Practice and Procedure


PUBLISHED January 22, 2003

The decision of the Prison Service to remove the claimant prisoner from the mother and baby unit of a prison, thus separating her from her child, was unlawful. No proper or fair procedure had been followed and no proper consideration had been given to whether it was in the child's best interests.Application for judicial review of a decision of the Prison Service to exclude the claimant ('CD') from the mother and baby unit ('MBU') and to separate her from her baby ('AD') whilst she was in prison serving a three-and-a-half-year sentence. At the time of the application, CD was nineteen years old. In September 2001 she travelled from Jamaica to the UK for the first time and in so doing acted as a courier in relation to the importation of a quantity of cocaine. She was arrested on arrival, charged and remanded in custody. She subsequently pleaded guilty and was sentenced. Following the birth of her son in prison she was permitted to remain with him in the MBU at the prison until a decision was taken to exclude her and separate them due to her bad and erratic behaviour. AD was put into the care of a friend of CD's who lived in London. CD brought an unsuccessful appeal against the decision. It was common ground on this application that: (i) the decision maker was obliged to have regard to the best interests of AD; (ii) AD's best interests were served by being with his mother; and (iii) nevertheless, a decision to separate could be lawful, even though it could be contrary to the best interests of the child and would amount to an interference of the rights of CD and AD under Art.8 European Convention on Human Rights. CD submitted that: (a) the decision maker had not in fact accorded primary consideration to the best interests of AD; and (b) the decision to separate was not sustainable as it was disproportionate and, as such, was not a justifiable interference with her and AD's Art.8 rights.HELD: (1) No proper consideration had been given to whether the decision was in the best interests of the child. The circumstances in which the decision was communicated and implemented did not sit easily with any proper consideration of the best interests of a child who was still at the breast-fed stage. (2) The test for proportionality was whether in this discretionary area the secretary of state had struck a fair balance between the relevant interests (see Samaroo v Secretary of State for the Home Department (2001) EWCA Civ 1139 and R v Secretary of State for the Home Department, ex parte P and Q (2001) 1 WLR 2002). There was no evidence of any assessment of the risk to AD of separation, either in relation to the fact of separation from CD or regarding the suitability of the arrangements for his care. The decision to separate was made without proper consideration of highly relevant proportionality issues and was therefore substantially flawed as it involved breaches of AD's, and perhaps to a lesser extent, CD's Art.8 rights. (3) At no stage was CD given the opportunity to answer the allegations made against her or to make representations as to why she and AD should not be separated. If she had been given the opportunity there might have been a different outcome, particularly as she would have been able to correct some factual errors that may have influenced the decision. The procedural approach to a decision of such palpable importance fell well short of what fairness required. (4) The decision to exclude and separate would be quashed, but it was not for the court to restore CD and AD to the MBU. It was for the Prison Service to reach a lawful decision following a procedurally and substantively correct reconsideration. (5) It was startling that there were no prescribed procedures governing a decision to exclude and separate as a consequence of a disciplinary offence or blatant and/or persistent misdemeanours, given the magnitude of such a decision. Although there could be cases that called for immediate steps to be taken, it was still necessary for the mother to be given the opportunity to answer any allegations and to make representations. It was not right for the decision maker to proceed on the basis of a one sided presentation of the facts. In certain cases it might not be obvious what the best interests of the child might be. In such cases it was incumbent on the decision maker to enlist assistance from an expert source, including social services. Even where it was accepted that the best interests of the child were served by it remaining with its mother, the sort of questions that would arise in carrying out the proportionality exercise would often be answerable only with the benefit of externally provided expertise. It had to be appreciated that the Prison Service was not a family proceedings court but nor could it be forgotten that, in a case such as this, it was required to make a decision of equal importance as regards the welfare of the child. The court's hesitation to impose too great a burden on the Prison Service was alleviated by the knowledge that such cases were very rare.Application allowed.

[2003] EWHC 155 (Admin)