Tower Hamlets v M & Ors

In urgent ex parte applications concerning children at risk of international travel to areas of serious danger, the court may use wardship and associated orders where the jurisdiction already exists and the measures are proportionate. Such applications require the fullest possible, balanced disclosure and a very high degree of candour from every professional involved. The court must be given cogent evidence of urgency, risk and the support of relevant safeguarding agencies. The child’s interests remain paramount, although the wider counter-terrorism context must be explained. Applications should be prepared with precise draft orders, an early return on notice, appropriate reporting restrictions and experienced legal representation. Transparency remains the presumption, subject to proportionate protection of children and sensitive national-security information.

The London Borough of Tower Hamlets brought urgent applications concerning minors assessed to be at risk of leaving the United Kingdom for ISIS-controlled areas, particularly Syria. The applications sought wardship and orders relating to retrieval and surrender of passports. The court initially made orders ex parte, but later suspended the passport orders after learning that the police had not had a proper opportunity to assess the risks or consider whether enforcement was required.

The central issues were the proper use of wardship, the requirements governing urgent ex parte applications, the adequacy of the evidence and consultation with the police, and the safeguards needed to protect the children while preserving fairness and transparency.

1. Jurisdiction and proportionality. The court held that the circumstances were novel but required no development of the law. Wardship had an established, though limited, modern scope and was an appropriate jurisdiction for protecting children at risk of international abduction or dangerous travel. Passport removal was a serious interference with autonomy and could be ordered only where justified and proportionate.
2. Candour and balanced evidence. Where a local authority is the only party before the court, every participant, including lawyers, police and social-services professionals, must provide the fullest possible information in an unpartisan manner. This includes evidence that supports the application and evidence which undermines it. A distinction must be maintained between informing the police and consulting them adequately.
3. Procedural safeguards. Lawyers should prepare the scope of the orders before the hearing, consider how quickly the matter can return on notice, and ensure that applications are handled by senior and experienced advocates. Ex parte relief should be followed by prompt service and a return hearing, while recognising that the appropriate safeguards vary with the circumstances.
4. Child welfare, evidence and transparency. The individual child’s interests remain paramount and cannot be eclipsed by general counter-terrorism policy, although the wider operational context must be explained. Assertions that police or security agencies support an application are insufficient without cogent and scrutinisable evidence. Public scrutiny is ordinarily required where article 8 rights are interfered with, subject to proportionate restrictions addressing confidentiality, national security and the risk of identification through the media or social media.
5. Outcome. Wardship was maintained and passport orders were initially made, then suspended while the evidence and operational position were clarified. Cooperation subsequently secured the lodging of a considerable number of passports with solicitors. The court found the risk assessment cogent and the proposed protective measures proportionate, but criticised Tower Hamlets for materially misrepresenting the extent of police consultation and for failing to ensure proper inter-agency communication.