The Ministry of Justice has agreed to foot the bill for providing electronic tagging in two cases involving children potentially at risk of being taken to a war-torn country, a High Court judgment reveals.

The local authority, in the matter of X, was granted emergency protection orders for four children over concerns whether their mother was taking them to Turkey for a legitimate holiday or to cross the border into Syria to join ISIS fighters.

In the matter of Y, interim care orders were made for the children after the parents flew to Turkey and were detained by the Turkish authorities close to the border with the part of Syria controlled by ISIS.

In both cases, the parents denied any intention to travel to Syria.

The cases came before Sir James Munby (pictured), president of the family division, for finding of fact hearings.

In both cases, the hearings were adjourned until later in the year, but Munby discharged interim care orders.

Handing down one judgment for X and Y due to their similarities, Munby said: ‘In all the circumstances I can proceed safely only on the basis that the risk that the parents will, if their children are returned to their care, be minded to remove them to Syria is at present unknowable and unquantifiable but potentially very great indeed.’

However, he concluded that a ‘comprehensive and far-reaching package of protective measures’, including electronic tagging of the parents, provided ‘the necessary very high degree of assurance that the court needs, that I need, if the children are now to be returned to parental care’.

After raising concerns over the ‘unprecedented’ use of electronic tagging in the two cases, Munby said the MoJ agreed to facilitate GPS tagging ‘without prejudice to its position in any other cases’.

The ministry's concerns were first raised in an email to Munby’s private office.

The email stated: ’In criminal cases, GPS tagging is currently available on an exceptional basis only, where individuals are deemed to pose an exceptional risk, primarily where there are security concerns.’

The use of GPS in family cases also had resource implications ’that have not been considered in the context of any previous guidance. In addition, there are concerns around what the expectations around the monitoring would be, whether there would be requirements such as exclusion/inclusion zones, what breach process and enforcement action would look like, and critically, who would be responsible for enforcement’.

The ministry, in submissions to the court, also said it ’did not consider that it is within the court’s powers to order MoJ or [the National Offender Management Service] to bear the cost of providing GPS tagging’.

The ministry, as far as it was aware, said the GPS tagging proposed in the present case was ‘unprecedented’.

‘The current contract does not envisage use of GPS tagging in family cases,’ its submissions stated. ‘Any such expansion of the scheme would require contractual changes.’

According to the High Court judgment, the National Offender Management Service (NOMS) is responsible for the electronic monitoring contract and has a contract with Capita, operating as Electronic Monitoring Services (EMS), which monitors these orders on behalf of agencies.

Tagging or Electronic Monitoring in Family Cases guidance states that electronic monitoring is available in High Court matters. But due to a low number of requests, there is no specific contract in place to provide this service. The guidance states ‘NOMS have a contract in place with two providers for tagging orders in the criminal courts and we operate within this to get family orders actioned’.

Though, initially, the MoJ was not prepared to underwrite the costs for providing the electronic tagging in the matters of X and Y, the ministry said it was willing to meet the cost ‘in this case’.

Munby said the ministry’s submissions made clear it was ‘committed to assisting the court in protecting the children’s welfare/best interests’.

However, the ministry’s willingness to meet the cost ‘does not mark any departure from its fundamental position that the court has no power to order MoJ or NOMS (or, I assume EMS) to bear the cost of providing GPS tagging’, the judgment stated.