By Gianna Huesch
Terrorism is always in the news these days but it’s increasingly also rearing its head in the family courts. A recent story in the UK looked at how the family courts there intervene to directly protect children from extremism and revealed that around 50 British children have already been placed in foster care due to counter-terrorism investigations.
Such cases may involve situations where the state intervenes when parents try to take a child out of the jurisdiction to a war zone, given the obvious danger to the child, in a similar manner to how children are prevented from being taken overseas if it’s suspected they’ll be subjected to female genital mutilation.
But the cases may also involve so-called “radicalisation” matters, where the state attempts to intervene to protect the children of adults linked to terrorism or who themselves are believed to have been radicalised. Such cases are more subtle as they often do not involve the risk of direct physical harm but rather the risk of emotional and psychological harm.
When it can be shown that kids are being subjected to radical ideological views in their home, removal of the children from the parents’ care requires the courts to find both that there is an unacceptable risk of harm to the child and also that the child’s immediate removal will ensure their safety. When dealing with such cases, courts have had to balance the need to protect children from harm against the fact that children “will almost certainly suffer emotional harm at being removed from their primary carers”.
One of the problems for family law is the “difficult questions about where the state should draw the line in allowing parents to shape the viewpoints of their children”. In relation to extreme views, the courts first have to work out what is to be considered “radical” and then whether those “radical” reviews create a risk of harm to the child. The word ‘radicalising’ is quite vague and undefined, but in the UK it has been described as “negatively influencing [a child] with radical fundamentalist thought, which is associated with terrorism” and radicalisation has been described as “the process by which a person comes to support terrorism and extremist ideologies associated with terrorist groups”.
In Australia this year we saw a case in the family court where the judge found there was an unacceptable risk of emotional and psychological harm to children from a father “who only answers to religious laws”. The father was prevented from having any contact with the children after the “judge was concerned about the impact of his beliefs on the children”. In the case, the family consultant had deemed there to be a “quite high psychological risk to children if they were constantly exposed to the father’s belief system”, and the judge said “the son was heavily influenced by his dad and his previous school behaviour suggested he had begun to reject some social norms and demonstrate anti-social traits”.
In the UK case law, the core principles to be adopted when dealing with radicalisation cases under family law have been delineated as being: that the best interest of the child is to remain paramount, above any considerations regarding counter terrorism operations or policies; that police and related agencies should support the application; and that there needs to be “hard evidence capable of scrutiny”.
This explanation highlights the complexity of such cases, which are often also tangled up with police or intelligence agency work and depend greatly on information sharing.
Against the intervention of the state to remove children, the UK is also mindful of the possibility that “multi-agency involvement with families at an early stage will provide support for those families who may be at risk of finding themselves caught up in these proceedings so as to avoid a situation where removal [of a child] is the only option”.
Such matters are likely to become more common in the family courts as authorities try to stem the effects of terrorism, extremism and radicalisation within Western societies, through parental influence on their vulnerable children.
Do you need legal assistance with a parenting matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400 for an initial no-obligation, cost-free consultation.
Please note that our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance.