent
The Second Respondent did not appear and was not represented
Ms Shabana Jaffar (instructed by CAFCASS) for the Third and Fourth Respondents
Hearing dates: 2 and 3 May 2017
Crown Copyright ©
Mr Justice MacDonald:
The Maternal Family
"On the way back from [a school trip] ML told PP (Class Teacher): 'My daddy has gone to Allah he got shot in his face and it's all blood and stuff and now he is dead. He had guns in his car but he only shot the bad guys.' The conversation went on that he went with 'the boys' to pray for daddy. PP talked to him about going to the Mosque and he said he is not in Jennah yet so they had been speaking about the process of dying. PP spoke to him about being sad (to gauge his response) he said no 'they see his picture on a computer'. He repeated the conversation about guns and was talking about the guns being in the car not on the car. He talked more about Jennah being a good place where you can get everything you want."
"When asked to speak to ML [the mother] agreed and called him over, however she remained with us. I told ML I was here to speak to him about the conversation he had with 'Y' his friend from school. When asked whether he remembered the conversation, ML nodded his head. I asked ML, did you see someone dead? He again nodded, I asked again whether it was uncle or daddy, ML replied 'daddy' did you see blood, he replied 'no'. When asked where did he see daddy, ML started looking at his mother's direction and mother and said 'I don't know'. I then decided to stop the discussion as he appeared to be looking at his mother constantly and told him he can go."
"viewed disturbing images of person(s) being shot, covered in blood, of guns and so on with the explicit permission or encouragement of [the mother]"
"[The mother] has told the social worker that ML had seen imagery not of his father but of his uncle in the circumstances described above".
The First Trip to Turkey
The Attempted Second Trip to Turkey
"HB was asked about her views of the political / religious affairs going on in Iraq and Syria. HB stated that there are different groups fighting in Syria and they should be left alone. The UN should be the only organisation to go in if needed instead of the US interfering. When asked about ISIS HB stated that they were cruel and Britain should intervene. She didn't know how other Muslims could get involved and said that she was anti ISIS. HB said that she had no plans to go to Syria or Iraq. She didn't have enough knowledge to get involved and she did not know of anyone who had gone to that area. HB did say she had donated money to aid convoys that had gone to Syria and Iraq to help out with the crisis. HB said she had not been asked to go to these countries. HB did say that some people living in her area had borderline extremist views."
"This assessment has evidenced that the day to day care that ML and BL receive is very positive and that the children are developing well and are healthy. The specific concerns which have arisen through referral and the course of this assessment are twofold in that the children may be exposed to extremism or radicalisation or that [the mother] may have intended to take to and feasibly leave the children with family in Syria or any other[s that] are linked with extremism and radicalisation within the locality of Turkey.
There is at present no evidence that the children have come into direct contact with extreme or radical views. If at a later date it becomes apparent that this has occurred through, for example, a conviction for attempting to fund terrorism then this is still not an issue which can be considered Child in Need or Child Protection. There would only be concern warranting a children's services response if there were evidence of violent radicalisation. This is highly unlikely to be a concern for the children at there (sic) current ages and there is furthermore no evidence of this occurring.
In consideration of the children being taken to a dangerous area of the world or being left abroad in their father's care there is also no specific evidence of this concern. Firstly, [the mother] took the children to Turkey through the summer holidays just prior to her arrest. [The mother] returned with the children from this trip suggesting no intention of leaving them abroad. Second [the mother] has at this time not been convicted of funding terrorism making this a concern but not evidence of a crime. Furthermore, [the mother] has repeatedly denied in interviews with myself any radical or extreme views or that the father of the children is involved with extremism abroad.
In conclusion whilst it has been prudent to conduct a thorough risk assessment of these concerns which are quite few within the field of Child Protection this assessment has found no ongoing concerns to warrant Child in Need or Child Protection involvement. Therefore my recommendation at present is for no further action and to close."
