No. FD13P00073
Neutral Citation Number: [2014] EWHC 667 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Wednesday, 5th March 2014
Before:

MR JUSTICE HOLMAN
(In Private)

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Re M children 

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MR D. GARRIDO   appeared on behalf of the applicant mother.

MR S. MONTAZ  appeared on behalf of the respondent father.

MR P. CREGAN   appeared on behalf of the local authority.

MS LOGAN  (solicitor) appeared on behalf of the guardian.

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J U D G M E N T
MR JUSTICE HOLMAN: 

1	The situation in this case cannot be regarded as at all satisfactory.  I am now constrained to adjourn, yet again, a fact finding hearing which had been set up in this case, with the result that proceedings which have now lasted for over one year are still only inching their way towards a conclusion.  It is, therefore, important that I should state, and record, the reasons for this unsatisfactory outcome.  

2	As will emerge, the reasons include issues which, in my view, fall within the ambit of paragraph 16 of the Practice Guidance on Transparency in the Family Courts; Publication of Judgments issued by the President of the Family Division on 16 January 2014.  In my view, some of the facts and matters which I am about briefly to describe are such that publication of this judgment "would be in the public interest".  Accordingly, I will direct and arrange that a transcript of this judgment is made at the expense of public funds and placed upon the publicly accessible Baillii website when available.  For that reason, I intend in this judgment to speak entirely anonymously of the family and others concerned with it.

3	The parents of the children concerned are married to each other.  The father is aged in his earlier fifties.  He was born in Libya and is a citizen of Libya but has lived for a long time here in England and is also a British citizen.   As I understand it, he is Muslim by birth and upbringing and as a matter of current religious belief.  

4	The mother is about forty.  She was born and initially brought up here in England.  When she was aged about nine her parents emigrated to Canada where she was to live for about the next eighteen years.  She is a British citizen.  The mother's own parents are clearly committed and active Christians of the Presbyterian leaning.  It was in that faith that the mother was brought up and to which she adhered.  However, in her later twenties, whilst at college in Canada, she herself was attracted to, and later converted to, the Muslim faith.

5	In 2000 a connection was made between the mother in Canada and the father here in England.   They contracted an Islamic marriage by telephone.  The mother then travelled to England where, for the first time, the father and mother actually met each other.  The following year they contracted an English civil marriage at a register office.  So, as a result of that marriage in the register office, they have been ever since been, and still are, validly married in the eyes of  English law.

6	From their marriage they have seven children.  The eldest three are sons, now aged twelve, eleven and nine.  The next three are daughters, now aged seven, six and five.  The youngest is a son, now aged two.   

7	The family all lived together in relative harmony here in England.  However, stresses appear to have developed in the relationship around 2009 when the mother  became drawn again to her earlier Christian beliefs.  

8	In September 2012 the whole family travelled to Libya where a number of members of the father's own family live.  It is the case of the mother that this visit to Libya was simply for the purposes of a holiday of about two weeks.   It is her case that after they arrived in Libya the father told her for the first time that he was intending that she and the children would remain permanently in Libya.  The case of the mother is, therefore, that the father procured the travel of herself and the children to Libya by a deception or trick, concealing from her his true intention - namely, that they would remain there permanently and not return after a short holiday.  The father very strongly denies that.  His case is that before they even set out for Libya there was already agreement, or consensus, between him and the mother that they were travelling to live in Libya indefinitely, if not permanently.

9	The mother herself, with the eldest child, did travel back to England during January 2013 as that child needed some medical treatment.  Whilst she was here she commenced the present proceedings whereby all seven children were made wards of this court and an order was made for their return to live here.  The basis upon which she obtained that order was her contention that the trip to Libya had only been for a short holiday and, accordingly, that all seven children remained at all material times habitually resident here in England.  She then returned to Libya, taking the eldest child back with her.  She did not, however, inform, or in any way alert, the father that she had already obtained that order, because she was afraid that if she did so, the father might travel on with all, or some, of the children to some other Arab country from which she might find it very difficult ever to extract them.  The mother and the children continued physically to reside in Libya for the next few months.

