The ‘radical’ challenge

When does the state have the right to interfere in family life on the basis of radical views held by family members? Damian Woodward-Carlton reports on the inherent difficulties arising in the family courts

Family lawyers and courts are currently grappling with the most fundamental of questions: when does the state have the right to interfere in family life on the basis of the views – however unpalatable – of some family members, or their interest in exploring, viewing and reading material which others might find abhorrent? 

The reporting in the family courts of so-called ‘radicalisation’ cases is relatively recent, most having been handed down in the last two years. It is clear from the judges of these cases in the High Court, to whom such cases are reserved, that there is an acute awareness of the inherent difficulties and novel elements of this work and its place in society:

‘Here, the type of harm I have been asked to evaluate is a different facet of vulnerability for children than that which the courts have had to deal with in the past.’ Hayden J in Tower Hamlets v M and ors [2015] EWHC 869 (Fam) at [57]

‘Cases of this kind can raise the particular problem to which I drew attention in Re X (Children) (No 3) [2015] EWHC 3651 (Fam), para 96: “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.”’ Munby P in In the matter of Y (Children) (No 3) [2016] EWHC 503 (Fam) at [22]

The starting point for anyone dealing with such cases is the guidance issued by Sir James Munby, President of the Family Division: Radicalisation Cases in the Family Courts (8 July 2015). This sets out the requirements of the judiciary and lawyers handling these cases; the need for sensitive inter-agency working and the coordination of the varying needs and priorities of the family and criminal jurisdictions. (This guidance is incorporated in the nine-point advice given by Hayden J in Tower Hamlets v M at [18].)

Such proceedings involve familiar fundamental principles and practices, from the application of human rights, extensive forensic enquiry to a range of features which are less familiar, eg tagging orders and anti-tipping-off orders. Also required is a wider understanding of what is meant by ‘radicalisation’, language used, perceptions about the actions of some sections of our population and responses as represented in the media and by a range of professionals attempting to strike a balance between protections and freedoms.

Unique challenges

The courts have stressed that despite the unusual nature of the circumstances of such cases, the tried and tested skills in child protection remain the foundation for the work of professionals.

‘Once again, this court finds it necessary to reiterate that only open dialogue, appropriate sharing of information, mutual respect for the differing roles involved and inter agency cooperation is going to provide the kind of protection that I am satisfied that the children subject to these applications truly require.’ Hayden J, Tower Hamlets v M at [58]

This is a message reiterated by National Child Care Policy Manager Richard Green, commenting upon the recent Study of data held by Cafcass in cases featuring radicalisation concerns (June 2016):

‘Although the type of radicalisation concerns we are now seeing might appear to be a new phenomenon, especially with references to the so-called IS, judgments have highlighted the importance of practitioners making use of the core safeguarding skills. These are the most crucial tools in assessing these cases.’

However, working on these cases and talking to the professionals involved, social workers, police officers, children’s guardians and teachers, two sentiments are repeatedly expressed; first, that these are worrying and yet fascinating cases and second, that professionals feel out of their depth and often have a sense of being under-equipped to deal with them as well as they would like.

As one guardian who has represented children in radicalisation proceedings said:

‘The risks are harder to assess if they are ones we need to predict, ie will this child later become a Jihadi bride or ISIS sympathiser. The grooming, so to speak, of young children takes place over a number of years; families who meet together, children who go to the same schools, socialise etc. We can already see certain schools where child protection issues have arisen.’

Other questions raised by guardians and social workers include what should be the extent of their investigations in respect of individuals and institutions (eg schools, where suspicions exist; disclosure of telephone records, connected families). Concerns were expressed about whether proposed Muslim carers were unfairly vetted or more robustly assessed, even if radicalisation is not an issue in a case. There are understandable concerns about religious and cultural ignorance and sensitivities, fear of being perceived as an arm of a hostile law-enforcement apparatus rather than a supportive professional attempting to work alongside the family, and feeling uncertain about the range of possible indicators, psychological and otherwise, that need to be identified and understood.

One of the major challenges facing the family courts is how to identify future risks and the provision of a safe or safe-enough environment, in some cases seeking to undertake reparative work (the notion of ‘de-radicalisation’ being specifically eschewed by the judge in a recent case:

‘I make no apology for repeating that the court’s objective was not to ‘de-radicalise’ B [the child in question], which rather repels me as a concept, but to offer her the space and the stimulation to open her mind to alternative possibilities.’ Hayden J in The London Borough of Tower Hamlets v B [2016] EWHC 1707 (Fam) at [142]

In the normal course of public law family cases, welfare decisions are informed by the evidence of the parties, the social workers and Children’s Guardian and sometimes experts who the court decides are necessary to provide specialist advice, eg medical or psychological, as to the appropriate placement, contact and therapeutic arrangements for the children. On the limited cases so far reported, the welfare planning and decision-making for children presents new challenges, not least due to the sense of many professionals, described above, that they are not sufficiently experienced or appropriately trained to make these decisions. A guardian working on these cases reported:

‘Experts are scarce on the ground particularly in respect of harm that children may experience or are likely to experience ie attending “religious” meetings, being subject to severe criticism of the state and advocating jihad.’

