Y (Children) (Radicalisation) (Finding of Fact 2), Re

I have been dealing with the Y case for a long time for reasons articulated in my judgment dated 19^th August 2016. The final hearing could not take place because of a change in the care plans due to recent events and became a partial fact-finding hearing only. I then gave a judgment on 24^th August resulting from the findings that I made on 19^th August. With a heavy heart, I ordered that the three younger children of the Y family, J, who is16 and a quarter or just over, F, who is 14 and L who is 10, should be removed from the family home and be placed with foster parents as proposed in the Local Authority care plan. For a number of reasons, set out in the judgment of 24^th August, J has been placed separately from her two brothers.

This judgment arises out of the hearing in October. Their elder adult siblings R, A, and B were detained with the three younger children at Harwich ferry port on 20^th March 2015, 21 months ago. It is asserted that the family was en route to the Middle East, probably to join Islamic State or certainly to engage themselves in political and other activities presently occurring in the Middle East. I have to decide whether this was so and whether this was a plan by the whole family (at least the adults) or by only some of them, and whether the father was involved in it.

For reasons explained in my August judgment, I was unable to come to any conclusion at that time on this last aspect of the fact-finding part of this case. A, the eldest son, 31, and 22-year-old B, the second daughter, were only made the subjects of findings of fact sought very shortly before the August hearing was due to commence. They had not been able to access legal representation, which is hardly surprising. I decided not to deal with any aspect of the circumstances of the removal for the reasons I gave at the time. R, the older daughter, now 24, has not responded to attempts to involve her in the proceedings and I see no point in compelling her to do so.

I stated that I did not wish to hear from A and B at the August hearing, and if they wished to volunteer to give evidence then, I was likely to discourage them in the absence of legal advice. I did permit them to ask questions by way of cross-examination.

Having now heard them give evidence at the two October hearings and having heard the submissions from their respective counsel, Ms. Maggie Jones for A and Ms. Sorrel Dixon for B, I am invited to revisit any findings that I may have made which impact on A and B, and shall do so if the evidence justifies that. I am asked to revisit RX’s evidence because he gave evidence before me in October, as indeed did DS, although there was little controversy in what he had to say.

After concluding the fact finding, I shall give directions for the final hearing of these care proceedings, which have now superseded the wardship. The findings I made in respect of the radicalisation in the father’s home, which I found sufficient cause to justify intervention, in my view stand, irrespective of my findings as to the alleged plan to remove to the Middle East.

The hearing was under some time pressure even though two days were set aside (of which half a day was lost), but I am quite satisfied that each has had a full opportunity to say and have said what they wanted. I have not been asked to hear any further evidence now on the adjourned day 3 of the hearing. I had thought that I might be able to conclude it when sitting in Nottingham, but could not because of the pressure on my list there. My London list has been crammed full until now. It is now nearly two months since the October hearing, but I have had an opportunity to re-read my notes and I have had the benefit of extremely helpful written submissions and also oral submissions this morning.

I turn to the way in which the case is now formulated in respect of A and B, which I take from Mr. Poole’s closing submissions, although they are also formulated in a separate document. The finding, against B now sought in the finding of fact, is simple, under 15 words. It is that B assisted in the attempts to take the children to Syria via Holland which she denies.

In respect of A, seven findings are sought; (1) A assisted in the attempt to take the children to Syria via Holland, which is denied, (2) A attended a meeting with his father and his two brothers on 10/7/13 when talks were given by known members of ALM. That finding is inevitable bearing in mind that A accepts it but Ms. Jones submits that it is the only evidence of radicalisation of that nature and thus she says it not only should not be overplayed but it is of no real evidential significance. She also asks me to reject finding (3) “Like his father, A is sympathetic to the views of ALM”; (4) A has posed with a firearm and was photographed in a well-known terrorist pose. The first half of (4) is accepted although not the second, in that A accepted that he was photographed in that pose. It has close similarities with other obviously terrorist material that I have before me as I commented in judgment number 1, but A denies that that was his intent. Again it is submitted to me that it cannot be proved that this is in any way sinister, but innocuous, because it is a one-off. Allegation (5) is that when stopped at Harwich ferry port on 20^th March 2015 the mobile phone that A was using at the time contained a gruesome video of men being executed. That is also accepted, but it is submitted that this again was a one-off, not to be regarded as demonstrating evidence of radicalisation, and that I should accept that this simply came to him unsolicited from a source which he cannot remember. (6) is that although registered in R’s name that telephone was being used by him, as he accepts. (7) is that the images on this phone suggest an interest in killing/murder/radical views. Ms. Jones submits to me that this inference cannot be drawn from the specific examples given in prospective findings 2 to 6 above.

