Due to vague terms, and the opaque nature of the ‘science’, there will have resulted a great number of miscarriages of justice, especially where children have been made ‘wards of the court’ seemingly for their own protection.
FOREWORD
Societies have repeatedly only revisited, investigated and eventually condemned the worst of their cruelties to children after the passage of sometimes generations.
Grotesque elements of the history of the British Isles within our lifetimes have involved the permanent transportation of British children on their own across the world to Australia and the condemnation of children to coerced servitude by religious orders. The sheer weight of authority enjoyed by the government departments, churches and schools involved in what is now acknowledged to have been a wholesale betrayal of those children, was sufficient to stifle questioning.
Today’s revulsion and anger at those events, generated by eventual enlightenment, focus on two elements of that history – the obscenity and brutality of the permanent removal of children not from brutal parents, but from parents (single mothers), who could provide love and care, and in parallel, the judgmental misconceptions that deemed those mothers (young unmarried women) to be unfit parents. Claimed on behalf of society generally were institutionalised fixed ideas of what was right and what was wrong. Examples, such as those set out in this report, of many of today’s intrusions into family units separating children
from their parents, mirror the same blindness, overlooking as they do, irreplaceable features of kindness, trust and love between parent and child and instead carrying out brutal and inappropriate amputation, without warning, without choice and without true understanding.
The construct of the drastic state intervention discussed in this report is extraordinary in its reach – the assessments separating mothers from children based in significant part on unreliable and un-researched criteria, half digested concepts and categorisations, on mandatory interaction with inappropriate “mentors”, selected frequently from individuals deemed to have been themselves “de-radicalised”, and the overarching belief that the construct constitutes a safe and right way to determine that the future of a child , often very young must be apart, on occasion permanently, from a loving parent.
Ignorance, blinkered thinking and prejudice allowed for the separation of children from their parents in the past and the devastating effects of those separations haunt those children and in turn their children today. Such understanding as to how easily we can offend against the children of our society as we have recently acquired from those tragic histories is essential in attempting to inform ourselves about the present.
Moazzam Begg
Looking back to the origins of the government’s original PREVENT strategy that followed the London July 7 bombings in 2005, one could understand the climate that triggered a discussion around Preventing Violent Extremism (PVE).
However, with time, PREVENT became less about preventing violence and more about policing ideas. By the time it was incorporated into legislation under the Counter Terrorism and Security Act (2015), PREVENT entered the pre-crime space and many of its targets were children.
In 2015-16 there were 7,631 referrals to PREVENT following the new statutory regulations. A quarter of these were children under 15.
In 2017, 6,093 individuals were referred to PREVENT. This time, 2000 of these were children under 15.
Today, proponents of PREVENT cite the number of people that have been stopped from travelling to Syria as the measure of success but, offer very little evidence regarding how many lives PREVENT interventions have saved in Britain. The original aims of PVE seem quite distant to what they have evolved into today. Further, there is almost no analysis by government as to the long term cost to the thousands who are engaged by counterterrorism officials, but there was never any cause for concern.
In this way, attempts by the state to make the children of “extremists’ into wards of court may have been fuelled by the idea of safeguarding and protecting vulnerable children. Indeed, much recent and impending legislation has been justified by the very real threat posed to the British public by groups like ISIS or far right groups. Certainly, that ongoing threat needs to be tackled by the state but, Britain has more anti-terror laws in place now than its had in its history and removing children from parents – even those deemed to have “extreme views” – is a step too far.
In several of the cases presented in this report this has also been the view of the courts. However, as a society where these measures are likely to increase we need to ask ourselves some fundamental questions. Will separating children from parents whose views we may abhor make everyone – including those very children – safer? Will these children grow into young men and women thanking the state for its intrusion into their lives or will they become victims of the same “radicalisation” the government is claiming to fight?
And, if the state normalises this practice as one of the tools in fighting terrorism, where will it end? The answers to these questions are not just about safety and security but also about what kind of society Britain wants to become over the coming years.
CONTENTS
ABOUT
This report seeks to understand the way in which the government’s theory of ‘radicalisation’ appears in legal cases and the potential impact of the implementation of that theory. We argue that due to the vague terms, and the opaque nature of the ‘science’, there will have resulted a great number of miscarriages of justice. This is particularly true where children have been made ‘wards of the court’, seemingly for their own protection.
© Copyright 2018
CAGE Advocacy UK Ltd. All rights reserved.
Permission is given to duplicate this document for personal use only, as long as it is unaltered and complete. Copies may not be duplicated for commercial purposes.
ASIM QURESHI
Asim is Research Director at CAGE. He graduated in Law (LLB Hons) and LLM, specialising in Human Rights and Islamic Law. He has specialised in investigations into the impact of counter-terrorism practices worldwide. In 2009, his book, Rules of the Game: Detention, Deportation, Disappearance, was published by Hurst, Columbia University Press and later by Oxford University Press. In 2010, he began advising the legal teams involved in defending terrorism trials in the US and at Guantanamo Bay, Cuba.
ACKNOWLEDGEMENTS:
We would like to thank all the reviewers who contributed their time to scrutinise this work in close detail. Their comments helped to improve our argument and content, and in light of our calls for transparency, it is important to recognise their contribution. Photos by Teresa Howes others from Pexels.
Introduction
This is a report unlike any that CAGE has produced before, and it comes at a crucial time. In today’s global paradigm we have become acquainted with the images and stories of children being removed from their parents in countries that espouse “freedom and democracy”. This has happened under the guise of “immigration control and preventing terrorism”.