10	In April 2013 the father travelled to England with the two eldest sons, again for the purpose of obtaining medical treatment.  As a result of the orders which had already been obtained by the mother in January 2013, the father and children were stopped at the airport of arrival and their passports retained. 

11	There were then a number of hearings and other legal manoeuvrings involving, amongst other bodies, the British embassy in Libya.  In the final upshot, all the children and the mother were enabled to return to England in the middle of May 2013.  So, since mid-May 2013 the mother and all seven children have resumed living, and do still live, at the home within Greater London which is rented by the father and in which they were living before they first travelled to Libya.  

12	These proceedings were then transferred from the Royal Courts of Justice to the Principal Registry of the Family Division where there were a number of orders during the Summer and Autumn of 2013 by a single circuit judge to whom the case was allocated.  

13	There were, and are, issues between the mother and the father, perhaps with regard to residence of all or some of the children, and most certainly with regard to contact between the children and their father.   The position of the mother has been, and remains, that the father should not have unsupervised contact with any of the children.   Her principal reasons for that are, in summary, that she says that while the family were in Libya the father ill-treated her and some, at any rate, of the children, and also caused other members of his family seriously to ill-treat herself and the children.  She says, in very brief summary, that there was a period of many days during which she and the children were effectively barricaded, or imprisoned, in the accommodation in which they were living by members of the father's family and denied such basics as food and water or proper sanitation.  More generally, the mother says that the father is a very controlling man who has the capacity, and may indeed try, to turn the children against their mother if enabled to do so.  These allegations are very strongly denied by the father.  

14	As a result, the children's guardian, Mr Bob McGavin, of CAFCASS, recommended that there should be a fact finding hearing to see where the truth lay with regard to the original purpose and intention of the trip to Libya and with regard to the treatment of the mother and children by the father and/or his family while they were living in Libya.  That fact finding hearing was initially fixed by the allocated circuit judge to take place before him on Monday, 20 January 2014.   Very regrettably indeed, it became clear in the previous week that the case he was then hearing would overrun and he was not available.  Arrangements were made for the case to be re-fixed before him during February, but it was then said that that date was not convenient to one of the parties or their advocates.  In the upshot, the case was finally listed back here in the Royal Courts of Justice to start yesterday, 4 March 2014.   So, it can be seen that these proceedings have already lasted far too long since the return of the children to England in mid-May 2013, effectively ten months ago.

15	When I read the papers in this case on the evening of Monday, 3 March 2014 I fully and confidently expected that I would, indeed, be embarking upon the fact finding yesterday.  However, there was then a development which, so far as I was concerned, was an unexpected one.  

16	On 6 December 2013 the local authority for the area in which these children live had filed a most thorough and comprehensive report pursuant to section 37 of the Children Act 1989.   That report was, in general terms, positive as to the current well-being and settlement back here in England of the children.  At paragraph 10, under a heading "Recommendations", the social worker wrote, 

"The children are happy and content in the care of their mother, having gone through a period of instability since last year.  They are attending school and many other activities.  The behaviour of [the eldest two sons] has calmed significantly and [the second son] has become very close to his mother.  [The mother] is providing a physically and emotionally safe environment for the children."

The report commented also upon the relationship between the children and their father that had been observed during occasions of contact.  It said at paragraph 6.6, 

"[The father] was observed during contact with the children.  He was very warm and affectionate towards the children.  His interaction with the children was age-appropriate during the contact and the children found it a positive experience.  However, all children apart from [the eldest son] requested for future contact to be supervised."

