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The Honourable Mr. Justice Cobb
The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
||Neutral Citation Number:  EWHC 3087 (Fam)
||Case No: LS15C00459
IN THE HIGH COURT OF JUSTICE
LEEDS DISTRICT REGISTRY
||The Law Courts
B e f o r e :
THE HONOURABLE MR JUSTICE COBB
|| Re C, D and E (Radicalisation: Fact-Finding)
Jo Delahunty QC & Philip Booth (instructed by Local Authority lawyer) for Z Local Authority
Will Tyler QC & Charlotte Worsley (instructed by Chivers Walsh Family Law Solicitors) for the Mother (A)
Deirdre Fottrell QC & Lewis Donnelly (instructed by Lumb & MacGill) for the Father (B)
Clare Garnham & Amanda Palfreman (instructed by Finn Gledhill) for the Children's Guardian (C, D, E)
Andrew Garthwaite (solicitor for West Yorkshire Police) in attendance at court during the evidence of the officers of the West Yorkshire Police NECTU
Hearing dates: 18, 19, 20, 21, 22, 25, 26, 27, 29 January 2016
HTML VERSION OF JUDGMENT
Crown Copyright ©
The Honourable Mr. Justice Cobb:
||Setting the scene
||The issues for determination: the relevant questions
||The evidence & assessment of the parents
||9-10 July: The journey to Folkestone. The disputed evidence and findings
||Material located on electronic devices: Review and findings
||Future of these proceedings
||Public Interest Immunity
||Findings of fact sought by the Local Authority
- On 15 July 2015, applications under Part IV of the Children Act 1989 were issued by Z Local Authority ("the Local Authority") in relation to three children, C, D, and E. C (male) is in his teens, D (female) a few years younger; E is younger still. The children's mother ("the mother") is the first respondent to the application. The second respondent is the father ("the father").
- The children are subject to interim care orders and have been so since 23 July 2015; for four months, they were placed together in foster care but were returned home to their parents in November 2015, in accordance with their firm wishes, and with my authority. The return of the children was achieved subject to the parents' agreement:
i) to be fitted with electronic tags (see  below), and agree the corresponding protocol;
ii) to sign up to a tightly worded contract with the Local Authority.
- The circumstances in which these proceedings came to be brought derive from evidence collated by the police, specifically the North East Counter-Terrorism Unit ("NECTU"), in their investigation into the lives of the parents; NECTU was properly given notice of these proceedings, and has been present and represented at most of the hearings which I have conducted. At early case management hearings, directions were given for the disclosure of evidence gathered by NECTU in the course of its enquiries; issues of disclosure are discussed below (see //). At an earlier hearing in October 2015 the Local Authority made an informal direct application for disclosure to NECTU; this was not an application which was directed through the court. This provoked a request on the part of NECTU that I should conduct a Public Interest Immunity hearing in private. I deal with this later, below (see ). For reasons which will become apparent (see particularly  below), there has also been direct communication between the Court and the Ministry of Justice ("MoJ") Government Legal in relation to the provision and funding of electronic tags.
- The proceedings have been listed to be heard in two parts. This judgment sets out my findings at the conclusion of the first, fact-finding, part, as the prelude to a determination of welfare issues, listed for 18 April. As time is limited before that hearing, there has been no latitude to reserve this judgment. Since delivering this judgment, I have anonymised this judgment extensively so that it does not reveal details which could lead to the identification of the family. [This judgment has been published following the welfare hearing; the judgment following the welfare hearing is reported as  EWHC 3088 (Fam), and should be read with this].
- Although the facts in dispute largely concern the parents, it is appropriate that I should start this judgment by focusing, albeit briefly, on the children. I have had the opportunity of observing video-recorded interviews of C and D, and have read a little about them from the filed evidence.
- First, I am satisfied that all three children found separation from their parents in July 2015, for which they were wholly unprepared, "frightening" (as they themselves described it). Following their reception into care, they had limited contact with their parents in the first week, which undoubtedly would have added to their upset, and they then hankered to return home. They give an impression of being attached to their mother and father. The social worker reports:
"It is clear from the formal assessment sessions and from observations made in the contact sessions that both parents love the children and care for their well-being. They have expressed a great deal of concern about their separation from the children and the impact the separation is having on the children".
I further note the social worker's comment that:
"the sibling relationship is extremely strong; [E] often seeks comfort from [D]" (§39).
The Guardian, through Ms Garnham in her closing submissions, advised the court that in her view, "the parents are loving and capable parents who are articulate and knowledgeable… the children have experienced many aspects of positive parenting."
- Secondly, in my judgment, both C and D presented well in the police/social work interviews to which I have listened (in full) and watched (in part); they appear relatively mature for their ages, were well-mannered, articulate and co-operative. The mother described D as 'confident', and although softly spoken, I agree with this assessment; D in particular displayed engaging charm and a good sense of humour, notwithstanding the stress of the occasion and her undoubted emotional turmoil.
- Thirdly, neither child currently shows any sign of having absorbed extremist religious views, or of having been radicalised, (as I define that term hereafter [29-30]). While C demonstrates some interest in and knowledge of politics and political figures in the western and Islamic world, the social worker nonetheless describes him as:
"… easy to engage in conversation and is friendly, having started to form a friendship group. There are no concerns regarding his emotional or behaviour development and he has not demonstrated a gender distinction or a poor view of others in society".
"Our assessment at this stage has determined that despite the children having lived with the parents' extremist ideologies there is no evidence at this stage that this has had an impact on them. Despite their views, the parents allow the children to attend multi-faith schools and as a result the children are engaged with other children and young people from different backgrounds and different faiths. There is no evidence that [C] or [D] have been radicalised"
- Fourthly, and finally, as will be apparent, I find that neither child appears to have been aware of the purpose of the journey taken on 9-10 July 2015, nor of the ultimate destination.
C: Setting the scene
- The circumstances in which these proceedings were brought before the Family Court are discussed and analysed in the central sections of this judgment at - below. Before turning to that evidence it should be noted that although the local authority has filed statements from witnesses who describe (what I shall refer to as) 'low-key concerns' about the children, there is little in those statements (which deal with school attendance, health checks, unattributed and uncorroborated allegation of physical assault on C) which would, without more, justify the initiation or prosecution of proceedings under the Children Act 1989 for a care or supervision order. In short, apart from the matters described below, the evidence would not approach the threshold at which state intervention in a family's life would be warranted.
- At this stage, and to set a context for my discussion of the controversial evidence, I set the scene by reference (unless specifically indicated to the contrary) to the undisputed facts. Where there is a dispute about the evidence I indicate this.
- The mother is from Greater London. The father had been born into a Christian family also in London, and moved to the North East of England in 1987; he converted to Islam in 2005. In 2013 the mother and father underwent the nikah ceremony of marriage in the Islamic tradition, and the mother moved to live with the father in the North East. The mother has worked in the past but does not work outside of the home at present; the father currently has employment.
- In 2014, the parents were involved in an incident outside a gym in their home town, when an altercation took place between the father and two young women, whom the father believed had insulted the mother. A male third party ("GM") intervened on behalf of the young women; the father racially insulted GM. GM gave a statement to the police about the incident; this revealed that GM is/was at the time in fact a police officer. On two subsequent occasions in the following months, it is alleged that the father verbally abused GM in a public place. In February 2015, the father was said to have posted on his Facebook page a picture of GM, with an insulting message, describing GM as an apostate. On 18 March 2015, the father was arrested in connection with the offence of publishing threatening written material intending to stir up religious hatred (section 29B Public Order Act 1986).
- The father told me in evidence that he believed that he had been "silly and foolish" in relation to his conduct towards GM on the occasions referred to above. He regretted posting the picture and comments on the internet and regretted upsetting GM. He said that he had behaved as he had "because of my understanding of things at the time".
- At the time of the father's arrest in March 2015, the family home was searched and a number of electronic devices were seized (including a Sony laptop) and subsequently interrogated (see  et seq. below); videos, documents and social media communications were identified which aroused concern that the parents supported forms of Islamic extremism, terrorism, Jihadi activity, and that they had associations with proscribed terrorist organisations with connections in Syria and Iraq. The father was interviewed by the police, though he offered no comment. The police formed the view that the father was/is associated or connected with Al Muhajiroun ("ALM"), a proscribed organisation, which is believed to have strong terrorist and anti-Semitic views. He denies this.
- In the period between March and July 2015, the father told me that he considered that he was under surveillance from the police. He said that
"I knew that they were watching me. It was a safe assumption. They must be watching. I think I had seen the same car driving behind me a few times."
On 4 June the father received a visit from the police at home; he was re-bailed in relation to the alleged public order offence to a date in September 2015. On 16 June the mother was stopped by the police for speeding and shooting a red light while driving the family in Liverpool; the police made a referral to social services, who shortly thereafter sent a social worker to visit the family. The father regarded the social work visit as extremely unwelcome as his social media posting (to which I refer later ) refers.
- At 02:48hs on 8 July 2015 the parents made an online booking for a return Eurotunnel ticket to France.
- A little over 48 hours later, at 08:10hs on 10 July, the mother and father were arrested by counter-terrorism officers of the police as they waited in their car in the Eurotunnel terminal in Folkestone, waiting to board the train bound for France; the three children were with the parents in the car. The police suspected that the parents were intending to travel to Syria (with their children) actively to support the proscribed terrorist organisation ISIS and/or engage in Islamic extremist activities. They were arrested on suspicion of committing the following offences:
i) Dissemination of terrorist publications (section 2 Terrorism Act 2006);
ii) Preparation of terrorist acts (section 5 Terrorism Act 2006);
iii) Collection of information useful to a person engaged in terrorism (section 58 Terrorism Act 2000);
iv) Cruelty or child neglect, or exposing child to danger (section 1 Children and Young Persons Act 1933)
v) Preparation of terrorist acts (section 5 Terrorism Act 2006);
vi) Cruelty or child neglect, or exposing child to danger (section 1 Children and Young Persons Act 1933)
When arrested, the father replied "I'm not doing that"; the mother made no comment. Both parents had the card of a solicitor in their pocket (they claimed that they rarely were without this, following the father's arrest in March). On their arrest, a number of electronic devices were seized from the car, and some (i.e. those to which access could be obtained, the father having provided passwords which did not permit access to others) have been interrogated. I deal with this evidence in section H below (paras  to ).