We have seen this happening in the United States and, at a lower profile but no less significant extent, in Australia. Such policies have long roots in colonialism and empire, which we will not explore here but which deserve acknowledgement as a backdrop.
Now, for the first time, CAGE is offering documentation that PREVENT is facilitating the removal of children, and the attempted removal of children in the family courts of the United Kingdom. This is being done using an unreliable and highly subjective method of measuring “extremism” and “radicalisation”, themselves subjective terms that have not been adequately defined.
The science behind the method used in the government’s approach to “radicalisation” and “de-radicalisation” is questionable – its substance remaining vague and, arguably, flawed. Despite this, the method, known as the ERG22+, has been implemented since 2011, without much critical engagement by the courts, and particularly in cases determining the removal of children.
However, CAGE critiqued the “science” of the ERG22+ method in a 2016 report. We presented evidence that revealed the tool’s lack of evidence base and questionable “scientific” methodology. With the government having placed the psychological tool on statutory footing, we continue to voice these key concerns:
- The theory and conclusions of the ERG22+ study are unproven.
- The use of the factors from the study to introduce the concept of pre-criminalisation stands a real chance of violating due process and broader civil liberties.
- The use of ERG22+ extends far beyond the original remit.
- The non-recognition of political context as being a significant factor within a multitude that result in disenfranchisement and alienation, is a glaring omission.
- No external oversight from the psychology community of the government’s ERG22+ study raises questions about ethics. The authors of the study worked for NOMS (National Offender Management Service), and two members of the advisory committee overseeing the study, were chosen as independent reviewers.
- A lack of credible peer review processes to verify the ‘science’ upon which the authors relied to validate the assessment tool means it was at its basis ‘unscientific’.
- There is a lack of replicated research supporting the findings of the NOMS study, a process that should have been a precondition to the UK government using the findings, and by extension the tool, as part of its PREVENT and CHANNEL policies.
Despite these crucial weaknesses – which were flagged not only by CAGE but since then, have been called into question by lawyers, academics, psychologists and social workers – the ERG22+ is still the current method used to determine the outcome of family court proceedings related to “extremism”.
Despite this shaky basis, and the fact that there is no agreed upon definition of “extremism”, the current head of counter terrorism policing Mark Rowley has called for a “whole society response” to the “chronic threat” of “extremism”. As a part of this “whole society response”, he has said that around 100 children have been removed from their families.
Through our experience with some of these families, we have concluded that in many cases, the courts are employing a flawed method to remove Muslim children from the care of their parents, based on notions of ideology.
There are many things that CAGE had to consider carefully when coming to this conclusion: the details of each case and whether they warranted highlighting under this theme; the way we presented detailed and analytical research of the ERG22+ done previously by CAGE but now with inimitable and important links to this report; and the allegations themselves which are serious and deeply troubling.
We deliberated carefully over making such statements and were mindful that we were absolutely sure of them, not only by backing them up with legal evidence, but with real testimonies, from people who had experienced, and are still experiencing, what is to us – and we are certain to most people – the most terrifying form of state oppression.
As a result, we had to be transparent, in our research and in the way we interviewed and portrayed the stories of those families who have been, and are in the midst of being, subject to the attempted removal of their children.
In the end, as with all our work, these accounts were core to getting the story across. As a result, we have presented them as separate, standalone sections. These stories speak volumes and can no longer be ignored.
Critics will no doubt claim that CAGE is being alarmist and will accuse us of fear-mongering. On the contrary, we view these accounts from real people as testimony to their courage, and we hope that this report is seen as such – as both a warning, and an inspiration. This is because there have been instances where individuals and families have stood alone against the state, and succeeded.
There are others, however, who have lost a great deal.
Another criticism which may arise from this, is that we did not provide adequate balance. It is important for us to state that CAGE is about being committed and truthful to our clients and their experiences. Our duty is to communicate the impact state policies have had on them and their families, and this drove our approach.
However, we must categorically state that in the circumstances where children are at risk of actual harm, we should resort to well established principles of safeguarding that exist long before safeguarding became securitised. But in the cases illustrated in this report, Muslim parents are being threatened with removal of their children or are having their children removed, based on ideological reasons, and not on abuse.
It is crucial that we must not rely on and implement a suspect system of intervention that seeks to police belief. Doing so not only shatters families and children, it calls into question the very notion of “safeguarding” – which we still believe to be a key social concern – and can damage well-established existing frameworks.
We trust and pray that this report is a call to all concerned with justice and equality, to challenge these developments with unity and persistence.
Human Voices
Yusra: The message was ‘if you don’t stop having a political opinion, we will take your kids’
Ghada’s father: They took my teenage daughter and tried to remove Islam from her life
Ahmed: How a Schedule 7 stop spiralled into a fight to keep my children
How can you help?
SHARE
Share this report and key findings with friends and family.
EVENTS
Organise local events to highlight the findings of this report. We will be happy to help.
BUILD
Build alliances with others who are working to protect the rule of law and family rights.
CHALLENGE
Write to your local MP, Councillors, Council Officers and Police.
2: Problems with legal definitions of Radicalisation
– Legal Definition –
Engagement by the courts with the issue of ‘radicalisation’ seems to take the veracity and accuracy of the government’s narrative of what constitutes ‘radicalisation’, how it occurs, and why it is a risk, for granted as truth.
