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England and Wales Court of Appeal (Civil Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> P & Ors v Secretary Of State For Home Department & Anor [2001] EWCA Civ 1151 (20 July 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1151.html
Cite as: [2001] Prison LR 297, [2001] WLR 2002, [2001] 1 WLR 2002, [2001] Fam Law 803, [2001] EWCA Civ 1151, [2001] UKHRR 1035, [2001] 3 FCR 416, [2001] 2 FLR 1122

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Neutral Citation Number: [2001] EWCA Civ 1151
Case No: C/2001/1114 & C/2001/1110

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(Lord Woolf CJ and Lightman J)

Royal Courts of Justice
Strand, London, WC2A 2LL
Friday 20th July 2001

B e f o r e :

THE MASTER OF THE ROLLS
LORD JUSTICE BROOKE
and
LADY JUSTICE HALE

____________________

REGINA

ON THE APPLICATIONS OF "P" and "Q" and QB


Appellants

and –


SECRETARY OF STATE FOR THE HOME DEPARTMENT & ANR

Respondent

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Richard Gordon QC and Ian Wise (instructed by Hickman & Rose for the Appellant P)
Richard Gordon QC and Hugh Southey (instructed by Thanki Novy Taube for the Appellant Q)
Eleanor Grey (instructed by the Treasury Solicitor for the Respondent on both appeals)

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    SUMMARY
    (This summary does not form part of the judgment)

    In these appeals two serving prisoners appealed against the decision of the Divisional Court on 17th May 2001 whereby their challenges to the lawfulness of aspects of the Prison Service's policy in relation to Mother and Baby Units, and the application of that policy in these two cases, were dismissed.

    The Court of Appeal held that the Prison Service was entitled to have a policy of the kind under challenge. It considered, however, that the Prison Service was not entitled to operate its policy in a rigid fashion, insisting that all children must leave a unit by the age of 18 months at the latest (give or take a few weeks if their mother is about to be released), however catastrophic the separation might be in the case of a particular child, however unsatisfactory the alternative placement available for the child, and however attractive the alternative solution of combining day care outside prison.

    The court reached this conclusion for two reasons (see paras 101-106). The first was because the policy's own declared aim was to promote the welfare of the child. If the effect of the policy upon an individual child's welfare would be catastrophic, the policy would not be fulfilling its own objectives if mother and child were separated at this stage. The second was because on the proper application of Article 8 of the European Convention on Human Rights there might be very rare exceptions where the interests of mother and child coincide and outweigh any other considerations arising from the fact of the mother's imprisonment and the implications of any relaxation in the policy on the individual prison and the Prison Service generally.

    The court dismissed the appeal of one of the mothers on the grounds that there was no realistic possibility of any further consideration of the merits of the case of this mother and child producing a different outcome (see paras 107-111). It allowed the appeal of the other mother because the evidence before the court was sufficient to suggest that this might be such an exceptional case as to justify the Prison Service in departing from its policy. It therefore required the Prison Service to reconsider this case in the light of its judgment (see paras 112-115).

    The judgment contains a review of the implications of the European Convention on Human Rights in cases concerned with parents in prison and their access to their children (paras 65-88) and the implications of the Children Act 1989 in this context (paras 89-97).

    INDEX

    Part   Paragraph
    1. Introductory 1
    2. The Formulation of Prison Service Policy 2
    3. The policy and its legal status 35
    4. The facts of the two cases 37
    5. The concerns of the Prison Service 43
    6. Continuing research and planning 49
    7. The potentially traumatic effect of separation 53
    8. The traditional approach of the courts on issues of policy 54
    9. The Daly approach 57
    10. The balance in ECHR Article 8 cases 65
    11. ECHR Article 8 and prisoners' rights 67
    12. The effect of Article 8 on the sentencing process 79
    13. Prisoners' rights and the common law 80
    14. The effect of Article 8 in a wider family context 81
    15. The implications of the Children Act 89
    16. The approach of the Divisional Court 98
    17. Our approach 99
    18. Our conclusion: the P case 107
    19. Our conclusion: the Q case 112
    20. Some concluding comments 117

    LORD PHILLIPS, MR:

    This is the judgment of the court.

    1. Introductory

  1. These two appeals are brought by mothers serving substantial prison sentences against an order of the Administrative Court dated 17th May 2001 whereby the Lord Chief Justice and Mr Justice Lightman, sitting as a Divisional Court of the Queen's Bench Division, dismissed their applications for judicial review. By these applications they had challenged the lawfulness of the formulation and the application of the present policy of the Prison Service contained in Prison Service Order No 4801 ("PSO 4801") issued on 10th May 2000. This order prohibits babies from remaining with their mothers in prison after they have reached the age of 18 months. We will follow the practice adopted in the court below of describing the two mothers as P and Q and their children as PB and QB. We have also continued in effect the order protecting the anonymity of these two mothers and their children.
  2. 2. The Formation of Prison Service Policy