- The family was conveyed in separate vehicles back to the North East; Police Protection Orders were made in respect of the children who were then placed in foster care. The parents were interviewed under caution, and were bailed to attend the police station in December 2015; they have subsequently been further bailed to a date in April 2016. On 13 July 2015, C and D were interviewed.
- The uncontroverted evidence reveals that the parents had left their home on the evening (about 10pm) Thursday 9 July. Earlier in the evening, the family pet had been taken to a friend of the father's. The vehicle in which they were travelling was heavily laden; in the boot of the car were nine bags packed with a substantial quantity of clothes for all seasons, with a significant quantity of toiletries and other possessions. Among the items were 17 pairs of male boxer shorts (some appeared brand new), altogether over 40 pairs of socks, approximately 30 pairs of knickers, 17 baby-grows, a black balaclava, 112 sanitary towels, multiple razors, refills and shavers, sun creams and deodorants. There were bank-issued (PIN sentry) devices to perform internet banking ("in case I have to make a bill payment" while away – per father) and multiple sim cards.
- The parents drove to London, where they called in at the home of the mother's parents; by the time they arrived, it was about 02:30hs on 10 July. The family stayed approximately one hour. The parents' case is that they did not tell the maternal family that they were travelling to Germany. Having left the maternal family home, the father drove to a Mosque where he prayed. He drove a little distance further before pulling into a supermarket car park where he shaved off his beard, and changed his tea-shirt; the mother removed her niqab and abaya, for the remainder of the journey travelling in western leisure clothes.
- The parents' explanation for this journey is that the family were on a "short family trip" or "holiday" for the weekend; "a nice chance for the children to get away and see a different country and culture", visit relatives, and do some hiking in the Alps. They were due to return on the Sunday. There was an outbound passage booked on the 03:27 train on 10 July (which the family had missed), and a return booked for 07:50 on 12 July 2015. There is evidence that the parents had made a booking for a two night stay at a hotel in Germany (2 rooms) for the nights of the 10 and 11 July. The mother told me (ev/ch) that
"We were going on holiday for a couple of days; to get away from day to day life for a few days. My husband wanted to visit Germany; I wanted to see the culture; I wanted to experience German life; taste the pastries; I wanted to experience the culture."
- When back in Yorkshire, on Monday 13 July C and D were interviewed. They both expressed surprise at the police's suggestion that they were destined for Syria. They both made clear in interview that their parents had not told them where they were going (C said that the parents had repeatedly said "don't ask" when he enquired as to their destination; D said that the mother said that their destination would be "a surprise"; I return to this significant evidence later).
- The parents were also interviewed extensively on 10 and 11 July. They provided pre-prepared statements, and both gave mixed comment/'no comment' interviews. They have subsequently prepared detailed statements in these proceedings which I have read with care. In essence their case is that:
i) They both conscientiously observe and practise the Islamic faith;
ii) They both deny that they subscribe to extremist or radicalised beliefs; they deny any involvement in terrorist activities;
iii) They deny that they were planning to travel to ISIS controlled territory on 9-10 July 2015; they were on a short family weekend break heading for north-west Germany;
iv) The father denies that he is a member of the organisation ALM;
v) In interview, and in his filed evidence before this court, the father has indicated (particularly as a 'revert' – he, like many Muslim 'converts' regards himself as reverting to his original faith, the 'fitrah') his interest in educating himself by researching the attitudes of those who espouse radical or extreme Islamic views, and that this explains the presence of material on his electronic devices and in his home;
vi) They both accept that some of the material located on their electronic devices is distressing, disturbing and of a radical nature; both have expressed a degree of regret at their actions in posting this material, while accepting that the content justifies the concerns of the Local Authority.
D: The issues for determination: the relevant questions
- The Local Authority seeks eight essential findings, and has prepared a detailed summary of its case, to which the parents have responded. The proposed findings are set out in an annex to this judgment. While the Authority's detailed document has been a useful aid to the evidence and the specific allegations, I propose to make findings in line with my own assessment of the case, answering the specific questions which I pose in the next paragraph; in doing so I believe that I have covered all of the relevant material.
- The questions which I believe require to be answered are:
i) What was the purpose of the proposed trip which was terminated by police intervention at Folkestone on 10 July? Specifically, were the parents, as they say, heading for a family weekend in Germany and the Alps?
ii) If their journey was not for a family weekend in Germany and the Alps:
a) Were the parents destined for Syria, or Iraq, or ISIS controlled State, as alleged by the Local Authority?
b) If not, is there any other identifiable destination, or explanation, for the trip?
c) Does the destination and/or purpose of the trip remain unidentifiable on the evidence?
iii) Does the conduct of the parents between January and July 2015 indicate that they hold beliefs of an extremist or radicalised nature (as those terms are understood under the 'Prevent' Guidance)?
iv) If the answer to (iii) is yes, have the parents taken steps to promulgate their views to:
a) the children;
v) What are the implications for the children arising from the answers to the questions posed above?
E: Legal considerations
- In determining the facts in this case, I have adopted and borne firmly in mind the following principles:
i) It is for the local authority to prove, on a balance of probabilities, the facts upon which it seeks to rely; the standard is the civil standard (see Re B (Care Proceedings: Standard of Proof)  UKHL 35);
ii) In relation to these disputed issues of fact, a binary exercise is engaged:
"If a legal rule requires a fact to be proved (a 'fact in issue'), a judge … must decide whether or not it happened. There is no room for a finding that it might have happened": Re B (Care Proceedings: Standard of Proof)  above at ;
iii) Findings of fact must be based on evidence (including inferences that can properly be drawn from the evidence) and not on suspicion or speculation (Re A (A Child) (No 2)  EWCA Civ 12,  1 FCR 141, para 26); Sir James Munby P returned to the same theme in Re X & Y (No.3)  EWHC 3651 (Fam)
: "There are, as I have noted, many matters on which I am suspicious, but suspicion is not enough, nor is surmise, speculation or assertion…"
iv) It is necessary to examine whether the local authority's evidence set out the argument and explain explicitly why it is said that, in the particular case, the conclusion indeed follows from the facts (Re A  EWFC 11 @ );
v) The evidence must be considered on a wide canvas: Re U and Re B  EWCA Civ 263 at :
"For the judge invariably surveys a wide canvas, including a detailed history of the parents' lives, their relationship and their interaction with professionals. There will be many contributions to this context, family members, neighbours, health records, as well as the observation of professionals such as social workers, health visitors and children's guardian".
vi) "All these cases have to be decided on their own particular facts." See Munby P at  in Re X (Children); Re Y (Children)  EWHC 2265 (Fam); a comparison with the facts and conclusions of Re X; Re Y (No.3)  EWHC 3651 (Fam) is of limited value;
vii) I must carefully analyse the credibility of the parents applying the guidance given in R v Lucas (Ruth)  QB 720 and R v Middleton  TLR 293. As appears from these authorities, a conclusion that a person is lying or telling the truth about point A does not mean that he is lying or telling the truth about point B. I accept that a witness may lie for many reasons, for example, shame, panic, duress or distress; the fact that a witness has lied in respect of one matter does not mean that he or she has lied in respect of everything.
- Given the allegations in this case, it is one to which the President's Guidance on Radicalisation Cases in the Family Courts (8 October 2015) applies. In the circumstances, in conducting this case both at case management stages and now, I have paid particular attention to the following aspects of that guidance:
i) the need to protect the Article 6 rights of all the parties; (§7(a))
ii) the fact that some of the information gathered by the police and other agencies is highly sensitive and such that its disclosure may damage the public interest or even put lives at risk (§7(c));
iii) the need to avoid inappropriately wide or inadequately defined requests for disclosure of information or documents by the police or other agencies (§7(d));
iv) the need to ensure that the operational requirements of the police and other agencies are not inadvertently compromised or inhibited either because a child is a ward of court or because of any order made by the court (§7(i)).
It is quite apparent that for the reasons set out in (ii)-(iv) above, neither I, nor the parties, have seen all of the evidence gathered by the police (NECTU) in their investigation. This has created frustrations, I accept, for all parties. I have to guard myself (a) not to guess, or infer, what the evidence might be, or have been and (b) to ensure that I do not lose sense of context when examining the available evidence. I am conscious that the contours of the available evidence may be distorted or exaggerated when viewed under the powerful forensic lens whereas they may not seem so pronounced or remarkable when considered on the wider (macro) landscape.
- For present purposes, I have adopted the definition of 'radicalisation' offered by Holman J in Re M  EWHC 667 (Fam) at ; he referred to it there as the process of "negatively influencing [a child] with radical fundamentalist thought, which is associated with terrorism"; he added:
"If any child is being indoctrinated or infected with thoughts involving the possibility of "terrorism" or, indeed, hatred for their native country, which is England, or another religion, such as Christianity … then that is potentially very abusive indeed and of the utmost gravity".
- There is a further definition in the July 2015 Revised 'Prevent Duty' Guidance for England & Wales: Guidance for specified authorities in England and Wales on the duty in the Counter-Terrorism and Security Act 2015 to have due regard to the need to prevent people from being drawn into terrorism:
'Radicalisation' refers to the process by which a person comes to support terrorism and extremist ideologies associated with terrorist groups.
The current UK definition of 'terrorism' is given in the Terrorism Act 2000 (TACT 2000). In summary this defines terrorism as an action that endangers or causes serious violence to a person/people; causes serious damage to property; or seriously interferes or disrupts an electronic system. The use or threat must be designed to influence the government or to intimidate the public and is made for the purpose of advancing a political, religious or ideological cause."
