We’ve started trying to write something about Shamima Begum and her baby several times this week, but every time we agree what we are going to write, something changes. It feels a bit like shifting sands, and the facts are very unclear. So we aren’t going to say very much. Instead, we thought it would be helpful to set out a very broad framework for what might happen if Shamima and / or her baby Jerah ever make it back to England.
The background
Shamima was a British citizen until her citizenship was revoked. It’s unclear to us whether she holds Bangladeshi citizenship (we’ve seen different legal commentators far more knowledgeable than us in this field very firmly assert she was NOT a Bangladeshi citizen in the absence of a positive act to claim her entitlement to it (Phillipe Sands QC), and others assert that the citizenship sprung up automatically as a result of her parentage (Free Movement blog). As a result, it’s also unclear whether or not the revocation of her British citizenship is likely to be upheld when it is challenged in the courts here (as it is reported it will be). Some commentators have suggested that even leaving aside the Bangladeshi citizenship issue the decision is legally challengeable on fairness grounds (and that leaving Shamima stranded and stateless will do little to protect British citizens from any risk she may pose).
For our purposes though the fact that Shamima was a British citizen is important because it means her baby is also a British citizen and entitled to come to this country. It is said that Jerah’s father is Dutch, but it isn’t clear whether or not that makes Jerah a dual Dutch and British citizen.
Our (limited) understanding of immigration law is that Shamima herself might have a derivative right of entry as Jerah’s parent and primary carer under EU law (this is known as a ‘Zambrano carer’ and there is a useful factsheet here). We anticipate that this right might not continue after 29 March in the event of a no deal Brexit, but frankly it’s anyone’s guess.
What is clear is that if Shamima made it back here one way or another, she would be the subject of police and security services investigation, possible criminal charges and detention or restrictions such as a TPIM (Terrorism Prevention and Investigation Measure – see BBC Factsheet). Some of those processes might make it difficult for her to care for her baby (although some women’s prisons have mother and baby units, a place is not guaranteed, and may not be available at all in a case where there are terrorism issues). Social services in the area where she returned (presumably Tower Hamlets, where she is from and where her family remain) would almost certainly become involved under their duties to children in their area under Children Act 1989 (S47).
What is known from press reports of interviews given by Shamima and her family, is that there is an appreciation that Shamima’s baby might have to be cared for by someone else at least temporarily – her parents and a sister are put forward as possible carers. We know from press reports then and now that at the time the girls left the UK, there were some concerns raised about the role her parents may have played in the radicalisation (Shamima’s father is reported to have attended some dubious meetings which he is now said to regret). Even though those concerns don’t seem to have translated into criminal charges or convictions, it seems likely that social services would need to assess the family to ensure that they were suitable carers (see FRG factsheet here for generic information about the usual process). Whilst baby is not immediately at risk of radicalisation, social workers and any court which is involved will need to think about what he might be exposed to in the longer term – whether that is radicalisation via his grandparents or extended family, or radicalisation by being exposed to his mother’s views if she is not deradicalised successfully.
It is possible that if social services was happy with proposals for the baby to be cared for within the family (or possibly by Shamima but under the supervision of the family) the matter would not need to come to court, but in a case that is this high profile we think it is very unlikely that the matter will ultimately be dealt with without the family court becoming involved.
The law relating to safeguarding concerns about a baby arising from potential radicalisation is no different than cases involving concerns about physical harm or drug abuse. Social services will have the same duties to investigate and safeguard, and the family court will have the same duties to consider whether or not the child is suffering or (more likely) at risk of significant harm as a result of the parenting he is receiving or likely to be receiving, and to decide if and how those risks can be managed without separation or draconian steps such as adoption. It’s worth noting though that Jerah is neither present nor habitually resident in the UK so the family court probably has no jurisdiction to make orders about Jerah unless and until he arrives here. Likewise, no particular local authority will have duties to Jerah until he is present or resident in their area – although we would expect that where a local authority knew an at-risk child might be arriving in their area they would try to conduct an initial assessment prior to arrival (much as they do in the case of pre-birth assessments of vulnerable pregnant women). At the moment it appears that only Shamima and the UK Government have any duties towards Jerah (and whether the Government’s duties extend to bringing him to the UK is unclear – as is the question of whether the Government would have to bring Shamima to the UK if it tried to ‘rescue’ Jerah, something it appears politicians would not be keen on).
