BM, Re (Children: Tracking Devices)

Over a decade ago Mr Justice Peter Jackson (as he then was) gave a judgment in respect of parents making covert recordings on mobile phones and wrote of advances in technology that ‘would be the envy of yesterday’s spies.’ (Footnote: ¹) I would not like to guess at what the real-life Q can offer the current crop of 007s but the ability to track a person from afar by means of a tracking device long ago moved from the fiction of ‘Goldfinger’ and onto the High Street. Dogs are routinely chipped; cats are electronically tagged and children are easily located through their mobile phones or simply by the use of a purpose-built tracking device popped into a bag or just carried in a pocket. Type ‘tracking device for kids’ into your online retailer of choice and prepare to be flooded by a tsunami of products.

The Family Court, like any other institution, must deal with life as it is and not how it used to be or how it wished it was. Given the ease with which it can now be done it is surprising that the issue of surveillance, of covert location and tracking has not become a recurring issue and another problem for Family judges to have to grapple with. To the best of my knowledge this is not (yet) a widespread issue and its appearance in the proceedings before me has been a first, at least for me.

However despite the novelty of the problem sometimes even the white heat of a technological revolution (Footnote: ²) cannot overcome the tried and tested remedies. This judgment is concerned with applying an old solution to a new problem and in so doing demonstrating that contrary to the view expressed in the synoptic gospels it is possible to put new wine into old wineskins without precipitating a flood.

I am dealing with a specific factual issue. It follows that this judgment is not a fully detailed matter exploring the history of the family, the wider issues which lead to the proceedings being issued nor any form of welfare analysis. It is intended to be short and focused upon a single but very important issue. Its purpose is to provide a factual narrative which can then be the basis for future case management decisions as well as forming part of the wider risk identification material which will in a future judgement feature in the welfare evaluation.

I am concerned with four young children who are the subject of on-going care proceedings and who are presently in foster care. Given the particular focus of this judgment details about the children are unnecessary except to say that they are very young, none of the children are yet of school age and the youngest was not even born when the events with which I am concerned occurred, which makes them entirely dependent upon adults which makes them vulnerable.

The parents of all four are mother (M) and father (F). Again few details are necessary at this point but the following is relevant. In addition to her four youngest children M has three older children, all of whom have themselves been subject to Family Court proceedings as a result of which two of whom now live with members of the wider family and one of whom has been adopted. It follows that M has already had one bruising encounter with the family justice system. It is also the case that the parents do not appear to have fixed roots or strong connections to members of their wider family. They are not Travellers, in the sense of that ethnic grouping, but they certainly give the impression of being transient in their lifestyles or at the very least not incapable of uprooting and moving on without difficulty or regret.

At an early stage of the proceedings the three oldest children were removed from parental care and placed in foster care where they remain. The removal was due to a collection of problems but one of which was that of flight risk. There was a real concern that the parents might attempt to leave the area and take themselves and their children beyond the jurisdiction of this local authority and either move to a new place and lie low or instead to keep moving and so stay not just off the radar of the new authority but, as far as possible, off the grid completely.

This possibility was not an unsubstantiated fear. The parents moved to the area of the issuing Local Authority without any real advance plans and without informing their previous local authority, to which they were not unknown. A month after they had turned up and were receiving assistance they disappeared from their accommodation and were uncontactable for a week. A month after that F had told a social worker that the family would be leaving the area shortly for a city outside the region and that “no one will find them as you didn’t last time”. Even during these proceedings, when M was due to give birth to her youngest child, there was confusion over where she was and a concern that she was avoiding attending for her planned Caesarean section because of a fear that the baby would be removed immediately thereafter. To be fair to M, she was not wrong.

Parents of course, are perfectly entitled to move themselves and their children frequently if they so wish and for some it can be an occupational hazard. The issue is not the frequency of change but the management of that change and, separately, that despite those changes the underlying care being given to the child/ren is good enough notwithstanding any lack of permanency of address or living arrangements. In this case there were serious concerns about the care afforded to the children in terms of their health, their wellbeing and their overall supervision. One example was the problem of significant tooth decay noted in the older children, a product both of a failure to ensure that teeth were brushed combined with a failure to ensure regular dental care was given due to frequency of moves.

Having noted some of the problems it is only fair to record that as part of the assessment process an independent social worker had undertaken a parenting assessment which, whilst measured in its overall assessment, was sufficiently positive to earn the parents a recommendation that a further period of assessment, potentially at a residential setting in the company of the children, would be appropriate to enable the parents to demonstrate how well they could manage their children in a stable and structured setting. That recommendation was awaiting consideration by the Local Authority when it was overtaken by the matters described below.

