Family Law

The convictions last week of Michael Adebowale and Michael Adebolajo for the murder of Fusilier Lee Rigby have once again raised the thorny issue of Islamic Fundamentalism in the UK. But they also sparked an unusual reaction from the Mayor of London which put family law in the spotlight.

Taking to his column at The Telegraph on Sunday to condemn the murder, Boris Johnson squarely pointed the finger, not at the usual suspects of desperation and despair, but at Muslim families who expose their children to Islamic extremism. Radicalisation in the home, he said, was a form of child abuse and should be treated as such in law. The only way to stop Islamism from spreading? Remove children from these radical homes and place them in care. But is he right?

The current policy of removing children from a potentially dangerous environment, whether emotional or physical, is implemented in part by assessing the risk of future, or significant harm. It is a concept not without controversy, viewed by some as a legitimised form of social engineering. Defenders of the measure say it is a means of protecting children from likely abuse. That is certainly what the Mayor of London might say if he were asked to qualify his sentiments of last week. Yet crossing the threshold to satisfy the risk of future harm is fraught with danger. The threshold itself was clarified by Lady Hale in the recent case of Re B (Care Proceedings: Appeal) [2013] UKSC 33, [2013] 2 FLR 1075:

‘When deciding whether the threshold is crossed the court should identify, as precisely as possible, the nature of the harm which the child is suffering or is likely to suffer. This is particularly important where the child has not yet suffered any, or any significant, harm and where the harm which is feared is the impairment of intellectual, emotional, social or behavioural development.'

Lady Hale goes on to explain:

‘Where actual harm has not been suffered ... The court has to be satisfied, by relevant and sufficient evidence, that the harm is likely.'

It is an exercise then, in understanding the subtleties of the threshold, being able to predict with accuracy the risk of harm and ultimately demonstrating the likelihood of abuse. And while Lady Hale takes the view that this is not an exercise in personal discretion but in evaluation, it is sometimes difficult to see the distinction in practice.

In Re B, a case which saw the removal of a child from her parents, this distinction was, arguably, called into question. The expert evidence in the case was conflicting. Some reports suggested that the mother was able to parent, while others expressed concern over the possibility of future harm.

The final decision to remove the young girl from her care stemmed around the judge's view that the mother was dishonest, manipulative and antagonistic towards her health care professionals. This was deemed significant because it implied that the mother would not work with professionals to keep her daughter safe. The judges felt the only solution open to them was a care order. But the facts begged to differ.

For all her animosity towards professionals during the case and concerns over the mother's mental health (and there were some), the mother worked hard and excellently with these professionals. So much so, that the judgment goes on to say that both mother and father were warm, devoted and loving parents who had put an enormous amount of work into caring for their daughter. They had, as the judgment reiterated, not put a foot wrong. And yet, it seems, the judges (with the exception of Lady Hale, who dissented) still felt that a care order was the only avenue open to them. It is hard to see how these judges took this view, without accepting that they had in fact let their own personal boundaries dictate the outcome of the case for them.

The Mayor's evaluation of the state of Radical families in Britain and what to do with them, is wanting, too. He doesn't define what he means by Radicalisation, for a start. Of course, any child who is forced to strap a bomb to his or her body or is repeatedly hit or burned for failing to learn extremist mantra falls squarely under the current definition of child abuse, rendering the Mayor's sentiments obsolete. Yet it's more likely that he's concerned with the verbal rhetoric children living in such homes hear, some of whom will, at least during their young childhoods, tend to believe to varying degrees.

While most of us would concede that such discussions do take place, this kind of thinking is sloppy and doesn't take into account the possibility that these children may one day take the view that Terrorism is not the answer. And we cannot simply ban conversation in the home because of what it may or may not lead to in the future. If we did, which topics would we choose to include? Should we ban parents from talking to their children about war, for fear that they may view violence as an acceptable course of action over a disagreement in the playground? Should we pass laws to stop devout Catholics from telling their children they will go to hell if they don't pray? A truly free society, however unappealing in some quarters, should not be silenced by a constant fear of the future.

The Mayor touches on this point in his article but seems to miss a glaring grey area. On children who hear Islamist propaganda in the home, he says, ‘A child may be taken into care if he or she is being exposed to pornography, or is being abused - but not if the child is being habituated to this utterly bleak and nihilistic view of the world that could lead them to become murderers.' Could lead them to become murderers. Not would, inevitably, lead them to violence. Allowing ourselves to believe that we have the right to control a risk we sometimes cannot quantify is a perilous pastime.

If the Government were to agree to removing children from homes where Fundamentalism was rife, the backlash caused would be devastating. Hoards of children taken from otherwise loving parents and placed into the less than comforting environment of the care system would mean these children would be at even greater risk of growing up hating the West. While the Mayor notes that Extremism is not on the rise in Britain, his suggested measure would likely lead to a surge in Terrorism, affecting countless future generations around the world. Putting dozens of children together in one place, all in acute pain, could very well lead to an increased number of radical movements inside the country, all exacting revenge under the name of Islam.

We live in a multi-cultural society, brimming with differing points of view. Many of us will have come across people who at best care little for other cultures, and at worst would be happy to see entire nations wiped off the planet. We might even argue that these people pale in comparison when thinking about the sheer intensity of religious extremists, who live, breathe and preach radicalism, daily. But do they really pale in comparison, and where should we draw the line?

Natasha is a non-practicing barrister and Editor in Chief of The Encyclopaedia on Family and The Law. Natasha also runs the family law project, Researching Reform, which is dedicated to child welfare inside the family justice system. She is the Consultant for the All Party Parliamentary Group on Family Law and The Court of Protection.

Natasha can be contacted via Twitter @SobukiRa.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.