The family courts are making creative use of their powers to combat radicalisation, but these are limited.
The terrorist murders in Paris this month demonstrate all too clearly the dangers we face from people who have been radicalised by religious extremists. To reduce the risk of another attack by highly trained jihadis, we must stop teenagers leaving their homes in Europe and setting off for areas controlled by Islamic State.
Three London schoolgirls from Bethnal Green Academy hit the headlines in February when they did just that. Since then, family judges have done their best to stop others following.
Family courts have always been in the vanguard of change in life and society, Mr Justice Hayden said earlier this year. ‘Where there are changes in medicine or technology or cultural change,’ he explained, ‘often they resonate first within the family.’
Hayden was to find himself dealing with a number of cases involving young women who had been ‘seduced by a belief that travelling to Syria to become what is known as jihadi brides is somehow romantic and honourable both to them and to their families’. In reality, said the family judge, the future held only exploitation, degradation and risk of death.
Until these young people reach the age of 18, the courts have powers to protect them – sometimes from their own parents. Making children wards of court gives parental responsibility to the High Court. Judges can stop wards leaving England and Wales. If children have gone abroad, the court can make them wards and try to get them back.
Wardship is ‘rooted in feudal history’ and ultimately derived from the duties of the Crown to protect its subjects, Hayden noted in a recent judgment. Its flexibility and adaptability have turned out to be advantages in a rapidly developing area of the law where there is little professional training or experience.
There is also a role for the Children Act 1989. Parents who try to take their children to war zones may face proceedings brought by the local authority. Care orders or emergency protection orders may be made if a child is likely to suffer significant harm. According to Marina Wheeler, a barrister who has written about this area, the courts have intervened in more than 35 cases since February to stop children going to Syria or to seek their return.
And there will be more to come. Guidance on radicalisation cases was issued last month by Sir James Munby, president of the Family Division. Given their complexities, he said, these cases should always be decided by High Court judges. Even though the cases might involve sensitive intelligence provided by the security services, reporters should be excluded from court only as a last resort.
Hayden seems to have become the go-to judge in cases of this sort and a judgment he delivered in August provides an extraordinary insight into what the courts have to deal with. The case involved an unnamed 16-year-old, taught at home by her parents, who achieved a string of outstanding GCSE results. She is ‘intelligent, educated and ambitious’. She wrote a ‘flawless’ letter to the judge. But she declined to give evidence. Instead, she and her parents sat in court, impassive and inscrutable as the judge considered whether she should be removed from them by social workers from the London Borough of Tower Hamlets.
Last December, she had been reported missing by her mother. Scotland Yard intercepted a flight minutes before it was due to leave and stopped her going to Syria. Hayden made her a ward of court. But he adopted a ‘light touch’ approach, allowing her to lodge her passport with her family’s solicitor rather than ordering its seizure by a court officer.
That turns out to have been a misjudgment. What the woman’s parents told court ‘was in fact an elaborate and sophisticated succession of lies’. They were arrested in August on suspicion of terrorist offences and their daughter was questioned and released on police bail. A very significant amount of what the judge described as ‘radicalising material’ was found on electronic devices in the family home, some of which could be linked to her.
Hayden decided to follow the analogy of a young person at risk of sexual abuse in the the home: ‘The violation contemplated here is not to the body but it is to the mind. It is every bit as insidious.’ Electronic tagging, an option recently considered for cases such as this, would not protect her from psychological and emotional harm. He agreed that she should be cared for by the local authority.
The family courts are making creative use of their inherent powers. But those powers are inherently limited. As Hayden observed, as soon as these children become adults in the eyes of the law ‘they will be free to join whatever cause they wish, however ignoble others may regard it as being’.