X & Y (Children), Re (No 2)

Where GPS monitoring provides greater protection than radio-frequency monitoring but cannot be installed immediately, the court may balance the increased security against the harm caused by continued separation of children from their parents. A short interim return home may be appropriate where radio-frequency tagging, enhanced curfew conditions and other protective measures reduce the risk to an acceptable level. The Ministry of Justice’s willingness to facilitate or fund monitoring in an individual case does not establish that the court has power to compel it to bear the cost in other cases.

This was a further decision in care and wardship proceedings concerning two groups of children. The court’s earlier judgment, [2015] EWHC 2265 (Fam), had concluded that GPS tagging should form part of the protective arrangements. The Ministry of Justice explained that GPS tagging in family proceedings was unprecedented, would take about a fortnight to arrange and was more costly than radio-frequency tagging, but agreed to facilitate and fund it in these cases without prejudice to its general position.

The issue was whether the children should remain in foster care until GPS tagging was operational, or return home immediately subject to radio-frequency tagging and enhanced safeguards.

1. The court maintained its view that GPS tagging afforded greater security and protection than radio-frequency tagging and that GPS tagging should, in principle, form part of the protective package.

2. The decisive question was the balance of harm. The adverse consequences of continued separation from the parents, including uncertainty about when the children could return home, outweighed the temporary reduction in security involved in using radio-frequency tagging for approximately two weeks. That reduction was adequately counter-balanced by the children’s immediate return home and an additional curfew while GPS arrangements were installed.

3. The Ministry of Justice’s agreement to facilitate and fund tagging in these cases was expressly without prejudice and created no precedent. It did not depart from the Ministry’s position that the court lacked power to order the Ministry, the National Offender Management Service or the electronic monitoring service to bear the cost.

4. The interim care orders were discharged pursuant to the inherent jurisdiction. The children were made wards of court. Care and control remained with the local authority until radio-frequency tagging was installed and the mother had sworn to comply with the order, after which care and control vested in her. It could revert to the local authority following a significant breach in an emergency.

5. The protective orders included restrictions on removal from the jurisdiction, surrender of travel documents, reporting requirements, school attendance, disclosure of relevant contact and vehicle information, and electronic monitoring. The order preserved any police powers otherwise available, including those under section 46 of the Children Act 1989.

The judgment was a further first-instance decision following the court’s judgment of 30 July 2015, reported at [2015] EWHC 2265 (Fam).