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Family Law

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11 AUG 2015

Re X (Children) and Y (Children) (No 1) [2015] EWHC 2265 (Fam)

Re X (Children) and Y (Children) (No 1) [2015] EWHC 2265 (Fam)
(Family Division, Sir James Munby, the President of the Family Division, 30 July 2015)

[The judicially approved judgment and accompanying headnote has now published in Family Law Reports [2015] 2 FLR 1487]

Public law children – Interim care orders – Parents alleged to have attempted to take children to Syria – Whether ICO’s could be discharged in favour of wardship and a series of protective measures including electronic tagging of the parents

Please see attached file below for the full judgment.


The parents applied for the discharge of interim care orders which had been made due to allegations that they had attempted to remove their children to Syria to participate in ISIS activities and they sought a series of protective orders which would permit the return of the children to their care pending a fact-finding hearing.

In two joined cases where the local authority believed that the parents had attempted to remove their children to Syria to participate in ISIS activities, care proceedings were initiated and fact-finding hearings were scheduled to determine the allegations.

The children in both cases had been placed in foster case and the parents sought the discharge of interim care orders and a return of the children pending the fact-finding hearing. In all other respects there were no concerns for the parents' care of their children.

The central focus in each case was upon: the magnitude of the risk that the parents would, if the children were returned to their care, remove them to Syria; the magnitude of the risk that if they did they would be able to evade the protective measures out in place by the court and designed to prevent their departure from this country; the magnitude of the consequences for the children, if in the event of the parents attempting to remove them to Syria, they are able to evade those protective measures.

It was necessary also the balance the risk the harm derived from the possibility of flight against the harm the children were suffering due to their continued separation from their parents. The parents proposed for the interim care orders to be discharged, for the children to be made wards of court and placing them in the parents' care under a series of protective orders including: passport orders; an all-ports alert; injunctions preventing the parents from removing them from the jurisdiction; and, provisions for monitoring of the family including electronic tagging of the parents. They would swear on the Quran to abide by the provisions of the order.

Analysing the three central factors, the magnitude of the consequences for the children if they were removed to Syria could not be more grave, given the realities of life on the ground of war-torn Syria, really serious bodily injury or even death. The potential consequences were at the extreme end of the spectrum.

The magnitude of the risk that the parents would remove the children was yet to be determined by a fact-finding hearing but the local authority had so far been able to establish a very strong prima facie case that the parents had attempted to do so and there was a very real prospect that the local authority could make good its assertions. At present the risk they would do so again was unknowable and unquantifiable but potentially very great.

Taking all of the evidence into account it was possible to say that the comprehensive and far reaching package of protective measures proposed would provide the necessary very high degree of assurance to the court if the children were to be returned to their parents. There remained some degree of risk of successful flight but taking a realistic view that the risk was so small that it was counter-balanced by the children's welfare needs to return to their parents.

Following receipt of the draft judgment Electronic Monitoring Services contacted the President raining the issue of funding of GPS tagging. The MoJ and the National Offender Management Services also contacted the President requesting that submissions could be made on its behalf in relation to the responsibilities and the use of GPS tagging in the family courts in general. The orders were therefore not granted until those submissions could be made.
Neutral Citation Number: [2015] EWHC 2265 (Fam)
Case numbers omitted

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand
London
WC2A 2LL

Date: 30 July 2015

Before :

SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION

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In the matter of X (Children)
In the matter of Y (Children)

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Mr Simon J G Crabtree (instructed by the local authority) for local authority A
Mr Karl Rowley QC (instructed by Stephensons Solicitors LLP) for MX (mother of X1, X2. X3, X4)
Miss Ayeisha Khandia (of Fountain Solicitors) for FX (father of X1, X2, X3, X4)
Miss Linda Sweeney (instructed by AFG Law) for GX (the children’s guardian of X1, X2, X3, X4)
Mrs Jane Crowley QC and Miss Rhian Livesley (instructed by the local authority) for local authority B
Miss Alison J Woodward (instructed by Stephensons Solicitors LLP) for MY1 (the mother of Y1, Y2 and grandmother of Y3, Y4)
Mr Karl Rowley QC (instructed by Linder Myers Solicitors LLP) for MY2 (mother of Y3, Y4)
FY2 (father of Y3 and Y4) appeared in person
Miss Julia Cheetham QC and Miss Elizabeth Morton (instructed by Temperley Taylor) for GY (the children’s guardian of Y1, Y2, Y3, Y4)

Hearing dates: 1-2 July 2015 (Re X)
6-8 July 2015 (Re Y)

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Re X (Children) and Y (Children) (No 1) [2015] EWHC 2265 (Fam) 

Judgment
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