Although it is acknowledged that “Radicalising is a vague and non-specific word which different people may use to mean different things”,1 the attitude that seems to prevail across many cases where ‘radicalisation’ is discussed seems to have embedded itself in a way that is best expressed by Mr Justice Hayden: “Those words are sadly now so much a part of contemporary life – ‘extremism’ and ‘radicalisation’ – that they scarcely need definition.”2
Even where definitions are explored, as indeed in Re K, the definitions relied upon are frequently lifted from texts such as the Prevent Duty Guidance and the Channel Vulnerability Framework 3. In the case of London Borough of Tower Hamlets v B4 where the judge engages at great length with the work by an ‘expert’ – Professor Silke – on ‘radicalisation’, it is worth noting that a CAGE report identified Professor Silke’s involvement in the creation of the ERG22+5. This appears to represent an uncritical engagement with one narrative on ‘radicalisation’: the state’s narrative.
Ignoring for a moment the inherent issues in the isolation and proliferation of any single narrative without any attempt to engage with or explore alternatives, the unquestioning acceptance of the government’s discourse around ‘radicalisation’ seems problematic due to the serious shortcomings that a CAGE report has already highlighted around the ‘scientific’ basis for the ERG22+. Nonetheless, the ERG22+ is a key part of PREVENT, Channel, and seemingly the whole state approach to ‘radicalisation’6.
The implications of this one-sided engagement and the employment of the flawed ERG22+ on families cannot be understated.
Coercion is built into the system of removing children, since parents are forced into a binary situation, which is to accept there is an issue and not risk having their children taken away, or to challenge the subjective views of those fearful of their beliefs.
This was the position that Yusra*, a single mother of five, was forced into when social services and counter-terrorism police visited her home, and during a subsequent meeting between the social worker, his supervisor and herself. During the home visit, Yusra had boxes around the house from having moved six months previously. She saw the officials eyeing the boxes, and tried to explain that she had just moved, and, being a busy single mom on one income, had not settled and properly decorated yet. But, she said, they assumed otherwise, and treated her as such. A day later, she brought her tenancy agreement to the meeting to prove herself. However, the officials continued to assume that she was a “flight risk”, and, she said, were “nitpicking” asking her questions “straight from the ERG22+”.
She said: “They asked me what I thought of ISIS and what I thought about democracy, whether it was a viable system to live under. I felt like it was my religion and belief that was on trial. It was not about whether I was caring for the children properly.” Yusra also said that the entire process was led by counter-terrorism, and was not about children’s services. In the end it was one officer “quick-firing” her about her thoughts on the Paris attack, and other incidences around the world at that time. She specifically mentioned the way in which the officer had asked questions, rapidly, as if to catch her out.
Yusra was supported by her family doctor and many teachers at her children’s school who felt awkward and coerced into the line of questioning precipitated by the use of the ERG22+ by PREVENT. During court proceedings, she was found to be a warm and caring mother, her children’s needs seen to, but when authorities wanted to perform the “radicalisation” assessment, she refused to take part, saying: “They told me: you pick who will do the risk assessment, but I said: ‘This is ridiculous; I would not even pick my dad, as it’s all based on the ERG22+ so it’s completely untrustworthy and the outcome is predetermined.’”
The entire discourse on ‘radicalisation’ is inherently problematic when it is seen in connection with the criminalisation of certain ideologies or beliefs. Although the courts have been keen to state repeatedly that the measures being taken are not intended to undermine basic human rights including freedom of thought, belief or religion7, there seems to be something distinctly Orwellian not only about the PREVENT strategy in so far as it attempts to regulate these freedoms, but also in the shocking ‘double-think’ that is required by the courts, the government, and bodies endorsing these strategies.
This is exemplified by the judgement of Holman J in the case of M (Children):
“’Radicalising’ is a vague and non-specific word which different people may use to mean different things. There is quite a lot of material in this case to the effect that the elder of these children are committed Muslims who like to attend, and do attend, at a mosque and wish to display religious observance. This nation and our culture are tolerant of religious diversity, and there can be no objection whatsoever to any child being exposed, often quite intensively, to the religious practices and observance of the child’s parent or parents. If and insofar as what is meant in this case by “radicalising” means no more than that a set of Muslim beliefs and practices is being strongly instilled in these children, that cannot be regarded as in any way objectionable or inappropriate. On the other hand, if by “radicalising” is meant, as appears in paragraph 12 of the draft addendum report that I have already quoted, “negatively influencing [a child] with radical fundamentalist thought, which is associated with terrorism” then clearly that is a very different matter altogether. If any child is being indoctrinated or infected with thoughts involving the possibility of “terrorism” or, indeed, hatred for their native country, which is England, or another religion, such as Christianity which is the religion of their grandparents and now, again, their mother, then that is potentially very abusive indeed and of the utmost gravity.”8
This definition was endorsed by the President of the Family Division, Justice Munby in Re X9 and Re Y10. Without delving into the merits of M (Children), it is the language of the court that is deeply problematic, as what the judge may refer to as ‘radical fundamentalist thought’ – a notion that is not defined by any statute or policy document – may for many Muslims be considered mainstream Islamic doctrinal opinion.
Just one such example of this is senior Conservative politician Nadhim Zahawi linking the distribution of inheritance in the Qur’an to extremism. In a debate with Dr Rizwaan Sabir on Channel 4 News, Zahawi said, “If you look at inheritance laws under shariah courts, inheritance laws are not equal between man and woman, and equality is a British value.”11 Such links being made is indicative of the subjective nature of the terms that are being applied in the courts – this is particular in the way that individual judgements determine what is considered traditional belief, as opposed to what is ‘fundamentalist’.