  3. In December 1998 the then Director-General of the Prison Service announced the appointment of an expert working group whose task was to examine existing Prison Service policy in relation to mothers and babies in prison. The group was asked to submit its report, together with recommendations for future strategy in this field, within four months. In particular, it was invited to address nine specific issues. For the purposes of this appeal, it is only necessary to mention four of them:
  4. i) The rights of imprisoned mothers and their babies/children and the principles that should underpin the policy on the care of babies/children of mothers in prison;
    ii) The responsibility of HM Prison Service for the provision of services and facilities for mothers and their children;
    iii) A strategy for provision for mothers and babies/children in prison, including the type, location, number of places, age range and length of stay;
    v) the criteria and procedures for separation of mother and baby when necessary or for the removal of a mother from a mother and baby unit.
  5. The group was chaired by a member of the Prison Service's Women's Policy Group, and it contained a mix of senior Prison Service personnel, including two prison governors, and people drawn from a wider field with expert knowledge of the issues that were being addressed by the review. For instance, the group included representatives of the Prisons Inspectorate and the Social Services Inspectorate; the Department of Health and the Royal College of Midwives; three non-governmental organisations active in this field; representatives of the Associations of Directors of Social Services and of Chief Officers of Probation; and Dr Dora Black, a well-known consultant child and adolescent psychiatrist. Members of the group paid visits to the four prison mother and baby units ("MBUs") in England and Wales, and the group held eight meetings and conducted a seminar for a wider constituency before submitting its report within the timetable requested of it.
  6. The group prepared a careful, well-balanced report. Its main report covers 44 pages of text, and these are followed by seven annexes. It would be wrong for us to attempt to consider the questions of law we have to decide on these appeals without first referring in some detail to the report which represented the foundation of the policies that are under challenge before us.
  7. The group began its report by explaining that its work had excited intense interest among those working in the four MBUs. It had therefore decided to form a reference group, comprising the managers of all four MBUs, together with the social worker and the probation officer attached to each unit and an official responsible for maintaining family ties. This reference group was chaired by the deputy governor of a female prison, and it included an official from the Prison Service's Women's Policy Group who was also a member of the main working group. During the review the reference group was involved as an expert practitioner group to inform the review process, and after the Director-General had decided which of the working group's recommendations he would accept, the reference group remained in being for the purpose of carrying out the detailed policy formulation needed to implement those recommendations.
  8. The working group took it to be within its remit to consider the needs of mothers in prison from a much wider perspective than if it simply reviewed the provision of MBUs. Its review also covered visiting arrangements and information available on the services for imprisoned mothers and their children in other countries, the position of fathers who were the primary carers for their children before being imprisoned, and the framework of national and international law pertaining to policy-making in this field.
  9. The fourth chapter of the report was concerned with statistics. At the time of the review there were 16 prisons for women in England (and none at all in Wales). The annual average number of women in prison had doubled between 1993 and 1998. In particular, the working group noted that in the calendar year 1998 the number of females in prison had risen by 11%, whereas the male population had risen by only 2.9%. 22% of the total female prison population were on remand.
  10. The report contained other statistics which reflected the increase in the sentenced female prison population, although it was noted that women still form only a small proportion of the total prison population, and remain less likely than men to receive a custodial sentence. As at December 1998 the sentenced female population included 870 women sentenced for drug offences, 490 for violence against the person, 650 for various crimes of dishonesty and 150 for robbery. 20 were sentenced for motoring offences and there was a miscellaneous group of 200 categorised as "other". At the end of October 1998, 35% of females were held for drug offences, and about 30% of these were foreign nationals, mostly held for drug importation offences.
  11. The report then analysed the main findings of a 1997 Home Office research study into imprisoned women and mothers, and mentioned the preliminary results of more recent research on women prisoners' work experience and intentions. The earlier study had been focused on the entire female prisoner population at the end of 1994 which was then only 1,766. 61% were either pregnant or were mothers of children under 18, and the 1,035 mothers had, in total, 2,168 children of whom 30% were under five years old. 71% of the children had been living with their mother just before her imprisonment, and for 85% of these children their mother's imprisonment was the first separation of any significant length.
  12. The later study had considered 567 sentenced women between the ages of 18 and 40, excluding Category A prisoners, lifers and foreign nationals. 66% of this sample had dependent children, and of these 34% were under four years old. The great majority of the dependent children of the 371 women in the sample were being looked after by other members of the mother's family, their fathers, or friends. 10%, however, had been fostered, 3% were in care or in a children's home and 3% had been adopted.
  13. The working group made the following comments towards the end of this section of the report (at paras 4.18 – 4.19):
  14. "The continuing rise in the number of women in prison with the consequent rise in the number of mothers in prison was of enormous concern to the working group. It would like to see the Prison Service making representations to the Home Office for new work on sentencing policy. One idea it wished to be pursued is that of deferring committal to prison until child care arrangements have been made …
    Only 31% of women remanded in custody receive a custodial sentence. Sixty-one per cent of convicted women receive a sentence of less than six months. While this may be construed as a brief spell of imprisonment for the mother, for young children six months may represent a significant period of early development, and the impact of separation could be detrimental. At times, sentencers appear to lack information about a defendant's childcare responsibilities …"
  15. The fifth chapter of the report contained a description of the four MBUs at present provided within the prison estate: Askham Grange, near York (an open prison with 20 places in the unit); Holloway in London (13: closed); New Hall, near Wakefield (9: closed); and Styal, in Cheshire (22: closed). Askham Grange and Styal take babies up to 18 months, while the other two have an age limit of nine months. From April 1999 onwards they have all catered for both remand and sentenced prisoners, apart from Askham Grange, which only takes sentenced prisoners.
  16. The working group described how mothers in prison have been allowed to have their babies with them for well over a hundred years. In closed prisons they were generally allowed to keep them until they were nine months old: in contrast, when the first open prison for women was opened in 1947 at Askham Grange, children were allowed to stay with their mothers until they were three years old. Records did not reveal why or when this practice ceased, and although both sides tried to make debating points about the moral to be drawn from this change of practice at Askham Grange, in the absence of any evidence about the reasons for the change it would be quite wrong for us to make any conclusions one way or the other.
  17. What is sometimes described as the first MBU was established in a small hostel at Manchester Prison in 1960. The first designated MBU was established at Styal, with the capacity to take six mothers and their babies, in 1971. The report shows how MBU provision was gradually increased over the years since 1971. At Askham Grange, although some mothers had had their babies with them ever since the prison opened in 1947, the unit was redesigned and relocated within the main prison in 1971.
  18. The report then shows how a division of the Home Office retained responsibility for the policy and operational management of the women's service, MBUs and young offenders until about 20 years ago, and how over the last 20 years there has been a trend towards a more clearcut distinction between policy development and operational management, with the Prison Service not throwing off the shackles of Home Office control in operational matters completely until 1990. In that year a women's policy section was created within the Prison Service's Directorate of Inmate Programmes, and in 1994 this section produced two information booklets about MBUs for the first time: these booklets were updated in 1996. Finally, in January 1998 the Prisons Service established a Regimes Directorate, and within this new directorate the role of the women's policy section was enhanced. An Assistant Director for Women was appointed, and the section was enlarged and renamed the Women's Policy Group. The report contains a passage describing the Women's Policy Group's present, much more focussed, role in relation to MBUs.
  19. Another notable change took place in 1989, when the Social Services Inspectorate ("SSI") of the Department of Health was mandated to carry out multi-disciplinary inspections of MBUs at two yearly intervals. Three such inspections, culminating in reports whose recommendations strongly influenced MBU policy development, took place in the early 1990s, and since 1996 that inspectorate joined forces with the teams appointed by the Chief Inspector of Prisons, enabling the multi-disciplinary nature of the SSI inspections to be continued. We have already noted how the working group contained two members of the SSI and one of the Prisons Inspectorate.
  20. The working group then considered the geographical distribution of the four MBUs and the closeness of the MBU mothers to their home areas. It noted that there was an imbalance in favour of the north of England, and no MBU in open conditions in the south (it made no mention of the fact that there was no unit at all in Wales). Although it measured distances from the prisoner's home address by the shortest route by road, it commented that many visitors to prisons used public transport, and that the measure they used took no account of public transport accessibility.
  21. The report showed how 10 of the 16 prisoners at Askham Grange in February 1999 came from the London area 200 miles away, and how Styal attracted prisoners from all over the country. 73% of the prisoners in the three MBUs in the north of England had their homes over 50 miles away. Current Prison Service policy dictated that foreign national prisoners could not be held in open conditions. The level of demand and the occupancy level in the four MBUs were now being kept constantly under review, and although demand for places was unpredictable, at the time of the working group's review, no prisoner's application had been refused because of the lack of a place. There was evidence of mothers making the positive choice of placing their babies with other carers outside prison, and the present geographical distribution of the four MBUs deterred some mothers from using them.
  22. The next chapter of the report touched briefly on relevant national legislation and international conventions, to which we will turn later in this judgment. For present purposes it is sufficient to note that Article 8 of the European Convention on Human Rights ("ECHR") was quoted in full, prefaced by a comment that the convention "provides the principle of the child's best interests". The working group noted that Article 8 was "powerful in its promotion of family law", and observed that it was likely to become directly enforceable in English law before the end of the 1990s, when the Human Rights Act 1998 came fully into force.
  23. A short discussion of relevant provisions of the Children Act 1989, coupled with the legal advice the group had received, led the working group to conclude that although Section 1 of that Act did not apply directly to decisions taken under prisons legislation, the underlying principle of giving primacy to the welfare and best interests of the child (drawn from Article 3 of the United Nations Convention on the Rights of the Child ("UNCRC")) should be followed "where possible", and the Act applied directly to the determination of certain questions relating to such children, "such as who has parental responsibility".
  24. On these appeals we are not concerned with any of the specific issues discussed in the working group's report other than those which touch on its policy recommendations in relation to the upper age limit for children in the MBUs. Chapter 7 of the report, entitled "Issues Arising from Relevant Prison Service Policies", contains the following passages (at paras 7.3, 7.8 and 7.10) which are relevant to the issues we have to determine:
  25. "The significance of regular contact with a mother or father will vary with the child's age and the nature of that contact. A newborn baby needs close contact with his or her carer of significant duration and frequency in order to form an attachment. This is of vital importance in the earliest weeks and months of infancy, declining with age and independent mobility through early childhood. There is no finite line of demarcation in this natural progression towards separation and independence. If the situation is well-managed, even in the prison setting, once attachment is established contact may be reduced without significantly damaging the relationship."
    "Research carried out in the United States … showed that prisoners who have retained close family ties were six times less likely to re-offend in the first year after release that prisoners who were released without family support."
    "Foreign national women of particular concern to the working group were those pregnant or with accompanying children on arrest, serving long sentences (often for importation of drugs – so called 'drug mules' often tempted into this role to earn money to support their families). Some of these women have left children in their own country without any long-term care arrangements because they expected to return within hours or days. This can be a source of acute anxiety to these women, in addition to all the other traumas they are experiencing. Account needs to be taken of such issues as separation of mother and child, cultural differences, deportation at the end of sentence of mother and child or children who have not lived in their country of origin for years, if at all, …"
  26. Chapter 8 of the report contained a very brief summary of the findings of two recent research reports, one conducted by a Home Office researcher and the other undertaken by the Correctional Service of Canada. Each of these reports had elicited a limited amount of information from a few other countries which offered residential facilities in prison for varying age groups. They did not purport to represent a comprehensive survey, and this chapter contained no reference to any differences in the sentencing policies of the courts in those countries, so far as mothers with dependent children were concerned, or of the presence (or otherwise) in any of those countries of provisions of their national law supportive of the rights of children or the right to respect for family life. Mention was made in this chapter of some countries which permit children to stay with their mothers to a later age than in England, or which allow occasional residential stays for children up to the age of 12 or 14. After referring to four examples of different practices not followed in England, the working group said it "had reservations about older children staying in prisons but wanted to know more about the schemes".
  27. In the final chapter of its report the working group turned to the specific issues referred to it for its consideration. It started this discussion by saying (at para 10.1):
  28. "The working group acknowledged that prison is not an ideal place for babies or children to live. The group reiterated many times its wish to see fewer mothers committed to custody, in the best interests of children. However, in pursuing those same best interests, the Prison Service must provide for those mothers who are in custody, quality facilities and distinct policies and procedures for the provision of services, based on clearly stated principles."
  29. This led it to articulate a number of principles on which Prison Service Policy on mothers and children should be based. In due course these principles were accepted by the Prison Service without amendment. They include the following:
  30. "The Main Principle
    The purpose of a mother and baby unit in a prison is to enable the mother/baby relationship to develop whilst safeguarding and promoting the child's welfare.
    Overarching Principles
    The best interest of the child is the primary consideration at every level of policy making as well as when considering individual situations.
    Prison Service policy will reflect ECHR Article 8, save where it is necessary to restrict the prisoner's rights for a legitimate reason, such as good order and discipline, or the safety of other prisoners or babies.
    When making decisions about the best interests of the child, the long-term developmental needs of the child are given attention as well as the immediate situation.
    Principles for parents
    Parents are enabled to exercise parental responsibility for their children whether the child is with them in prison or outside with other carers …
    Parents and other significant carers are involved in decision making about their children.
    Principles for babies/children and families
    Care planning for the child is essential from before birth, if relevant, including the plan for a baby's exit from the mother and baby unit. …"
  31. There was also a principle that the geographical location of MBUs should facilitate access to the mother's home area.
  32. In drawing up these principles the working group made it clear that it saw the relevance of the ECHR Article 8(2) justifications only where they were required to restrict the prisoner's rights for a legitimate reason, such as good order and discipline, or the safety of others including babies. They did not consider the child's Article 8(1) rights or draw on the ECHR caselaw on which Ms Grey relied in her submissions to us, whereby the state may rely on the need for fair treatment for all prisoners as a reason for restricting the Article 8(1) rights of a particular prisoner.
  33. For the purposes of the present appeal, paragraphs 10.45 – 10.48 of the report, headed "Age range and length of stay", demand particular attention. In paragraph 10.24 the working group had observed that the child's right to freedom was a consideration "in respect of what upper age limit should be applied to mother and baby units". More than a third of this later section was taken up with a description of the research findings from the only major UK study of the development of children of imprisoned mothers, published in 1988. The working group observed that much had changed for the better in the 10 years since this study, which had referred to a gradual decline in general developmental level over a 4-month period.
  34. The group commented (at paras 10.47 – 10.48):
  35. "There is still concern about the effect of a prolonged stay. Accepting the lack of empirical evidence on the optimum age of separation of child from mother, but based on the knowledge and experience of expert members, the group believed that the upper age limit should remain 18 months whilst new research is commissioned. In the meantime, managers of the units and professionals involved should concentrate on enabling mothers to make the best choice for their child in each individual case. The discretion to allow a child over 18 months to stay longer with his/her mother should be exercised only in the child's best interest and monitored carefully by the women's policy group. The current difference in age limits among the existing units should be examined and reviewed in order to establish a clear rationale for any difference. (Emphasis added).
    During site visits members of the working group were disturbed by the perceived assumption among staff and prisoners that all children allocated a place would stay to 18 months, if the mother's time in custody warrants it. For some children, separation at an earlier age may be in their best interests. ...
    In short, the principle should be that the purpose of the place should be clearly defined at the Admission Board and regularly reviewed to see that residence remains in the child's best interest. The emphasis should be on empowering the mother to make an informed choice. Where separation is inevitable, the responsibility of the Prison Service is to facilitate the alternative child care arrangements being put in place, in co-operation with the relevant external agencies."
  36. In paragraph 10.61 of the report, when considering women sentenced to very long periods of imprisonment, the group said that the agreed position was that the child should stay with the mother for as long as it took to provide the best possible care arrangements outside, but that this time should not exceed the upper age limit:
  37. "There would however be an element of discretion for those situations where the child and mother could go out [ie leave prison] together a little after the age limit but the discretion should be closely monitored."
  38. In paragraph 10.67 the group said that the criterion for separation was the best interests of the child, and that in the light of the lessons from the 1988 study it was desirable to keep the stay of any child within a prison as short as was commensurate with these interests.
  39. The discussion of the appropriate upper age limit crystallised in the report's Recommendation 27, to the effect that the "upper age limit should remain at 18 months while new research is commissioned". Recommendation 62 identified seven areas for research, including:
  40. "(i) an enquiry to ascertain the optimum age limit for a child to be resident in a mother and baby unit in a prison; and
    (ii) the long-term impact on children's development of residence in a prison mother and baby unit."
  41. The only annexe to the report which deserves mention in the context of the issues to be determined on this appeal was Annexe E, on site visits. This shows that most of those whom working group members met on their visits to the four MBUs felt that 18 months was the appropriate upper age. One former resident in the MBU at Askham Grange, in particular, was of this opinion, because her son had outgrown the unit at that age, and the women then in the unit agreed with this view, saying that the children at that age became bored and were boisterous to other children. At New Hall, only one of the mothers with children outside prison said that the age limit for the MBU (which is nine months at New Hall) should be 3 years. Most of those consulted thought that prison, by its nature, could not provide the right environment for children, who need fresh air and to run around. There was a division of opinion on the same lines among the mothers in the MBU itself. At Styal the staff of the MBU said that it was not in the child's best interest to stay on the unit for the full 18 months, but observed that foster placements for the children at 18 months were very difficult. The views of the mothers on that unit were not recorded, although the staff had told the visiting team that once on the unit mothers expected their child to stay for the full term regardless of the length of their sentence. Although the mothers on the unit praised the facilities there, they said:
  42. "They were restricted to the unit – they could not attend education because they could not take their babies to the classes and there were no crθche facilities to leave children. They stated they were bored, watched a lot of television and spent long hours together with their children."
  43. In December 1999 the Prison Service published a formal "Response and Action Plan". It accepted most of the working group's recommendations, identified 16 which were still under consideration, and four on which it considered it could not act for one reason or another. The response to the recommendation that the upper age limit should remain at 18 months while new research was commissioned was in these terms (at para 27):
  44. "Previous research and advice from the Social Services Inspectorate has established no conclusive evidence to alter the current upper age limit of 18 months. Recent discussions with SSI inspectors and Nursing Officers from the Department of Health have given emphasis to the importance of considering the length of stay of each child as an individual case. There should be room for flexibility and the exercise of discretion. Above all the culture which structures the expectations of staff and mothers that every child will stay to the upper age limit if the mother remains in custody should be changed to ensure the child's best interest[s] are the primary consideration. However the Prison Service accepts that policy should be based on evidence and research will be commissioned." (Emphasis added).
  45. As we have already observed, the Prison Service accepted the working group's recommended principles without any amendment. It said that these principles would underpin all future development and implementation of strategy, policies and procedures on mothers and babies/children in prison.
  46. 3. The policy and its legal status