As far as both young people are concerned, each relies on their evidence to me about their lack of interest in radicalisation. A attended a non-religious school, he has a multicultural group of friends, he works as a carpet fitter and has non-Islamic activities such as that he smokes cannabis, forbidden in Islam.

It is submitted that B has an interest in the kinds of activities that many young women of her age have - make-up, physical enhancement and nice clothes. I have seen pictures none of which are in the least immodest, quite the opposite, but show her at home in westernised clothes and make-up. It is submitted that this does not indicate that her religious beliefs are extreme and that she has an inclusive attitude to her place as a young Muslim woman as part of mainstream British society.

It is submitted that from what I have seen of them and heard about A and B that these background facts make it inherently unlikely that they have been radicalised in any significant way and, in particular, that they were part of a plan to take their much loved and much cherished young siblings to a dangerous and volatile part of the world. As I agree, they come over as two very nice articulate and caring people in court and from the witness box. I bear this all strongly in mind.

The father has also, through Mr. De Burgos, made further submissions in this second part of the fact finding directed to his part in the alleged plan. He stresses his devotion to his children, and how unlikely it is that he would wish to expose them to danger.

It is a crucial point in these proceedings that the Local Authority brings these proceedings, makes this application, makes these allegations, which they must prove to the civil standard.

In my view the Local Authority does not have to prove every single element of what it seeks to establish against the Respondent. The court has a duty, even in a strictly adversarial part of these care proceedings, to scrutinise all material before it and come to a conclusion, on the preponderance of likelihood, as to whether or not the individual charges are made out. I use the word “charge” by way of analogy with criminal proceedings, not as a direct correlation to them.

Although quite prepared to be shown to be wrong in individual findings which led me to my overall conclusion in August, I see no reason to doubt and am not asked to depart from the findings I made against the father in respect of material which was in the end and in the main, hardly subject to challenge. I will be careful before drawing conclusions as to what was intended by the trip on 20^th March 2015, not to put decisive weight upon my findings of radicalisation in this family.

It is suggested that this may have been a plan or plot by R alone. She continues to be presented by the family as the most radicalised from the material available on her electronic devices. This may be correct. It is asserted that her interest in such material was not known to them.

However, I remain of the view, as I said in the August judgment, that it is unsustainable to suggest that any one of these family members could have had a plan to remove the children to the Middle East without the others being involved. This could not have been R’s plan alone. Quite apart from anything else, A was driving the borrowed car which was stopped at Harwich, and he was the driver. Even outside the jurisdiction of England and Wales, it would have been extremely easy when it was announced or became apparent, that the intention of the journey was to travel onwards from Amsterdam for the whistle to be blown by a non-participator. A mobile phone call to England could have alerted the authorities, or assistance could have been gained somewhere along the way on the journey east. Many persons speak English in Europe now and anyone who made a fuss at a service station, including a child, would have been likely to draw attention to the family. The car was meant to have been returned on the Sunday. European border posts or police could have been alerted by the owners, or more likely the father asserting child abduction. I find that if there was a plan it must have been mutual, but perhaps not fully involving the younger children.

I accepted RX’s evidence that there had been “a huge radicalising element in the lives of the Y family for a number of years.” I deliberately did not focus on any particular member of the family in formulating that view. I see no reason to revisit that general finding.

I set out, from paragraphs 49 onwards of my August judgment, my reasons for concluding that there was a prima facie case that this was not an innocent holiday jaunt, although I made it clear that I might be “persuaded away from that conclusion by other evidence.”

