Case No: C1/2015/4360
Neutral Citation Number: [2017] EWCA Civ 155

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
MR JUSTICE KERR
CO/5437/2015
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 17/03/2017
Before:

SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION
LORD JUSTICE DAVIS
and
LORD JUSTICE LINDBLOM

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Between:

	R (ON THE APPLICATION OF ZX)	Appellant	
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	THE SECRETARY OF STATE FOR JUSTICE 	Respondent	

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Amanda Weston and Shu Shin Luh (instructed by Tucker Solicitors) for the Appellant
David Manknell (instructed by Government Legal Department) for the Respondent

Hearing date: 21 February 2017

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Judgment
Lord Justice Davis: 
Introduction
1.	The appellant, a married man with three children, was convicted, on his plea of guilt, of two terrorism related offences.  He was sentenced in the Crown Court on 6 June 2014 to a term of 3 years imprisonment.  He was subsequently released on licence.  Thereafter conditions were imposed on his licence precluding him from having contact with his children, save as directed by the National Probation Service (NPS) and local Children’s Services.
2.	He now challenges the imposition of those conditions.  It is said on his behalf that the NPS had no lawful entitlement to give a direction separating the appellant from his children.  It is submitted that there was no properly identified risk and also that no separation could properly be directed without due compliance with the provisions of the Children Act 1989 and Children Act 2004 and, if need be, without an order of the Family Court.
3.	Kerr J, after an oral hearing, refused the application for permission to apply for judicial review.  In a detailed ex tempore judgment given on 16 December 2015 he decided that the grounds raised were not arguable.  In due course permission to appeal to this court was granted by the single Lord Justice on the papers.
4.	Before us the appellant was represented by Ms Amanda Weston and Ms Shu Shin Luh.  The respondent Secretary of State for Justice was represented by Mr David Manknell.
Facts
5.	The background facts are set out in great detail in the judgment below (albeit not in as great detail as Ms Weston would seem to wish).  It is not, however, necessary for the purposes of this judgment to repeat them at any great length.
6.	The appellant, who is of Bangladeshi origin, was born in London on 15 June 1982.  He is a British citizen.  On 1 June 2002, he married.  There are 3 children of the marriage, 2 boys born in 2003 and 2005 and a girl born in 2011.  The family has always resided in the London area.
7.	It appeared that whilst at college the appellant had become involved in the proscribed organisation Al Muhajiroun.  Thereafter in 2005 he received a community sentence for an offence of possession of an offensive weapon.  On 18 April 2008 he was convicted of an offence under s. 15 of the Terrorism Act 2000 and sentenced (after an appeal against sentence) to 18 months imprisonment, together with an additional short further term for a Bail Act offence.  On his release, there was a referral to social services because of concerns about potential radicalisation of the children, who were receiving home tuition.  In the event he remained living with his family.
8.	On 5 June 2013 he was arrested on suspicion of committing further terrorism related offences.  In due course he was charged with 5 offences.  He was remanded in custody.  On 24 March 2014 he pleaded guilty, on a basis, to a count of dissemination contrary to s. 2 (1) of the Terrorism Act 2006 and a count of publication contrary to s. 1 (2) of that Act.  On 6 June 2014 he was sentenced to 3 years imprisonment.  On 5 December 2014 he was released on licence.
9.	A number of conditions were attached to his licence.  The standard conditions included conditions that, for example, he should not re-offend and should behave properly.  Conditions specific to his case were also included, designed to regulate the risk that he might continue to involve himself in activities promoting terrorism.  He was also required to live in approved premises in Camden.
10.	Because of the latest charges, and concerns arising in consequence, there had been various visits by local social services to the family home in Tower Hamlets.  The children had by now been enrolled in mainstream education.  It is recorded that the relevant social workers had been provided with specific training concerning issues of radical beliefs and assessments of families in that context.  The view of social workers at the time was that there did not appear to be a risk to the children through their parents’ beliefs.
