X (Children) And Y (Children) (emergency protection orders)

When reconsidering an interim care order, the court must decide whether the child’s safety requires continued separation and whether that response is proportionate to the risks. In a flight-risk case, the court must assess the risk that removal will be attempted, the risk that protective measures will be evaded, and the consequences if evasion succeeds. Where the consequences are extreme, the court requires a very high degree of assurance that the safeguards will prevent flight, although absolute certainty is unnecessary. The court must balance that risk against the harm caused by continued separation and may use stringent protective measures, including electronic tagging where legally available and appropriate.

Two separate sets of care proceedings concerned children whose parents had travelled, or attempted to travel, towards the Turkish-Syrian border. In the X case, emergency protection orders and then interim care orders had been made after the mother was stopped at an airport with the children. In the Y cases, the children were detained in Turkey near the Syrian border and interim care orders were later made.

Fact-finding hearings had been adjourned and re-listed. The parents applied to discharge the interim care orders and sought the children’s return subject to passports orders, port alerts, injunctions, monitoring, reporting requirements and electronic tagging. The central issue was whether the children’s safety required their continued placement in foster care pending the fact-finding hearings.

1. The applications to reconsider and discharge the interim care orders were properly entertained. There were solid reasons to revisit the earlier decisions, including the fuller arguments now advanced, the substantial delay before the fact-finding hearings and the importance of deciding where the children should live during the proceedings.

2. The governing question was whether continued removal was proportionate to the risk of harm if the children returned to parental care. The same approach applies when the court is deciding whether to return a child after earlier removal. The court must not conduct a premature fact-finding exercise, and the local authority bears the burden of proof.

3. The relevant evaluation involved three connected matters: the magnitude of the risk that the parents would attempt to take the children to Syria; the magnitude of the risk that they would evade the safeguards intended to prevent departure; and the magnitude of the consequences if they succeeded. The potential consequences here included death or serious bodily injury. The risk of attempted removal was presently unknowable and potentially very great, but the protective measures substantially reduced the risk of successful flight.

4. Absolute certainty was not required. Given the grave consequences, however, the court required a very high degree of assurance that the protective measures would be effective. The proposed package of passport and travel-document orders, all-ports alerts, injunctions, residence requirements, unannounced visits, reporting requirements and electronic monitoring provided that assurance. The residual risk was very small and was outweighed by the children’s welfare needs to live with their parents.

5. The interim care orders were therefore to be discharged and the children returned to parental care, subject to the proposed safeguards and additional provisions concerning information and enforcement. The orders were to preserve the police’s existing powers, including those under section 46 of the Children Act 1989. No orders were made immediately because the Ministry of Justice intervention raised further issues concerning the availability and funding of GPS tagging.