A judge has criticised Tower Hamlets council for misleading the High Court in its attempts to stop several girls fleeing Britain to join Islamic State (Isis). In comments unreported by the press Mr Justice Hayden, in the Family Division, said the police had been wrong-footed by the council’s court proceedings and Tower Hamlets “consciously misrepresented the extent of the police awareness of this application”.
Hayden had made the five girls wards of court, which meant they would have to seek permission of the court before going abroad. Tower Hamlets then successfully applied for an order to confiscate their passports, “a very significant incursion into the individual’s freedom and personal autonomy”, according to Hayden. Council officers had claimed the police had agreed this was the way to proceed, but this was untrue.
On the basis of the claimed police approval, Hayden granted the order in an ex parte hearing (in the absence of the other parties to the case) on 20 March but has since discovered that at the time of the hearing the police had not had a proper chance to evaluate the situation. “Insofar as they had, they considered that enforcement of the orders might not be required,” he noted in a new hearing last week (27 March 2015). In other words the passports could have been secured cooperatively with the help of the girls’ school, Bethnal Green academy, and the families involved.
As a matter of urgency Hayden suspended the orders on Saturday 21 March to allow this cooperative procedure to go ahead. Hayden discovered later that police “had only been notified of the application at around 2 o’clock on 20 March by email and had, therefore, no real chance to consider their response”. By 3.30 that day the local authority was in court to make its applications. Hayden, sitting on 27 March to consider the situation, said:
“I regret to say that I have concluded that the Local Authority consciously misrepresented the extent of the police awareness of this application. I do not reach that conclusion lightly. It is for this reason that I have felt it necessary to restate that which, to my mind, ought properly to be instinctive to every professional in this field, that is to say the very high degree of candour required in applications of this kind.”
The Director of Education and Social Care has written to the judge apologising for “inaccurate information in respect of the consultation with the police” and acknowledging that “more effective consultation should have taken place with the police at an appropriately senior level to enable the police to plan its response to our application”. Hayden said:
“Failings of this kind are, in my experience, very rarely attributable to one individual. Occasionally, the sincere and real determination to achieve what is thought to be necessary and in the interests of a child can overwhelm the obligation to strive for fairness and proper process. It must never be allowed to. Reinforcing these principles is the responsibility of senior management and the legal advisers.” (Para 42)
Does any of this matter? Well, yes it does, not least since a High Court judge felt it necessary to give over a hearing to clearing this issue up. It may seem a slightly arcane spat, but there are very important principles involved, not least to do with the nature of ex parte (without notice) proceedings. The court is reliant on one side in a case seeking emergency orders because there is not time to get both sides together or there is a particularly urgent need, as in the case of children who might have attempted to head to Syria.
That reliance means the applicant must offer evidence with an enhanced requirement of truthfulness. As Hayden put it, evidence should not merely be presented with honesty and integrity (that’s normal in a court): “Rather, I wish to emphasise that the fullest possible information must be placed before the court in an entirely unpartisan way. Both the evidence which supports the application and that which runs counter to its objectives. Nothing less than that will suffice.” (para 15) Hayden was particularly concerned because of the rather draconian nature of the removal of passports from individuals:
“The removal of an individual’s passport, even on a temporary basis, be that of an adult or child, is a very significant incursion into the individual’s freedom and personal autonomy. It is never an order that can be made lightly. Where only the State, in this case through the arm of the local authority, appears in court, it must never be forgotten that the court requires a very high degree of candour on the part of all of those involved.” (Para 13)
And this leads to another important point. In the “war on terror” there is a danger that state agencies chip away at essential legal protections (quite apart from any more significant parliamentary incursions), whether for apparently justifiable reasons or because of a simple panic response to difficult circumstances.
Here the judge was able to praise Tower Hamlet’s work despite his criticisms (“the local authority’s risk assessment has, in my view, been far more searching, more healthily sceptical and more thorough in it’s harnessing of material than has that of the police”) – but the ends must not be allowed to justify the means.