On 23 May the children’s foster carers found stitched into a bag which had been given to one of the children by their parents a small device manufactured by the same company that made a mobile phone M was then using. It was swiftly established to be a tracking device. Concerned at this finding other items previously given to the children by their parents were now searched and two further devices were found, each in a toy given to a child some weeks previously and each concealed by being sewn into the toy.

As happens so often this problem blew up on a Bank Holiday weekend and it was not until 27 May that the Local Authority were contacted by the foster carer to inform them of the discovery. Predictably the Local Authority made contact with the parents within 24 hours and a robust conversation took place between themselves and the social worker in which the parents denied knowing anything about any tracking devices and made counter-accusations against the Local Authority about whether they had done this deliberately to discredit the parents. Threats of legal action and going to the media were made.

The matter was returned to court and I both directed the parents to file narrative statements as to their lack of / knowledge about the devices which had been found and inviting them to be as comprehensive and candid as possible. It was my view as expressed at that hearing that it was difficult to see any basis upon which children in foster care might be located and tracked by parents for positive reasons. Locating the children through the use of tracking devices only suggested that the parents wanted to know where the children were either to destabilise a placement or to terminate it by snatching the children at a convenient point, for example in a park or area where easy access and a swift getaway could be arranged. Whilst I accepted that a less insidious reason might have been a cause for their deployment it was difficult to identify a good reason for hiding a tracker.

The parents each filed a statement.

F’s was dated 4 June and he was clear that the toys in question had been purchased by the parents together and that immediately after buying them the parents had walked directly to the contact centre were they had been given to the children. F was clear that the time between purchase and receipt by the children was measured in minutes. The bag in which a tracker had first been found had been a later gift, it was purchased on 18 April approximately two weeks afterwards as part of Easter gifts for the children and, like the toys, was handed over on the same day as purchase. He was categoric in his denial that he had not placed trackers into any item and went further saying that he could offer no explanation for their presence and so assumed that they were already within the items when purchased.

M’s statement was dated 5 June and was significantly different. M admitted both purchasing and placing trackers into the items which were bought. M was clear that she did this of her accord and without any discussion with F who had had no idea of her actions. M’s reasoning was apparently that she was concerned that the children had attended contact ‘on a few occasions’ with bruising but was unable to now say why she had thought that being able to locate the children and track them would have assisted with regard to any bruising sustained. M was equally vague as to the date/s on which the tracking devices had been purchased.

There were obvious contradictions in the parents’ respective evidence but the opportunity to explore them failed to materialise for a variety of reasons which it is important to record:

Despite the inactivity in the courtroom the situation was not static and developments continued.

At the hearing on 6 June permission was given to the Local Authority to instruct an expert to interrogate the phones of the parents and an order was made that the parents were to deliver up their phones to the social worker by 13 June, including one which it was now being claimed was not in their possession but was in storage. In a further statement filed on 25 June F asserted that he had sold that phone on 8 June in order secure funds for the parents’ accommodation. The sale was arranged online via Facebook and a cash transaction took place.

M’s phone, now of increased importance given her assertion that she had made the purchases of the tracking devices and had solely inserted them into the items for the children, had been placed in a Cash Converter shop with a limited time for reclaiming it before it would be sold. Again as later set out in his supplementary statement F asserted that M had simply forgotten about the phone and it had been subjected to a factory re-set and placed for sale. Although the parents could have retrieved the phone they did not as in their view a factory re-set would have rendered it incapable of providing a data history under forensic interrogation. Whether that is an accurate understanding of the situation remains to be determined upon receipt of the outstanding report of the few phones which were, finally, made available.

A day or so after F was selling his phone he was also accusing the social worker of having placed the trackers into the items for the purpose of seeking to discredit the parents. In his second statement F accepted that he did make that accusation of the social worker but did so ‘in complete frustration that I was being accused of something that I had not done and didn’t have knowledge of..’. I have quoted from F’s statement and italicised words to which I shall return later.

That second statement of F’s was dated 25 June and in it F confirmed the previously asserted details as to the purchase of the items and their being given to the children very shortly afterwards. However F now recalled an additional detail in that having bought the items he went to a Vape Shop on his own whilst they were both en route to the contact centre and there was a period of 5 – 10 minutes when M was alone. His assumption was that the trackers for two of the items must have been inserted in that time. Although re-confirming his previous detailed account of the later purchase of the bag in which was found the third tracker no explanation is provided as to how that device was inserted without his knowledge. In the same statement F stated that M had informed him about her role in purchasing and inserting the trackers on 5 June after he had filed his statement and the day on which she had filed her’s.