11.	By the beginning of 2015 it was recorded by social services that the appellant was “engaging so far with no concerns.”  He had resumed daily contact with his children and was, in fact, noted by the NPS (as communicated to social services) to be spending most of his time in Tower Hamlets with his family.  There continued to be a number of home visits by social workers at the family home and on the children at school.
12.	In around April 2015 there was discussion, at multi-agency level, as to whether the appellant could leave the approved premises in Camden and return to the family home.  It was recorded that the NPS was raising child protection concerns through risk of exposure to extremism within the home; whereas it was recorded that the local authority’s own assessment “has shown that this is not in fact the case for these children”.  The position was further complicated, however, by marital difficulties between the appellant and his wife and her reluctance for him to return to live at home.  Thereafter there were numerous discussions of the position between and by the various agencies, the details of which I need not set out.  No decision was made at that time as to whether he should be permitted to return home.
13.	On 29 July 2015 there was a Probation Management Review.  By this time, the appellant was spending up to 12 hours a day at the family home.   Concerns were raised that he still espoused extremist views (he of course among other things had acquired a history of repeat offending in this regard).  It was decided that pending further assessment he should be suspended from visiting the family home or having unregulated contact with his children.  This was notified to the appellant by letter dated 7 August 2015.  It is that letter which is the subject of the present challenge.
14.	The letter referred to the background.  It was indicated that it was the current assessment of the NPS that home visits should cease whilst the appellant remained subject to statutory supervision, albeit the situation would be subject to review.  It was noted that Children’s Services were reviewing the family circumstances and that the children were currently assessed as in need.  It was said: “Given NPS’ safeguarding children responsibilities, we also need to consider the appropriateness of your having contact with your children other than as assessed by Children’s Services.  At this juncture, the NPS will be adding the children to your licence.  Therefore you may not have contact with them other than as directed by NPS and Children’s Services.”  The letter went on at a later stage to say: “Whilst this assessment is undertaken, you are not to attend the address …. or have direct contact with your children…  Both conditions have been added to your licence.”  I add that there seems to have been some muddle in formally amending the licence conditions but I do not regard that as material.
15.	The appellant complained about this decision.  In a further letter from the NPS dated 28 August 2015 in response to his complaint, it was explained that the NPS had undertaken no home visit itself since his release.  The decision to preclude contact with his children was a “joint one” between the NPS and Tower Hamlets Social Services.  It was said that a further safeguarding assessment was needed: “Safeguarding procedures are paramount in any case that we manage, especially when it concerns the welfare of children.”  It was also said that it was hoped that the exclusion of access to the children would be limited, pending the further assessment.
16.	An Oasys assessment prepared on 6 November 2015 indicated that Children’s Services found no concerns.  The view of the MAPPA panel, however, was that there was currently insufficient evidence as to risk posed by the appellant to the children in terms of radicalisation and that further assessment was required.
17.	There had in fact throughout continued to be frequent further multi-agency discussions and assessments.  On 18 November 2015 limited contact with the children – extending in due course to unsupervised contact for 5 hours a day – was permitted.
18.	In the meantime, however, solicitors instructed by the appellant had written on 6 October 2015 complaining at the new licence conditions.  It was asserted that they were unlawful, unnecessary and disproportionate by reference to his Article 8 rights.  It was said that the appellant had behaved well as a prisoner and had abided by his previous licence conditions.  None of the previous investigations had expressed concerns about radicalisation of the children and there was no basis for any current concern.
19.	These Judicial Review proceedings were commenced on 6 November 2015.  They claimed a quashing order, declaratory relief and damages. 
The legislative framework and related policy guidance
20.	So far as concerns the imposition of conditions when a prisoner is released on licence the position is set out in s. 250 of the Criminal Justice Act 2003.  By s. 250 (4) it is, in summary, stipulated that the relevant licence for a sentence exceeding twelve months must include the standard conditions (as may be prescribed) and may include other conditions (of a kind that may be prescribed).  It is further stipulated by s. 250 (8) that in so prescribing the Secretary of State for Justice must have regard to the following purposes of the supervision of offenders while on licence: (a) the protection of the public (b) the prevention of re-offending and (c) securing the successful re-integration of the prisoner into the community. Section 252 mandates compliance with the conditions by the person subject to the licence.
