Jean-Yves Gilg

Editor, Solicitors Journal

Courting controversy: Radicalisation and the courts

Courting controversy: Radicalisation and the courts


Andrew Gillespie and Phil Loftus advise on the safeguarding of children in cases where radicalisation is alleged

Terrorism, the war in Syria, and the rise of the so-called Islamic State (IS) are rarely far from the headlines these days.

There has been an increasing number of cases before the family courts that involve allegations or suspicions that children, either with their parents or on their own, are planning or being groomed to travel to Syria; that children have been or are at risk of being radicalised; or that children have been or are at risk of being involved in terrorist activities in the UK or abroad.

The media attention such cases attract heightens the public's awareness of the issue, which is becoming an increasing concern for police, local authorities, and schools. Indeed, the views and actions of the security services, criminal courts, and the government often feature heavily in news reports but, increasingly, the voice of the family court is also featuring in the coverage of such issues.

Many cases have been brought under the inherent jurisdiction whereby the children have been made wards of court. Others have been brought after a local authority has made an application for a care order.

The leading cases before the courts tend to fall into one of a few categories. The first is where older children have become radicalised and undertaken the journey to countries such as Iraq and Syria unaccompanied and on their own initiative.

Another situation is where parents attempt to take their children to such places to lend their support to IS - not realising that they're putting themselves and their children at risk of extreme physical and psychological harm.

Finally, several cases we have seen have involved adults wielding an influence over younger children. They may have extreme views themselves which children are then indoctrinated with, again exposing them to physical and emotional distress.

In addition to the fact that these cases involve children, the courts are facing the additional complexity of the need to protect national security. It's important to ensure that legal interventions are justified and will not impact ongoing police investigations. Therefore, any allegations of radicalisation or terrorism offences must be investigated and involve close relationships between counter terrorism police, local authorities, and the courts.

This is to ensure that any evidence disclosed during proceedings is within restrictions and won't hinder external police investigations. There is clearly a tension between the court having all the necessary information and the protection of sensitive information held by the security services.

On 8 October 2015,
the president of the Family Division, Sir James Munby,
issued guidance on so-called 'radicalisation cases', in
which he stated that all cases of possible future radicalisation should be heard urgently by a High Court judge.

He also affirmed the principle established in earlier case law (see Re M (Children) and Re B (A Child) (Habitual Residence) (Inherent Jurisdiction)) that, although only a local authority can issue care proceedings, any person with a proper interest in the welfare of a child can start proceedings under the inherent jurisdiction or apply to make a child a ward of court.

Specifically, the guidance states that there is 'no reason why in a case where it seems to the police to be necessary to do so, the police should not start such proceedings for the purposes,
for example, of making a child a ward of court, obtaining an injunction to prevent the child travelling abroad, [or] obtaining a passport order'.

Over a two-month period last year, government figures indicate that of approximately 800 individuals referred to a counter-radicalisation scheme, just over 300 were aged under 18. The criminal courts are usually used in reaction to an issue rather than as a preventative solution, but the family court is increasingly being seen as a more appropriate method for preventing radicalisation.

With this in mind, there are several things to bear in mind if you're involved in such a case:

  • Read the president's guidance and be ready to address the court on the matters set out in it, for example, anti-tipping off orders and excluding the media;

  • Prepare your clients for potentially intrusive media attention;

  • Develop a close working relationship with the police, local authority, and any other agency. Shared knowledge and co-operation is crucial to protect national security; and

  • Any information provided by police, or other agencies, is highly sensitive and should be treated with caution to avoid any opportunity for it to be released to the wider public. Limit access where possible.

Overall, it's vital to recognise the importance of a co-ordinated strategy between all of the agencies involved. There should be an open dialogue throughout proceedings, sharing information where relevant and being mindful of maintaining a mutual respect for all agencies and their respective roles in the investigation.

Ultimately, the safeguarding of children involved in such cases is of utmost importance and their protection is paramount throughout the process.

Andrew Gillespie, pictured, is a solicitor and Phil Loftus is a trainee solicitor in the family law department at Jackson Canter @QSJacksonCanter