This honing in on, and criminalisation of, certain beliefs and practices of Islam is counter-productive and results in an attitude of non-co-operation in parents. This then increases hostility and anxiety.
In Yusra’s case, the entire process resulted in her suffering a heart attack, and being hospitalised – a harrowing ordeal that was eventually acknowledged by the judge in her case, who also “reprimanded the local authorities for prolonging a case that should have been resolved quickly and outside of court. She also lamented the amount of public funding that had been spent”.
Indeed, the thrust of the government’s problem with ‘radicalisation’ seems to lie in the opposition that they claim is fostered by ‘fundamentalist thought’ to ‘British values’. These ‘values’ are said to include commitment to civil liberties and human rights, the rule of law, and tolerance. One might suggest that the best way to protect these values would be, firstly, not to undermine them, since this is more prone to drive disfranchisement than to stem it.
“One might suggest that the best way to protect these values would be, firstly, not to undermine them yourself, since this is more prone to drive disfranchisement than to stem it.”
3: The use of the ERG22+
Most significant in this discussion on the way in which radicalisation theory is implemented within the UK legal system, is the official document marked ‘sensitive’ that is shared in cases where the ERG22+ is used as an official tool. The document that CAGE has obtained (from proceedings begun in 2016), is entitled: Appendix 1: Background on the Extremism Risk Guide 22+. It provides information for both defence and prosecution teams about the use of the ERG22+ as a tool to determine ‘radicalisation’ and risk in each individual case. The key paragraph states:
“Limitations of the ERG. ‘The ERG factors are essentially working hypotheses to account for how an individual became engaged and to capture the features of their mindset, their intentions and their capability for terrorism. Over time outcomes studies may increase our confidence in their validity. The ERG cannot predict risk with any certainty, but it provides a structure and transparent methodology for making judgments about the likelihood of future offending. It helps to direct attention to aspects of the individual associated with their offending where intervention may be targeted or proportionate risk management approaches deployed.’ (ERG-22 Overview and Summary NOMS 2011 page 5)” [our emphasis added]12
Without having to go through a detailed analysis, for the courts to be making decisions about processes of ‘radicalisation’ and predicting future harm based on a ‘science’ that admits to being a set of “working hypotheses” unable to “predict risk with any certainty” brings the legal process around ‘radicalisation’ into disrepute.
Significantly, the document assumes that the ERG22+ is supposed to be used to make decisions around ‘future offending’, but the method has largely been based on a series of factors developed where the majority of the individuals that formed the data sample had not committed a violent offence, rather they had been accused of ‘non-violent extremist’ offences:
“Most of those convicted of terrorist offenses in the United Kingdom have no history of violence, although some do. Their convictions are rarely for violent offenses but essentially for contributing to, supporting, or plotting extremist offenses.”13
All cases where the ERG22+ or the Channel Vulnerability Assessment Framework (which is based on the ERG22+) have been used must be revisited, as cases have been argued and decisions made on the basis of a ‘scientific’ method and conclusions that lack validity.
This dissonance where perceived ‘scientific’ theory conflicts with reality, to bring about considerable trauma in families, has played itself out in many CAGE cases, Yusra’s case being one of them, with PREVENT officers “nitpicking” on a number of small issues stemming from the ERG22+ (including her decision not to vaccinate her children). In her case, she was fully aware of the unscientific basis of this method of assessing “radicalisation”, and complied with the children protection orders, allowing a number of professionals into the privacy of their family life, most of whom repeatedly insisted that there was no cause for concern and the children were well cared for.
Fully aware of the fact that this was a case in which for the first time the state was using ideology as a deciding point in child custody, the judge eventually ruled that Yusra was “religious” but not “extremist”. She was evidently a good mother.
Such cases, which often are compounded by a large amount of media attention, have at their heart the employment of the ERG22+. This misuse must be questioned and challenged to avoid similar abuse.
While the perceived ‘signs’ of ‘radicalisation’ are controversial and appear to be built to disempower individuals who subscribe to a certain set of political and religious beliefs the state perceived as a threat, notions around the dynamics of ‘radicalisation’ as a process also serve to remove political agency from individuals and communities.
The rhetoric of ‘radicalisation’ seems to portray a process that happens to a passive victim, and the courts generally fail to recognise ‘agency’ on the part of those perceived to be ‘at risk’ of ‘radicalisation’. This seems to create a dichotomy of passive victims and active ‘radicalisers’ – with the former being constantly in need of protection from the latter.
The form this protection takes is for the state to increase intervention and policing of the everyday lives of ‘vulnerable’ (mostly Muslim) individuals across the country.
According to Sarah Williams, the Legal Team Leader at the London Borough of Tower Hamlets: “The leading cases that have since come before the courts fall broadly into three categories. First, cases where the identified risk is that older children have become radicalised themselves, including the possibility of attempting to travel unaccompanied to Syria or Iraq. Second, where parents have allegedly attempted to travel to IS- held territories with their children, placing them at risk of physical as well as emotional harm. Finally, where concerns are held that parents or older siblings hold extremist ideologies and may be indoctrinating children into those beliefs, placing them at risk of emotional and psychological harm.”14
This can be seen in many of the family cases that discuss the risk of harm to minors from ‘radicalisation’ – of their parents or of themselves. Justice Hayden takes this narrative even further, comparing ‘radicalisation’ to sexual grooming15.