I have more information now. I was interested to know what was the attraction of the venue in Amsterdam, described in one of the documents submitted to me today as a “theme park.” Having now been provided with a Trip Advisor printout, that rather overstates it. It is called ‘TunFun’ and occupies an underground space off the Visserplein in the centre of Amsterdam on the site of an old subway station. It is said to be for children from nought to twelve years of age. There is no actual reference to Go-Karting, which I was told in October was the attraction for the older children, although the website describes something called “skate car driving”. There is also an indoor soccer field, a tower to climb and an area with inflatables. A lot of the activities are designed around eight-year olds although there are facilities for those who are a little younger and a little older. There are things for adults to do, Wi-Fi and magazines and coffee and tea are provided, but it is not really designed for anything other than children’ activities, and not for adolescents. It is open during the day, and the website states that it is intended to provide a degree of respite for young children from what may seem to be the chore of going from museum to museum in Amsterdam.

It has been stressed to me that the children were very keen to go. I have been referred once again to J’s online picture of herself, in which she expressed her enthusiasm for going on this trip. J has also told either the guardian or her representative that as far as she was concerned there was no plan for the family to move on. I may never hear her evidence. I keep a completely open mind and cannot put into the balance what she tells me as it is not evidence. If she did not know what was planned, that is not evidence against there having been a plan. I have accepted and still accept from my own observation of the father as well as RX’s evidence that there has been a considerable degree of lack of frankness and even subterfuge in this family. J may well have known of the plans and been encouraged or decided to try to put surveillance off the scent. I cannot exclude from my considerations that the online posting was part of what I have described as decoy material. I am not making a finding about this and I may be unable to come to a conclusion but these pieces of information do not undermine the Local Authority’s case as to what was intended.

They said that they were going to sleep in the car on the beach. B tells me that it is lawful to sleep in a parked car, and they had in mind a particular car park, and there were adjacent sanitary facilities in a nearby hotel. The proposition that this was intended to be done, or could be done, has not been tested because the family never got as far as Amsterdam. I also have no information as to the likelihood of the family sleeping in a hotel as an alternative, as B told me, save that there was no booking, which, even in March, might have made obtaining accommodation rather risky in a popular tourist city, particularly just before the Easter holidays. It has been stressed to me that the amount of money that the young people had on them was insufficient to travel onwards. It is not clear that there was sufficient cash for three adults, one almost adult and two children over the age of ten to stay in a hotel, or at least to be certain that they could obtain a hotel room, but there is always the ability to draw cash or pay electronically, and the latter can be done by someone else. The money questions do not help me. They may have been intending to sleep in the car on the way East, I cannot say.

Reliance is placed on R’s possession of cannabis as incompatible with removal to the Middle east. Why it was necessary to take it through security, where there might have been sniffer dogs (although there was no indication that there were) as opposed to accessing drugs in Amsterdam, which I am told is lawful, possible and easy, is unclear to me. I remain of the view that there is a real possibility that it was all part of a way of trying to establish the non-terrorist credentials of the journey. I say this not because it is for the respondents to prove anything, but because when I am presented with a piece of information I have to decide whether or not that casts any real doubt on the prima facie case to which I have referred.

I am also referred to the lists. It is submitted to me that B’s list is not obviously linked with the kind of terrorist activity described in the judgment, although it is accepted that there are overlaps, which I find of supportive significance. It is submitted that she is the kind of person who would have made the extremely detailed, almost minute by minute, plan set out for herself and the family. I remain of the view, expressed in my original judgment, that it is a very unusual document to have, even if for a first trip abroad. Even in a strange city, people would not have an almost minute by minute plan. It is confirmed to me by counsel that R’s list, which may not have been written by R, was found in her bedroom and B’s was found in her bedroom, and, therefore, that disassociates B from R’s list. That does not follow at all. The list has not been identified as downloaded on the family computers and mobiles, but that does not help either. It is very likely, bearing in mind the family’s associations, that somebody else, other than members of this family, produced R’s packing list for them, but that does not assist as to which family members were aware of it.

I am told by A that there were many other phrasebooks in the house as well as a Turkish phrasebook but there is no reference to that in the police material. A now says that he had had a holiday in Turkey, but I repeat that the father was unable to give a convincing reason for the presence of the Turkish phrasebook.

It is submitted that if a trip to the Middle East was planned then the father would not have gone to a camping shop at the last minute in order to obtain the equipment, and it would have made far more sense if the shopping trip had been earlier. The answer seems obvious. This family was very likely to have been aware that they were under surveillance, or suspect that they were. That was the world they lived in. That would fit in entirely with the late booking and change of cars and the father’s absence from the advance party. There was every possibility that an earlier purchase from an outdoor shop for items on the packing list would have been picked up. A last-minute foray gave the chance that the information would not have been passed on to those in authority in sufficient time for them to be stopped.