The Attempted Trip to Dubai
Alleged Radicalisation and/or Extremist Views
"It is important for me to make my position clear about what I think about extremism and extremist groups. I do not agree with ISIS or groups that use violence to further their political objectives. I have seen on the news what ISIS do and I do not agree with them at all. In particular, I am aware the inferior way that ISIS treat women which goes against the way of life that I live. Whilst it is now very clear what the position is with ISIS it should be noted that ISIS was proscribed as a terrorist organisation on 13 June 2014. At that time I knew very little about them. In addition, I understand that there were many other groups fighting in the Syrian civil war and most of those organisations are not proscribed as terrorist organisations by the United Kingdom. Despite my lack of knowledge about ISIS at the time I did not support them nor did I support people travelling to Syria to fight in the civil war with or for any group."
The Local Authority
i) Between 3 August 2014 and 3 September 2014 the mother travelled to Turkey with the children and whilst there travelled to Gaziantep and back on 3 September 2014, a town 40 miles from the Syrian border, the fact of which journey she withheld from Police and social workers.
ii) The trip to Turkey between 3 August 2014 and 3 September 2014, including the journey to Gaziantep, was in order to provide funds and items to the father or persons associated with the so called Islamic State.
iii) On 15 September 2016, the mother attempted to travel to Turkey with the children via Stanstead Airport carrying £5,950, trainers matching the father's shoe size, a photograph of the father and electronic copies of the father's identity documents and certified copies of the children's birth certificates, on a one-way ticket, having cancelled the return flights originally booked for this journey.
iv) The attempted trip to Turkey on 15 September 2014 was for the purpose of providing funds and items to the father or persons associated with the so called Islamic State and/or to move herself and the children to Syria to be with the father.
v) On 5 August 2016, the mother was removed with her children, her sister and her brother from a flight to Dubai from London City Airport and was found to be carrying £3,300 in cash, her sister having been found to be carrying £2,000 and her brother £2,700.
vi) The attempted trip to Dubai on 5 August 2016 was to provide funds to persons associated with extremism and/or to move herself and the children to Syria to be with the father.
vii) In circumstances where the mother's brother, RB was an extremist fighting in Syria prior to his death, and the children's father is believed to be fighting in Syria or to have been killed fighting in Syria, the mother is part of a family network of "ISIS extremists" and sympathisers.
viii) The mother sympathises with extremist views and the so called Islamic State.
ix) In the absence of orders, the mother will continue to seek to travel to areas of the world associated with, or close to "large scale extremist activities" and in doing so will place the children at risk of significant harm.
"A process by which an individual or group comes to adopt increasingly extreme political, social or religious ideals and aspirations that reject or undermine the status quo or undermine contemporary ideas and expressions of freedom of choice"
And the following definition of "extremism":
"The vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs."
The Children's Guardian
i) The burden of proving the facts pleaded rests with the local authority. In cases of alleged extremist beliefs or ideology, alleged risk of radicalisation and alleged risk of removal to a war zone, it is for the local authority to establish these on the balance of probabilities. There is no requirement on a parent to prove the contrary. Where a respondent parent seeks to prove an alternative explanation for a given course of conduct but does not prove that alternative explanation, that failure does not, of itself, establish the local authority's case, which must still be proved to the requisite standard (see The Popi M, Rhesa Shipping Co SA v Edmunds, Rhesa Shipping Co SA v Fenton Insurance Co Ltd  1 WLR 948 at 955-6).
ii) The standard to which the local authority must satisfy the court is the simple balance of probabilities. The inherent probability or improbability of an event remains a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred (Re B  UKHL 35 at ). Within this context, there is no room for a finding by the court that something might have happened. The court may decide that it did or that it did not (Re B  UKHL 35 at ). The legal concept of proof on the balance of probabilities must be applied with "common sense" (The Popi M, Rhesa Shipping Co SA v Edmunds, Rhesa Shipping Co SA v Fenton Insurance Co Ltd  1 WLR 948).
iii) Findings of fact must be based on evidence not on speculation. The decision on whether the facts in issue have been proved to the requisite standard must be based on all of the available evidence and should have regard to the wide context of social, emotional, ethical and moral factors (A County Council v A Mother, A Father and X, Y and Z  EWHC 31 (Fam)).
iv) In determining whether the local authority has discharged the burden upon it the court looks at what has been described as 'the broad canvas' of the evidence before it. The court takes account of a wide range of matters including its assessment of the credibility of the witnesses and inferences that can be properly drawn from the evidence. The role of the court is to consider the evidence in its totality and to make findings on the balance of probabilities accordingly. Within this context, the court must consider each piece of evidence in the context of all of the other evidence (Re T  2 FLR 838 at ).