4: How the ‘radicalisation’ narrative facilitates victimisation
– vulnerable to radicalisation –
In a CAGE case involving a teenager, Ghada*, this simplistic view gave impetus to an overzealous police response, a media storm which gave rise to a trial that became somewhat of a cause celebre, and her eventual removal and fostering for a year, at great damage to her health and general well-being.
Ghada’s father tells their harrowing story in full here. For now, it is worth highlighting that he called counter-terrorism police immediately upon realising that his daughter had attempted to leave for Syria. When Ghada was returned home, police thanked him and told him that he would be helped. As any good father would, he sat Ghada down and asked her what on earth she had been thinking. She quickly admitted that she had made a mistake, explaining to him that she had been convinced by a woman who had told her on social media that she would be able to complete a medical degree quicker in Syria than in the UK. Combined with her natural and perhaps somewhat idealistic desire to assist the people of Syria, who, as is widely acknowledged, are in dire need of medical care, the invitation was too good to resist. However, Ghada apologised to her father and he said he felt assured that she would not make the mistake again. Nonetheless, he said he was willing to cooperate fully with police to track down the women who had lured his daughter.
However, instead of embarking on an investigation into these women, the police appeared to turn their focus on the family of two parents and eight children. In an atmosphere of panic around the disappearance of the Bethnal Green girls, the state and social services seldom stopped to give the young Ghada or her parents the benefit of the doubt, despite repeated assurances from her father that he would cooperate with investigations into the ISIS recruiters.
Within a short space of time, they were hit by a storm. Care proceedings were implemented to remove Ghada from her parents, their home was raided, and a media frenzy ensued.
Photographs her father had taken on an aid convoy to Gaza with George Galloway depicting civilian damage in Gaza were spun as “beheading videos”, and his equipment to extract oils for natural medicine was claimed to be “bomb-making equipment”.
Justice Hayden was assigned to the proceedings. Hayden called Ghada’s father “a liar”, “a Jekyll and Hyde” and “faithless”. He also questioned why the children were home-schooled and did not watch television, inferring that this was a cause of their “radicalisation” and “lack of integration”. This, despite Ghada and her siblings achieving impressive academic results.
Eventually, despite admissions that the children including Ghada were well cared for, the case became somewhat of a cause célèbre and Ghada was removed from her family. During her fostering period, she was barred from Muslim company, and not allowed to read the Qur’an. She gained weight from unhealthy, processed food and her asthma worsened. She could not attend school or study due to the stress and attention drawn by the case.
Eventually, the judge ruled that Ghada be returned to her family as her mental and physical health had severely deteriorated. The family is reunited but her father is unable to secure employment due to “pressure” exerted on potential employers. As an apology for the trauma caused, a social worker offered him 200 pounds “compensation”.
What is most pertinent about this case is that a family has been almost irrevocably criminalised, despite offering to communicate fully with what could have been a decisive criminal investigation.
Instead of adopting a pragmatic and nuanced approach that is guided by conventional criminal justice norms and a grounded view of young people and others who may be deemed “radicalised”, or genuine attempts to understand their ‘agency’ – whatever that agency might be – the “remedy” in many of these cases is aggressive PREVENT-based state intervention in the family.
This occurs through removing the child from their parents – as for example in the case of Leicester City Council v T16 – granting emergency protection orders, or granting the Local Authority wardship of the child.
The justification behind seeking such interventions is either to protect the child from their parents who have been ‘radicalised’, as in the cases of Re X and Re Y where the parents had attempted to travel to Syria, or – as some judges have seen it – to save children from themselves. Likewise, in London Borough of Tower Hamlets v B the judge engages with the failure of B’s parents to “protect and to safeguard their children”.17
The counter-position to this manufactured victimhood is the position of ‘radicaliser’. This is the descriptor that can be applied to many of the individuals to whom control orders/TPIMs have been applied, to prisoners under stringent licence terms or under high risk classifications. In such cases, these individuals are viewed as at risk of spreading their own ‘radicalisation’ to others, and the obligations and limitations placed upon them are justified as a means of protecting the public, other inmates and indeed, in some cases their own children.18
The underlying assumption in control order/ TPIM cases is quite well summarised in the case of DD v Secretary of State for the Home Department19, that the individual “would if not subject to TPIM measures continue to be involved in radicalisation”20.
In the case, for example, of R (Bary and others) v Secretary of State for Justice,21 where stringent conditions were placed on a number of prisoners awaiting extradition, the justification was “the need to manage issues of radicalisation of prisoners”22 because there was a risk of “radicalisation of main stream prisoners by [these] detainees”.23
Several immigration cases refer to the risk individuals might put to the British public at risk of ‘radicalisation’ – for example in Naik v Secretary of State for the Home Department [2010],24 and Raed Salah Mahajna v Secretary of State for the Home Department [2012] ”.25.
The state’s one-sided view of what constitutes “radicalisation” informs and lies at the heart of these decisions. This view is given impetus through the misguided application of the ERG22+ as part of PREVENT, and it has been especially detrimental to children and families in wardship cases.
Moreover, there is a real threat to the rule of law and the independence of the executive. This ‘radicalised’ and ‘radicaliser’ narrative has succeeded in pitting certain judges against Muslim families in a fear-based paradigm constructed by state and media, without giving young people and parents the right to be assumed innocent and the right to protect and preserve their family unit.
The result is the perception that the state is out to break Muslim families. This has a deeply counter-productive effect.