17	It was therefore a matter of some surprise to me when I was shown yesterday morning an e-mail in which the legal department of the relevant local authority wrote, 

"I am writing to advise you that due to recent concerns, I have received instructions … to issue care proceedings in respect of the children.  Proceedings will be issued shortly.  An addendum to the section 37 report is being prepared by a social worker setting out these concerns and will follow shortly under separate cover …"

18	That addendum did indeed arrive in draft form during the course of yesterday.  An additional paragraph, which was drafted by the police, was received this morning.  The addendum report makes reference to a number of difficulties which the mother has recently been encountering in caring for all seven children.  She is, of course, living as a single mother.  She has no means of support, other than those provided by the State.  She is having to care for her seven children all on her own without any help or support.  During the course of February she was unfortunately quite ill for a period with bad influenza.  Clearly, and very understandably indeed, she found it difficult to cope at that time.  So there are some references in this addendum report to one or more of the children arriving at school rather late on occasions and being "unkempt".  In all the circumstances, those are obviously relatively minor matters.   

19	However, much more seriously indeed, paragraph 12 of the addendum report says,

"[The mother] described her ex-husband as an overly controlling, Islamic fundamentalist and expressed the fear that he was negatively influencing [the eldest son] with radical fundamentalist thought, which is associated with terrorism.  She said this revolves around the superiority of Islamic thinking over any other belief and seeing non-Muslims as 'infidels'.”

At the end of the report, at paragraphs 31 and 32, the social worker observed, 

"The initial sense of protectiveness [since her return from Libya] does not appear to be the case any more as the mother seems to be overwhelmed by a feeling of loss of her husband.  In feeling that way [the mother] may be unable to protect the children from unsupervised contact with father and appears to be lacking insight into her own vulnerability in resuming contact with [the father] by contacting him for support, despite knowing that he abducted the children to Libya with a view to radicalising them."

As I understand it, while the mother was so laid low by influenza she did indeed seek practical help and support from the father, having simply no-one else to whom she could turn.  

20	However, those passages in that report that I have quoted clearly highlight a concern in this case, emanating from the mother herself, that the father had "radicalised" the elder, at any rate, of the children.   This is not an issue which had been identified as the subject at all of the present fact finding hearing.  There is no direct reference to "radicalising" in the schedule of allegations upon which the court was being asked to find facts this week.  It is, however, an issue to which the mother had indeed made reference in an earlier statement as long ago as 31 July 2013 for she says at paragraph 89 and onwards of that statement, 

"Immediately following my return, both children were extremely hostile and rude to me and used concerning language which includes calling me a 'fucking bitch', a 'Christian witch', and [the second son] told me that I am evil and going to hell.  When I asked the children where they had got these ideas from, they said that their father had told them …  

On 22 May 2013 I spoke to [the eldest son] about his behaviour and he told me that he cannot love me because I am going to 'hell fire'.  He was crying and said that I was going to hell because I am not a Muslim.  I comforted him and his behaviour gradually improved from this time on.  [The second son] however, continued to be extremely angry and volatile.  [The eldest two sons] are showing signs of radicalised behaviour and have said that they want to be a jihadist when they grow up since a young age, and that they hate England and Christians …"

21	I stress very strongly and clearly indeed that at the moment all of this material is no more than statements made by, or attributed to, the mother, and no more than allegations insofar as it relates to the father or any members of his family in Libya.  

22	The father himself very strongly denies nearly all of the allegations that have been made against him and which were intended to be the subject of the fact finding hearing this week.  I understand from his counsel today that he also very strongly denies that he has said, or done, anything to any of the children which might lead any of them to say the things or behave in the ways described by their mother in the passage that I have just read.  