- I have interpreted the term 'extremism' in line with the definition offered in Channel Duty Guidance Protecting vulnerable people from being drawn into terrorism: Statutory guidance for Channel panel members and partners of local panels (2015), viz:
"Extremism" is 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. Terrorist groups very often draw on extremist ideas developed by extremist organisations"
- Finally, I have consciously reflected on the rights of these parents, under Article 9 of the ECHR to freedom of thought and religion, including the right to manifest their religion or belief, in worship, teaching, practice and observance, "subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others". They have similar potent rights under Article 10 of the ECHR to freedom of expression, and the right or freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers, subject (again) to "such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime…".
F: The evidence & assessment of the parents
- I have had available to me 6 lever arch files of documentation for this hearing, largely comprising disclosure provided by NECTU. As already mentioned, I am conscious that I have not seen all of the evidence collated in the course of the police investigation; even at a late stage of the hearing, documentation from NECTU was served on the parties which was not of an obviously sensitive nature (i.e. that which may otherwise have justified its non-disclosure), but which nonetheless bore upon the issues before me. Late disclosure of this material caused understandable disquiet among the advocates who have been keen to have available all relevant material. I heard oral evidence from three police officers each of whom had provided written statements of evidence.
- I heard extensive oral evidence from the parents. The mother, co-operatively, agreed to remove the traditional niqab for her evidence so that I could see her face and assess her in the witness box. She was screened from other males in court, save for her counsel.
- The mother confirmed that her faith is important to her, affecting "every big decision" she makes in her life; she says that she "lives by it every day" (ev/ch). She performed the Umrah (pilgrimage) in 2006 and has worn the niqab since about 2013, when she gave up her work at a London airport.
- The mother gave the impression that she regretted some of her communications on Twitter (which are referred to below) which had raised concern:
"… if I don't have a true understanding it can be misinterpreted, and I have been saying things that I should not have said. I really should not be speaking on a matter which I don't have full knowledge of… When you have that a little bit of knowledge you want to talk about it, and maybe I should not have done" (ev/ch)
- In her pre-prepared statement for the police interviews, the mother said that she had "no real interest" in politics or policy [G258]. For reasons set out below, I do not accept that this can possibly be true for the period under scrutiny. Indeed, I do not consider that the mother gave me truthful accounts on other aspects of the key history, as is apparent from my findings below. Testing as I must each strand of the evidence, in accordance with the Lucas direction, I am sure that at times she set out to deceive me; in limited respects, I found her answers naïve. She was nonetheless appropriately emotional when discussing the children.
- The father, I accept, also has a strong faith, and that it is important to him. He has, I accept, been a conscientious student of Islam, even if some of his studying has been misdirected. He told me (ev/ch) that:
"I admit that I have said some wrong things previously, that I have no right to say; I now see that things are not so black and white; I am still a student and I need to take a teacher to teach me properly. Not just from google".
- The evidence shows the father as someone who can be hot-headed and argumentative; there is evidence that of him acting "foolishly" (on his own admission) with GM, conduct which he now regrets, arguing with a local councillor (reference WhatsApp conversation), confronting the friend of C about C being 'picked on' ("I got a bit fresh with him"). He told me in evidence that "I used to argue with people on line" and accordingly his Twitter account was at one time suspended; he said that he would be calling someone a "Kufr" (a non-believer) "throwing that word around too much". Like the mother, I found him untrustworthy as a witness in certain key respects; at times he stubbornly adhered to his dishonest script in order to avoid accepting the blunt and all-too-obvious reality.
- My impression is that, perhaps particularly as a revert, he felt a need to show off to others the strength of his fealty to Islam; perhaps he craved recognition and/or status in the Islamic community and aspired to this by consorting with those on the edge, or beyond the boundary, of extremism. I felt he was aroused by the attention which his expressions of radical ideology brought him, but to some extent at least, was claiming that he recognised that he had gone too far.
G: 9-10 July: The Journey to Folkestone. The disputed evidence and my findings
- There are several features of the evidence relevant to the parents' journey on 9-10 July which have caused the police and Local Authority to consider that the parents were bound not ultimately for Germany but for the ISIS controlled territories of Syria or Iraq. I discuss these features below, taking them (as far as possible) in (I hope) logical order, and where relevant indicating my finding on the evidence.
- Timing of the trip: A proposed visit to Germany has, it appears from the parents' evidence, long been the subject of family discussion; in the event it appears to have been very short in the actual or focused planning. The mother told me (surprisingly) that when it came to it, "there was not much discussion" between the parents before the decision was taken that they would go (XX LA), and "it was all planned really quickly". The father gave an essentially unpersuasive explanation (from the witness box) for the particular timing of the trip which depends upon my acceptance of an account of C experiencing some harassment at school, and the need to give him a break, a holiday, some form of distraction. I do not accept that explanation, largely because of its inherently unconvincing character, but in any event confirmed by C's own denial to the Children's Guardian only shortly after the events of any bullying at school. It is surprising that the parents decided to make the visit one week before the end of term, all the more so given that the mother harboured a hope that the family might be able to "extend [the trip] for a day or two", which would not of course have been feasible if their account of the children being back in school on Monday were to be accepted.
- The parents evidence was that the journey time to and from north-west Germany would be in the region of 22 hours (with stops), which would have meant that they would have arrived on 10 July at lunch time, and would then have had to leave (in order to catch their 07:15hs train on Sunday morning) in the middle of Saturday night, some 36 hours later. In summary, this trip would leave them only one clear day (Saturday) for their activities (see plans  below).
- I do not accept the parents' explanation for their sudden decision to have a weekend in Germany. The timing of the trip in my finding had more to do with the father's admitted awareness that the family were under police surveillance (see  above); his discomfort at that was exacerbated by the recent visits of both police and social services to their home. In view of his social media postings, revealing (on his own admission) extremist views (which I discuss below), and against the background of his previous arrest, it seems more likely that the family left when they did in order to avoid what they saw as increasingly unwelcome interest by the State in their lives.
- Items left: The parents point to the fact that when leaving their home they left food in the fridge and items of value in the house. Photos of the home demonstrate that they had indeed left many of their belongings, though it is difficult to assess whether much had any real value. The mother told me that she had not packed treasured keepsakes which the children would have been devastated to be without; if she is right about this, and I am not in a position to judge, this would I accept have indicated an intention ultimately to return.
- Pet: The family had a pet. Shortly before their departure the pet was delivered to an acquaintance of the family. Question arises as to whether this was to be a temporary or a permanent or semi-permanent arrangement for its care. C gives a vivid description of the pet's relocation. He refers to it being "given away". and says that:
"…we just gave it a farewell and dropped it off. … I was asking why are we taking [the pet] he said that cos the pet food is cos we're kind of running on no money … That's why I thought they were giving the [pet] away… We just drove down he said to me that I'm sorry about giving the [pet] away because I was like it's okay it's okay I can understand; my sister was crying in the back as well and we gave the [pet] then I… In the back of the car… My sister was crying and my dad was kind of upset cos he had the [pet] for a long time; it was born, it was born in his house… " (emphasis added).
- C's account demonstrates that the children believed that the pet was being rehoused permanently, not just for three nights; he recalls that the father had explained this action as necessary by reference to the pet's anti-social habits. The father denies that the pet was given away, but I accept C's description as accurately portraying what actually happened. This is a reasonably strong indicator that the parents contemplated being away from their home for a while – considerably longer than a weekend.
- Clothing & possessions. The quantities of clothing packed for the excursion were indisputably excessive for a weekend away (see  above). Nine suitcases, containing significant quantities of clothing for all weathers, and a vast stock of toiletries, were loaded into the vehicle. It is common ground that the father did not participate in the packing of the clothes into the bags, though it appears that he actually packed the car.
- The mother's case is that she had been packing for "some time" prior to the Thursday 9 July, indeed for much of "the week before we travelled"; C and D thought that they had seen her packing on the previous Saturday or Sunday, which the mother confirmed. The mother later told me that her initial packing was for the children for their summer stay in London, and she just kept packing when the parents decided to leave for Germany. This account did not entirely correspond with her earlier (simpler) accounts; I find that she adapted her case to align it with the father's evidence (and indeed her case in other respects) that the decision to go to Germany was taken rather suddenly on Wednesday 8 July. The mother explained this (ev/ch):
"I packed whatever came into my head. I did not want to miss anything out; so maybe I packed things over and over again. It was difficult. I did not want anyone complaining; it was our car; it was my space to play with; there was no restriction; I packed whatever I may need."
- The mother agreed (XX LA) that there was a "ridiculous" amount to take for 2 days, and on reviewing the evidence professed her 'amazement' at the quantities. It was accepted by the parents that for the father she had packed heavy duty all-weather gear including gaiters; the evidence revealed that the father owns two black balaclavas; this form of headgear is commonly associated with ISIS activists. One was described as thick, black woolly with two patches cut out for the eyes. It was in fact the other which was found in the car (covering nose and mouth, but with a single aperture for the eyes). He told the police that he thought that he may need the balaclava during the weekend for the walking expedition because "the Alps can be snowy". There were no balaclavas, or other warm headgear for any other family members. I reject his explanation for the presence of the balaclava in the car.
- Among other items of note in the possession of the parents at the time of their arrest were:
i) Two portable digital internet banking (PIN sentry) security devices, which are commonly used for on-line transactions; the father explained to the police that these were taken "in case I have to make a bill payment, I always bring [it] with me"; he explained that the premium on his car insurance was due imminently, and which he appeared to indicate may be paid during the weekend away;
ii) Numerous sim cards among the items seized. The father explained that these were taken in case he acquired another phone while he was away for the weekend; this was in spite of the fact that the family had at least three working phones between them when the car was searched (two Nokia phones, and a Samsung), and by his own admission the father "wasn't really planning on getting in contact with anybody because we're going on holiday").
The father's explanations for the presence of these items on what was described as a weekend away are wholly unconvincing, and I reject them.
