Radicalisation – A Concept Too New For Local Authorities To Grapple With - Goodman Ray

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As of 1st July 2015, there is a duty on local authorities and schools to have “due regard to the need to prevent people from being drawn into terrorism”, this is embedded in Section 26 of the Counter-Terrorism and Security Act 2015¹ . Cases of radicalisation have been at the forefront of media attention since three teenage girls travelled to Syria² . Radicalisation cases have been present in the family law remit for a couple of years now and the term itself was defined early on by Justice Holman in Re M (Children) [2014] EWHC 667 as “negatively influencing [a child] with radical fundamentalist thought, which is associated with terrorism”.

The creation of the Prevent duty was always going to be controversial due to the risk of unfairly targeting and marginalising particular groups. There have been countless occasions now where schools have now got it wrong. For example a nursery almost referred a four year old boy to Prevent’s Channel initiative after they believed he had drawn an image depicting a ‘cooker bomb’. The child was in fact drawing an image of his father cutting a cucumber. The nursery staff informed the mother at one point that her children may be taken away from her but that she could “prove herself innocent”³. A further example involves a fourteen year old boy being questioned following a French lesson where discussion was taking place about damage to the planet¹¹. The child mentioned that some people use the term “ecoterrorist” to describe those who take action to obstruct chainsaws chopping trees. The child was taken out of class a few days later and was questioned about Isis, leaving him visibly distressed.

When a situation arises where there is evidence to suggest that a child is at risk or being radicalised, or exposed to radicalised views, steps by local authorities are taken to safeguard the child. It is imperative that in current times where racial profiling does occur that local authorities are able to distinguish between observance of religious or cultural practices which hold no risk whatsoever and a child being exposed to objectionable ideology which places them in significant risk.

Radicalisation cases in the family courts can be distinguished into two types:

1. Cases where older children have themselves become radicalised; or
2. Cases where parents are imposing their extremist ideologies so as to indoctrinate a child and are seeking to travel to Islamic State held territories which the child.

The first type of case generally gives rise to proceedings being issued under the inherent jurisdiction of the court, which are powers vested in the court to deal with matters where there is no relevant legislation. The latter would give rise to care proceedings pursuant to Section 31 of the Children Act 1989. Whilst care proceedings would usually take place in the lower courts, pursuant to paragraph 4¹² of Sir James Munby’s guidance, all cases with an element of radicalisation must now be heard in the High Court.

When a child is made a ward of the court, the High Court takes ultimate responsibility for the child, sharing parental responsibility with anyone else who ha it. No important decisions about the child’s upbringing can be made without permission from the court. Case law would suggest the court is is willing to make a child a ward of the court in cases of radicalisation. In Re Y (A Minor: Wardship) [2015] EWHC 2098 (Fam) Justice Hayden stated making the child ward of the court was a proportionate response to “very specific nature of the risk contemplated.” Whilst there was only a small risk the child would travel to Islamic State territories, it was an “unacceptable risk” to take and the severity of the outcome justified making the child a ward of the court. The child’s passport was also seized preventing the possibility of the child travelling to Syria.

The case of London Borough of Tower Hamlets v B [2015] EWHC 2491 (Fam) involved the local authority seeking to remove a child after she had attempted to travel to Syria. The child’s mother had reported her missing and the flight was intercepted minutes before it was due to take off. The child was arrested and the parents and siblings were also arrested for “possessing information likely to be useful to a person committing or preparing an act of terrorism”. Whilst the child had written to the Judge and to suggest tagging orders as an appropriate response, Justice Hayden deemed the risk to be more than just that of flight, it was also “psychological and emotional harm”. Tagging orders were not sufficient protect her and therefore she needed to be removed from her parents care and placed in a neutral environment.

Case law also suggests that it is necessary to distinguish between holding immoral views and a child being indoctrinated to the point where they want leave their home and flee to a warzone. In Re A (A Child) (Rev 1) [2015] EWFC 11 the local authority’s application for a care order and placement order was dismissed. The issue before the court is not the moral aspect of extremist ideology but whether there is evidence that the extremist ideology presents a risk to the child; the latter would meet the threshold of significant harm. The father in the case had been a member of the English Defence League for a period in his life but this was insufficient to warrant care orders. The local authority was heavily criticised, the president, in his judgement, said “it is concerning to see the local authority again harping on about the allegedly “immoral” aspects of the father’s behaviour”. Distinctions must be made between a parent holding extremist views and actively inflicting those views on a child so as to pose a risk.

The duty of care owed to a child indisputably justified criticism of the local authority in Re A (A Child). Whilst the duty may be onerous, part of a social worker’s role is to assess when a child is being inadequately cared for. Failing to intervene when necessary warrants public denigration and isolation of social workers, and this is rightly so – society relies upon local authorities to take the necessary steps to protect children. What is more concerning is that local authorities in some of the aforementioned cases only became aware of the risk to the children when it got to the point that they were almost boarding a plane to Syria.

In London Borough of Tower Hamlets v B [2015] EWHC 2491 (Fam) Justice Hayden stated radicalisation cases “present a new facet of child protection where there is, as yet, limited professional experience or, for that matter, available training”, conveying the difficulties local authorities are facing when seeking to identify children at risk of radicalisation. A study by CAFCASS in July 2016¹³ also found that it was not possible to create a profile of children at risk of radicalisation, that children were not ‘outwardly vulnerable’, and that as a result it is difficult to take steps and intervene. The study highlighted the crucial nature of safeguarding skills which social workers must utilise when dealing with cases of radicalisation. This echoed Justice Hayden in London Borough of Tower Hamlets v M & Others [2015] EWHC 869 (Fam) where he stated that ‘the risk assessment of potentially vulnerable children is the professional skill set of the experienced social worker’.

[1] http://www.legislation.gov.uk/ukpga/2015/6/section/26/enacted

[2] http://www.bbc.co.uk/news/uk-31554844

[3] https://www.theguardian.com/uk-news/2016/mar/11/nursery-radicalisation-fears-boys-cucumber-drawing-cooker-bomb

[11] https://www.theguardian.com/education/2015/sep/22/school-questioned-muslim-pupil-about-isis-after-discussion-on-eco-activism

[12] https://www.judiciary.gov.uk/wp-content/uploads/2015/10/pfd-guidance-radicalisation-cases.pdf

[13] https://www.cafcass.gov.uk/media/286999/cafcass_radicalisation_study__external_version_.pdf


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