Finally, but very importantly, in mid-July a little girl was born to M, making her M’s seventh child and F’s fourth. The parents, with commendable stoicism, accepted the inevitable separation whilst not consenting to it and remaining clear that their aim is for all four children to be reunited in their care as soon as possible. An application for a residential assessment was adjourned through to the other side of this factual determination which remained listed on 2 September.

The Finding of Fact hearing finally took place at its third attempt on the allotted date. By agreement the parents were the only witnesses.

It is sufficient to summarise each parent’s oral evidence as follows:

The law in relation to the making of findings of fact is well-known, settled, was not in dispute during the hearing and so the relevant principles can be summarised in the following way:

Notwithstanding the novelty of the subject matter, the use of tracking devices on children in care, the issue with which I am concerned is one of factual determination and therefore more than familiar to the court. The mother asserts that she and she alone was responsible for coming up with and hatching the plan to track the children. The father denies all knowledge. Where does the evidence take me? In a nutshell, do I believe the parents?

In my judgement that question can be answered unequivocally. I do not believe what the parents tell me and I reject their evidence, not just when it conflicts with other evidence before me but when it does not too. In my judgement the decision to use tracking devices was a parental decision and one in which F was a full participant. In fact I am inclined to the view that F was probably the driver behind what has turned out to be a disastrous diversion from the progress the case had been making.

I arrive at the above conclusion for the following reasons.

The contact logs show the attachment and affinity that each parent has with all the children and I have no doubt that M is a loving, caring parent towards them and well above to pick up on their emotional needs as well as meting their physical care requirements. But of the two parents F is clearly the more articulate, the more savvy and more cerebral in comparison to M. I have previously given permission for M to be assessed as to her ability to properly participate in the proceedings without the benefit of an intermediary and during this hearing M was supported by such an individual and I am mindful of her intellectual situation. With that thought in mind I question whether M of her own volition would devise a scheme for tracking the children, identify appropriate devices and feel confident in attempting to configure them to work directly with a mobile phone or via downloaded apps. As part of her oral evidence M told me that she had read the respective instruction booklets. Bitter experience tells me that configuring devices to work from downloaded software is not always an easy or swiftly accomplished task and many parents will have traumatic memories of Christmas mornings or birthdays spent in deep frustration as to why the prized present simply refuses to work even when the right batteries have been found. That the mother would embark upon such an obviously difficult plan without in anyway confiding in F is difficult to accept. That difficulty is rendered only greater when marked against the fact that M asserted that she was doing it for a good reason, to better understand bruising and to protect both her and F from allegations of injury which she feared might be used against them. If you are doing what you believe is right for your children and right for you and your partner why keep it a secret?

F has form, to use a colloquialism, when it comes to wanting to get off the grid (to use another colloquialism) as previously referenced and has not just threatened it but did so by decamping the family to the area of this Local Authority. Disappearing and getting rid of unwanted social services’ involvement is a clear fit with his thinking and his modus operandi. The imminent arrival of a baby could only have provided a greater incentive to both parents to disengage if at all possible, perhaps possibly with the fear of an outcome for that child which was antithetical to continuing family life and may be even a repeat of what M had previously experienced. The parents would not be the first to be concerned as to whether a bad situation in respect of their older children might get even worse from their point of view in respect of a baby.

To those macro reasons must be added the problems in the parents’ evidence from its various sources. It is impossible to weave the parents’ differing accounts of the trackers, their purchase, and insertion into the children’s presents into a coherent and therefore credible whole.

F was very clear in his statement about the immediacy of the purchase of the items in question and how they were handed over within the hour. He was specific as to time, cost and travel. He was clear that he knew nothing about anything to do with tracking devices and was content to include within his evidence his assumption of prior placement of the devices into the items, irrespective of how unlikely to the point of absurdity that was.

In his second statement F was now able to recall an additional detail about how he had diverted from the joint journey to the contact centre about which he had been so clear in his first statement and so create a new narrative which allowed M to surreptitiously insert two of the devices without his knowledge in a very short space of time. In that same statement F was clear that it was only on filing her statement and after hie had filed his own that he became aware of the M’s claim of responsibility.