21.	In the exercise of his functions with regard to the provision of probation services, it also is required that the Secretary of State should have regard to the aims  mentioned: see s. 2 (3) and (4) of the Offender Management Act 2007.
22.	The relevant prescribed conditions are currently contained in the Criminal Justice (Sentencing) (Licence Conditions) Order 2015.  Paragraphs 3 to 6 relate to the standard conditions.  Paragraph 7 (headed “Other types of Licence Conditions”) include, among others, a condition as to residence, a condition concerning “making or maintaining contact with a person” and a condition concerning “freedom of movement”.
23.	Policy guidance has been given, with regard to the imposition and enforcement of licence conditions, in the form of Probation Instruction 09/2015 issued by the NOMS Agency Board (which includes conditions for Extremist/Terrorist offences).
24.	Turning to local authorities, and their powers and responsibilities with regard to children, we were referred to various provisions of the Children Act 1989.  For the purposes of the present proceedings, however, particular emphasis was placed on the Children Act 2004.  Section 10 relates to co-operation between local authorities and their relevant partners with a view to improving the well-being of children in the authority’s area.  It was accepted before us that the NPS is to be regarded as a relevant partner for this purpose.
25.	Section 11 of the 2009 Act was also accepted to apply (by virtue of s. 11 (1)(j) and (ja)) to a local probation board and the NPS.  By s. 11 (2) and (4) it is provided as follows:
“(2) Each person and body to whom this section applies must make arrangements for ensuring that –
(a)  their functions are discharged having regard to the need to safeguard and promote the welfare of children; and
(b) any services provided by another person pursuant to arrangements made by the person or body in the discharge of their functions are provided having regard to that need.
. . . . .
(4)  Each person and body to whom this section applies must in discharging their duty under this section have regard to any guidance given to them for the purpose by the Secretary of State.”
. . . . .
26.	Further guidance, for the purposes of s. 11, was given in the Public Protection Manual with regard to safeguarding children as issued by the Ministry of Justice in 2009.  Under the heading “The Probation Service” this, among other things, is said: 
“6.1 The key functions of the National Probation Service are to protect the public and to reduce re-offending. These functions encompass: the proper punishment of adult offenders in the community; ensuring offenders' awareness of the effects of crime on the victims of crime and the public; and the rehabilitation of offenders. In carrying out these duties, the National Probation Service must act in accordance with the Criminal Justice and Court Services Act 2000 and Criminal Justice Act 2003 and the Rules made under them and with the policy decisions and directives issued by the Secretary of State for the Home Department. The section 11 duty is not intended to compromise Probation Boards’ ability to execute these functions, but will provide a specific direction to ensure probation practice operates with a wider vision to consider where practice can be improved and developed to safeguard and promote the welfare of children.” 
            At paragraph 6.8 it is stressed that staff of the NPS should work with staff of other agencies, taking into account relevant guidance.  In the guide entitled “Working together to safeguard children”, as re-issued by the Government in March 2015, further guidance is given, directed at various agencies.  In the part relating to the Probation Service this, among other things, is said:
“31. Probation services are provided by the National Probation Service (NPS) and 21 Community Rehabilitation Companies (CRCs). The NPS and CRCs are subject to the section 11 duties set out in paragraph 4 of this chapter. They are primarily responsible for working with adult offenders both in the community and in the transition from custody to community to reduce re-offending and improve rehabilitation. They are, therefore, well placed to identify offenders who pose a risk of harm to children as well as children who may be at heightened risk of involvement in (or exposure to) criminal or anti-social behaviour and of other poor outcomes due the offending behaviour of their parent/carer(s). 
32. Where an adult offender is assessed as presenting a risk of serious harm to children, the offender manager should develop a risk management plan and supervision plan that contains a specific objective to manage and reduce the risk of harm to children. 