5: How notions of Socialisation are hypocritical
Across the board – and also featuring in Ghada’s case – ‘radicalisation’ is linked to socialisation. Children’s risk of ‘radicalisation’ is often linked to their social isolation. In A Local Authority v M and others26 the judge discusses the home schooling of the children as creating a “sheltered, contained existence” where they are “deliberately kept apart from wider society”27. Key in an earlier iteration of the case of M and others was the judge’s acceptance that there was a low risk that the girls would attempt to travel to Syria, and yet he still invited the local authority to apply for wardship over them28. The judge provides little in the way of explanation as to the calculus of risk against intervention, and ultimately it became a matter of his subjective discretion, which provided little clarity in the law.
In Re X and Re Y the Local Authority argues that if the children are returned to their families they would “lose any opportunity to build a trusting relationship with non-familial adults” – emphasis is placed on “attempts to safeguard children through monitoring and relationship building”29, which seems to succinctly summarise the government’s overall approach to ‘radicalisation’.
Likewise, in the case of R v Yusuf Sarwar and Mohammed Ahmed30 the judgement makes mention of a psychologist – Dr Michael Korzinski – who concludes that the appellants were “isolated, socially inexperienced and emotionally immature”31, and that part of the answer to ‘de-radicalising’ them, tends to be tackling this isolation and ensuring their socialisation with a wider pool of people.
But whilst the answer to the risk of ‘radicalisation’ in these cases is presented as greater socialisation, in immigration, criminal, control order and prisoner cases, by contrast, ‘radicalised’ individuals are placed under measures to isolate them – their socialisation with others is seen to spread ‘radicalisation’. Before they can re- join society, they must be ‘de-radicalised’.
Both approaches show the inherent contradictions and weaknesses in the state’s “radicalisation” narrative and subsequent approach to Muslim families. Not only this, but as we have seen from numerous cases, they are simplistic and counter-intuitive, and their results damaging.
6: How and Why political context is ignored
– Political Context & Role –
It is perhaps worth noting that ‘radicalisation’ is never described as a possible response to political context – this reflecting the Government approved narrative of the ERG22+. As pointed out in a CAGE report, in the section entitled “The ‘omission’ of political grievance as a factor”, this is a very significant oversight32. It is peculiar that the discourse on ‘radicalisation’ is always linked to ‘terrorism’ – itself defined as the use of violence for political aims – and yet it is so rarely linked with politics.
Frequently, there is a link made with ‘ideology’, but even this is divorced from political realities. In many cases, there is a discussion of terms like extreme/extremist ideology/ies33, “ideology based violence”34, “Jihad ideology” 35, “Isis ideology”36, Islamic/Islamist ideology37 but these are described almost as if they exist in a vacuum and have not developed, as all political ideologies have, in response to political circumstances. Features of these ideologies however, are sometimes explored – namely their links to violence, their views of the role of women,38 and the idea that they are fuelled and underlined by hatred39. It is emphasised that “recruits and supporters often have a simplistic and relatively shallow understanding of the ideology the movement endorses”40.
In some ways, this can be considered a trivialisation of the issue – which is particularly easy to apply where young people are concerned – as in London Borough of Tower Hamlets41, Brighton & Hove City Council42, and R v Yusuf Sarwar and Mohammed Ahmed43. In cases like these, political grievances are overlooked in favour of a more paternalistic view of protecting people from themselves. People are seen as engaging in political violence not for political reasons. Rather, they engage with ideologies espousing political violence because they are vulnerable44, isolated45, searching for identity46, or because others have taken advantage of them.
This does not mean that these cannot all be factors – or indeed significant ones at that. But doing so should not exclude other factors from being considered, especially political context.
The issue of ideology appeared in the case of Re A (A Child), where the courts determined that being a member or supporting an organisation such as the English Defence League was not grounds for removal of the child, as mere membership and ideology could not reach the bar of ‘significant harm’. In the case the President of the Family Courts, Munby J said:
“The mere fact, if fact it be, that the father was a member, probably only for a short time, of the [English Defence League] is neither here nor there, whatever one may think of its beliefs and policies. It is concerning to see the local authority again harping on about the allegedly “immoral” aspects of the father’s behaviour Membership of an extremist group such as the EDL is not, without more, any basis for care proceedings.”47
When juxtaposed with the earlier discussion in the case of M (Children), there seems to be a great deal of dissonance between the way the courts understand the role of ‘extremist ideology’ or ‘radical fundamentalist thought’ in the case of Muslims, versus the way they treat the subscription to far-right ideology in Re A (A Child).
We argue that the courts should show more consistency in their judgements, especially in cases where the judges themselves concede there is a low risk of any violence.
Two presentation slides from a London Borough of Tower Hamlets training entitled Radicalisation: Safeguarding & the Family Courts delivered on 13 November 2015 highlights the different way in which these two cases were treated:
At times the issue of political context is engaged. But the language used in these circumstances is also worth noting. Individuals are described as having a “sense of grievance”,48 “feelings of grievance”,49 ”issues of grievance”50 or “perceived injustice”.51
Instead of being referred to simply as widely-held ‘political grievances’, such as the Iraq War, they are framed as ‘feelings’ or they are ‘perceived’.
It also means that individuals can be attributed to having grievances based on vague perceptions of behavior, past interests and travel or study destinations. In Jabir’s* case, all his three children were taken into care by the local authority after a family member alleged that he and his wife were planning on taking them to Syria.
Jabir* was on his way to work when he received a phone call from the police. They told him they were at his house and he had to come home. As Jabir returned home, he saw approximately fifteen officers raiding his house. As he entered, they immediately handcuffed him. A full raid was in progress. When he asked what was going on, an officer informed him that an allegation of child cruelty had been made.