What may be more complex is gathering information about the risks that Shamima does pose, partly because very little is known about what Shamima actually did in Syria, partly because the family court will be dependent upon the police and security services for information about what Shamima did in Syria and any police investigation is likely to be tricky, slow and pretty secretive (for good reasons) – and information sharing between agencies will be complicated. And partly because, regardless of what Shamima did whilst in Syria, it is difficult to predict the future risk at least until some de-radicalisation or assessment has been attempted. Shamima was a child when she left and might have been exposed to traumatic or abusive situations since then – she is still a young woman who may have been groomed and may remain heavily influenced, and it is difficult to say whether or not her thinking will develop or the risks reduce when she is removed from an abusive situation and when she is both challenged and supported. And of course, it is very much unknown whether Shamima will remain at liberty and able to care for her child in any event.
All of this is hypothetical of course. Shamima and her baby remain in a refugee camp. Even if Shamima is not a British citizen, her baby is, and it is unclear at present what steps, if any, the Government are taking to secure his safety and wellbeing.
Other reading : this week also saw the publication of a report : RADICALISING OUR CHILDREN – An Analysis of Family Court Cases of British Children At risk of Radicalisation, 2013-2018 by Nikita Malik for the Centre on Radicalisation and Terrorism, February 2019.
UPDATE (26 Feb) :
A letter from Kirsty Brimelow QC to The Times today, reminds us of the Home Office’s own Counter Terrorism Strategy, which gives guidance on precisely this sort of thing (and which you can find here) – and which is very oddly not (as far as we can tell) referred to at all in the Radicalising our Children report we linked to above (we are hoping to publish a considered piece by a radicalisation / family court expert in due course). The strategy suggests a supported and managed return followed deradicalisation and / or by criminal investigation and, if appropriate, charge.
See also this article in the Guardian which we hadn’t previously spotted, which suggests Shamima’s older sister is taking the lead in trying to get the baby back to the UK, and that his name is spelt Jarrah, rather than Jerah (we’re not sure which is correct).
UPDATE (4 MARCH):
The situation continues to change on an almost daily basis. See for example:
Reports that the Home Secretary has acknowledged that baby Jerah would be entitled to British consular help to come to the UK as a British Citizen, if he could be taken out of Northern Syria, with the consent of his mother, to somewhere with a British consular presence.
Reports that Shamima has now fled within Syria, with baby Jerah, due to death threats.
Reports that Shamima’s Dutch ‘husband’ hopes they can all live together as a family in the Netherlands, and of likely barriers apparently cited by the Dutch authorities. From a family law perspective we add that it is by no means clear whether the purported marriage ceremony that took place in Islamic State-held territory would be recognised as a valid marriage under the law of the Netherlands. There are several open issues:
- Were the parties able to marry under Syrian law or were they still ‘domiciled’ in England and the Netherlands respectively? If they were still domiciled in their countries of origin (and domicile has a particular meaning in international law) then Shamima Begum’s age (15 at the time of marriage) would be fatal to recognition of the marriage. In both countries the age of marriage is 18 (or younger with parental permission, which does not seem to exist here).
- If they were domiciled in Syria, given that the marriage took place in a warzone, were the requirements of Syrian law adhered to? Indeed can we say Syrian law would be recognised internationally as applying in the Caliphate? (An international lawyer may be better placed to comment on this),
- Assuming the above tests are passed, are there public policy reasons why the Netherlands would not recognise the marriage? There are three strong reasons why the Netherlands would not recognise the marriage: Shamima’s age, the circumstances (which, for all her husband says it was ‘her choice’ may reach the level of duress given that she was a young woman alone in a warzone and at risk of brutality and sex-based oppression), and the fact that marital intercourse would constitute rape of a child under 16. Sixteen is the age of consent in both England and the Netherlands.
We’ll update again from time to time. We also still aim to comment on the Henry Jackson centre report that has suggested the family courts require urgent reform to be ready for a cohort of Shamima and Jerah equivalents / the serious challenges of extremism. (As reported in the Mail and Mirror.)
UPDATE 10 MARCH : The sad news has reached us that Shamima’s baby has died before he could be brought to the UK.
Feature pic : courtesy of Abhijit Chendvankar on Flickr (via Creative Commons Licence) – thanks.