  47. The way was now open for the Prison Service to prepare what in another context would be described as a Practice Direction, giving guidance to their staff on the way they should implement the new policies for MBUs. This they did through the medium of PSO 4801, which is entitled "The Management of Mother and Baby Units and the Application Process". We are no longer concerned with the challenge which was mounted in the Divisional Court on the power of the Prison Service to give policy guidance to its staff in this way. While we agree with the authors of a recent textbook (Stephen Livingstone and Tim Owen, Prison Law (2nd Edition) p21), that Prison Service Orders "have no legal status whatsoever" in the sense that they do not have the status of a statutory instrument or even of statutory guidance, the Prison Service is unquestionably entitled to give policy guidance to its staff as to the way they should act on behalf of the service in performing the functions which the service has a statutory duty or a statutory power to perform. These Prison Service orders may also be relevant in a disciplinary setting.
  48. In this context the Divisional Court observed that the Prisons Act 1952 gives the Secretary of State wide managerial powers in relation to prisons and prisoners (see sections 1, 2, 4 and 12) and a wide discretionary power to make Rules (see section 47: such rules are to be made by statutory instrument (see section 52)). The Prison Rules 1999, made pursuant to that power, contain the following rules:
  49. "4(1) Special attention shall be paid to the maintenance of such relationships between a prisoner and his family as are desirable in the best interest of both."
    "12(2) The Secretary of State may, subject to any conditions he thinks fit, permit a woman prisoner to have her baby with her in prison, and everything necessary for the baby's maintenance and care may be provided there."

    4. The facts of the two cases

  50. Against this background we turn to the facts of the two cases before the court. For the recent history of the two mothers and their babies we are content to adopt the statements of facts set out in the judgment of the Divisional Court, which we will supplement with some additional matters on which Mr Gordon QC wished to lay emphasis, and with references to a little more of the evidence given on behalf of the respondents about the situation at Styal and Askham Grange.
  51. The situation of P was described by the Divisional Court in these terms (subject to two minor amendments we have made):
  52. "P is a 32 year old Jamaican. She was sentenced to 8 years imprisonment on 28 June 1999 for an offence of unlawfully importing drugs into this country. She could be eligible for release on parole in 2003 and if she is not granted parole she should complete the custodial part of her sentence in [2004].
    Her baby 'PB' was born on 8 July 1999 so that she is now 20 months of age. P has three other children who are being looked after in Jamaica. P was arrested on arrival in this country on 3 March 1999. At the time of her arrest she was approximately five months pregnant. A recommendation for her deportation at the expiry of her sentence was made by the trial judge. She is herself HIV positive and although, at one time, it was thought that PB could be HIV positive, this complication fortunately does not now arise.
    P is at HMP Styal. Initially it was proposed that PB should be transferred to the care of her father when she was 18 months old, but approximately eight months ago [P] had an argument with the father, following which she decided that she would not allow PB to go to her father.
    In November 2000, a social worker employed by Cheshire County Council visited P in prison to discuss arrangements for PB to be placed in foster care. A proposed foster mother was identified and she visited P and PB at Styal on 8 January 2001 and a number of subsequent occasions. The proposed foster mother lives in the Manchester area with her husband and their two children together with a foster child whose mother is also at HMP Styal.
    P has visited the foster parent's home and is concerned that her daughter will share a small room with a young boy. A separation had originally been proposed for 8 January 2001 but was postponed at first until 8 February and subsequently to 15 February 2001.
    P at present lives with PB in the mother and baby unit at the prison. This unit can accommodate 22 mothers with their babies in two blocks of 11 prisoners.
    P was given a 'separation plan' which consisted of no more than a list of dates when the foster mother would have PB. On two of the dates (15 and 18 January 2001) the foster mother did not attend because she was ill and her car had broken down and this is why the date of separation was delayed until 15 February 2001. P also was given a list of dates on which PB would regularly see her mother after the separation.
    The manager of the mother and baby unit has filed an affidavit on behalf of the defendants indicating that he does not consider that the Baby Unit is suitable for children over 18 months. There is an issue as to whether this is the case. A consultant chartered psychologist who has prepared a report on behalf of P states, not surprisingly, the opinion that no matter how good the environment within the prison, it is likely that some essential aspects of normal development will be affected adversely. He is therefore not of the opinion 'that PB can continue in the present circumstances if she is to develop her full potential'. This is contrary to P's wishes which are that PB should remain with her for the period of her sentence. P does however accept that special arrangements will have to be made if PB is to remain with her to enable PB to carry on activities outside the prison. The consultant's view of the best solution would be that P should serve her sentence at an open prison, a setting that would allow both her and PB to remain together whilst PB attended community-based pre-school opportunities for further stimulation and personal social development."
  53. Current Prison Service policy dictates that a prisoner who is a deportee will not be moved to open conditions. PSO 0900, however, provides (in paragraph 7.4.11) in relation to prisoners in this category that they:
  54. "must not be reallocated to open conditions unless highly exceptional circumstances arise (eg to enable a mother and baby to stay together when the only suitable establishment is an open prison). Governors must seek the approval of the Operations Manager – Women's Prisons for such a transfer to open conditions."
  55. Mr Gordon told us that in P's case the "separation plan" consisted only of the list of dates mentioned by the Divisional Court, and he invited us to contrast the paucity of this "assessment" with the assessment required of a "child in need" in the community pursuant to Section 17 and Schedule 2 of the Children Act to which we will refer later in this judgment.
  56. So far as Q is concerned, the Divisional Court described her history in these terms:
  57. "Q gave birth to QB on 26 July 1999. On that date she was on bail in respect of offences relating to class B drugs. She was convicted on 31 March 2000 and sentenced to 5 years imprisonment. Her parole eligibility date is 25 July 2002 and her non-parole release date is 24 May 2003. Q was separated from QB for a short period following her conviction but they were reunited at HMP Holloway. On 6 July 2000 Q was transferred to HMP Askham Grange, a small open prison in Yorkshire, where she has remained ever since. Askham Grange has substantial grounds to which the prisoners have free access. In addition Q and QB are able to leave the prison every weekend.
    It had been clear that the Policy might result in the separation of Q and QB. But a pilot project was being considered by the Prison Service to allow children to remain with their mother beyond the age of 18 months and Q hoped that if she was selected for the pilot project this would mean that she would not be separated from QB. But on 27 January 2001 Q was told that the pilot project would not proceed and that accordingly separation would take place. A letter written on behalf of the Prison Service dated 13 February 2001 indicated that when suitable carers for QB were found, an introduction programme would begin 'with a view to separation sometime in April'.
    On 27 January 2001, Q applied to the Family Division of the High Court for an injunction and declaration but the proceedings were dismissed by Kirkwood J on 8 February 2001 on the grounds that judicial review was the appropriate form of proceedings.
    A problem in finding foster carers for QB is her Anglo/Indian/West Indian heritage. Because of this a suggestion was made that Q should be transferred to a London prison where foster parents with this background would be more likely to be found.
    In support of her present application, Q relies upon a statement by an independent social worker. She says that QB is a well adjusted toddler who would suffer significant harm were she to be separated from her mother. The social worker does accept that 'there are real concerns about a child being brought up in prison'. Her conclusion as to the best result from QB's point of view is that she should be offered 4 to 5 days a week day-care by York (the local) social services as a 'child in need'.
    Having been unsuccessful in the application to the Family Division, Q made her present application."
  58. We shall turn later in this judgment to the requirements of the Children Act (see paragraphs 89 to 97 below). It is sufficient for our present purposes to say that the independent social worker, Ms Judith Jones, set out to balance the harm that separation would cause to QB against the harm to her that would result from her remaining at Askham Grange. In relation to the latter, in addition to the concerns mentioned by the Divisional Court she commented that "the mother and baby unit is an unusual place". In relation to the former, after describing services which might be provided in the community to address these concerns, she concluded that the separation of QB from her mother at her present stage of development would be "an unnecessary cruelty".
  59. 5. The concerns of the Prison Service