- With some force, the parents pointed out that if they had been travelling to ISIS controlled territories, and/or been relocating permanently they would have taken a travel cot for E, pushchair or buggy (which they did not), and would have taken more nappies for E. They point out further that there were no wind-up torches (though there was a solar powered charger); there were no sleeping bags; tents; binoculars; there was no 'Tradecraft' guide to relocating to Syria. There was no medical equipment / no first aid kit / penicillin / calpol / ibuprofen / bandages / antiseptics.
- "Heading off on a new adventure" On the Acer laptop (found in the dashboard of the car) was a document entitled: "Heading off on a new adventure", which I believe was guidance to arranging financial affairs if living abroad. Although the father could not now remember reading the document and could not recall its provenance, its presence on the computer cache is not without potential significance.
- Changing clothes and appearance: Having left the maternal relatives in London in the early hours of 10 July, the parents drove on to Folkestone, pulling in briefly to a supermarket car park off the motorway so that they could change out of their traditional Muslim clothing and appearance; the mother removed her abaya and niqab, and the father changed his T-shirt and shaved off his long beard. Both parents have maintained the argument that France and Germany are strongly anti-Muslim countries, and they needed to change their appearances in order "to avoid intimidation and fear". The mother has not been without a scarf or hijab since she was 16; she said that she had never known the father without a beard. The father had been to Germany at least four times in the last 15 years or so, and on no previous occasion had he shaved his beard.
- Interestingly when asked about it, C thought that his parents changing their clothes like this was "weird":
"I heard a shaver and I said okay he's shaving his beard off. At first I thought it was because he was going to bathe but then I'm thinking what's going on it seems weird… I never asked him about anything about it. I just thought that it be best to keep quiet; don't ask any questions instead of making people angry on the way down. Like my sisters thinking: what's going on as well?"
- I am satisfied that, while it may have been a subordinate concern of the parents not to attract unwelcome attention on the continent, the highly unusual steps taken by the parents prior to arrival at the Eurotunnel terminal were taken in order that they would have a greater chance of passing through customs inconspicuously.
- Money: At the point of arrest, the parents had over £3,000 with them in cash in the car. The evidence reveals that:
i) At the end of May 2015 the father attempted to obtain credit through a credit agency. He lied about his income. He was unsuccessful;
ii) A few days later in early June 2015, the mother tried to obtain a store card from a well-known high street store, and had (as she admitted) lied in order to do so; she gave an unconvincing answer about having "free time" as she stood by the till "knowing" that approval would not go through. She claimed in her application to have been employed by OKAY autos: she was not;
iii) The father had raised over £2,000 by selling more than 20 items on e-Bay in an intense period of trading between 23 June and 6 July 2015. Not a single item 'sold' was actually sent to the purchaser. Indeed I am satisfied on the evidence that (a) the father was trading some items which he actually did not own, and (b) this level of trading was uncharacteristically intense (certainly by reference to the previous 16 months). I reject the mother's evidence (XX LA) was that this level of trading was usual ("it was common for us to trade to that extent"); that simply is not true. I find that the father had no intention of honouring the transactions;
iv) The mother had borrowed £1,200 from her father on 9 July 2015, ostensibly for a car – a reason which I reject.
- Quite apart from the self-evident unsatisfactory evidence of fraud, attempted fraud, and deception above:
i) It did not make sense to be taking so much money for such a short trip;
ii) The parents were concerned about the risks of transporting so much cash, fearing potential "confrontation or potential robbery"; in the circumstances they took the unusually inappropriate step of planting the money on the children (in E's car seat, and with C and D) (per father's response to findings);
iii) They had no need for hard cash as they had multiple credit and debit cards with them.
All of these points have to be seen against a background of a family which was (on the parents' own admission) "quite poor you know… barely meeting deadlines, behind with the rent"; the father described money as "tight", a further rent demand was due, and they owed £500 to the father's mother.
- Aside from the unusual accumulation of money for a family which was, as I say, "quite poor", on 4 and 8 July (i.e. immediately prior to the trip) the father spent approximately £200 on a range of new clothing items: a fleece, a jacket; new walking shoes (Merell); men's rucksack (£100); glasses; new socks and underwear. None of these items could be regarded as necessaries in mid-summer, but would undoubtedly have been valuable were the family planning an extended expedition, perhaps into more hostile terrain or into autumn or winter seasons. Within the last few weeks the father had also purchased a new Acer laptop to replace the Sony laptop seized on his earlier arrest.
- The Local Authority point up that the parents had no euros with them as indicative of their intention to speed through the 'eurozone'; I do not regard this as necessarily indicative of their case; the parents' case (i.e. that they intended to purchase euros on the journey from the Eurotunnel on the continent) seems perfectly reasonable.
- Parents' plans for the weekend: The family's proposed plans for the weekend involved (a) a visit to the family relatives, (b) re-connecting with cousins, and (c) walking in the Alps. The Local Authority point to the implausibility of these plans, relying on the following evidence:
i) The father did not know where the relatives lived;
ii) The father had no contact number, nor address, for his relatives; indeed he did not even know their full names;
iii) The father did not have the telephone number of his cousin ('L') (whom he hoped to meet), and did not know where he lived: "I have lost L's number";
iv) The father had made no prior contact with any relatives in Germany;
v) Any plan to walk in the Alps would have involved a further car journey of some duration (measured in hours) from north west Germany; to reach snow-capped mountains (as the father envisaged, if his explanation of the presence of the balaclava in the car were to be believed) a journey of no less than 6-7 hours each way from north west Germany would in my estimation have been necessary. Furthermore the mother told me that she did not think that she would be able to walk in the Alps, given her responsibilities to care for E; there was no hiking maps, or guides to walking in the Alps.
- I agree with the Local Authority in their submissions. It is quite unrealistic to think that the family could achieve these objectives within the very short time which the parents had set aside.
- What the children knew: The older children gave a strong impression to the interviewing officers on 13 July that they did not know where they were being taken on the night of 9 July; C thought that the final destination was likely to be London and then he woke in Dover. Each child's evidence is corroborative of the other, each independently recalling that when they asked their parents for information, they were given the 'brush-off'. C said this:
"I asked her why the suitcases and she's like, don't ask don't ask… they said to me don't ask just go to sleep… My mum says to me don't ask any questions and I'm thinking Okay why…I fell asleep and woke up at the service station thinking where are we and my mum and dad are like don't ask and then we go… I woke up thinking where are we going when mum and dad said don't ask and then I am in Dover".
- D reported this:
"I don't know where we all going to like I thought I was asking my mum they are saying it's a surprise and I was like why can't you tell you… Well I kept on asking questions every five minutes where are we going where are we going but then I fell asleep eventually"
"… she didn't say we're going somewhere for a surprise she said it's a surprise I can't tell you… After like they had packed I did ask like where are we going because I saw my mum packing so I then said where are we going she said it's a surprise I can't tell you".
- The parents' case is that the children knew that they were going to Germany. Although, elsewhere in their interviews there are indications that the children assumed that this may be the destination (but only when they arrived in Dover), there is no real support for the parents' case about the children's knowledge, and I reject their evidence. The mother suggested that C must have been confused when answering questions in interview (when he referred to his mother exhorting him not to 'ask' what was going on), and must have been referring to a different conversation but she could not really explain what or when the other conversation(s) may have been.
- Of note is C's reaction when it is suggested to him that his parents may have been attempting to take him to Syria: "Oh my days" he replies: "I never thought that my dad would really go to Syria or Morocco or somewhere like that…", and later: "when I heard about Syria I was thinking oh my God really?...".
- When the children discussed the matter further with the Guardian, they seemed "very unsure about the purpose of the journey". Of a piece with the children's evidence is the parents' own account that they did not tell the maternal grandparents that they were leaving London to head to the south coast and then on to the continent. The mother told me that the grandparents would have believed that the family would be heading straight back to their home (a view which coincided with C's), even though this too was on any view surprising given that the visit was taking place in the small hours of the morning. I do not, as it happens, accept the mother's explanation for the secrecy with her parents (i.e. that her mother would have been upset if she knew the couple were going away for a weekend, as the money loaned should be used for a car).
- Maps: Maps of many of the countries between mid-Europe (Germany) and ISIS controlled territories (Syria and Iraq) were located on the Acer laptop found in the parents' car at Folkestone (including maps of Austria, Bulgaria, Romania, Crimea, Turkey, Serbia, Jordan, Italy, and Greece). Although no route was marked out on the maps (and Hungary is missing) cartographical continuity is to a large extent achieved (so the Local Authority maintains) between mid-Europe and areas controlled by ISIS (Syria/Iraq). There were as it happens also some 3 or 4 maps of Portugal. The police and Local Authority assert that when fitted together, the maps provide a clear forensic indicator of the parents intended ultimate destination. These maps had obviously only recently been viewed, they say, as the Acer laptop was itself a recent purchase (the box and receipt were still in the home). Furthermore, it transpires that on the day before travel (8 July), web 'apps' or software programmes had been loaded up onto the Samsung (2) mobile phone (including TomTom) which would have provided satellite navigation.
- There was no evidence placed before me that the parents had made any direct communication with anyone living in Syria or ISIS controlled territories. The investigating officer confirmed that they had located nothing which indicated evidence of a firm written plan or a specific route.
H: Material located on electronic devices: review and findings
- There is considerable evidence before the court which derives from the interrogation of a number of electronic devices seized from the parents on 18 March and 10 July; it shows high level of activity, with the parents using a range of pseudonyms. That said, I am conscious that:
i) I believe that I have seen only a fraction of what has been obtained and reviewed by the police;
ii) Some of the devices have not been interrogated at all;
iii) There are many unanswered questions about the provenance of some of the data located on the hard drive cache, and the sim or devices; there are further unanswered questions about whether the parents have deliberately searched, accessed, viewed, downloaded and/or saved the relevant material.