23	The intended focus of the fact finding hearing this week was upon the physical treatment of the mother and the children while they were in Libya and in the early period after their return.  There was no focus, as I have said, on this issue of "radicalising".  "Radicalising" is a vague and non-specific word which different people may use to mean different things.  There is quite a lot of material in this case to the effect that the elder of these children are committed Muslims who like to attend, and do attend, at a mosque and wish to display religious observance.  This nation and our culture are tolerant of religious diversity, and there can be no objection whatsoever to any child being exposed, often quite intensively, to the religious practices and observance of the child's parent or parents.  If and insofar as what is meant in this case by "radicalising" means no more than that a set of Muslim beliefs and practices is being strongly instilled in these children, that cannot be regarded as in any way objectionable or inappropriate.  On the other hand, if by "radicalising" is meant, as appears in paragraph 12 of the draft addendum report that I have already quoted, "negatively influencing [a child] with radical fundamentalist thought, which is associated with terrorism" then clearly that is a very different matter altogether.  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 which is the religion of their grandparents and now, again, their mother, then that is potentially very abusive indeed and of the utmost gravity.   

24	It seems to me, therefore, that this very recent intervention by the local authority and the essential basis of it raises very grave issues in relation to these children and this family which now require to be very carefully considered by the court.  I could not possibly have embarked this week on consideration of those issues around so-called "radicalisation" since no party, and in particular the father, was on any sort of notice that that issue would be under any sort of consideration at all this week.  Further, there may be other material relevant to the issue, for instance information in the possession of the children's schools and/or information in the possession of the police (who have been involved with this family) which may be relevant to consideration of whether there has been any process of abusive "radicalisation".  Since a process of "radicalisation" is said to have taken place also in Libya, there is obvious overlap between the issue which now arises in relation to "radicalisation" and the issues which had been on the agenda for consideration this week in relation to the more physical treatment of the mother and children while they were in Libya.   

25	As forecast in that e-mail from the local authority which I first saw yesterday morning, the local authority, who have now attended today, have made clear that it is their firm and settled intention to issue a formal application for a supervision order (although not a care order) in relation to all these children.  Quite clearly, they will have to formulate the basis of that application and prepare so-called "threshold criteria".  

26	There is so obvious an overlap between the fact finding issues which have been scheduled for this week and the issues which will now inevitably arise in the public law proceedings that it seems to me that I have no alternative but to adjourn all fact finding and put off this hearing altogether.  There will now be a single, composite hearing in which all these issues of fact, both in relation to the intention when first travelling to Libya, in relation to the physical treatment of the mother and children in Libya and after their return, and in relation to any issues of "radicalising" can be heard and adjudicated upon comprehensively.

27	For that reason I have been constrained to adjourn this hearing and reduce it, effectively, to one for directions only.  I have been urged to adopt that outcome by all parties, including the children's guardian.  Clearly there will need to be a period of some delay whilst the necessary preparatory work is undertaken and done.  The court itself could have accommodated this case for five clear days in the week beginning Monday, 7 April 2014, i.e. just over four working weeks from today.  However, I have accepted the submission, really of all parties, but in particular on behalf of the guardian, that it is simply impossible to do all the necessary preparatory and investigative work between now and an effective hearing in the space of only four weeks.  That is particularly the case as there are no less than seven children involved and, of course, each of them needs to be talked to and separately and discretely considered.   Unfortunately, because there is then the period of legal vacation over Easter and because during the remaining part of May there are a number of important judicial conferences and similar events, it is simply not possible for a High Court judge to be available to hear this case for five clear consecutive days before 16 June 2014.  It happens that in that particular week counsel who has acted throughout on behalf of the father is himself engaged in another case.  I have, accordingly, accepted and agreed that this case will have to be listed for final hearing in the week beginning Monday, 23 June 2014.  I deeply regret so long a period of delay.  I am painfully aware that that will then be no less than thirteen months since the return of these children from Libya.  I have, however, by this judgment endeavoured to describe and explain the reasons why this state of affairs has arisen. 

28	Earlier, the case had been transferred to the Principal Registry of the Family Division for hearing there by a circuit judge.  That had seemed to me to be entirely appropriate.  However, when this issue of "radicalisation" was raised yesterday by the local authority and has clearly come to assume considerable importance in the case, it seems to me crystal clear that this is a case which should now be heard by a full High Court judge.  The issue is potentially one of the utmost gravity.  For those reasons I will make the order in the terms I have already announced.