  60. Although we must not attempt to decide this appeal on issues of fact which are in dispute, we find it necessary, for an appreciation of the problems that are of concern to the Prison Service if the courts seek to interfere with their policy, to say rather more about the evidence it filed in response to these applications.
  61. In P's case the relevant evidence was given by David Seed, who is the manager of the MBU at Styal. This unit is contained in a separate building within the prison's perimeter wall. Each mother has her own small room, and there is a communal common room and a communal kitchen area. A small garden area allows for outside play. The two large creches and one small one are equipped with toys suitable for children up to the age of 18 months, and they are staffed for seven hours on weekdays by four nursery officers. The children in the unit are subjected to the same environment on almost a permanent basis, and children can only go into the community if they are taken by members of their mother's family. Between October and March the unit is locked from 4.30pm onwards, which means that the children are inside for long periods of time.
  62. Mr Seed's primary concern, if a child were to remain in the unit over the age of 18 months, related to the effect of a prison environment on a child who has become more aware of his or her surroundings. The accommodation at Styal consists of 18 Victorian houses set in gardens within the prison perimeter fence, and mothers are allowed to take their children into these gardens to allow for a larger space for play. Mr Seed says that the effect of this is that the children in the unit come into contact with other prisoners, who include 22 lifers serving sentences for offences including murder and offences against children, and he considers this contact to be undesirable.
  63. Mr Seed also describes how children on the unit start to become much more aware of events particular to the prison environment once they reach the age of 14 months, and when they reach the current age limit of 18 months they have become more and more aware of their institutionalised surroundings. He mentions, too, the jealousies created among other inmates who believe the prisoners in the MBU are allowed special treatment, and fears that if there was an expansion of the unit, or if mothers were likely to spend an increased amount of their time resident there, difficulties concerned with the need to preserve good discipline throughout the prison might increase.
  64. In Q's case the relevant witness was Kathryn Dodds, the manager of the MBU at Askham Grange. She says that although Askham Grange is set in attractive grounds, it is nonetheless a prison and has to operate in the manner of an institution which must preserve good order and discipline. It is not a normal home environment for a child. There have been numerous incidents of children learning and using prison jargon which they overhear. Their surrounding environment is still institutionalised and despite best efforts cannot be entirely flexible. There are occasional disagreements between mothers caused by the stress of having to live with their children in such an environment. If a perception develops that one prisoner is getting special attention because of the needs of their child, this can cause disagreement within the unit.
  65. Ms Dodds expressed concern that if a care plan along the lines suggested by Ms Jones was developed, others might say that Q was in some sense benefiting from having her child with her in prison, and like Mr Seed at Styal she fears that this is likely to cause discipline problems amongst other prisoners.
  66. 6. Continuing research and Prison Service planning

  67. The other witness whose evidence we must mention at this stage of our judgment is Jennifer Hall, who is a member of the Women's Policy Group at Prison Service headquarters. After referring to the working group's report she said that the Prison Service was continuing to undertake extensive research and that it also studied relevant academic writing on the topic. She added that there was a planned expansion of the number of places available in MBUs. There has recently been increased pressure on space within the four existing MBUs, and although no mother has been turned away due to lack of space, the system is now working close to capacity for much of the time. On 2nd March 2001, when Ms Hall made her statement, a report on the demand for places in MBUs within a rising prison population was at a final draft stage. Ms Hall thought it likely that the final version of the report would confirm an increased future demand for the facilities in the MBUs.
  68. She exhibited to her witness statement some early responses to an international survey of the facilities provided in other countries. The effect of these responses was helpfully summarised for us. They show that the provision of such facilities is still at an early stage of development in most countries, but without knowing more about the approach of sentencing courts in the Scandinavian countries, for instance, it is difficult to derive more than a very general impression from such evidence. Some countries, such as Norway and New Zealand, appear to be antagonistic to the presence of children in prison, while others, such as the Netherlands, Finland, and the Australian state of Queensland, are embarking on experiments in open or half-open conditions for children up to the age of 3, 4 or 5.
  69. Finally, Ms Hall showed us the terms of reference of a new steering group charged with the task of drawing up detailed plans for a pilot study at a MBU on the review of the application of the age limit of 18 months. The purpose of this pilot would be to enable the Prison Service to evaluate the benefits and drawbacks of babies/children remaining with their mothers beyond the age of 18 months, and to assess the implications of this study for new MBUs. The steering group met for the first time in December 2000, and Ms Hall showed us some early comments by Dr Dora Black, the consultant child and adolescent psychiatrist who had been a member of the earlier working group as well. Dr Black described the Prison Service's dilemma in these terms:
  70. "I agree that 18 months is a bad age to separate a child from his primary caretaker. So is nine months. It is achievable with a slow handover, but this is impracticable with only a few units – so that the new carer cannot be in the vicinity. Again, with sufficient financial support, she might be able to take up residence for say a week, in the vicinity of the prison so she could have increasing time with the baby before taking over his care completely. Four years is probably even worse. Research has shown that a child is at the height of his attachment behaviour between 3-4 years of age. In my opinion if a mother has more than a 4 year sentence, the baby should be in the care of someone else from an early stage. 4 years in jail is barely acceptable only if the mother and child would come out together, not if the child has then to be handed out anyway.
    One solution, as described in other countries, might be to have a hostel outside the prison for mothers and children. The children would attend a creche or nursery school in the community while the mothers attended in the prison for their work and training. We need to have much more information about these foreign projects."
  71. In general, Dr Black was anxious about the ethical implications of having a controlled trial in which children might be resident for four years in a prison setting. Her preferred solution, which she realised was outside the remit of the Prison Service, was to seek a reduction in the number of custodial sentences, and an increase in the alternatives to custody, for pregnant women and the mothers of young children.
  72. 7. The potentially traumatic effect of separation

  73. Sheila Kitzinger, who is a social anthropologist, made a statement on Q's behalf in relation to the potentially traumatic effect on a child of a break in attachment to his/her primary carer which contained the following passages:
  74. "For any eighteen month old the basis of love and trust and the self-esteem and confidence that grows out of this, is a close and continuing attachment with not more than two or three loving adults who are completely committed to that child. For most children, with few exceptions, and in the vast majority of cultures world-wide, the central person in such intimate and constant relationships is the mother …
    …
    Children who have been with their mothers in prison have benefited from strong emotional attachment that has flourished because they have spent so much time together. On the other hand, when children do not have a continuing relationship with other individuals in the nuclear and extended family, they are especially vulnerable to separation from their mothers. When prisoners' babies are cared for outside prison 50% are shifted between four and five different homes before their first birthday. [A footnote cites a 1997 Home Office research study for this statement].
    If the mother and child are separated, either at nine or at 18 months, the mother then has the task when she is released from prison of building a relationship with a child who may by this time be emotionally disturbed. [Four different articles in specialist journals published in 1990 and 1998 are cited].
    To take an eighteen month old from a person with whom he or she has formed a close and passionate attachment is to emotionally mutilate both the mother and the child."

    She also referred, as did Ms Jones, to some of the standard literature on attachment and separation.