I remind myself, as appears in my August judgment, that the father’s original case was that the camping trip was planned for the summer. It became apparent in evidence in the first hearing that this clashed significantly with the account that it was necessary to go shopping the night before departure. B then put to the father that in fact the camping trip had been planned for Easter, which was very shortly after this trip to Amsterdam, and he responded that he thought it might have been but he could not really remember.

It is submitted that a plan for the father to join them would have been hazardous if he had the equipment with him and that that is an unlikely way for them to have planned a trip. Also the women in the family did not seek to deflect attention from their ethnicity or religion by adopting Western dress. That point cuts both ways and it might be thought that western dress would be seen as very obviously a deflecting presentation. The return ticket does not help either.

I remain impressed by RX’s approach and evidence but do need to look again at his conclusions in respect of B.

I bear in mind that RX’s repeat interviews following the second police visit to the family home were conducted over the phone, which must have been inhibiting, both emotionally and practically. This does not undermine his views.

B is a most delightful young woman who presents extremely well. She is gentle and moderate in manner except from time to time in her evidence when she displayed the same assertive passion as described by RX. I am satisfied that she is a very caring person. I note her burgeoning career as a nursery nurse. She has shown her devotion to her father (and of course her siblings) by her attendance throughout the whole of these proceedings. It is not for me to judge the motivation of either of these young people save that I suspect very strongly that B has a wish to help, to nurture and to support. It is quite possible that she thought she really could be a contribution, particularly to the lives of children in an area of conflict.

B takes issue with the opinion of RX. He accepted in cross-examination in the October hearing that the view he expressed about the strength of the opinions of B’s feelings and the extent to which they showed a truly fully formed and embedded radicalisation may have been poorly expressed and overstated. RX accepted in his October evidence that the passionate views which B expressed to him, particularly about her distress over what was happening to children under bombardment, should properly have been described as consistent with radicalised ideas, rather than probative of them.

Having looked again at the August judgment para 68, it should read not that “I accept his evidence” but “I accept this evidence,” namely that there had been huge radicalising element in this family for many years, to which I refer in para 67. I did not intend to and did not make irrevocable findings about the degree of radicalisation of the adult children, or indeed the minor children.

I recorded B’s conversation with RX about the imagery of the green bird and what it represented and what it meant, as to her exposure to radical ideas. My recollection and note makes it clear that RX did not form the view that she agreed with the sentiments expressed in the ‘green bird’ cartoon. His view, both in his report and oral evidence, was that B had been exposed to material which, in his experience, was esoteric, and would not have been known to most adherents of the religion who had not had some degree of radical input. It was put to RX that the material had arrived with her through Facebook (she told me this too). RX responded “Well, exactly, that’s exactly how people become radicalised online, by this kind of communication being sent.”

I do not need to find how extreme B’s views are in order to be able to adhere to my findings that this is a radicalised family environment, with exposure to radical ideas and other radicalised individuals. It may not be possible for me to find what the gradation of views is, if any, between the various family members, but my overall finding stands. For the reasons I have expressed, I do not see B’s personal characteristics as undermining the conclusion to which I have come. I do not know how far her actions and beliefs are impelled by her sympathy for suffering and how far other feelings, such as loyalty and expectation to adhere to her father’s wishes or her own religious and societal beliefs, may drive her actions.

A accepts, as I said, the Local Authority points 2 to 7. He merely says through his counsel and in evidence that these are individual features which by themselves do not establish the Local Authority’s overall proposition. I cannot take points 2 to 7 individually. They are all part of a pattern and picture. I have no explanation (apart from the fact that there was an air rifle in a property, which he had come across with a fellow worker) for him to be photographed in a terrorist type pose. He did not say that it was a joke, or that anyone put him up to it. He told me that it was something that just seemed to him to be appropriate at the time. It must signify a sympathy with the concept. He has attended one ALM meeting. That is in itself significant. He has views which have been demonstrated to be sympathetic to the views of ALM. He could not explain the gruesome video found on his mobile phone being used by him on 20^th March 2015. He could not say who had sent it to him. He did not say, although this submission was made on his behalf today, that this had come to him unsolicited and he had not opened it and was not aware of its presence. I do not accept this explanation. The sender must have known, at the very least, that he had a common interest with A in the subject matter.