At the police station, the allegations against Jabir developed. The police told Jabir he intended to travel to Egypt and then to Syria. Jabir responded that he had no intention of going to Syria, only Egypt as he had previously been there to study. During this time Jabir’s three children were taken into care of social services. He was released on bail.
The children remained in care for eight days. His and his wife’s passports were also seized as well as their phones. They were told that since they were facing allegations that they planned to take their children abroad, this was deemed a safeguarding issue, concerning their children.
Their children, who were all under the age of 7, were asked questions concerning religion and politics, what books they read, as well as what their parents had taught them about Islam and the world in general. However, when social services applied for an emergency protection order under Section 47, the court rejected it. After considerable stress, the children were returned home.
In such cases especially when they are reported in the media, ‘grievances’ seemingly displayed by individuals or communities are always subtly or overtly attributed as the fault of the individual and are never seen as part of a wider context.
The reasoning behind this is simplistic. If political grievances are fully accepted as a contributory factor to violence, then the question naturally arises as to whether these grievances are genuine, and whether such views are seen in the worst possible light if expressed by certain ethnic or religious groups. For example, would trenchant criticism of state policies by a non-Muslim, white family, lead to severe safeguarding concerns?
The wider categorisation of offences through the term ‘extremism’ makes it unclear what is significant when it comes to national security. This lack of clarity stands a real chance of resulting in abuses.
7: When Secret Evidence is used in Family Courts
On 8 October 2015, the President of the Family Division, Sir James Munby, issued guidance to the judiciary entitled: Radicalisation cases in the family courts52. The guidance relates specifically to how the judiciary is to assess cases where, “children have been or are at risk of being radicalised” It also clarified that the appropriate forum for these cases is the High Court. In these cases, due to the claims of national security being at stake, the guidance set by Munby specifically highlights three areas of concern:
(a) raising PII issues;
(b) requiring a closed hearing or use of a special advocate; or
(c) where electronic tagging is proposed53.
The referencing of PII is to Public Interest Immunity, invoked where a court can withhold the disclosure of evidence from one litigant where there may be damage to the public interest. In such cases, Munby claims such rules are in place due to,
“(e) the need to avoid seeking disclosure from the police or other agencies of information or material which may be subject to PII, or the disclosure of which might compromise ongoing investigations, damage the public interest or put lives at risk…
(f) the need to safeguard the custody of, and in appropriate cases limit access to, any sensitive materials provided to the courts by the police or other agencies.”54
Due to the general trend of securitisation within the legal system in the UK – this follows practices established in the Special Immigration Appeals Commission and through the Justice and Security Act 2013 – there are already established wide powers to stop the public and defendants/ appellants being able to see information deemed to be secret by the police and security agencies.
In cases where authorities attempt to remove children based on secret evidence gathered through investigations spearheaded by police, rather than social services, the result can be a mystifying and stressful process where accused parents are unable to see or challenge the information held against them and are unable to mount a proper defence to retain their own children.
A case involving wardship proceedings initiated against Shakir* and his wife, concerning their three-year-old child was the culmination of several years of being pursued by MI5 and the counter-terrorism police, and several Schedule 7 stops, during one of which Shakir’s phone was seized and he was accused of spreading “anti-Israeli propaganda” based on a prayer on his phone. Due to the nature of Schedule 7, he was unable to challenge these allegations.
Some years later, Shakir* was convicted and imprisoned for a non-terrorism-related offence – however during his imprisonment, he was approached multiple times by MI5. During these meetings, which took place without a lawyer, he was shown pictures of “persons of interest” and told repeatedly, “if you do not work with us you will be in and out of prison for the rest of your life”.
He refused, and when he was released, he was subject to conditions normally applied to a person convicted of terrorism. Eventually, he challenged these conditions and they were dropped, allowing him to find work, move on with his life and provide for his family – as was his aim.
However, Shakir and his wife were then approached by social services, who initiated proceedings in the High Court to determine whether they were fit to retain custody of their daughter based on allegations of “radicalisation” and “extremism”. Shakir told CAGE that it appeared that the child protection process seemed to be spearheaded by the police rather than by social services.
On the first day of court, the case was dropped after the judge decided to not allow the use of the secret evidence that counter terrorism police had been attempting to put forward. Although the social worker appeared happy that the case had been closed, both Shakir and his wife remain mystified as to what evidence the government is holding against them.
Such a state of affairs means parents live in a constant state of anxiety that this evidence, which they are unable to see or challenge, will at some point be invoked and their children removed in the future. This outcome is a denial of due process rights that impacts not only parents in the courtroom, but in every day of their lives thereafter. Such shrouds of secrecy inevitably create a prevailing sense of threat – and this affects the children too.
In this context, there are instances where secret evidence has been invoked apparently without the public interest concern. Although these cases have been hidden behind layers of secrecy, it is important to note that certain judges have recognised that the prosecution’s request for secret evidence is completely unwarranted.
However, there are important implications that need to be borne in mind, as judges are often not only heedless of the existence of structural racism, but can also become a part of it. This means that any assessment of secret evidence by judges, is limited by their own subjective views on ideas around ‘religion’, ‘ideology’, ‘extremism’ or ‘radicalisation’.
In the case of R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs55 the Secretary of State resisted the disclosure of a number of documents related to the case as this would “seriously harm the existing intelligence arrangements between the United Kingdom and the United States”.EWHC 152 (Admin) page 2, para 6 The court ruled that the claimant was not entitled to an order for the release of the redacted paragraphs on the basis that, on balance, national security interests had to be protected over the public interest in open justice.