    8. The traditional approach of the courts on issues of policy

  75. This, therefore, is the subject-matter of these appeals. P and Q made their applications for judicial review to challenge the lawfulness of a policy which contained a rigid cut-off date of 18 months for the age of a child at a MBU, and/or the application of this policy in their particular cases. We were shown how in each case the rule set out in PSO 4801 was followed to the letter. In Q's case, the operational manager for women's prisons told Q's solicitors that he had no authority to allow her to remain with QB beyond the age of 18 months. In P's case the head of throughcare at Styal was content to reiterate that Prison Service policy was for babies to remain within MBUs until they were at most 18 months old.
  76. Ms Grey, sensing the legal difficulties inherent in such rigidity, told us, in effect, that on occasion the Prison Service turns a Nelsonian blind eye to the rigidity of the rule. A typical example would be where a mother is due to be released from prison soon after her child's cut-off age, and it is considered better for mother and child to leave prison together. This ad hoc discretion, which is nowhere articulated in writing, does not extend to permit the much longer stays requested by the present applicants.
  77. Before the introduction of a rights-based culture into English public law these applications for judicial review would have been quite unarguable. A body charged with public law responsibilities has always been entitled to form a policy, and so long as it is always alert to the possibility that the policy should be relaxed in any given case, it will be doing nothing unlawful if it applies its policy generally in the performance of its public functions. In paragraph 50 of its judgment the Divisional Court set out the classic statement of Lord Reid in British Oxygen Co Ltd v Minister of Technology [1971] AC 610, 625A-E, together with the extract from the judgment of Bankes LJ in R v Port of London Authority ex p Kynoch Ltd [1919] 1 KB 176, 184 which Lord Reid quoted at p 625A-C, and there is no need to set them out again here.
  78. 9. The Daly approach

  79. The question we have to address is whether the coming into force of the Human Rights Act 1998 has made any difference in a case like this, and if so what difference it has made.
  80. In this context we have the benefit, which was not available to the Divisional Court, of the speeches in the House of Lords, and particularly the speech of Lord Steyn, in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 WLR 1622. Lord Steyn observed (at para 26) that there was a material difference between the Wednesbury and Smith grounds of review and the approach of proportionality applicable in respect of review where Convention rights were at stake.
  81. He said that most cases would be decided in the same way whichever approach was adopted. However, the intensity of the review was somewhat greater under the proportionality approach. He suggested three concrete differences in approach:
  82. i) The doctrine of proportionality may require the reviewing court to assess the balance which the decision-maker has struck, not merely whether it is within the range of rational or reasonable decisions;
    ii) The proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations;
    iii) Even the heightened scrutiny test developed in R v Ministry of Defence, ex p Smith [1996] QB 517, 554 was not necessarily appropriate to the protection of human rights. In cases involving Convention rights, the intensity of the review is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued.
  83. The Daly decision has required us to set out the facts and the reasons underpinning the Prison Service's current policies in much greater detail than the Divisional Court considered necessary. We are not, as Lord Steyn said (at para 28), concerned with a merits review, but as he also said, "context is everything", and as Laws LJ said in R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840, 847, in a passage approved by Lord Steyn in Daly, "the intensity of review in a public law case will depend on the subject matter in hand".
  84. In the present appeals the "subject matter in hand" relates to the state's justification for the violations of the right to respect for family life that would be inherent not only in the separation of these two mothers from their 18-month old children, but also in the separation of these children from their mothers.
  85. These rights are conferred on them by Article 8 of the European Convention on Human Rights ("ECHR") which provides:
  86. "(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
    (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
  87. The Article 8(1) right is of course one of the Convention rights mentioned in Section 1(1) of the Human Rights Act 1998 (see also Schedule 1 to that Act), which by section 6(1) provides:
  88. "It is unlawful for a public authority to act in a way which is incompatible with a Convention right."
  89. On the new Daly approach we have to determine in these appeals whether the interference proposed by the Prison Service in the application of its policy in each of these cases is really proportionate to the legitimate aim (sanctioned by ECHR Article 8(2)) which it seeks to pursue. In making this judgment we must be careful to show appropriate deference to the fact that the Prison Service is the expert body appointed to carry out this sensitive public function. At the end of this judgment we will make suggestions about the way in which challenges of this kind might be brought in the future.
  90. 10. The balance in ECHR Article 8 cases

  91. Illumination of the task confronted by a court in a case concerned with a prospective violation of a child's Article 8 rights has recently been provided by Hale LJ in the quite different context of interim care orders in her judgment in In re W & B (Children) [2001] EWCA Civ 757. After saying (at para 52) that respect for family life was fundamental to the philosophy underpinning the ECHR, and describing the different levels of interference with the right to respect for family life inherent in the different types of order a court might make, she said (at para 54):
  92. "Such an interference can only be justified under Article 8.2 if three conditions are fulfilled:
    i) It must be 'in accordance with the law'. This means more than it must have a basis in domestic law; the domestic law must also be adequately accessible and formulated so that it is reasonably foreseeable; and there must be adequate and effective safeguards in that law to protect against arbitrary interference: see Sunday Times v UK (1979) 2 EHRR 245; Silver v UK (1983) 5 EHRR 523. Subject to that, however, the need for flexibility and discretion are also recognised, particularly in child care cases: see Olssen v Sweden (No 1) (1988) 11 EHRR 259, para 61; Eriksson v Sweden (1989) 12 EHRR 183, paras 59, 60; Andersson v Sweden (1992) 14 EHRR 615.
    ii) It must be in pursuit of one of the legitimate aims provided for in the Article: compulsory measures of care can be justified for the protection of health or morals or for the protection of the rights of the child. The rights of a child are not confined to his Convention rights and in this context include his interests: see Hendricks v Netherlands (1983) 5 EHRR 223; Andersson v Sweden (1992) 14 EHRR 615; Johanssen v Norway (1996) 23 EHRR 33.
    iii) It must be 'necessary in a democratic society': that is to say, the reasons given for the interference must be 'relevant and sufficient'. It must correspond to a 'pressing social need' and be 'proportionate' to the legitimate aim pursued: see Olssen v Sweden (No 1) (1988) 11 EHRR 259. Thus, at least where there is no question of adoption, the care decision should be 'regarded as a temporary measure, to be discontinued as soon as circumstances permitted, and any measures of implementation should have been consistent with the ultimate aim of reuniting … family' (para 81). The more serious the intervention, the more compelling must be the justification: see Johanssen v Norway (1996) 23 EHRR 33. The most important question in most care cases is therefore whether the proposed interference with the right to respect for family life is proportionate to the need which makes it legitimate."
  93. On the present appeals Ms Grey relied on "the prevention of disorder or crime" and "the protection of the rights and freedoms of others" (including the child viz a viz her mother) as justifying the interference her clients proposed.
  94. 11. ECHR Article 8 and prisoners' rights

  95. We will first narrow our focus in order to examine how the Court and the Commission at Strasbourg have approached issues relating to Convention rights in a prison setting. We will also say a little about English common law, which was enriched by the effects of Strasbourg jurisprudence long before the Human Rights Act 1998 came into force. We will then consider the effect of the ECHR in a wider family context and its procedural requirements in relation to decisions affecting children.
  96. The starting point, inevitably, is Golder v United Kingdom 1 EHRR 524. In that case the European Court of Human Rights ("ECtHR") robustly rejected the contention that the ECHR contained wide implied limitations so far as the rights of prisoners were concerned. It held on the facts of that case that if a prison officer refused a prisoner permission to contact his solicitor, he was violating the prisoner's Article 6(1) right of access to a court and his Article 8(1) right to respect for his correspondence. In paragraph 45 of its judgment the court identified the relationship between "the ordinary and reasonable requirements of imprisonment" and the rights that might be asserted by prisoners when it said:
  97. "The Court accepts, moreover, that the 'necessity' for interference with the exercise of the right of a convicted prisoner to respect for his correspondence must be appreciated having regard to the ordinary and reasonable requirements of imprisonment. The 'prevention of disorder or crime', for example, may justify wider measures of interference in the case of such a prisoner than in that of a person at liberty. To this extent, but to this extent only, lawful deprivation of liberty within the meaning of Article 5 does not fail to impinge on the application of Article 8."
  98. We were shown a number of examples of cases in which the Court or the Commission at Strasbourg made rulings in connection with an assertion by a prisoner of Article 8(1) rights in a family context. In denying a prisoner the enjoyment of conjugal rights in X v United Kingdom (Appln No 6564/74), the Commission applied an earlier decision in which it had concluded that a system prohibiting conjugal visits to persons detained in prison was covered by the provisions of Article 8(2) allowing interference with the right to respect for family life on the ground that it was necessary in the interests of public safety.
  99. In X and Y v Switzerland (Appln No 8166/78) a similar application was made in a case where husband and wife were in the same prison. On this occasion, after considering the general practice in member states and the Standard Minimum Rules for the Treatment of Prisoners recommended by the Committee of Ministers of the Council of Europe, the Commission said that it:
  100. "… notes that it is generally considered to be justified for the prevention of disorder in prison not to allow sexual relations of married couples in prison. The Commission accepts that in fact the security and good order in prison would be seriously endangered if all married prisoners were allowed to keep up their conjugal life in the prison. In this case the respect for privacy would require that the prison authorities renounce their right of constant supervision. …
    The fact that the applicants were kept in the same prison cannot be seen as changing the general situation. Other prisoners would consider the position of the applicants as privileged if this fact were to give them additional rights. The arguments which are valid for prisoners in general do, therefore, apply to the applicants as well."
  101. It will be noted that the Commission accepted as legitimate justification the need to prevent disorder in prison which the Swiss prison authorities feared would result from allowing married prisoners to enjoy sexual relations. Their worries related not only to the inevitable lack of supervision this practice would bring in its wake, but also the jealousies of other prisoners who would see these applicants as specially privileged.
  102. In Boyle and Rice v United Kingdom (1988) 10 EHRR 425 one of the applicants' complaints related to the fact that they were only entitled to 12 visits a year of one hour's duration. The ECtHR held (at para 74) that when assessing the obligations imposed on the contracting states by Article 8:
  103. "regard must be had to the ordinary and reasonable requirements of imprisonment and to the resultant degree of discretion which the national authorities must be allowed in regulating a prisoner's contact with his family."
  104. It went on to accept (at para 75) that the particular circumstances of an individual prisoner might raise an arguable issue under Article 8 in relation to visits, notwithstanding the terms of the applicable norms, but when it considered the facts of that case it had doubts about the viability of the applicants' claim, not only for reasons given previously by the Commission but also:
  105. "because it must be recognised that in general it is justifiable to apply to prisoners a uniform regime avoiding any appearance of arbitrariness or discrimination."