- I have been invited by Mr Tyler QC to view social media as a "different world from the real world" where people in the privacy of their homes feel empowered to say things which they would not say out in the street; the ease with which messages can be communicated (at the click of a button) can make for incautious or indiscriminate corresponding to an undefined audience. He invites me to view the social media interactions in this case through this lens. To some extent he may be right. But of course it may be that in the privacy of one's own home, and under the relative anonymity of a pseudonym, with time to construct the message, people feel freer to articulate their genuine views, forge links, and stimulate relationships. The dangers are obvious – social media is an extraordinarily public environment, messages travel the globe in seconds; the influence of chatterers spreads quickly and widely.
Sony laptop, seized on 18 March 2015:
This laptop is described by the mother as "a family use laptop. It is used for work, eBay, school etc". It was not password protected. On this laptop there are found a number of images and videos which, asserts the Local Authority, demonstrate support for ISIS, including
i) A speech by YT4 ("Allah is preparing for Victory"); YT4 is believed to be a former member of al-Qa'eda and killed by American forces; this was (the father admits) downloaded by him onto the computer even though he knew YT4 to be "deviant when it comes to speaking on matters of war and things like that … his understanding of things is wrong";
ii) The book of Jihad by Abi Zakaryya; (in passing I mention that a paper copy of the same book was by the father's bedside: he explained that (i) he had not read it, (ii) it was there in order to be kept away from the children and (iii) he could not destroy it as it contained Qur'anic text);
iii) The Dabiq publications of which the police officer observed: "the magazine … is clearly aimed at encouraging its readers to participate in terrorist activities by glorifying the actions of previous Islamic terrorist attacks. It glorifies terrorism through its celebratory text and accompanying imagery of combat and mujahedeen fighters. It is not intended as an instrument of peace or education, rather of armed conflict and religious intolerance";
iv) A video showing the killing of a captured Jordanian pilot. This particular video appears (according to the officer in the case) to have been professionally recorded and edited. The mother acknowledged (XX LA) that she was "quite shocked it is there".
v) Links to YouTube videos, which I discuss next.
- A number of videos had been posted on YouTube in 2015 to which links were found on the Sony laptop; these include:
i) The father in the company of WG2 (see father's associates  below), who is addressing the camera; the father told me that he knew WG2 was known for his extreme views even before he participated in this video, but told me that he had disassociated himself from WG2 after June 2015; the video is entitled "stay Muslim, don't vote";
ii) The father in the company of YT1 (see father's associates [88(iv)] below); in the video the father is seen holding a sign which encourages the public not to vote ("none have the right to legislate except Allah") in the (then) forthcoming democratic General Election; the father told me that he knew that YT1 had "done some time in prison. For terrorist offences… I knew that he had served time for terrorist offences" at the time of the video;
iii) A professionally produced and scripted talking heads video featuring the father together with WG2; the theme is essentially the same as (i); the father says on the tape that the Prophet was sent to make "Islam dominant over every other way of life"; he asks the camera "are you asking me to obey the law of the land? The law that's kufr law? The law that's waging war against Islam and Muslims?" There is a plea to Muslims to reject man-made law, and to treat voting as a "heinous crime";
iv) A video showing YT2, a prominent and leading member of the proscribed organisation ALM (presently on bail for being a member of that proscribed organisation); the father also features in the same video; the father told me (XX LA) that he knew that YT2 "was a very fiery preacher; he is known as a hate preacher. I knew that"; this video is designed to encourage Muslims not to vote;
v) A video showing a man converting to Islam; the video features WG3, YT1 and YT2 together with the father; the father says that he knew that WG3 "had served time in prison for terrorist offences" (XX LA)
vi) A video of a speech given by WG2 in which the father also appears.
- The father accepts personal meetings with the individuals identified in the videos, and asserts that he has been doing no more than participating in "religious outreach to members of the public". The mother described the father's actions in videos (i), (ii), (iv) and (v) as involvement in a Da'wah stall (preaching of Islam); she initially denied (first witness statement) that she had ever seen her husband in the company of YT1 or YT2, but had in fact posted at least four of these videos featuring her husband on her Facebook page between March and May 2015. She described the actions of the men in (i) as "immature and … silly".
- The mother operates a Twitter account; her messages from time to time appear to contain messages from the Qur'an. The mother's twitter account reveals the following:
i) The mother tweeted in June 2015 about TW2, a woman convicted of offences of distributing terrorist material; her message was to "please all keep [TW2] in your dua [prayers/supplications] especially the month of Ramadan. She is due in court tomorrow, may Allah free our sister";
ii) The mother re-tweeted messages from YT2 (well-known Islamic extremist preacher);
iii) The mother re-tweeted messages from TW1; at the top of TW1's account was what appears to have been a coffin draped a black flag and Arabic writing (bearing the seal of the Prophet) – the adopted flag of ISIS; there are weapons against the wall, with the United States flag, covering an image of the country, with an Islamic flag half-covering the picture; (TW1 is a well-known extremist and proponent of ISIS);
iv) That TW1 is following the mother;
v) The mother had re-tweeted pictures from TW1, with pictures of men in orange boiler suits being prepared for death, under the banner "This is the recompense for every spy helping to kill Innocent Muslims #ISIS #IS".
- The mother said "I follow lots of people on Twitter. Purely to understand, and to get a view of what is going on round the world. Someone shared her handle, and I pressed the follow button"; the officer's view, which I accept, is that a large majority of the tweets "appear to be related in some way to the group Islamic State".
- The father's twitter account was open to the public, and contained a photographic image of him. On 13 June, following a visit to the family home by social services following a referral, he tweeted: "social workers who don't have children come to your house (dressed as whores) telling you how to bring up your children"; he accepts if he posted this comment (which I find he did) it was "wrong". Further, the father's actions on Twitter include:
i) Re-tweets of postings of YT1, YT2 and YT3;
ii) Re-tweet of a message alerting followers to an anti-ISIS 'spy';
iii) Posting of a video titled "Muslims who smile after death";
iv) Conversation with another Twitter user who complains of being "raided under sec 5" (understood to be section 5 Terrorism Act 2006: preparation of terrorist acts).
- The officer in the case acknowledged that after the arrest on 18 March, the parents knew that the electronic items had been seized for analysis, yet the parents took no steps to become less visible. There was, in fairness, nothing covert about their postings.
White i-phone seized in March 2015
- A white i-phone was seized from the property during the March 2015 arrest. On this phone, the mother is noted to have conducted her social media activity; the phone has the pin number 0911 ('nine/eleven', numbers synonymous with the attacks of the al-Qaeda terrorists on targets in the USA); the mother says in interview "that's got no significance to me whatsoever". I find that hard to accept.
- On this phone there were many images which are said to be pro-ISIS; I am not able to verify this.
- The mother operates a Facebook account; like her Twitter account, images have been captured which show that she posts up proclamations from the Qur'an. The Facebook account reveals the following (this is not a comprehensive list of the relevant posts):
i) On 9 November 2014, in response to the news of the apparent death of Abu Bakr al-Baghdadi, the mother posted a message: "The munafiqs are happy thinking this is the end (not that I believe the nonsense). There are many more men where he came from, this is just the beginning inshallah". (Munafiquns are Islamic hypocrites). When asked about this (XX LA) she acknowledged "Maybe it was not the right thing to post. I think that what happens in the Islamic state will affect a lot of Muslims";
ii) On 10 January 2015, the mother posted a picture of the police officer killed in the Charlie Hebdo attack in Paris, with the word "Murtad" by it (apostate: someone who abandons Islam); she said (XX LA) that this was "meant as an insult", and later accepted that it was used as a derogatory term; she said that "I did not have a good understanding of this" term when she used it; in her earlier evidence in chief she had said that "I have no right to say whether he is a Muslim or not; I regret saying that".
iii) On 18 January she posted up a picture of an "ISIS Friday sermon" under the banner "Muslims should kiss the heads and hands of Paris attackers";
iv) On 24 January, the mother posted a message "UK needs Shariah" (she said that she had made the comment "out of upset" at the report of sex crimes in the UK in 2014);
v) On 31 January, under a news item about the possible killing of the Jordanian pilot, the mother posted the message: "what u cocos gonna say now" (cocos being an abbreviation of the word 'coconut' which is derogatory about certain Muslims); she explained in her oral evidence that both sides of the conflict "… are as bad as each other. I should speak against both";
vi) On 23 February, the mother posted a comment directed to "all Muslim women" exhorting them "do not lower yourself to fit this society… we do not belong here, so if you are not struggling then question your imam"
vii) On 12 March, she posted a message praising the establishment of the ISIS held Khalifah (Caliphate)
viii) On 5 April, the mother posted a message to a piece on 'Sisters' thoughts on joining ISIS"; her comment was "mmmm interesting";
ix) On 12 April, the mother posted two messages about emigrating; she explained in her oral evidence that what was meant by 'migration' was migration to Islam;
x) The mother posted the YouTube videos of the father referred to earlier in this judgment; she acknowledged that these videos contain YT2, and that "he is looked at as an extremist" (XX LA); she went on to post messages about an occasion when YT1, YT2, YT3 and WG3 were to speak at a 'Warfare Conference';
xi) 17 June 2015, the mother posted a supportive post about TW2, who had been convicted of terrorism offences; the mother said she had just "spoken" with TW2.
- On arrest on 18 March 2015, a Samsung mobile phone was seized from the family home ("Samsung (1)"). Investigation of the sim card on this phone revealed multiple WhatsApp groups. One particular group of which the father was a member attracted particular attention at this hearing; although the police considered that the father was the 'administrator' of this group, he disputes this and I cannot say one way or another. In any event, of the 14 members of the group, other members included:
i) WG1, a man who is known to NECTU as having terrorist associations and is on police bail;
ii) WG2, who has three convictions (drugs related) and had been arrested in September 2014 on suspicion of the perpetration of terrorist offences, and is still on police bail;
iii) WG5, who (it appears from the conversation analysed) had been in HMP Belmarsh prison within the last two years.