What worsens the situation, particularly in relation to wardship proceedings, is that the operation of these rules is open to interpretation; the broad categorisation of offences through the term ‘extremism’ makes it unclear what is to be considered of significance when it comes to national security. What is clear is that the bar has been lowered well below the need to protect against actual violence or plots in the UK or abroad. As a result, this lack of clarity over what offences are considered ‘extremist’ stands the very real chance of resulting in abuses.
In the case of Re EB56, the Secretary of State refused to disclose in open proceedings the reports of the de-radicalisation consultant, the transcripts from EB’s trial, and the oral probes and transcripts.EWHC 152 (Admin) page 6, para 22 In order to do so, the Secretary of State would have had to apply to the court for permission to withhold material. In this case, the court decided to leave the decision about disclosure to a later date where it will be made in closed proceedings.
Due to the need to protect children involved in the wardship cases before the courts, but also due to issues of national security, it has been difficult to conduct proper scrutiny of the way in which the courts are implementing these rules when it comes to invoking the PII. However, the experience of lawyers and defence teams across the UK in relation to control orders, TPIMs, deportation and citizenship revocation cases related to ‘terrorism’ and ‘extremism’, show that the invocation of national security is excessive.
This is deeply concerning since it translates into a situation where in some cases, parents are forced to fight for their children against a veil of secrecy that prevents them from adequately challenging the allegations against them. These allegations often involve subjective and unscientific evaluations of belief and behaviour. The result is a feeling of powerlessness and disenfranchisement.
8: Conclusion
The invocation of the UK government’s PREVENT and CHANNEL policies within the courts system as being an accepted norm has resulted in a string of cases where, as in the words of Justice Hayden, “‘extremism’ and ‘radicalisation’ – [have become so widely used] that they scarcely need definition.’”57Re K (Children) [2016] EWHC 1606 (Fam), page 4, para 15[/foonote]/ The fact that these policies are based on a faulty ‘science’ developed in the form of the ERG22+ is significant, for the courts have institutionalised a theory that has little basis in fact – with devastating results on families and children in particular.
Perhaps, more significantly, is the notion that the courts themselves recognise in their own guidance documents that the ERG22+ is based on “working hypotheses” that cannot predict future behaviour with any reliability. That the ERG22+ is still being used to determine “radicalisation” in cases of wardship of children, must be challenged by lawyers themselves on the basis that the evidence gathered from such interviews be deemed inadmissible due to the unreliability of the method.
The above factors play out in family courts on a regular basis. Not only does this do damage to individuals and families, but it also calls into question the certainty with which judges such as Justice Hayden believe that terms of reference when it comes to “radicalisation”, “scarcely need defining”.
Through the doctrine of the separation of powers, judges have the capability to regulate the laws and policies enacted by the Executive. Historically, judicial deference has led to a lack of scrutiny of counter terrorism policies. Judges find it difficult to hold the state to account on issues of national security. This could be due to intimidation or institutionalised bias because they lacked a deep understanding of voices critical of government policy. This results in misleading judgements, as the judiciary bases its positions on the government narrative. Since it is not able to question his narrative due to national security restrictions, this sets in place a dangerous cycle and we have seen the traumatic effect of this on the family unit.
Indeed, in family court cases, an absurd situation can arise, when not only are families sometimes unable to challenge the evidence against them due to the invocation of PII, but they are also unable to challenge the means by which this evidence has been procured, even when these means (such as the ERG22+) have been called into question, not only by CAGE, but by other leading professionals.58
This “smoke and mirrors” effect has the potential to spread. Mr Justice Hayden has described the Family Division as the, “vanguard of change in life and society,”59 the approach it takes to the “science” behind “extremism” will permeate throughout the rest of the legal system. Therefore it is of utmost importance that the judiciary keeps a check on the Executive to ensure civil liberties are not eroded.
The UK government has instituted some of the most intrusive national security policies in Europe, with a veneer of arguments relating to protection. However, questions need to be asked as to what this protection is from, for the ‘offences’ upon which the ERG22+ were based were largely where there was no risk of violence. Considering that the authors of the ERG22+ itself claim that the method has no predictive validity, invoking the future threat of violence where the science upon which you are relying cannot predict it, is an act of cognitive dissonance.
It seems the invocation of the ERG22+ has only resulted in a climate of fear – fear of some aspects of Islamic belief, and fear in families that they may be split apart based upon a series of predetermined checklists. Both results are counter-productive.
It is therefore crucial that lawyers, especially those representing families, legally challenge the use of the ERG22+, CHANNEL and PREVENT in cases that have already been concluded and in on-going cases through appeals and judicial review.
Further, the judiciary must hold an inquiry into its adoption of the ERG22+. The legal professional bodies must review the processes of scrutiny that were taken in the course of the method’s adoption.
The law must be clear and understood. The prevailing national security environment that has been established has resulted in an opaque system that permits egregious abuses of the rights of individuals.
This is especially true in cases where children are removed. Rather than keeping society safe from harm, it risks harming communities in a deep, generational manner, and damaging their relationship with state agencies.
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• Senior Press Officer (2016) President of Family Division Guidance: radicalization cases in the Family Courts, Judicial Office, Royal Courts of • • Justice, Press Release, 8 October 2015
• Williams S (2015) Radicalisation: a proportionate response, Family Law Week
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