33. In preparing a sentence plan, offender managers should consider how planned interventions might bear on parental responsibilities and whether the planned interventions could contribute to improved outcomes for children known to be in an existing relationship with the offender.” 
The grounds advanced
27.	Ms Weston advanced her submissions in various ways; some of them were further modified in the course of oral argument.  But in essence – albeit subject to variations on the theme – she had two central complaints.  First, she said that, in imposing conditions precluding the appellant from contact with his children, the NPS had failed to follow its obligations under s. 11 of the Children Act 2004.  Second, she said that the decision to preclude such contact was irrational and/or disproportionate and could not be justified.
28.	As to her first complaint, Ms Weston said in her written arguments that Parliament had, by the Children Act 1989, provided a statutory scheme whereby children may be lawfully separated from a parent on protection grounds.  It was submitted that court approval was needed for such a result: and the provision by Parliament for scrutiny by the Family Court of such a decision, she said, “must not be circumvented by use of criminal justice powers”.  Accordingly, it was said, where the NPS or other relevant body contemplated making a decision – as here – which would result in a child being separated from its parent for an unspecified period, an application to court - by the relevant local authority Children’s Social Care department, if not the NPS - was needed.
29.	When this court in the course of argument expressed a degree of scepticism at the width (and potential implications) of such an argument she sought to reformulate it.  She ultimately said that compliance with the relevant duty as required under s. 11 of the Children Act 2004 at all events gave rise to this general proposition:
“A public authority should ensure that prior to performing a function which engages its s. 11 duty it complies with the wider principles which govern the safeguarding of children’s welfare and best interests, and in particular
-	the obtaining of all relevant information
-	the balancing of actual (rather than assumed or suspected) risk (including the risks of the proposed action) in accordance with established principles 
-	and a mechanism for resolving factual disputes.”
30.	As to the rationality and proportionality of the decision under challenge, she emphasised the potentially profound consequences of separating father from children and children from father, and the interference with family life involved. She submitted that there was no sufficient evidence of immediate risk to the children of radicalisation such as to justify the sudden imposition of those licence conditions.  She stressed the conclusions of the Tower Hamlets’ Children’s Social Care officers to the effect that they had identified no risk to the children.  She also criticised the lack of specific timescale for such exclusion of contact and the lack of opportunity to prepare the children.  She complained that this was a summary decision, with no sufficient regard to considerations of proportionality, and was one which was such as to preclude proper compliance with the overarching  requirement to have due regard to the safeguarding of the welfare of the children.
Disposition
31.	I propose to deal with the points raised relatively shortly.  It seems to me that the more extreme arguments - to the extent, if at all, pursued - fail on the law and the remaining, substantive, arguments fail on the facts.
32.	Two points need to be identified at the outset and borne in mind throughout. Not to do so is a recipe for muddle.
1)	First, the functions of the NPS in this context (as delineated by s. 250 of the Criminal Justice Act 2003 and s. 2 of the Offender Management Act 2007) are quite different from the functions of a local authority under the Children Act 1989.
2)	Second, at all relevant times the appellant was subject to a sentence of imprisonment.  That he had been the subject of early release on licence, pursuant to the statutory provisions, cannot and does not replace that.  The actions and decisions of the NPS have to be viewed in that context.  As Mr Manknell neatly put it, release on licence is not an alternative to liberty; it is an alternative to remaining in prison.