- I do not consider it necessary to rehearse the key passages of the conversation, but summarise some of the relevant entries on WhatsApp as follows:
i) The father posted a message offering "big big respect" to "brothers like" WG4, who is a well-known and well-publicised figure in the ISIS controlled territories, and was widely described as the "new Jihadi John"; when questioned about this posting, the father told me in evidence that what he 'respected' about this man was that he had converted from Hinduism to Islam. I reject this explanation when viewed in the context of the balance of the father's contributions to the conversations;
ii) The father appears to praise WG6, the actions of a leading figure in the group Al Qaeda, who has been allegedly responsible for several terrorist attacks, despatching suicide bombers, and the beheading of hostages (the father's post was "May Allah give him that absolutely highest part of Jannah for his work"); the conversation opens with a photograph of WG6 as a child, with the caption: "what a lion this little one turned into" (see  below);
iii) The father expresses his approval of a song which praises Osama Bin Laden;
iv) The father acknowledges the benefits for WG5 in being in HMP Belmarsh "with like-minded brothers"; HMP Belmarsh is well-known to house the serious category A prisoners including those on remand suspected or those serving sentences convicted of terrorist offences; of this, he told me that he now accepted that he had become "carried away" with his postings, adding "I have said things in here which I admit don't look good";
v) The father posted onto the group an audio of WG3 speaking at a rally in London inciting hatred (the father accepts this description of the video: XX LA) and anti-Government sentiment; he responds enthusiastically about a separate video-clip to the same effect ("this one pumps me up");
vi) WG2 sends to the WhatsApp group 32 of the fatwas of the so-called Islamic State, to which the father responds (same conversation) "Allahu Akbar" (Allah is great) and "this is excellent" in apparent respect or reverence for the fatwas; in his written evidence, the father indicated that although he made a cursory investigation of them he "does not subscribe to such extremist views as are described therein". The father explained in his oral evidence that his comments were intended to do no more than merely acknowledge his gratitude at receiving a copy of some of the laws of the State as he had wanted to know more about its legal system. When these comments are seen in the context of the evidence as a whole, I reject his explanation for his postings;
vii) WG2 comments about the fatwas that this is "a lot of that we have been learning from [YT2] for years, May Allah bless him" to which the father responds "Sami'na wa ta'a", which he translated as "we hear and obey"; he now says that he does not support the content of all of the fatwas (which he maintains he had not read at the time) or obey the teachings of YT2;
viii) Immediately following some news on the group conversation about the arrest of a person on terrorism charges, the father posts up reference or link to Dabiq issue 4; Dabiq is an online magazine published by Al Hayat media (the media arm of the so-called Islamic State); the father accepted that he posted this up, but now maintains that he has deleted Dabiq without reading it [B57]; he said in oral evidence: "I know it looks bad."
- On the same phone, the Samsung (1):
i) The father has sent (to the WhatsApp group) a voice recording of D chanting in Arabic (at his obvious encouragement) "Do not delay the army of Usamah"; he posts the comment "this one is a lioness" – establishing a clear association (deliberately or unwittingly, I suspect the former) with the description of the young boy ("lion") who became a terrorist (see [82(ii)] above);
ii) There are stored a large number of images (altogether 11,325), which include a small fraction (possibly only 27 in total) which are of concern to the police:
a) Various images of child fighters, in combat gear, with the Islamic flag associated with the ISIS controlled territories, who have featured in ISIS published videos;
b) Multiple images of the Islamic flag associated with the ISIS controlled territories; on some of the images the words "Our state is victorious" has been superimposed;
c) Two images of the Jordanian pilot wearing the orange coloured clothing who was killed by those occupying the ISIS controlled territories;
d) Various images of fighters, some in fatigues, some in traditional dress, some wearing balaclavas, believed to be from the ISIS controlled state;
e) Various images of leaders of the ISIS controlled territories, including Osama Bin Laden, Abu Bakr al-Baghdadi (a leader of ISIS), and Anwar Al-Awlaki (a prominent figure in al-Qaeda, a preacher and recruiter, who was convicted in Yemen of terrorist activities);
f) An image of the father sitting in a vehicle, over the caption: "Is it Allah you worship or democracy?"
g) An image of the photo journalist John Cantlie, who has been held by ISIS since 2012;
Documents were also found on the phone as follows:
h) An address (entitled "Say: Die in your rage!") given by Abu Mohammad al-Adnani, who is an official spokesperson and senior leader of ISIS;
i) Various deleted documents which appear to be sequential editions of Dabiq (an online magazine used by ISIS for propaganda and recruitment); he said that he had downloaded them "by accident" (XX LA) in one go.
- As indicated above the police witnesses were unable to tell the court at this hearing whether these images and documents had been downloaded by the user, or simply received into the device by being sent from other WhatsApp group members; surprisingly, it could not be established whether the images (or any of them) had even been viewed.
- I deal below with the parents' general responses to the evidence of their alleged extremist views, but it is right to note the father's specific comments (ev/ch) of this material that:
"I can see how it looks bad; it is not good; it is not right; it is not normal; from looking at the content at what's been said, it does look extreme".
"I admit that things I have posted look really, really bad. These are not my views now. I have said some things wrong. It is not for me to make Takfir to anyone. I am still on my learning process. My journey into Islam does not complete until I die."
He was asked (XX LA) whether he accepted that the WhatsApp conversations make clear that he holds extremist views; he replied:
"I believe that the things I said can be seen as extreme. I am not about this. I did post extreme views. They look bad. I can see that it is a ripple effect. My intention is not to do things to incite. I can see that it looks like that … I accept that things appear to be bad".
Acer Laptop : G808
- The father had only owned the Acer laptop for a matter of days or weeks prior to the journey to Eurotunnel. On arrest it was found from the dashboard of the vehicle in which the family was travelling. In that time the Acer cache appears to have stored the following:
i) A book known as "In the shade of the Qur'an";
ii) Guidance from YT1 in relation to misconceptions about the caliphate, including an exhortation to Muslims to make 'hijrah' (migration) to live in the single Islamic State;
iii) Various maps of countries between Germany and Syria and Iraq;
iv) Image on the laptop from the video of the killing of the Jordanian pilot;
v) Images of a woman and children being hanged over a bridge.
vi) Image of a guide: "Heading off on a new adventure?"
vii) Image of WG6 with a firearm;
viii) Number of images of YT1, together with AC1 and WG3;
ix) A copy of Dabiq 9;
x) A copy of the 'Jihad' book referred to elsewhere;
xi) Writings from YT1.
There are approximately 14,210 images.
Parents' general concessions
- I have set out above where the parents have made specific and general concessions about their conduct. I should add for completeness that both parties have further indicated as follows:
i) The father concedes that "Whatever is contained on the [electronic devices] looks offensive", but asserts that the offensive material was there only so that he could educate himself.
ii) The father accepts when interviewed that the video footage of the killing of the Jordanian pilot is "barbaric";
iii) Some of the material downloaded from the father's mobile phone is "distressing" and does contain "disturbing and radical material".
iv) The mother accepted (XX LA) that the material viewed on the electronic devices "maybe would be a concern of the local authority".
- From the evidence available to the court, (specifically the WhatsApp group membership, and the company shown in the YouTube videos) it appears that the father has associations and has been in regular contact in the period under review with the following individuals:
i) WG1; he is believed to have terrorist associations, and on police bail;
ii) WG2: is believed by the police to be a member of ALM, and is currently on bail on suspicion of being a member of that proscribed organisation; he has 3 convictions (drugs related),
iii) WG3: was convicted in 2008 of inciting terrorism and fundraising to facilitate terrorism and has served prison terms for each offence; he is believed to be a member of ALM;
iv) YT1: is believed by the police to be a member of ALM, and is currently on bail on suspicion of being a member of that proscribed organisation, and has a conviction for soliciting murder and racially threatening words and behaviour to cause violence in relation to a demonstration (for which he received a prison sentence).
- Furthermore, the father has expressed his support or admiration on internet based communications for WG4: a well-publicised British jihadi and convicted of terrorist offences. The father has corresponded in his WhatsApp group with WG5 who claimed to have been in HMP Belmarsh in 2014. The father cites approval for WG6 who the father accepted was known to be a terrorist.
- The Local Authority case is that the father, by these connections and associations, has material connections to ALM, the jihadi organisation which has been linked to terrorist activities, and became a proscribed organisation under the UK Terrorism Act 2000 in January 2010. Ms Fottrell QC accepted on the father's behalf that the evidence 'taken at its highest' may indeed support:
"…the assertion that the father communicated regularly in a chat room and by phone with convicted terrorists. He met with them in person. The father readily accepted this in his oral evidence… The views expressed at times by those individuals may be at times repugnant, anti-democratic or contrary to the majority views".
This, in my judgment, is a fair distillation of the key evidence and I accept her submission. Against the undisputed background, the father cannot escape my conclusion that he shares, or has shared, common ideology with extremists and radicalised individuals; it is neither helpful nor necessary for my purposes and on the information available to me to label him as an "extremist" let alone a "terrorist".
J: Overall conclusion
- In these family proceedings, I am not determining whether the parents have committed criminal offences. As it happens, I was advised that no criminal offences had in fact been identified from the YouTube videos, or in any individual social media post. The Crown Prosecution Service has yet to make a decision as to charge; if the parents are prosecuted, it is possible that further or other evidence may be available on which they may be tried, which paints a different picture from that presented to me.
- In formulating my overall conclusions in the case, I consider it helpful to return to the questions which I posed above.
What was the purpose of the proposed trip which was terminated by police intervention at Folkestone on 10 July? Specifically, were the parents, as they say, heading for a family weekend in north west Germany and the Alps?
- In my judgment, the parents embarked on their journey to Folkestone on 9-10 July 2015 with the intention of leaving the country for a significant period, which I measure in weeks or months. This was not a family weekend away. I do not rule out that the family would indeed have visited north west Germany; but that was in my judgment almost certainly not their ultimate destination. While attempts may have been made to locate and visit the family relatives, this was not the primary purpose of the trip. Individual features of their account are inherently unreliable; I have made findings on these already. When the evidence is looked at as a whole, their story is, in my view, a nonsense.