v) The evidence of the parents and carers is of utmost importance and it is essential that the court forms a clear assessment of their credibility and reliability. The court is likely to place considerable reliability and weight on the evidence and impression it forms of them (see Gestmin SGPS SA v Credit Suise (UK) Ltd Anor  EWHC 3560 (Comm) at  to  and Lancashire County Council v M and F  EWHC 3 (Fam)).
vi) As to the issue of lies, the court must always bear in mind that a witness may tell lies in the course of an investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress. The fact that a witness has lied about some matters does not mean that he or she has lied above everything (R v Lucas  QB 720).
vii) With respect to the welfare decision that is before the court, in the proceedings under Part IV of the Children Act 1989 before making a final order the court must be satisfied that the threshold criteria set out in s 31(2) of the Children Act 1989 are made out and must have regard to the matters set out in s 1 of the 1989 Act, which matters include the stipulation that the child's welfare is the court's paramount consideration. In the proceedings under the inherent jurisdiction of the High Court, before making a final order the court must be satisfied that the order sought is in the child's best interests having regard to the child's welfare as the court's paramount consideration.
"1 Terrorism: interpretation.
This section has no associated Explanatory Notes
(1) In this Act "terrorism" means the use or threat of action where—
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.
(2) Action falls within this subsection if it—
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person's life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system.
(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.
(4) In this section—
(a) "action" includes action outside the United Kingdom,
(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,
(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and
(d) "the government" means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.
(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation."
"Radicalisation' refers to the process by which a person comes to support terrorism and extremist ideologies associated with terrorist groups."
And 'extremism' as follows:
"…vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs. We also include in our definition of extremism calls for the death of members of our armed forces, whether in this country or overseas"
"Islamist extremists regard Western intervention in Muslim-majority countries as a 'war with Islam', creating a narrative of 'them 'and 'us'. Their ideology includes the uncompromising belief that people cannot be both Muslim and British, and that Muslims living here should not participate in our democracy. Islamist extremists specifically attack the principles of civic participation and social cohesion. These extremists purport to identify grievances to which terrorist organisations then claim to have a solution."
" What is 'extreme' is, by definition, something which is not 'moderate'. Thus, "extremist" Islamic positions can be seen in contra-distinction to 'moderate' or 'mainstream' Islamic positions. Dr Wilkinson usefully defines moderate Islam as essentially those ideas, doctrines and worldviews consensually agreed by Sunni and Shia' Islamic Law Muslim scholars, mainstream Salafi scholars and Muslims, generally to constitute the essential doctrines, teachings and spirit of Islam, according to Qur'an and Sunna, applied in such a way as to be suitable for the context of contemporary Britain. I agree with this as a general working definition.
Extremist Islamic positions
 In my view, the following constitute "extremist" Islamic positions (or indicia thereof).
 First, a 'Manichean' view of the world. A total, eternal 'Manichean' worldview is a central tenet of violent Islamic extremism. It divides the world strictly into 'Us' versus 'Them': those who are blessed or saved (i.e. the "right kind" of Muslim) on the one hand and those who are to be damned for eternity (i.e. the "wrong kind" of Muslim and everyone else) on the other. For violent Islamic extremists, the "wrong kind" of Muslim includes moderate Sunni Muslims, all Shia Muslims, and many others who are "mete for the sword" and can be killed, and anyone who associates or "collaborates" with them. Violent Islamic extremists divide the world strictly into the Abode of Islam (Dar al-Islam), the Abode of Unbelief (Dar al-Kufr) and the Abode of War (Dar al-Harb). The ultimate agenda of violent Islamic extremists is the overthrow of all democratic states, including Muslim democratic states, and the creation of a global Caliphate or Islamic State and the imposition of a primitive, literalist interpretation of Sharia Law by force (as exemplified by e.g. 'ISIS'). The clearest exposition of this 'Manichean' philosophy is to be found in Sayyid Qutb's "Milestones" who called for a war against jahiliyyah (unbelief) (see further below).
 Second, the reduction of jihad (striving in God's cause) to qital (armed combat) ('the Lesser Jihad'). An interpretation of jihad that simply equiperates jihad with quital and ignores the numerous peaceable meanings of jihad ('the Greater Jihad') would a priori be extreme. Such an interpretation would give jihad an exclusively violent meaning which it does not have.
