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Louisa Gothard
Louisa Gothard
Senior Solicitor, Head of Family Law
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How can the courts protect children from extremism?
Date:23 NOV 2017
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Complex cases involving the children of families in which there are adults suspected of undertaking activities linked to terrorism or of involvement in radicalisation are facing family judges up and down the country as child protection services grapple to deal with the immediate effects of extremism.

In a recent speech, the Metropolitan Police’s assistant commissioner, Mark Rowley, revealed that approximately 50 children, mostly girls, have been placed in foster care as a result of counter-terrorism cases. He specified that 460 arrests had been made in the last 12 months as compared to 334 in the previous year. These figures suggest that children law practitioners are only going to see more of these cases arising in their practice. 
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So called 'radicalisation' cases have taken both the form of wardship proceedings - where the courts use their inherent jurisdiction to protect children - and care proceedings - applications for public law orders which can only be brought by local authorities.

For the general public, it is perhaps not difficult to comprehend the urgent need for state intervention in the case of a parent seeking to remove a child to a war zone, where the risk of significant physical harm can be reasonably evidenced. Comparisons can be made to cases where the risk of female genital mutilation is identified for children being taken abroad to undergo the practice. 

However when it is the potential radicalisation of a child that is of concern – for example the risk to a child whose parents are alleged to have been ideologically radicalised themselves – the answers are less obvious. For these children, it is primarily the risk of emotional and psychological harm that is of concern to social workers. 

To justify the removal of a child from their family at the outset of or during care proceedings, the court must find that not only is there reasonable cause to believe that the child has either suffered or is at risk of suffering significant harm as a result of their parents’ care, but also that only the immediate removal of that child will provide for their safety. The test is a high one in recognition of the fact that children will almost certainly suffer emotional harm at being removed from their primary carers. 

In these cases the court has to balance the harm the child will suffer if they are removed suddenly from their parents’ care against the harm they may suffer as a result of being subjected to radical views within their home environment (if indeed the presence of those radical views can be proven) and ultimately the risk that they could be removed from the jurisdiction covertly.

These cases raise difficult questions about where the state should draw the line in allowing parents to shape the viewpoints of their children. The guidance from the President of the Family Division, issued in October 2015, recognises the sensitive and complex nature of these cases and provides that only in exceptional circumstances will it be appropriate for them to be heard outside of the high court. The guidance also highlights the need for careful consideration of information sharing which could compromise on-going police or intelligence agency investigations. 

These cases ultimately require the courts to determine what is 'radical' and following on from that, if those 'radical' views represent a risk of significant harm to a child. Holman J in private law proceedings Re M (Fact-Finding Hearing: Allegation of Radicalisation) [2014] EWHC 667 (Fam) noted that the term ‘radicalising’ was a 'vague and non-specific word which different people may use to mean different things' but went on to define it as 'negatively influencing [a child] with radical fundamentalist thought, which is associated with terrorism'. Section 26 of the Counter-Terrorism and Security Act 2015, which places a duty on authorities such as schools and councils to have 'due regard to the need to prevent people from being drawn into terrorism', was accompanied by the Government’s 'Prevent Duty Guidance' which defines radicalisation as 'the process by which a person comes to support terrorism and extremist ideologies associated with terrorist groups'.

In London Borough of Tower Hamlets v M and ors [2015] EWHC 869 (Fam), [2015] 2 FLR 1431, Hayden J provided a set of core principles to be adopted when dealing with these cases, including that the interest of the child is 'paramount and cannot be eclipsed by wider considerations of counter terrorism policy or operations', that there is a need for 'direct evidence that police, security forces or those involved in counter terrorism, are aware of and support the application' and 'hard evidence capable of scrutiny, either by court attendance or sworn statement'.

Ultimately, the courts are faced with the same question that routinely confronts them in care proceedings - does this child’s welfare and safety as evidenced by fact require their removal? The hope has been that multi-agency involvement with families at an early stage will provide support for those families who may be at risk of finding themselves caught up in these proceedings so as to avoid a situation where removal is the only option. It remains to be seen whether next year’s figures will reflect any improvement in tackling the problem at its root. 
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