33.	Once these fundamental points are taken on board, it can be seen just how wide of the mark was the initial suggestion that local authority Children’s Service Care and/or Family Court approval was first required before licence conditions such as these could properly be imposed by the NPS precluding the appellant from contact with his children.  In the ordinary way, a local authority itself has, generally speaking, no power to remove children from a parent without statutory sanction and/or court approval.  But the Children Act 1989 (and related Practice Directions) have, in terms of direct application, nothing to do with this case.  Here the liberty of the appellant was taken away from him, in accordance with law, by the three year custodial sentence imposed on him by the Crown Court on 6 June 2014, thereby separating him from his family.  His early release from prison was then subject to conditions, which the NPS was empowered to impose under the provisions of the Criminal Justice 2003 and the 2015 Order.   Such conditions are legislatively authorised to extend to restrictions on (for example) contact with a person.  That decision making is entrusted to the NPS – not to a local authority Children’s Care Service department or to a Family Court or to anyone else.  Thus to say that the criminal justice system cannot be used to circumvent the provisions of the Children Act 1989 with regard to the removal of children from their parents puts the matter the wrong way round in a case such as this.  A local authority’s functions and powers in care proceedings with regard to children under the Children Act 1989 cannot be used to defeat the functions and powers available to the NPS under the Criminal Justice Act 2003 and 2015 Order with regard to the imposition of licence conditions.
34.	Were it otherwise the position would in practice be as unworkable as it would be astonishing.  It would, on this argument, potentially extend to many kinds of criminal offending (for example, sexual or violent offending) other than terrorism cases.  And would the suggested approach also extend to, say, police bail conditions?  Would it extend to NPS decisions (of the kind adopted here) to require a prisoner released on licence to live at approved premises not being the family home?  And so on.  I will not say more, because I did not understand Ms Weston ultimately to pursue this particular formulation of her argument; and I only say as much as I have because the argument was advanced in the first place.  That particular point, at all events, was unsustainable.
35.	That does not mean, however, that considerations of the impact on the family life of the appellant and the children, and considerations of safeguarding and promoting the welfare and interests of the children, have no part to play in the imposition by the NPS of licence conditions such as these.  On the contrary, they most certainly and decidedly do.
36.	It must not be forgotten that Article 8 considerations and requirements of necessity and proportionality are, generally speaking, relevant to any criminal sentence (including custodial sentences or, for example, Sexual Harm Prevention Orders) which may involve the separation of a parent from dependent children: see Petherick [2013] 1 CAR(S) 598.  That will ordinarily remain so, moreover, during the whole period of the term of imprisonment.
37.	So far as s. 11 (2) of the Children Act 2004 is concerned, that requires that each person and body to whom the section applies must make arrangements for ensuring that their functions are discharged “having regard to the need” to safeguard and promote the welfare of children.  That is (deliberately) generalised language: of a kind rather similar, in fact, to that deployed, in the context of the immigration, nationality, asylum and customs functions of the Secretary of State for the Home Department, in s. 55 of the Borders, Citizenship and Immigration Act 2009.  But for present purposes it is   to be noted that the various persons and bodies identified in s. 11(1) of the Children Act 2004 are both numerous and diverse.  Accordingly whilst the actual obligation of “regard” under s. 11(2) applies uniformly to them the manner of discharge of that obligation will not necessarily be uniform: just because their respective functions can differ so markedly.  Thus, as Mr Manknell pointed out, one obvious difference for present purposes is that in the exercise of its statutory functions under the Children Act 1989 the focus of the local authority is on the child (and its welfare and best interests); whereas under its statutory functions the focus of the NPS, in setting licence conditions, is on the offender (and related issues of protection of the public, reintegration etc.)  These functions are not by any means necessarily mutually exclusive; but the fact is that they are not the same.   For this purpose it is also important, therefore, to appreciate that s. 11 of the Children Act 2004 does not create any new specific functions for the identified bodies.  Rather, it regulates the way in which each such body’s existing functions are to be discharged.
38.	Consequently in the present case the real question is whether the NPS, in the discharge of its functions, had made arrangements – both general and specific to the case – having due regard to the need to safeguard and promote the welfare of the children.  
39.	In the present case, in terms of general policy guidance, the NPS had the terms of the Probation Instruction 09/2015, together with the relevant parts of the Public Protection Manual and the Working together to safeguard children guidance.  As to the Public Protection Manual, it is noticeable that by paragraph 6.1 it is stated in terms that the s. 11 duty is not intended to compromise the NPS’s ability to execute its key functions of protecting the public and reducing re-offending: rather it is designed to ensure the probation service operates with a “wider vision” to help safeguard and promote the welfare of children.  There is nothing whatsoever to indicate that the NPS, on the facts and circumstances of the present case, did not in substance comply with all the applicable guidance; on the contrary, there is everything to suggest that it did.