 Third, the ignoring or flouting of the conditions for the declaration of armed jihad (qital), i.e. the established Islamic doctrinal conditions for the declaration of armed combat (qital) set out above. Thus, terrorist insurgency, 'leaderless' jihadist attacks by groups or individuals against civilians, or the waging of aggressive war against another country or people, cannot properly constitute lawful qital under Islamic doctrine. Accordingly, encouragement of such actions would, therefore, be classified as "extremist" Islamic positions.
 Fourth, the ignoring or flouting of the strict regulations governing the conduct of armed jihad, i.e. the stipulations in the Qur'an and the Sunna for the ethics of conducting qital set out above. Thus, the use of excessive violence, attacks on civilians, indiscriminate 'suicide' violence and the torture or the murder of prisoners would constitute violation of these regulations of jihad, and, therefore, be classified as "extremist" Islamic positions.
 Fifth, advocating armed fighting in defence of Islam (qital) as a universal individual religious obligation (fard al 'ayn). Qital has been adjudicated from early to classical to modern times by the vast majority of Islamic scholars as being a collective religious obligation (fard al-kifaya) unless one is directly under attack. Thus, encouraging young Muslim men or women to believe that it was their individual religious duty to go off and 'fight in the name of Allah' would be an "extremist" Islamic position.
 Sixth, any interpretation of Shari'a (i.e. religious law laid down by the Qur'an and the Sunna) that required breaking the 'law of the land'. Under Shari'a, Muslims are required to obey the law of the land, unless that law of the land explicitly required them to break the Shari'a .
 Seventh, the classification of all non-Muslims as unbelievers (kuffar). Extremist Islamists cite irreconcilable differences between belief (iman) and unbelief (kufr) and classify as all non-Muslims as unbelievers (kuffar). In mainstream Islam, however, 'People of the Book', i.e. Christians and Jews, are not classed as kuffar.
 Eighth, the extreme Salafist Islamism doctrine that the precepts of the Muslim faith negate and supersede all other natural ties, such as those of family, kinship and nation. This is redolent of the extreme Salafist Islamist outlook which cites absolute, irreconcilable differences between belief (iman) and unbelief (kufr) (see Sayyid Qutb below).
 Ninth, the citing with approval the fatwa (legal opinions) of Islamic scholars who espouse extremist view (e.g. the Salafi-Wahabi scholar, Sheikh Abdul Aziz bin Baz), or referring with approbation to notorious violent, extremist, Islamic ideologues (e.g. Sayyid Qutb and Abdullah Azzam).
 Tenth, any teaching which, expressly or implicitly, encourages Muslims to engage in, or support, terrorism or violence in the name of Allah."
"The second fundamentally important point is the need to link the facts relied upon by the local authority with its case on threshold, the need to demonstrate why, as the local authority asserts, facts A + B + C justify the conclusion that the child has suffered, or is at risk of suffering, significant harm of types X, Y or Z. Sometimes the linkage will be obvious, as where the facts proved establish physical harm. But the linkage may be very much less obvious where the allegation is only that the child is at risk of suffering emotional harm or, as in the present case, at risk of suffering neglect. In the present case, as we shall see, an important element of the local authority's case was that the father "lacks honesty with professionals", "minimises matters of importance" and "is immature and lacks insight of issues of importance". May be. But how does this feed through into a conclusion that A is at risk of neglect? The conclusion does not follow naturally from the premise. The local authority's evidence and submissions must set out the argument and explain explicitly why it is said that, in the particular case, the conclusion indeed follows from the facts."
"the mother's qualities as a parent are not, of themselves, any assurance that she would not have acted in the way alleged by the local authority. I cannot blind myself to the reality that not every parent is necessarily as steeped in the values and belief systems of post-Enlightenment Europe as we might like to imagine. People may be otherwise very good parents (in the sense in which society generally would use that phrase) whilst yet being driven by fanaticism, whether religious or political, to expose their children to what most would think to be plain, obvious and very great significant harm. There are, after all, well-attested cases of seemingly good parents exposing their children to ISIS-related materials or event taking their children to ISIS-controlled Syria."