- I don't propose to rehearse the evidence which I have analysed above, but draw some of the strands together.
- The lack of coherence of the plan to visit the family rendered the story inherently implausible. It is yet more absurd to imagine (as the father sought to persuade the police and me) that the family would commit to a 22-hour round trip from their home to north west Germany, only to embark on a further extensive car journey from there in order to undertake some walking in the Alps (without the mother and E).
- I find that, in the weeks prior to their departure, the parents sought to amass as much hard cash as they could, in order to fill their coffers to support themselves for a significant period of absence from their home; without using debit or credit cards, they would be harder to locate. In my judgment, they fraudulently tried to obtain credit from store and bank cards, and equally fraudulently further placed items for sale on e-Bay which they did not own in order to raise cash, &/or goods. Having received money from innocent purchasers for items sold on e-Bay into their accounts, they converted it hurriedly into cash. The loan from the maternal grandfather was not, I find, for the purchase of a car (the parents already had two); it was to boost the cash fund on which the family were going to live.
- The suddenness of the departure from their home without any or any meaningful discussion between the parents undermines the case that this trip had been planned for the benefit of C; that case is further undermined by C himself who did not support the father's account. Had this been a trip to Germany for C's benefit, surely there would have been no need for, or benefit in, maintaining secrecy around it. The parents cast the expedition with a shroud of uncertainty and mystery which, on my finding, the children found puzzling and unsettling.
- The extraordinary volume of clothes packed for (on the parents' case) two nights' away, the multiple sim cards, the internet banking devices, the excessive quantities of toiletries simply have not truly been explained, either adequately or at all.
- It is my assessment of the evidence, and I so find, that the parents gave the family pet away permanently (or semi-permanently) as they were not planning to return home in the foreseeable future; this grieved D, and on C's account upset the father himself. That family possessions were left in the home is not necessarily an indicator that the family would return; it is just as likely that the parents left the home as they did precisely to give a false impression.
- It is common ground that having left the maternal grandparents home in the middle of the Thursday night, the parents altered their appearance by discarding their traditional clothes (and in the father's case shaving his beard); while the parents may have had concerns about being identified and targeted in France or Germany as Muslims, this was principally, I find, (and particularly in view of the fact that they suspected that they may be being monitored) in order to avoid detection at border control in Folkestone.
If it was not for a family weekend in North West Germany and the Alps: Were the parents destined for Syria, or Iraq, or ISIS controlled State, as alleged by the Local Authority?
- Having successfully demonstrated that the purpose of the trip was not as the parents asserted, the Local Authority seeks to demonstrate that the parents' intent was to travel to Syria or Iraq as evidenced by:
i) The maps located on the cache of the Acer laptop;
ii) The extremist literature on the laptop which exhorts Muslims not to live in the land of the non-believer;
iii) The evidence of the parents' radicalised views more generally;
iv) The clothing purchased recently for the father; the heavy-duty wear packed for him; the presence of the balaclava in the back of the car;
v) The possibility that there is other material in the phones which have not been interrogated;
vi) The suggestion from the police (not elaborated) that there was intelligence which indicated that the family were heading for Syria.
- As against that, it is submitted on behalf of the parents that:
i) The maps are not road maps, and would not in fact lead them by road to ISIS controlled state; and in any event the set of maps is incomplete; there is no evidence that the maps have been downloaded let alone studied;
ii) There is no marked route on any of the maps;
iii) There is no evidence of any communication with any person in ISIS controlled territory, nor evidence of the ultimate objective of such a journey;
iv) It was inherently unlikely that these loving parents would take their children, particularly one who was an infant, to the inhospitable environment of Daesh;
v) The parents did not have with them items which one might expect to see if they were travelling to inherently adverse conditions; there were no medical supplies, tent, torches, tradecraft guide etc.
They further make the point through their counsel, which I may say I have no hesitation in accepting, that I cannot make assumptions about what is not before the court by way of evidence, and may certainly not make assumptions adverse to the parents. In this regard it is significant to note that as at 17.12.15, the officer in the case reported that:
"…there are no further pieces of evidence that have been located or analysed to date, whether stored electronically or in a paper or hardcopy format, which would relate to the issue of travel".
- A small but possibly significant factor is that C seemed genuinely astounded when he learned that the police believed that he was destined for Syria. His straightforwardness in interview was notable; he did not appear to be feigning his surprise. Had he suspected that the parents planned to travel to Syria or Iraq, I do not believe that he would have reacted as he did.
- As indicated above, I am quite satisfied that the parents have not told me the truth about the ultimate destination of their journey in July. I am also acutely conscious that I may not have access to all of the evidence which the police hold which may be relevant to the issue of their ultimate destination; I reach my findings only on the evidence which has been laid before me.
- That leaves me suspicious that the parents were indeed planning to travel to ISIS controlled territories, if not immediately, then possibly at some later point in time. However, "suspicion is not enough, nor is surmise, speculation or assertion" (see Re X and Y (no.3) above), and I therefore must decline to go as far as the Local Authority asserts in finding that this was the immediate plan of the parents as at 10 July.
If not, is there any other identifiable destination, or explanation, for the trip?
- While there is evidence that the family may have been travelling to ISIS controlled territories (see above), I have not identified any other evidence which would reveal an alternative end point for the family journey.
- That said, the evidence causes me very considerable concern (I can put it no higher) that the trip was associated with the advancement or pursuit of their extremist ideology, perhaps to find root somewhere in mainland Europe. The parents imposed not only a high degree of secrecy but also a high degree of urgency around the arrangements; these plans were being implemented at a time when the clear evidence shows their escalating interest in, and activity surrounding, extremist ideology. Taken in combination these are concerning features of the canvas of evidence; but there are gaps in that canvas.
- It is nonetheless likely, and I do so find, that the parents felt that they were under increasing scrutiny at home and wanted to escape further attention from authorities. This, I am satisfied, is at least in part the reason for their journey. As I say, there may well have been other reasons.
Does the destination and/or purpose of the trip remain unidentifiable?
- The purpose, or partial purpose of the trip has been identified above. The ultimate destination does indeed remain unidentifiable on the evidence.
Does the conduct of the parents between January and July 2015 indicate beliefs of an extremist or radicalised nature (as those terms are understood under the Prevent Guidance)?
- Over the first half of 2015, the evidence reveals increasing participation by the parents in activity among those who clearly espoused and promulgated extreme and/or radical views about Islam. There was a crescendo in the parents' interest in sharing views on social media of an extremist nature; they posted messages which I am satisfied indicated their own support for terrorist activities, individual known terrorists and terrorist organisations; they clearly adopted, openly supported and repeated the views of others who proclaimed similarly radical views. Both parents contributed to the social media conversations by posting in ever-more graphic ways comments, images, and video clips, which had an obviously extremist content, many supporting the activities of ISIS.
- I have considered with care whether I could conclude that this activity represents genuine and legitimate research, and/or attempts by the father to pursue his religious education, in pursuit of his journey as a revert to Islam. I have also considered whether the conduct of the parents falls within the ordinary permitted rights which they possess to "manifest" their religion (Article 9) or enjoy free speech (Article 10). I have had no difficulty in rejecting all of these possible constructs on the particular evidence which I have outlined above. Furthermore, although I have considered the evidence of each parent separately, there is no real reason to distinguish between the actions and/or stated beliefs of the father and those of the mother in this regard. Quite apart from the fact that both parents have independently posted messages in extreme terms, they appear (by 'following' each other) to have some knowledge of (and implicitly condoned) the actions of the other.
- I have further been careful to recognise as I must that I have seen only a fraction of the total contributions made by the parents on social media; however many of the posts which I have seen clearly demonstrate "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" (see the definition of extremism at  above). Much of what I have read is infected with thoughts involving the possibility of "terrorism" or, indeed, hatred for their native country, which is England, or another religion, such as Christianity (see Re M above). I am satisfied that even if these communications were to be seen against the wider background of all the messages or images, that context would not in my view be likely to dilute or moderate to any material extent the clear and unambiguous meaning of the posts which have been scrutinised at this hearing, and to which I have made fuller reference above.
- Furthermore, some support for my conclusions based on only a partial evaluation of the social media communications is to be found in the video-recorded activities of the father and available on YouTube. A significant number of his 'WhatsApp' confidants and those he is clearly seen associating on video are those who are well-known to hold extreme views, and/or are convicted of, or at least suspected of, involvement in terrorist activity.
- To some degree, the parents appear to accept significant aspects of this analysis, and have indicated in their oral evidence a degree of regret (in hindsight) about having behaved as they have; the father at one point (as I mentioned earlier) recognised that he had got 'carried away' in his social media postings. The mother accepts that some of the opinions she expressed were "too strong and wrong". I could regard these acknowledgements as cynical attempts to deflect their culpability; I have to hope, for their children's sake, that these expressions of regret and recognition of their actions are in fact genuine, that their realisation of their conduct is sincere, and that some at least of their actions were – as the father indicated – those of people being swept along on a tide of extremist fervour, particularly in the run-up to the democratic elections in the UK in May 2015.
If the answer to the question above is yes, have the parents taken steps to promulgate their views to:
a) the children;
- While satisfied, as I have indicated, that the conduct of the parents between January and July 2015 does indicate that they hold, or held beliefs of an extremist or radicalised nature, there is no evidence, on what I have read and heard, that the parents have actually exposed, or taken any steps to promulgate to, their children these views. As I indicated at the outset of this judgment, neither C nor D show any indicator of having been radicalised.
- That does not go for others; the parents have quite deliberately and openly shared their views widely on social media.
What are the implications for the children arising from the answers to the questions posed above?