    The Commission for its part had put (see para 71) administrative and security requirements into the balance against Mr Boyle's interests and Mr and Mrs Boyle's family life, and had been unable to find that the approach of the prison authorities violated Article 8.

  106. In Ouinas v France (Appln 13756/88) the applicant was serving a term of 13 years imprisonment for armed robbery. He was detained at a prison designated for offenders given longer sentences, and complained that he could not have access to his daughter (which had been granted to him by a court) because his prison was too far away. The Commission held that there had been an interference with his right to respect for family life, and went on to hold that the interference complained of had a basis in law. It continued:
  107. "Moreover, the Commission recognises that the interference had a legitimate purpose, namely enforcement of the sentences handed down by the courts according to their severity and having regard to security requirements, with a view to the prevention of disorder or crime.
    As for the necessity of the measure taken in this case, the Commission cannot ignore the fact that the prison authorities do not seem to have done everything in their power to guarantee the effective exercise of the applicant's right of access to his daughter. The Commission wonders whether greater efforts to move the applicant closer to his daughter's place of residence, bearing in mind, in particular, the child's mother's reluctance to let her meet her father, might not have been possible and compatible with the requirements of prison organisation and security.
    However, taking into account the margin of appreciation enjoyed in such cases by the national authorities responsible for enforcing prison sentences, the Commission takes the view that the position adopted in this case by the authorities cannot be regarded as disproportionate in relation to the aim pursued."
  108. It should not be supposed that an English court would necessarily have reached the same decision, once it had established all the facts, given the comments by the Commission in the second paragraph quoted above, and its eventual recourse to the national authorities' margin of appreciation. Nevertheless, the decision reaffirmed the willingness of the Strasbourg authorities to pay regard to the requirements of prison organisation and security when making decisions concerned with the Article 8 rights of prisoners and their children.
  109. In McCotter v United Kingdom (Appln 18632/91) a Category A prisoner in England complained that the Home Secretary's refusal to authorise a temporary transfer to Belfast for a visit to his brother who was imprisoned there violated his Article 8 rights. The Commission observed that in the case of prisoners the concept of family life had to be interpreted more widely than usual, and that Article 8 required the State to assist prisoners as far as possible to create and sustain ties with people outside prison in order to facilitate their social rehabilitation. On the other hand, after observing that any transfer would be extremely dangerous, the Commission went on to say:
  110. "Under the Commission's case law, a prisoner has no right to choose where he will serve his sentence and his separation from his family is an inevitable consequence of his detention. Only in exceptional circumstances would the detention of a prisoner a long way from home constitute a violation of Article 8. This case did not disclose any such exceptional circumstance."
  111. In our judgment, there should not be over-reliance on these general views of the Commission in cases involving the separation of mothers from their very young children, where special considerations are always likely to apply.
  112. It is possible to draw some general conclusions from these authorities:
  113. i) The right to respect for family life is not a right which a prisoner necessarily loses by reason of his/her incarceration;
    ii) On the other hand, when a court considers whether the state's reasons for interfering with that right are relevant and sufficient, it is entitled to take into account
    a) The reasonable requirements of prison organisation and security; and
    b) The desirability of maintaining a uniform regime in prison which avoids any appearance of arbitrariness or discrimination;
    iii) Whatever the justification for a general rule, ECHR law requires the court to consider the application of that rule to the particular case, and to determine whether in that case the interference is proportionate to the particular legitimate aim being pursued;
    iv) The more serious the intervention in any given case (and interventions cannot come very much more serious than the act of separating a mother from a very young child), the more compelling must be the justification.

    12. The effect of Article 8 on the sentencing process

  114. It goes without saying that since 2nd October 2000 sentencing courts have been public authorities within the meaning of section 6 of the Human Rights Act. If the passing of a custodial sentence involves the separation of a mother from her very young child (or, indeed, from any of her children) the sentencing court is bound by section 6(1) to carry out the balancing exercise identified by Hale LJ in In re W & B (Children) at para 54, especially at sub-para (iii) (for which see para 65 above) before deciding that the seriousness of the offence justifies the separation of mother and child. If the court does not have sufficient information about the likely consequences of the compulsory separation, it must, in compliance with its obligations under section 6(1), ask for more. It will no longer be permissible, if it ever was, for a court to choose a custodial sentence merely because the mother's want of means and her commitments to her children appear to make a fine or community sentence inappropriate, if the seriousness of the offence does not itself warrant a custodial sentence. In such circumstances it must ensure that the relevant statutory authorities and/or voluntary organisations provide a viable properly packaged solution designed to ensure that the mother can be punished adequately for her offence without the necessity of taking her into custody away from her children.
  115. 13. Prisoners' rights and the common law

  116. So far as the English common law is concerned, the relevant principles have been authoritatively stated by Lord Bingham of Cornhill in R (Daly) v Home Secretary [2001] UKHL 26 at [5]-[12], [2001] 2 WLR 1622, and we need not repeat them here, save to restate the opening part of that passage of his speech (at para 5):
  117. "Any custodial order inevitably curtails the enjoyment, by the person confined, of rights enjoyed by other citizens. He cannot move freely and choose his associates as they are entitled to do. It is indeed an important objective of such an order to curtail such rights, whether to punish him or to protect other members of the public or both. But the order does not wholly deprive the person confined of all rights enjoyed by other citizens. Some rights, perhaps in an attenuated or qualified form, survive the making of the order. And it may well be that the importance of such surviving rights is enhanced by the loss or partial loss of other rights." (Emphasis added).

    14. The effect of Article 8 in a wider family context

  118. We turn now to consider the effect of the ECHR in a wider family context and to the procedural requirements of the ECHR in relation to decisions affecting children.
  119. We have had constantly in mind that, although these applications are brought by Q and P, there are two other people who are even more closely interested in the outcome than they. Were this an ordinary dispute about the enforced separation of parent and child by the state, QB and PB would have been separately represented by an expert guardian ad litem and their own lawyers. We cannot know whether or not those representatives would have supported these applications, but we cannot avoid giving separate consideration to the position of the children.
  120. It is clear that family life has been established between these children and their mothers. Compulsory separation is, on the face of it, a serious interference by the state in the children's right to respect for that family life. The ECtHR has said time and again that the mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life, and domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8: see, amongst many others, W v United Kingdom (1987) 10 EHRR 29, para 59; Olsson v Sweden (1988) 11 EHRR 259, para 59; Johansen v Norway (1996) 23 EHRR 33, para 52, K and T v Finland [2000] 2 FLR 79, para 132. There is also a procedural right inherent in an effective respect for family life: the administrative decision-making process must be such as to secure that the parents' views are made known and taken into account and that they are able to exercise in due time any remedies available: see W v United Kingdom (1987) 10 EHRR, para 63; McMichael v United Kingdom (1995) 20 EHRR 205, para 91.
  121. These were all care cases, in which the possible justification for taking or keeping the children away from their parents had to be found either in the "protection of health or morals" or in the "protection of the rights and freedoms of others". The ECtHR has consistently held that protection of the interests of children falls within these aims. The balance to be struck in these cases is between the rights of the parents and the rights of the child: the only legitimate state interest is the protection of the child. In striking that balance, the ECtHR has repeatedly stressed that the interests of the child are of crucial importance. However, it subjects the severance of all ties between parent and child to closer scrutiny than temporary measures aimed ultimately at reuniting the family: see Hokkanen v Finland (1995) 19 EHRR 139, para 55; Johansen v Norway (1996) 23 EHRR 33, para 64; K and T v Finland [2000] 2 FLR 79, para 135.
  122. In giving greater weight to the interests of the child than to those of his parents, the ECtHR is reflecting contemporary international standards as expressed in the United Nations Convention on the Rights of the Child (adopted by the United Nations General Assembly on 20 November 1989, in force 2 September 1990). This provides, for example, in Article 3.1 that
  123. "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."

    However, it recognises in Article 18.1 that

    " . . . Parents or, as the case may be, legal guardians have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern."

    Article 9.1 allows the state to intervene only where necessary:

    "States parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with the necessary law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence."
  124. There was some discussion before us of the effect upon Article 9.1 of Article 9.4:
  125. "Where such separation results from any action initiated by a state party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of information would be detrimental to the well being of the child . . . "

    It seems clear that this provision contemplates separation of parent and child in circumstances other than those contemplated by Article 9.1, ie where separation is not necessary in the interests of the child but for some other reason.