I appreciate these are single incidents only but they are single incidents which are all part of a pattern. I find the 7 assertions proved. I see no reason to revisit RX’s opinion in respect of A.

I turn again to the account that was given of the reason for this trip. I have conflicting accounts as to why the passports were obtained some months previously. My August judgment says that it was “in contemplation” of the trip. R told the investigators at Harwich that the passports were obtained specifically for this trip. The father denied that at first but went on in his evidence to say that there was a possibility of a trip to Amsterdam. That is not inconsistent. I find that the passports were obtained for this trip.

The young people and the father do not agree that he was ever to be any part of the trip at all. He was insistent in his evidence that he was, and had only had to pull out because he was unwell shortly before departure. A and B are firm in their evidence that the father was not and had never been invited. It was not intended he should come. They say that was going to be a ‘fun trip’ for the children and the children alone. That is an important inconsistency which has not been explained. In fact, there has barely been an attempt to explain it.

I do not accept that the family car had to go into the garage overnight was because it was having an unexpected problem with the heating. To use a different car from that originally booked is entirely consistent with a plan to put off the authorities who might have been assumed to be involved in some kind of surveillance. The ownership, and who are the registered keepers, is not clear but it does not matter. Three of the insured drivers were associates of ALM. The use of the car with such a strong connection to the father’s associates gives strong backing to the conclusion that the father was going to join them later. Having the equipment with him would have caused no more danger, and probably less danger of attention than the other car. Indeed, there would probably hardly have been room for it in the other car with five passengers and a driver. I find that the father originally planned to go with them, that it this was changed so that he would join them later, and that he was instrumental in organising the trip.

I reject the submission that the cannabis evidence undermines the case as to the purpose of the trip. Neither does the use of cannabis detract from these individuals having been radicalised. RX told me that it is characteristic of those with radical Islamist views that they can behave personally in ways which are forbidden in the religion such as the use of drugs or even alcohol (the latter is not a feature of this case). Radicalised views and more importantly actions, can exist alongside aspects of ‘westernised’ behaviour.

The adults rely on the fact that R told the police and the investigators at Harwich that she had a Hindu boyfriend. It seems unlikely, as they told me, that this family had virtually no knowledge of this relationship if it existed bearing in mind the closeness of the family. It would have been regarded as a cause for some concern to put it at its very least, in a devoutly Muslim family. The father claimed to know nothing of it. B claimed to know virtually nothing of this man. R married someone else a few months later. I cannot place any reliance on this. It is likely to be false information to deflect from the kinds of conclusions to which the investigators might have come.

I have no good explanation as to why it was so necessary to make this trip to a cold area of Europe on the edge of the North Sea, in the third week of March 2015, the week before the children’s Easter holiday was about to begin. This family is not in touch with family members in the Netherlands, whom they mentioned during interview at Harwich. The reasons for visiting this particular facility in Amsterdam seemed thin on first reading and now, as I have information about the facility itself are, in my view, completely incredible. I do not accept that any of the adults thought that it was worthwhile financially, educationally or socially, to spend a few hours in a play facility with activities relevant to much younger children, and perhaps to see the canals. It makes no sense at all. The trip, which the father was funding, had cost many hundreds of pounds, for a day and a half. This is not a wealthy family.

It is obvious that this was a made-up reason intended to deceive. Taken together with the material which was found by way of lists, and the whole picture and other matters referred to, I am quite satisfied that this court has been spun a line as to what was intended.

Then there is B’s evidence about the equipment. She told me that the planned trip was to Scotland at Easter. The father had talked about his pleasure in going to Aviemore as a teenager. She appeared never to have heard of the Cairngorms when she was asked but perhaps that is not absolutely fatal to her case. More importantly, Aviemore is a ski resort, is at elevation, and there was likely to be still snow up there. To suggest that this family planned to sleep in a tent in potentially harsh weather conditions is absolutely fanciful. The father has diabetes and other health conditions. He needs to relieve himself frequently. B told me it was planned that she and the other children would go for long walks and climb a mountain. There was no suggestion as to what was going to happen to the father, and how he was going to keep up, or how the younger children would cope if they were tired or wet or cold. I may be wrong in having detected an inconsistency in B’s evidence as to whether or not they were intending to sleep in different camp sites taking their equipment with them, or whether they were going to stay at the same (unidentified) campsite every night and go for walks during the day. It is inconceivable that the father either would have subjected himself to such conditions or that he would have been left shivering in a tent whilst the family went on without him.