- While relieved to record, as I have, that the parents' extreme and radical fervour has not (yet) infected the children, there is a likelihood that, unless checked, it will do so; if it does so, it will cause these children really serious or 'significant' harm. There are some small indicators in the evidence which pointed to an indifference on the part of the parents to the risk of the children being exposed to harm, or involved the children in activities which could lead to harm: there is uncontroverted evidence that the father encouraged D in the chanting of the message about the army of Usamah. It is said by the Local Authority that it echoes a call to join the jihadi fight against the unbelievers which was made by WG1; while not accepting the Local Authority's construction of the 'chant' (about which I make no specific finding) the father accepted in evidence that it was wrong to have involved D in this sort of activity. As mentioned above, I found a worrying connotation between D as the 'lioness', and WG6 – a terrorist – as a 'lion' (see [82(ii)/83]). There was plainly highly noxious material on the Sony laptop (a device without security password) which was available to the children and which they used for their homework. Significant sums of money were planted on the children in the car en route to Folkestone in case of robbery or targeted (possibly racially motivated) attacks.
- Had the parents been able to fulfil their intention to flee to Europe, and possibly beyond, I consider that the children's well-being would in a quite separate way have been seriously compromised; quite apart from the summary deracination from their home, the lack of structure in their lives, the withdrawal of education, and social contacts would have been emotionally and educationally damaging to them.
- The wider implications for the children will be examined on another day. In answering the critical question above I will be mindful of what Hayden J said in Re Y (A Minor: Wardship)  EWHC 2099 (Fam), when speaking of radicalisation:
"[T]he risk identified here is both real and insidious in the sense that it is not easy to identify clearly on a day to day basis and therefore inevitably requires a challenge to manage. In those circumstances it must be regarded therefore as a significant risk." ;
"[T]he process of radicalisation that goes on within families committed to this type of belief, or to youngsters vulnerable to those outside the family with such beliefs, is strikingly similar to the process of grooming that one sees in the context of sexual abuse. Here we are concerned with 'distorted belief' but it is nonetheless pervasive and challenging to resist. In these circumstances therefore with a high risk of serious outcome it seems to me that the court is entitled to use the fullest measures at its disposal" 
- I also note what Sir James Munby P said in Re X & Y (No.3):
"People may be otherwise very good parents (in the sense in which society generally would use the phrase) while 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 even taking their children to ISIS-controlled Syria" 
- A final important point, if it needs to be emphasised, which was picked up by Baroness Hale in Re B  (see above) at  was:
"…the State does not and cannot take away the children of all the people who commit crimes, who abuse alcohol or drugs, who suffer from physical or mental illnesses or disabilities, or who espouse antisocial political or religious beliefs".
K: Future of these proceedings
- I will convene a directions hearing on 12 February 2016 at which time I will give case management directions for the welfare hearing. An advocates meeting will take place earlier in the week to discuss and ideally narrow or resolve case management issues.
- For the protection of the children, the electronic tagging will remain in place for the time being, in conjunction with the agreement of all parties. All of this is critical to the continued placement of the children at home under interim orders.
L: Electronic Tagging
- The issue of electronic tagging arose in this case soon after its inception. After some vacillation, the parents agreed in October 2015 to be tagged. The Guardian supported the return of the children, for as long as the parents were electronically tagged and firm arrangements were in place for the monitoring of the children. The Local Authority, after initial resistance, swung round behind this objective. The parties went on to negotiate and agree a comprehensive contract under which the children would be returned to their parents.
- In considering the issue of tagging, I had regard to the decision of Sir James Munby P in Re X (Children); Re Y (Children) (No 2)  EWHC 2358 (Fam).
- In Re X & Y  EWHC 2265 (Fam) (above), the President discussed the use of electronic tagging in family cases (referencing Re C (Abduction: Interim Directions: Accommodation by Local Authority)  EWHC 3065 (Fam),  1 FLR 653 and Re A (Family Proceedings: Electronic Tagging)  EWHC 710 (Fam),  2 FLR 891). As to the essential characteristics of the different forms of tagging, I reproduce what he said at :
"Most monitoring is by a radio-frequency monitor, placed in the tagged person's home, which automatically alerts the monitoring control if the tagged person either interferes with the tag (or the monitor) or leaves the premises during a defined curfew period. A more sophisticated system of GPS monitoring is also available, which is programmed to track the tagged person's movements at defined intervals (if desired, a period measured in minutes or even parts of minutes) and programmed to send an automatic report to the monitoring control of those movements at pre-determined intervals (which, again, can be a matter of minutes rather than hours). It also alerts the monitoring control if the tagged person either interferes with the tag or travels outside a previously defined zone. The equipment is designed to 'fail safe', so it may occasionally send a false report that someone has absconded or interfered with the equipment when in fact neither has happened. Mr Fearnly was not aware of any occasion on which the equipment had failed to report when it should have done so"
- The parties all agreed that the appropriate form of tagging would be by way of GPS (Global Positioning System) rather than RF (Radio Frequency), and I heard brief evidence from Mr. Paul Fearnley of EMS on this issue. On 9 October, prior to the interim hearing, the solicitors for the father had written to the MoJ indicating that the parents would apply for orders that they be electronically tagged. The MoJ replied on 14 October indicating that it was "willing to assist the court as necessary"; it was said that in the event that submissions were requested the MoJ would ask for "a reasonable period of time to do so". On 15 October I caused a further letter to be sent, requesting submissions in 14 days. Further to that request, there was agreement over the use of electronic tagging. The MoJ acquiesced to an order for electronic tagging (by way of GPS device), on the basis that (as in Re X & Y No.2) each case was being considered on its own facts and no precedent would be set by their stance in this litigation. They have indicated that they will fund in the first instance, without prejudice to arguments which they wish to pursue at a hearing (to be arranged) that it would be right for other parties to make contributions. I will resolve that issue at a later hearing.
- On 15 October 2015, the Local Authority made a specific, albeit informal, request of NECTU for disclosure of specific evidence and information garnered during the investigation: the request was:
Is there evidence which would cast light on the suitability or otherwise of the parents to be given day-to-day care of the children over and above those matters referred to in the statement of [the police officer]?
This provoked an application on the part of NECTU for me to hear submissions from them in private. With the knowledge and concurrence of the parties, I did so. Present at this hearing were Mr Ian Skelt, counsel for the West Yorkshire Police, his Instructing Solicitor, a court clerk and myself. The hearing was tape recorded but separately from the main tape recordings of these proceedings. Following that hearing, I gave a short judgment to the parties in which, while not divulging the arguments raised in private, I indicated at that stage my satisfaction that the police were not in a position to respond meaningfully to that request. With the co-operation of the police and the parties, I adjourned the hearing to be resumed one week later, to enable the police to make further enquiries.
- Following a further short hearing in exactly the same format and with the same personnel, I indicated to the parties that I was satisfied that there was nothing relevant to the question in the possession of the police at that time which could be disclosed into the proceedings; I confirmed that the police had indicated an intention to consider the request further, and would indicate that it would raise a PII application in the event that material was discovered which would be relevant to the case but which they objected to disclosure. The application was further adjourned and further disclosure was given for a mechanism by which the police could raise PII; in fact, disclosure was given and no further PII application was made.
- In approaching the issues raised by this application, and in considering the procedure, I was of course guided by the approach of the House of Lords in R v Chief Constable of West Midlands Police ex parte Wiley  1 AC 274, as subsequently endorsed in family proceedings by Charles J in Re R (Care: Disclosure: Nature of Proceedings)  1 FLR 755 at 777 and by Munby LJ (as he then was) in Durham County Council v Dunn  EWCA Civ 1654 at :
" The reality now in the Family Division is that disputes about the ambit of disclosure, whether in relation to social work records or other types of document, are framed in terms of the need to identify, evaluate and weigh the various Convention rights that are in play in the particular case: typically Article 6 and Article 8 but also on occasions Articles 2, 3 and 10".
- In applying those principles in a case such as this, which involves investigations by the Counter-Terrorism unit, it is evident that the fundamental right of the parents, the children and the local authority to a fair trial had to be balanced against the public interest in maintaining national security. In the event there was no specific evidence on which I had to rule on admissibility, though recognised that the specific submissions made by Mr Skelt could not be shared with the parties even if that would have been their ordinary expectation under Article 6. There is an important distinction between the right to a fair hearing (which is absolute) and the right to minimum disclosure of relevant information (which is not). On the particular facts of that case, the disadvantage to the parents of withholding some information about the collation of material was outweighed by the paramount need to protect the integrity of the security services processes (see Kiani v The Secretary of State for the Home Department  EWCA Civ 776).
- In the event, of course, the parents plainly were not prejudiced by the process adopted in this case, as the agreement reached between the parties at that time, and sanctioned by the court, was that the children could return home in the period pending this fact-finding hearing.
- That is my judgment.
Annex: Proposed findings of the Local Authority
- M and F made plans to leave to UK with the intention of travelling to Daesh controlled territory with the children of the family so putting the children at risk of serious physical and emotional harm;
- The adults made complex travel arrangements in an effort to conceal their intended destination;
- Both parents formed the intent to leave, planned to leave and acted in partnership to implement those plans: this was a joint enterprise as between the mother and father and they are equally responsible for placing their children's lives and wellbeing at risk by their actions;
- The parents so acted because a) they were each motivated by and subscribe to pro-Daesh beliefs and b) each holds those beliefs to the knowledge of the other
- Neither adult protected the children from the dangers consequent upon a parent holding radicalised beliefs either by intervention to stop the plan to leave the UK being implemented or by being honest about it with professionals after the family's detection and detention at Folkestone.
- As a consequence of subscribing to pro Daesh radicalised beliefs the parents have exposed C and D to the risk of emotional harm and abuse a) in the short term : by the risk of exposure to inappropriate and concerning pro Daesh material ... audio, visual, narrative, ) and b) in the longer term: to the risk of subscribing to radicalised views themselves.
- As a consequence of the parents pro Daesh beliefs they have each behaved in a way which is inimical to the children's welfare and have placed all 3 children at risk of significant emotional and physical neglect and harm.
- The parents have not been open and honest with the social work professions and have sought to deceive the professionals working to safeguard the subject children.
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