  126. That is entirely consistent with the ECHR, which recognises in Article 8(2) that there may be justifications for interference other than the protection of the child. The initial imprisonment of the mother must of course be justified under Article 5 if it is to be lawful at all. But the consequent interference with her and her family's family life may be justified under Article 8(2) in the interests of public safety or for the prevention of disorder or crime, as well as for the protection of health or morals, or for the protection of the rights and freedoms of others. The interference, however, must still be necessary in a democratic society, that is in response to a pressing social need and in proportion to the legitimate aim pursued.
  127. We are here confronted with a situation in which the authorities chose not to interfere when the mother was imprisoned. The situation is not now the same as it was then. What might have been a proportionate interference then may not be proportionate now. A more complex dilemma has been created, in which there are a number of interests to be balanced: those of the state in the proper management of prisons, of the mothers in their family life, and of the children in the protection, not only of their family life but also of their best interests. Before considering how this balance should be struck either in general or in any particular case, we must consider the domestic law relating to the care and upbringing of children.
  128. 15. The implications of the Children Act 1989

  129. As might be expected, domestic law also places the primary responsibility for bringing up children upon their parents: see Children Act 1989, s 2(1). Where a court determines any question with respect to the upbringing of a child, the child's welfare is the court's paramount consideration: see 1989 Act, s 1(1). Paramount is a strong term, stronger than 'first' or 'primary'. As Lord MacDermott famously put it in J v C [1970] AC 688, at 710 - 711, when discussing the meaning of 'first and paramount' in the predecessor to section 1(1),
  130. ". . . the course to be followed will be that which is most in the interests of the child's welfare as that term has now to be understood. That is the first consideration because it is of first importance and the paramount consideration because it rules on or determines the course to be followed."
  131. Section 1(1) is not expressly limited to proceedings under the Children Act but it follows from its very terms that it applies only where the upbringing of the child is directly in issue and not with disputes in which there are other interests also in issue, such as freedom of expression or the fair administration of justice: see, eg, Re X (A Minor)(Wardship: Jurisdiction) [1975] Fam 47, CA; Re P (Witness Summons) [1997] 2 FLR 447, CA. Even in disputes about child care, it may be qualified in some way. Thus the state can only assume parental responsibility by way of care proceedings under section 31 of the 1989 Act. These require the applicant local authority to prove the "threshold criteria" set out in section 31(2) before going on to prove that the order proposed will be in the best interests of the child. The criteria require that the child is suffering or likely to suffer significant harm as a result of a lack of reasonable parental care. We may assume, for the purpose of the arguments in this case, that neither of these mothers would be at risk of losing their children under this test.
  132. But this is not a dispute about separating these children from their mothers so much as a dispute about separating these mothers from their children. Neither section 1(1) of the 1989 Act nor the threshold criteria in section 31(2) are directly relevant to or govern this court's decision. Nevertheless, they are indirectly relevant, in that the Prison Service has itself declared that the object of its policies and practice in relation to MBUs is to promote the welfare of the child.
  133. Also relevant are the responsibilities of local social services authorities to provide a range of services for children in need under Part III of the 1989 Act. These are not invariably engaged when mothers are imprisoned. Often their children will stay with their father or other relatives in the family home. Even if they cannot do this, many mothers will choose to make their own arrangements within the family, rather than ask for their children to be accommodated by the local authority under section 20 of the 1989 Act. As we have already seen, even when she has her child with her in prison, she is or should be encouraged to make plans for the child, especially if they will eventually have to separate. It is not known how many mothers are unable to make appropriate arrangements for when their children leave and thus have to resort to local authority accommodation. The evidence suggests that this is a comparatively rare event. The mothers in this case are unusual in that they cannot or do not wish to turn to their children's fathers and have no family members on whom to rely.
  134. Under section 20 of the 1989 Act,
  135. "Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of . . . (c) the person who has been caring for him being prevented (whether or not permanently and for whatever reason) from providing him with suitable accommodation or care."

    If these children are separated from their mothers they will be accommodated under this provision.

  136. Under section 17 of the 1989 Act,
  137. "It shall be the general duty of every local authority (in addition to the other duties imposed upon them by this Part) (a) to safeguard and promote the welfare of children within their area who are in need; and (b) so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children's needs."

    For the purpose of facilitating the discharge of this general obligation, authorities have the specific duties and powers set out in Part 1 of Schedule 2. Under section 18(1) and (5), they must provide such day care for children in need under five who are not attending school, and such care or supervised activities outside school times and terms for children in need who are attending school, in both cases "as is appropriate".

  138. For all these purposes, under section 17(10),
  139. "a child shall be taken to be in need if (a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part; (b) his health or development is likely to be significantly impaired, or further impaired, without the provision of such services; or (c) he is disabled."

    Thus the distinguishing feature of a "child in need" for this purpose is not that he has needs - all children have needs which others must supply until they are old enough to look after themselves - but that those needs will not be properly met without the provision of local authority social services.

  140. Both these children have been referred to the local social services authority for the areas where the prisons are situated. Some assessment of their need for local authority social services is obviously required. The Department of Health guidance, Framework for the Assessment of Children in Need and their Families, 2001, at para 3.58, recognises that particular care and attention may be needed in the assessment of children referred for help who have a parent in prison. That paragraph is primarily concerned with children in the community, but it also mentions children like these who have been referred by the Prison Service. The question is what that assessment should consist of: in particular, may it be confined to assessing whether there is a need for local authority accommodation when the child has to leave the unit and if so what that accommodation should be? Or should it include an assessment of what services should be provided if the child is to stay within the unit? Or should it, as Mr Gordon contends, consist of an assessment of whether the child should leave the unit at all?
  141. In our view, Mr Gordon's contention puts the cart before the horse. The local social services authority do not have the duty, or even the power, to make a global assessment of a child's needs, still less to determine what would be in the best interests of any individual child. The authority have the duty to assess the child's need for their own services, although a duty is also placed upon health, education and other authorities to cooperate with them in making this assessment (1989 Act, s 27). They may also conduct their assessment along with any other statutory assessment of the child's needs, for example, under the Education Act 1996 (1989 Act, Sched 2, para 3). The real question is whether they have only to assess the child's need for accommodation, on the basis that the child is bound to leave prison at 18 months, or whether they should also assess the child's need for services should she remain in prison. The answer to this question depends on whether the Prison Service has any duty to consider whether or not to allow a particular child to remain in prison over the age of 18 months. If it does, then obviously the services which might be provided for the child either in or out of prison are important factors for it to take into account, and the local authority will have a duty to assist in that assessment.
  142. 16. The approach of the Divisional Court

  143. The reasons why the Divisional Court dismissed these applications can be stated quite shortly. It held that the Prison Service was entitled to have a policy in these matters, and that this policy was founded on a premise for which there was objective justification, set out in the working group's report. It said that it was common ground that there was a need for an assessment of the children's needs before separation took place, and that the policy provided time for the necessary assessment by the social services to happen. It was not in dispute that an individual assessment should take place, but the Divisional Court held (at para 44) that the options available to the Prison Service were subject to the constraints which imprisonment imposes:
  144. "… [at] least in the first instance, it is for the Prison Service to decide what in the light of the available options they are prepared to do and what they are not prepared to do. They must have an area of discretion as to the facilities and support they are prepared to provide for the mother. Like any other government body, the Prison Service's resources are certainly not unlimited.
    [Counsel] alternatively submits that the Policy is unlawful because it interferes with the assessment which is the responsibility of the local authority under Section 17. Again we disagree. The local authority's duty to undertake an assessment is undiminished by the Policy. What the Policy does is to provide an option which is available to meet those needs."

    17. Our Approach

  145. We also accept that the Prison Service is entitled to have a policy. The policy is primarily concerned with determining whether or not it will offer a particular facility to imprisoned mothers. It is entitled to decide what children it will and will not accommodate. It is not obliged to make any provision at all. If it does make provision, it must have a policy about what kinds of children will be offered it. It cannot make proper provision for the children's needs without knowing in advance what sort of children they will be. Babies are different from toddlers, toddlers are different from infants, infants from juniors and so on. It cannot be said that there is no objective justification, as required by Article 14 of the ECHR, for discriminating between children of different ages in the provision of facilities for them.
  146. The only question we have to decide is whether the Prison Service is entitled to operate its policy in a rigid fashion, insisting that all children leave by the age of 18 months at the latest (give or take a few weeks if their mother is about to be released), however catastrophic the separation may be in the case of a particular mother and child, however unsatisfactory the alternative placement available for the child, and however attractive the alternative solution of combining day care outside prison with remaining in prison with the mother.
  147. In our view the policy must admit of greater flexibility than that. We say so for two inter-related reasons. The first is that the policy's own declared aim, both in general and in individual cases is to promote the welfare of the child (see paragraph 24 above). We accept that this aim has to be set in the context of what prison and the Prison Service is all about. It cannot therefore, despite all Mr Gordon's eloquence, be the only aim. But if the effect of the policy upon an individual child's welfare will be catastrophic, the policy is not fulfilling its own objectives. The policy documents themselves contemplate the need for individual consideration.
  148. The second reason is that the interference with the child's family life which the Prison Service has allowed and encouraged to develop must be justified under Article 8(2). In considering whether the interference is proportionate to its legitimate aims, the service will have to strike a fair balance between those aims. These fall into three basic categories.
  149. First, there are the necessary limitations on the mother's rights and freedoms brought about by her imprisonment. She cannot expect to be provided with a child care facility for the whole of her sentence. The service is entitled to expect that she will accept their offer of a place at a MBU knowing what those limitations are. She must accept that her primary parental responsibility is to make the best possible arrangements for the care of her child throughout her sentence. This means that if her sentence will last longer than the age for which the facilities are suitable, she should be expected to make sensible plans for their separation or to co-operate with the plans made by others. Indeed it is sensible to offer places at the outset for a target length of time, to expect the mother to have some exit strategy (even if it is local authority accommodation), and to review this strategy regularly during the placement.
  150. The second is the extent to which any relaxation in the policy would cause problems within the prison or the Prison Service generally. In particular, how would it affect good order and discipline within the prison itself? How would this be perceived as favouritism, not only by other mothers but also by other prisoners? This will depend to some extent upon the particular arrangements within the particular prison. But there may be wider implications, if the demand for places continues to rise and has to be denied because some children are staying longer. The length of the mother's sentence must be an important consideration here.
  151. The third is the welfare of the individual child. Here there are three main factors to be considered. The first is the extent of the harm likely to be caused by separation from the mother. This will depend upon the quality of the relationship between them, the arrangements made for the transition, and the arrangements made for contact after the separation. The second is the extent of the harm likely to be caused by remaining in the prison environment. This will depend upon the nature of that environment, the facilities there, and the facilities which could be provided by local social services to make good the deficiencies in the prison environment. The third is the quality of the alternative arrangements. A good local foster placement is quite different from a placement of dubious quality a long way away.
  152. We understand that the Prison Service must usually operate along clearly defined and clearly understood lines which leave little room for individual discretion, but the policy itself emphasises the need for individual consideration, so there can be no insuperable objection to a discretionary element in these decisions. In the great majority of cases, almost all of these considerations would point to separating mother and child at or before the age of 18 months. After that age the harm to the mother's family life could not normally outweigh the harm to the welfare of the child or to the good order of the prison. But there may be very rare exceptions where the interests of mother and child coincide and outweigh any other considerations. The mother must be given a fair opportunity to argue that that is so. With that in mind we turn to the individual cases before us.
  153. 18. Our conclusion: the P case