By the time he gave his oral evidence the clarity of F’s recollection had become remarkably occluded and the only certainty he could offer was that he had lied in his statements, made knowingly false allegations against the social worker and was unable to own anything which had occurred from April onwards in relation to these devices.

If F’s evidence was not good then at least it was kept company by M’s too. M’s written evidence was clear only as to her acceptance of responsibility; she provided no detail, offered no credible explanation for motive and sought to hide behind the idea of making a silly mistake for no good reason rather than acknowledging that this was a serious action which threatened very considerable consequences for the welfare of the children, for the security of the foster carers and for any future assessment of her ability to work constructively with the Local Authority in the future. It has all the hallmarks of a cover story in the event that Plan A – hiding the trackers – was uncovered. Without wishing to flog the spy theme to death it is standard operating procedure that a good covert operation requires a credible cover story in the event of discovery. M taking the fall for the ruse and offering herself as someone who just made a silly mistake has the look of a well-planned fallback position as opposed to being anywhere near the truth.

M’s oral evidence served only to further undermine what she had previously written. M was unclear as to the order in which purchases were made and unable to confirm F’s story about everything happening within a very short window. M was either buying trackers and then toys or buying toys and then trackers, she was unable to recall which. M thought that everything was handed over on the same date whereas F was very specific about two items being purchased and then a third at a later date. There was no explanation as to how everything was kept away from F and how the expenditure of £60 (each tracking device costing £20) when finances were so tight that phones were being sold just to maintain accommodation was also kept from F.

On top of the large holes in M’s evidence is the practical issue of whether it is possible to unsew, insert a device and sew it up again to make it look like no opening had been created at least twice and possibly three times in the space of 5-10 minutes whilst F was in a shop. I claim neither expertise nor experience in such matters but a question must be raised as to whether this is possible whilst standing in the street. The less practical something is the less possible it is to have been achieved as asserted.

Layered over all of this is the parents’ failure to hand over phones promptly or at all, their effective fleeing from a court hearing when being informed that phones would be required to be handed over and their failure to allow this part of the litigation process to progress without significant delay. It all adds up to a concerted effort to conceal the truth. When further added to their concerns over social services involvement in their lives and their threats to decamp elsewhere the clearest picture is formed of parents who had every incentive to try to remove their children from Local Authority care but who actually decided to have a go at it or at least make preparations to do so.

I unhesitating conclude that I cannot accept the parents’ evidence as to the tracking devices and therefore reject it. These devices were part of a wider plan to know where the children were either in terms of where they were living or from where they could be snatched. And probably both.

Even in the twenty-first century and when dealing with technology beyond the ken of judicial thinking older than a decade or so the old tools of the court still serve it well. In Re TG Sir James Munby P set out the following:

Sir William Hankford delivered his judgment at the start of the fifteenth century. What the Family Court looks like and what problems it is dealing with 600 years forward in the twentieth seventh century are equally inconceivable to me but it must be hoped that a rigorous forensic process will be as useful then as it was to Hankford J and has proved so for me.

To return to the present. Much time has been spent upon this issue and it has necessitated a separate judgment because it is, in my view, a matter of significant importance in these proceedings. Contrary to M’s assertion this was not a silly idea which was never going to get anywhere and which, on even the merest reflection, was not going to achieve anything. This was a serious effort to remove the children from foster care for the purpose of removing them from the protective care of the Local Authority and back into parental care which has, on an interim basis only, been found to be wanting and which poses a risk of significant harm for these children, if not actual harm. Abduction is a criminal offence for good reason, not least because it can have such a deleterious effect upon a child. Being snatched leads to an acute sense of confusion, of loss and of discombobulation, none of which are conducive to a child’s welfare. Children who are snatched for the purpose of being removed from the observation of welfare professionals are subjected to disruption, inconsistency of care, being kept to a regime of secrecy or separation which impacts upon their psychological welfare. Living off the grid or just laying low for a while is the dream of libertarians the world over but unplugging from professional services means that children’s health, education and welfare are all jeopardised.

The tragedy in this case is that the parents’ assessment was reasonably positive and offered prospects for family reunification which is always the starting point of Family Court proceedings. In this case as in every other the default position is “why shouldn’t the children be looked after by their parents?” In creating the circumstances for covertly tracking the children the parents are only providing answers to that question. Whether they can now re-focus upon their children and showing how well they can meet their needs is not just the most important thing but the only thing that matters.

These parents now need to take stock, reflect upon my findings and start to work out how they can address the damage they have caused to their own case.

That is my judgment.