19 July 2017
June 2017 - Public Law
For a PDF version of this months update: Click Here
A lady presented herself at a hospital seeking medical help and was found to be 29 weeks pregnant. The lady was from an ethnic minority background and stated that her boyfriend was not the father of the unborn child and that she had become pregnant from a one night stand and had never seen the man concerned again.
The baby was born very prematurely and on the date of the birth the mother consented to the baby being voluntarily placed with the local authority pursuant to section 20.
Shortly afterwards the lady informed the social worker that the father of the baby was her fiancée who she would be marrying a few weeks later.
The mother consistently stated that she cannot have anything to do with the child and does not want the father, whoever he may be, or any of his family or her own family to know that she had given birth to a child. The mother feared that there would be grave consequences for her from her family and the community. The mother stated that at its lowest that she would be ostracized by her family and at its highest and at worst that she herself might be killed if the fact of her pregnancy and, therefore, that she had sexual intercourse outside marriage was learned by anyone within her community. The mother did not want to receive any information about the baby and did not want the child to receive any information about her.
Holman J stated that save in the most exceptional circumstances, the statute and rules and practice all require that before consideration is given to the adoption of a child, both genetic parents, if known, must be identified, located and made aware of the circumstances. Further, good practice requires that before a child is adopted or placed for adoption, consideration must be given to whether there could be a home for that child within the wider maternal or paternal families, but most rules have an exception.
Holman J stated that ‘but most rules have an exception, and a number of authorities which have been drawn to my attention, but which it is not necessary to cite, do make clear that in very rare and very exceptional circumstances it is permissible, and may be appropriate and justifiable, for the court to dispense even with those requirements of notice. I am satisfied on the facts and in the circumstances, as I have briefly summarised and described them, that this is, indeed, one of those very rare and exceptional cases.
Holman J concluded that neither the mother’s or father’s families needed to be informed of the baby’s birth as there was no realistic prospect that either of the families would be able or willing to offer the baby a home.
When considering the maternal, paternal families and father’s rights including their article 8 rights There is, in fact, no psychological relationship at all between this child and any members of either the maternal or paternal family since none of them even know of the child's existence. The legal relationship between the child and the father is speculative. The identity of the father remains obscure and highly speculative and could not, frankly, be reliably established now without DNA testing.
Holman J made a placement order and declarations that neither the local authority or guardian need to take steps to identify or locate the father or give notice of the adoption proceedings to any member of the maternal or paternal families. The local authority invited Homan J to make declarations that the mother shall not be served notice of any adoption proceedings. Holman J declined as this would be conflict with the requirements of s141 ACA 2002.
Case concerned a 39 year old Sunni Muslim man, IH, suffering from a profound learning disability, and functions intellectually at the developmental level of a 1-3 year old. He also has atypical autism. He has been raised by his family throughout his life and currently resides in a supported living environment which is provided by the Local Authority.
Issues arose in relation to IH’s general observance of religious customs and practice. Application was made by IH (by the OS) for a declaration that it is not in IH’s best interests for him to fast in Ramadan and an application was made by IH’s father for a declaration that it is in IH’s best interest for his axillary and pubic hair to be trimmed in accordance with Islamic cultural and religious practice insofar as it is safe and reasonable to do so.
The first application was not contentious and Cobb J concluded that it was not in IH’s best interests for him to be expected to fast during Ramadan, or at all.
The father had been trimming IH’s axillary and pubic hair for all the years which IH was living at home and for one year beyond until 2014. The home had agreed to do this every fortnight but this did not happen. IH’s father was anxious that his adult son should adhere as fully as possible to the tenets of the Islamic faith. The judge found the father to be entirely focused on the best interests of IH.
Dr Mansur Ali, lecturer in Arabic and Islamic Studies at Cardiff University, advised that IH is in a heightened state of spirituality due to his lack of capacity and was exempt from practicing the major rituals of Islam including the adherence to the Five Pillars. There were also concerns that IH, or others assisting, could be harmed in the process of removing the hair.
The judge found that it was not in IH’s interests to fast during Ramadan or to have his pubic and axillary hair removed in accordance with the Islamic practice.
The judge concluded that ‘IH has a life-long developmental condition and has never had the capacity to understand the tenets of Islam; the benefits of adherence to such rituals do not obtain for him, but for others. The fact is that by reason of his disability IH is absolved of the expectation of performing this recommended procedure, and there is no other clear benefit to him. The trimming of the pubic and axillary hair would serve no other purpose. I am anxious that IH should be spared additional stresses in his life, and wish to protect him and the staff from the risk of harm – an approach which itself has the endorsement of Islamic teaching.’
Local Authority sought findings against the mother that she has and would expose her children to risk of significant harm by travelling to Syria, attempting to provide money to persons associated with Islamic State and by holding and sympathising with extremist views.
Local Authority sought orders under the inherent jurisdiction to prevent the children being removed from the jurisdiction of England and Wales for their minority. Did not seek orders under Part IV of the Children Act 1989.
The maternal family claimed asylum in the UK after fleeing Somalia and Yemen. One brother was linked to terrorist organisations and is now believed to be dead after travelling to Syria. The Mother denied holding radical or extremist ideology. The Mother and Father separated in 2013 and he subsequently disappeared. He is believed to have travelled to Syria.
Local authority sought to rely on:
1 trip to Turkey where the Mother met the Father who came over from Syria and claimed that she had provided lump sums of cash to the Father to pass to persons linked with terrorism.
an attempted trip to Turkey where the Mother was prevented from travelling and £5000 was seized in cash along with copies of the children’s birth certificates with no return flights booked.
an attempted trip to Dubai via Amsterdam which the Local Authority asserted was a staging point to travel to Syria with the intention to cross into Syria and further provide funds to terrorist groups.
The Local Authority concluded a parenting assessment in October 2014 with “there is at present no evidence that the children have come into direct contact with extreme or radical views.”
The Local Authority holds the burden of proving its allegations but findings must be based on evidence and not speculation. Suspicion is not enough.
There is no requirement that the parent prove the contrary in cases of alleged extremist beliefs and radicalisation (see Re X & Y (No 3)  EWHC 3651 (Fam)).
His Lordship accepted that the Mother initially lied about the trips but agreed that the Local Authority’s case rested on exceptionally narrow interpretations of the mother’s actions which were not borne out by the evidence and therefore found that the case had not been proven to the standard required. Further that there was no cogent evidence that the Mother held extremist or radical views.
Islamist extremism and the radicalisation consequent upon it exist at present as a brutal and pernicious fact in our society. It is important in these difficult and challenging circumstances that the court hold fast to the cardinal precepts of fairness, impartiality and due process that underpin the rule of law in our liberal democracy, and from which flows the requirement that the court be satisfied to the requisite standard of proof on the basis of evidence before making findings adverse to an individual.