  154. In our view there is no realistic possibility of any further consideration of the merits of the case of P and PB producing a different outcome. The mother's position is indeed unenviable, but she has a long sentence left to serve. She was sentenced to eight years' imprisonment on 28 June 1999, ten days before PB was born on 8 July 1999. She will be eligible for parole on 3 April 2003, when PB will be nearly four, but otherwise her non parole release date is 4 July 2004, when PB will be five. Thereafter, the chance of either of them being allowed to stay in this country are remote.
  155. Dr Peter Randall, Consultant Chartered Psychologist, has produced two reports focusing upon the best interests of the child. He found mother and child to have normal reciprocated attachments. He explained in detail why 18 months is not a good age for total or near total mother child separation. He also found that PB's development was mildly delayed. It was unlikely to thrive in her present setting. She needed satisfactory learning experiences in the community while preserving P as her primary attachment figure. In his addendum report, he laid particular stress upon the problems PB would face if her primary attachment to her mother was broken for a while but she then had to readjust not only to her mother but also to the very different circumstances which would face her in Jamaica. The present weekly contact plan would not be enough to maintain the primary attachment to the mother. There was always a risk of instability in foster placements and this would reduce the chances of successful rehabilitation with P in due course. The best solution from her point of view, therefore, would be to transfer them to an open prison so that they could remain together for the remainder of P's sentence while PB took part in local services for pre-school children.
  156. It is however, difficult to envisage any possible balance of the various relevant interests, other than the complete abandonment of any sort of limit, which could result in PB being able to stay with her mother for the whole of that time. Furthermore, unless there is a change of policy or an exception made in her case, they cannot be moved to an open prison, where the conditions and the regime are very different. In those circumstances, a responsible parent has to be thinking about separation in a constructive fashion. It is difficult to blame this mother, but there is little to suggest that she has been doing this. She originally planned that the father would take care of the child. In many cases this will be best for everyone. The mother is not the only interested parent. The father too has a right to respect for his family life with his child: see Keegan v Ireland (1994) 18 EHRR 342, para 44; Elsholz v Germany [2000] 2 FLR 486, para 43. He also has rights in domestic law should he choose to exercise them. Sometimes, of course, there has been no contact at all with the father who is not in a position to offer a suitable home for the child. The mother may have been thinking of her child's interests as much as her own when she changed her mind, but this is not clear. A culturally appropriate foster home has been found only a few miles away from the prison. Her reservations about this are not significant.
  157. The evidence of Janet Ash, the social worker with responsibility for placing PB, indicates that considerable thought has been given to how best to meet this child's needs. It is clear that that work has been done on the basis that separation is inevitable, but Ms Ash confirms that the assessment had "followed the dimensions" set out in the Department of Health's guidance, Framework for the Assessment of Children in Need and their Families, published after the assessment began. She emphasises how "great importance was placed on finding a suitable community where PB's needs would best be met and her ethnic background respected". She also explains that much can be done to minimise the loss and protect children for the future, especially where they have experienced healthy attachment relationships to date, which have given them feelings of self worth and self esteem and a trust in adults. Loss can be minimised if the introduction is gradual and carefully planned and the new and current caregivers are seen to be working together. She does not disagree that ideally visits should be three times rather than once a week, but she balances this against PB's need for other experiences and points to the arrangements made for other contacts between the mother and the foster home. The care plan incorporates ongoing work with PB to prepare her for return to her mother in due course.
  158. In those circumstances, it would be difficult to conclude that the harm done to PB by separation would be sufficient to outweigh all the other relevant considerations. If an exception were made in her case, it would be difficult to maintain the policy at all.
  159. 19. Our Conclusion: The Q case

  160. The situation of QB is rather different. QB was born on 26 July 1999. She was nine months old when her mother was sentenced to five years' imprisonment in April 2000. They were separated for only five days before admission to an MBU. The mother's parole eligibility date is 25 July 2002 when QB will be just three and her non parole release date is 24 May 2003 when QB will not yet be four. It is Ms Jones' opinion that she is securely attached to her mother. Her mother has a good understanding of the needs of children and QB is developing well in every respect. Her situation in an open prison close to York is very different from that in a closed prison. There are extensive grounds available to them. Her mother has shown herself alive both to the problems which might be presented by contact with some other prisoners but also to the need for stimulation and experiences outside prison. She is able to take her daughter out swimming and shopping at weekends and also to church and Sunday school.
  161. To date no satisfactory placement has been found for QB. On the evidence before us, although Q is in many respects an intelligent and respectable woman who has successfully brought up one son and held a variety of responsible jobs, she is estranged from her own family. The relationship with her son's father was an abusive one from which she has struggled to escape. There is no contact with QB's father, who is not named on the birth certificate. The local social services authority has had considerable difficulty in locating a suitable placement. The search is currently suspended because of the proceedings. The mother is a practising Roman Catholic who wishes her daughter to continue to be brought up in that religion, but QB is of mixed Anglo-Indian and African Caribbean descent, and there is no placement with a non-white or mixed race Roman Catholic family available locally. The inner London borough where the mother previously lived might be better able to find an appropriate placement. But then it would be impossible to maintain anything like an appropriate level of contact between QB and her mother and there would be some risk of both mother and child eventually being drawn back into the same bad associations from which the mother is now determined to escape. The local authority have not considered whether any of the community based day care services suggested by Ms Jones might be made available if QB were to stay in prison with her mother.
  162. From the child's point of view, therefore, the harm done by separation from her mother may be very considerable indeed. It is the mother's belief that there would be little, if any, resentment from other prisoners, if QB were allowed to stay. Further, she would give priority to any participation in prison work or activities which was required of her. While she therefore recognises the potential harm to good order and discipline within the prison, she suggests that it is not significant in this case.
  163. The evidence before us in QB's case, therefore, is sufficient to suggest that this might be such an exceptional case as to justify a departure from the policy. The combination of the potential harm to the child from separation, the current lack of any acceptable plan for the child's future, the very different regime in the prison, and the possibility (we put it no higher than that) that the demands of the prison regime would not be such as to outweigh the clear harm to the child resulting from separation, combine to satisfy us that this is a case in which the Prison Service should be required to think again. It is not for us to speculate upon the outcome of that reconsideration. It may be that a suitable local placement could be found: if there were a non-white family the mother could take QB to church with her at weekends. If so, arrangements might be made for very frequent contact between them. The mother has a duty to her daughter to co-operate in helping to make the arrangements which will be best. But no-one with any experience of the child care system could fail to be other than seriously worried by the present prospects facing QB were she to be obliged to leave the prison.
  164. We will therefore allow Q's appeal and dismiss P's appeal.
  165. 20. Some concluding comments

  166. There are two matters of a general nature we wish to mention before we leave these two appeals.
  167. The first is that the consideration of this appeal has been greatly assisted by the presence of a specialist family law judge as a member of the court. Similar arrangements were made, with equal advantage, when the court heard an appeal by a mother denied access to the MBU at Holloway in the autumn of 1998. We hope that arrangements may be made by the authorities in the Administrative Court, in consultation with the President of the Family Division, to ensure that Family Division judges are able to assist in the work of the Divisional Court, or to sit as single judges, in judicial review cases which have a strong family law element. The number of such cases is bound to increase, as more and more challenges are brought under ECHR Article 8.
  168. On the other hand, if any further challenges of this kind are made, they are likely to be challenges not so much to the lawfulness of the Prison Service's policy itself as to the application of that policy, subject to the considerations we have set out in paragraphs 101-106 of this judgment, in an individual case. As we have already made clear, such challenges will have little prospect of success unless brought on behalf of a child whose welfare is seriously at risk from the separation. The child should therefore be separately represented in the proceedings, preferably by the Official Solicitor or by CAFCASS.
  169. There is no reason why a challenge of that kind may not be brought in the Family Division by way of a claim that the Prison Service has acted or proposes to act in a way which is made unlawful by section 6(1) of the Human Rights Act 1998. Although the assessment of the merits of such a challenge must inevitably take into account policy considerations such as those we have identified in that passage of this judgment, there is no statutory provision, rule or practice direction which requires such challenges to be brought in the Administrative Court, and the Family Division is the venue of preference for such cases. Needless to say, if relief is sought which is only available from the Administrative Court in CPR Part 54 proceedings, that procedure must be followed, but in any event it is desirable that the challenge should be heard by a judge of the Family Division.
  170. ORDER:
  171. Appeal in the case of P dismissed.
  172. No Order as to costs.
  173. Detailed assessment of funded claimant's costs.
  174. Leave to appeal to the House of Lords refused.
  175. Appeal in the case of Q and QB allowed.
  176. Q and QB's costs allowed here and below subject that on detailed assessment not more than 50 per cent of leading counsel's costs are allowed.
  177. Detailed assessment of funded claimant's costs.
  178. Secretary of State to have 7 days in which to lodge application in writing for permission to appeal to the House of Lords.
  179. (Order does not form part of approved Judgment)


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