Finding experts

In my experience of seeking to identify appropriate experts to assist with such decisions, it is clear that real caution must be exercised to avoid those newly minted ‘radicalisation experts’ who appear to have proliferated in a corner of the market where a claim of specific cultural knowledge together with the repetition of increasingly well-worn cliches is presented as sufficient qualification.

The case of London Borough of Tower Hamlets v B (above) illustrated the difficulties when it comes to experts. The court had the benefit of a report by Professor Andrew Silke and Dr Katherine Browne (appended to the published judgment), the aim of which was ‘to provide a review of relevant scientific evidence on radicalisation’. The report went on to describe the range of factors which have been shown by research to be involved in radicalisation – some 200 have apparently been identified. Categories of relevant matters include specific individual and societal factors, social relationships, psychological (as opposed to psychiatric) vulnerabilities and extremist ideology. The authors described different factors playing different roles at different stages and conclude that radicalisation and de-radicalisation can best be regarded as ‘a complex, non-linear, dynamic process’.

Interesting as this review of the literature is, it is hard not to be left with the feeling that, in terms of practical planning, it tells us everything and nothing, albeit in a clear and structured way. The same case highlighted the pitfalls of the non-expert ‘expert’ – in this instance an independent social worker whose work, ostensibly to carry out an ‘intense, thorough and comprehensive’ assessment and thereby to inform practical planning, was found by the judge to ‘lack any analysis of any issue in the case’. It necessarily left a gap in the evidence and created delay.

What is required is a combination of the rigorous thinking and research that has been used as a vital source of information, as set out above, and the means of practitioners knowing how to incorporate this into their own child protection practice. In a number of ongoing cases, there appears to be a division between these two essential strands. Front-line practitioners are gaining more experience all the time. Whilst there are increasing numbers of seminars and training courses, many practitioners remain unconfident about how to apply the information that they are being given. This may in part be due to the lack of consensus about the best way to consider and tackle these matters. The government’s own Prevent Agenda to combat radicalisation continues to attract criticism, including from academics challenging its methodological underpinnings. This raises particular problems in family cases as some of the relatively few experts whose CVs are currently circulated are working with the Prevent programme.

Ultimately, the courts will decide what is necessary to determine family cases and the reporting of judicial commentary on the assistance provided by experts will be invaluable. More, good quality training for all practitioners will help, ideally with involvement from those directly involved and affected by the issues. On a European level, work has been done on identifying the appropriate training required of judges (primarily in criminal cases, but more recently incorporating those hearing non-criminal cases: Counter-terrorism and de-radicalisation: how to answer the training needs of justice practitioners provided by the European Union and the European Judicial Training Network, 19-20 May 2016). It is not clear that such a programme is intended to meet domestic needs.

For the time being, practitioners must seek to find their own way to assimilate the training and opportunities available for wider and deeper enrichment in these areas with their own practice in order to benefit the increasing numbers of children and families affected.

Contributor Damian Woodward-Carlton, 42 Bedford Row

FILM: Jihad – a story of the others

Rehna Azim, barrister at 42 Bedford Row, has set up showings of Deeyah Khan’s BAFTA-nominated documentary Jihad – a story of the others for an invited audience of professionals involved or potentially involved in radicalisation cases.

Khan, an Emmy award-winning director, shows in her latest documentary how Westerners embracing jihad and death is nothing new. For three generations young people across Europe have fallen prey to extremist groups and fought, killed and died with mujahideen movements. The event provided a unique opportunity to talk to not only those who have carried out extensive research but also to ask questions to an ex-jihadi. In the ensuing discussion, the range of questions and responses suggested that whilst family lawyers continue to gain the experience of cases containing matters of radicalisation, for those professionals working with these issues, there is a clear appetite and need for more of this ‘wider education’ providing information, allowing for dialogue and enabling all of us in this field to gain the insights that will assist us better to work with and represent our clients.

Author details: 
Damian Woodward-Carlton

Damian is a barrister at 42 Bedford Row specialising in a range of public law family work. He has been a school governor since 2006, with particular responsibility for safeguarding.