I asked B whether she had ever climbed a mountain and she said she thought she had in Wales. She then said she had climbed one in Leicester recently. It had been very high and very steep. Leicester is an extremely flat part of the country. It is obvious to me that B was making up her evidence as she went along and I am quite satisfied that the Aviemore trip was a smokescreen. The family cannot even agree for when it was planned.

I am satisfied that I have been told a series of untruths by the adults about the background to the Holland trip, what was intended, and the surrounding circumstances, and that in itself is probably one of the most important features of my findings. Of course, I accept that following the principles in R v Lucas in the criminal courts, a lie in relation to an extraneous matter does not necessarily prove the point in issue. People tell lies for many reasons and they may do so in order to protect themselves or others, to cover up for embarrassment or mistake or for many other reasons. But when a lie goes directly to the subject matter of the enquiry or matters upon which it directly impacts, it has very great significance indeed.

Having rejected on a series of grounds the account I have been given, can I bring into play any other possible explanation for this trip? The answer is that I cannot. It all forms part of a very coherent and overwhelmingly convincing picture. The family reasons were probably primarily politico/religious, but maybe also because they thought it was an adventure, wanted to help or thought there was something they could do, and probably for a mixture of all those reasons. Perhaps they were naïve as to what might be involved and underestimated the dangers and the hazards which they might encounter, particularly the danger to the children from persons not benignly disposed to them. This particular plan very probably was influenced by others within their circle by associates who are right at the heart of the ALM movement, which is in itself dedicated to encouraging its members to make exactly this type of journey for exactly the same type of mixture of reasons. They are highly likely to have had contacts there already.

In spite of all the points made on behalf of the respondents, I am driven to the conclusion that this was an attempted trip to the Middle East in which all the adults were involved. None of the matters to which they have referred undermines the unchallenged evidence, nor the inferences, including inherent likelihoods and unlikelihoods, which I am more that entitled to draw from it. I cannot fail to pay attention to the fact that the background is a family with radical sympathies. As I have said, it is not necessary for me to make a finding in respect of the degree of radicalisation of either of the adult children or indeed the minor children. I am satisfied that the father’s role, as very much the head of this family, his children’s feelings of responsibility towards him, and their devotion to and support of him, are such that they could not gainsay what he himself had planned. I am satisfied that there is a significant degree of radical sympathy in each, even if it may not be as pronounced as that which I find father to hold, or which R appears to hold.

I am very sad to come to this conclusion because personally I found every family member who has given evidence to be very amenable people, with who it was easy to communicate. I am sure each loves these younger family members deeply, but loving children or members of the family and taking unwise decisions in respect of them are, as any family judge knows, not necessarily incompatible. I keep an open mind, as I have said, as to how far J knew what was happening, as I do indeed in respect of the two boys. They may had different levels of knowledge. For the younger three children, particularly for the two boys, to be able to object along the way would have been a far more difficult exercise than for the adults. So, it may be that the boys in particular, were only going to be informed as to what was happening in due course.

I cannot, however, close my eyes to the extent to which the material to which I have already referred, points to a degree of grooming, a word I used in my earlier judgment, and which I still regard to be appropriate, of the boys towards an image of themselves as soldiers for the faith.

All three children express their wish to return to their home and home life with their father. I am due to see J this afternoon. I am making arrangements through their respective representatives, F still being represented entirely by CAFCASS, J and F separately represented and separately represented from each other, although of course with input from the guardian. The plan is that I should see F and L, probably not together but on the same day, so that they can travel back to the foster home together early next week, which is the best time that would suit me, bearing in mind my commitments then.

It will be difficult for me to explain these findings to the boys and indeed to J, without knowing precisely what is their degree of real knowledge as opposed to asserted knowledge. I propose, in relation to J, just simply to listen after the briefest possible explanation of my role.

The conclusions, which I have reached, make the course of mapping the future reasonably clear. I have come to this conclusion because I have been driven to it on the basis of all the evidence.

I shall list the final hearing now.

The application for full care orders was not resisted at the final hearing.