|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
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 M & Ors  EWHC 2851 (Fam) (13 November 2017)
Cite as:  2 FLR 875,  EWHC 2851 (Fam)
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
Strand, London, WC2A 2LL
B e f o r e :
| A Local Authority
|- and -
|- and -
|- and -
|C, D, E and F (by their children?s Guardian)
||Third to Sixth Respondents (children)
Richard Doman (instructed by Edwards Duthie Solicitors) for the First Respondent
Ian Peddie QC (instructed by Irvine Thanvi Natas Solicitors) for the Second Respondent
Tara Vindis (instructed by Gary Jacobs Law) for the Third to Sixth Respondents
Hearing dates: 7-25 November 2016
Crown Copyright ©
Mr Justice Newton:
"a. A decision about their lives (made up of future living and schooling arrangements).
b. Ongoing exposure to mainstream ideas and education.
c. Support for, and expression of, moderate religious beliefs.
d. As much stability as can be achieved as quickly as is reasonably practicable. No more upheaval (such as trips to Turkey/Syria).
e. Minimisation of the recognised risk that they will return to radical beliefs in which, until September 2015, they were steeped/immersed.
f. Safe and predictable contact with their family, if they are not placed with them.
i) "The extent to which the children have held and continue to hold radical views.
ii) The extent to which the mother continues to hold radical views
iii) The personalities of the family members
iv) The immediate and extended family dynamics
v) The extent to which the father and members of the paternal family are able to protect the children from further exposure to radical views
vi) Ongoing and future support and education for the children
vii) Support that would be required for the Father or alternatively the paternal aunt and uncle to safely parent the children."
The Legal Framework
"…family ties may only be severed in very exceptional circumstances and … everything must be done to preserve personal relations and, where appropriate, to "rebuild" the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing. However where the maintenance of family ties would harm the child's health and development, a parent is not entitled under article 8 to insist that such ties be maintained."
"… only in exceptional circumstance and when motivated by overriding requirements pertaining to the child's welfare, in short, when nothing else will do. In many cases, and particularly where the feared harm has not yet materialised and may never do so, it will be necessary to explore and attempt alternative solutions."
"The purpose of setting out these basic but important propositions is to provide a very practical example as well as the legal basis for the use of the court's power to direct the evidence that it needs to determine the issues it has identified and answer the questions that are before the court. The welfare evaluation and the question what, if any, orders are to be made engages Article 8 of the Convention and the proportionality of that intervention must be justified. One cannot have a clearer description of the imperative than that contained in the Supreme Court's judgments in B (A Child)  UKSC 33. A court cannot apply the yardstick of proportionality in its consideration of what is necessary without having evidence about the options to which it can apply a welfare evaluation. As McFarlane LJ said in Re G at :
'What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.'"
At para 78 in Re W Ryder LJ makes this additional observation:
"Setting out the positives and negatives or if you prefer, the benefits and detriments of each placement option by reference to the welfare checklist factors is an illuminating and essential intellectual and forensic exercise that will highlight the evidential conclusions and their implications and how they are to be weighed in the evaluative balance that is the value judgment of the court. It is to be noted that this exercise is different in substance and form from a mechanical recitation of the welfare checklist with stereotypical commentary that is neither case specific nor helpful."
As Ryder LJ stressed in Re W para 81:
"It is likewise not open to a local authority within proceedings to decline to identify the practicable services that it is able to provide to make each of the range of placement options and orders work in order to meet the risk identified by the court. That is the purpose of a section 31 A care plan. If a local authority were able to decline to join with the court in the partnership endeavour of identifying the best solution to the problem, then there would be no purpose in having a judicial decision on the question raised by the application. It might as well be an administrative act.
Parliament has decided that the decision is to be a judicial act and accordingly, the care plan or care plan options filed with the court must be designed to meet the risk identified by the court. It is only by such a process that the court is able to examine the welfare implications of each of the placement options before the court and the benefits and detriments of the same and the proportionality of the orders sought."
And at para 82:
"To do otherwise is to risk a disproportionate intervention into the lives of the child and the parents simply because of the financial or other priorities of different local authorities. To put it into stark terms, it cannot be right that in one local authority a child would be placed with a parent or other kinship carer with significant support to meet the risk whereas in another local authority the same child would be placed with a view to adoption in the implementation of a plan to meet the same risk. The proportionality of placement and order are for the court. The services that are available are for the authority.
In this regard, I cannot improve on the words of the court most recently in Re B-S (Children) ibid :
'It is the obligation of the local authority to make the order which the court has determined is proportionate work. The local authority cannot press for a more drastic form of order, least of all press for adoption, because it is unable or unwilling to support a less interventionist form of order. Judges must be alert to the point and must be rigorous in exploring and probing local authority thinking in cases where there is any reason to suspect that resource issues may be affecting the local authority's thinking".
The Expert Evidence
i) access to appropriate ideological guidance;
ii) mainstream schooling;
iii) preferably being with their father (about which she had strong views, considering that if they did not go home their vulnerability to radicalisation would increase);
iv) outside financial support and guidance.