40.	The decision here, it is to be repeated, was that of the NPS.  At some stages of her argument, nevertheless, Ms Weston seemed still to be maintaining that the NPS was bound to defer to the views of the Tower Hamlets Children’s Service Care team that there were no concerns for the children.  That is wrong, if only because, as I have sought to explain, the relevant powers and functions of the two bodies are different.  But in any event, on the facts and circumstances of this case, the whole sequence of events (which I have relatively briefly summarised above, and which is more fully set out in the judgment of Kerr J and even more fully set out in Ms Weston’s helpful chronology) shows the NPS at all stages working closely with Tower Hamlets’ social services throughout.  The welfare of the children was constantly being appraised and assessed.  It is also a point of the strongest comment that the further letter of 28 August 2015 – albeit that is not the actual decision letter under challenge by the Judicial Review claim – states that the decision for the appellant currently not to have contact with the children was a “joint” one between the NPS and Tower Hamlets’ Social Services.
41.	Ms Weston did seek to place some reliance on the decision of Ryder J in R (Westwater) v Secretary of State for Justice [2010] EWHC 2403 (Admin).  For the purposes of the present case I gain no assistance from that decision, which was on wholly different facts and on a wholly different policy relating to prison visits: where it was decided, on the facts, that the applicable policy had not been complied with.
42.	As to the complaint that these licence conditions were “indefinite” that is of no substance.  They were only indefinite in the sense that no time limit was set.  It was, however, made clear that the matter would be kept under active review.  That is precisely what happened; and the original decision was in due course modified.
43.	Overall, I am in no real doubt that the decision to impose those licence conditions was a lawful and proportionate decision, and was objectively justified, given the facts and circumstances of this case.  It is plain beyond argument that, consistently with s. 11 of the Children Act 2004, due regard was had by the NPS to the need to safeguard and promote the welfare of the children.  Indeed it can be seen that, on the facts here, it was that consideration which ran in parallel with the need to protect the public and to prevent re-offending.  It could properly be assessed that it was in the interests of the children themselves for them not to be exposed to the risk of their being radicalised by their father just as it was in the interests of public protection that they not be thus exposed.   That consideration, pace Ms Weston, does not in any way alter the functions of the NPS or the manner in which they may appropriately be discharged.
44.	As to Ms Weston’s maintained assertion that there was no sufficient evidence of a risk of the children being radicalised by the appellant, it suffices to say that that simply comes down to a disagreement with the rational evaluation of the NPS.
Conclusion
45.	I am of the clear opinion that the judge was justified in refusing permission for the reasons which he gave.  I would dismiss this appeal.
46.	Finally, I would refer to, and endorse, the comments of Moses J in the case of R (on the application of Carman) v Secretary of State for the Home Department [2004] EWHC 2400.  At paragraphs 32 and 33 of his judgment he said this:
“32.  The probation service work hard enough as it is in seeking to protect the public while in the front line of an effective and humane criminal justice system designed to reduce the risk of re-offending.
33.  They deserve the protection of this court from spurious time-consuming and expensive challenges.  The courts should be astute to prevent such challenges at the permission stage.  The licence conditions and assessment of risks to the public, on which they are based, are matters of fine judgment for those in the prison and the probation service experienced in such matters not for the courts.  The courts must be steadfastly astute not to interfere save in the most exceptional case.”
48.     The facts of that particular case were very different from the present; and it would certainly not be fair or right to describe this present claim, conscientiously and carefully presented as it was by Ms Weston, as “spurious”.  But that said those general remarks of Moses J seem to me to deserve emphasis.  It is indeed likely to be an exceptional case where a challenge to the imposition of a licence condition, or conditions, is to be the subject of the grant of permission to apply for judicial review.  This claim, on its facts, is not such a case.
Lord Justice Lindblom:
49.        I agree.
Sir James Munby P:
50.       I also agree.