CD & Anor, R (on the application of) v Secretary of State for the Home Department [2003] EWHC 155 (Admin)

Case No CO/5343/2002[2003] EWHC 155 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 16 January 2003
Strand
London WC2
B E F O R E:
MR JUSTICE MAURICE KAY
Between
(1) CD(CLAIMANTS)(2) AD (BY HIS LITIGATION FRIEND THE OFFICIAL SOLICITOR)ClaimantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENT(DEFENDANT)
THE QUEEN ON THE APPLICATION OF
Computer-Aided Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR IAN WISE (instructed by A.S. Law) appeared for FIRST CLAIMANTMISS FENELLA MORRIS (instructed by the Official Solicitor) appeared for SECOND CLAIMANTMISS JENNIFER RICHARDS (instructed by Treasury Solicitors) appeared for DEFENDANT
J U D G M E N T
[1]It is common knowledge that the substantial rise in the prison population has included a significant increase in the number of women prisoners. Whilst sentencing courts usually strive to avoid sending pregnant women and the mothers of young children to prison there are occasions when such a course is inevitable. There has been an increased demand for Mother and Baby Units (MBUs) within women’s prisons. At present there are four MBUs which provide a total of 68 places. One of the four is in an open prison at Askham Grange. The others are at Styal, New Hall and Holloway. Further MBUs are planned at Eastwood Park and at two new prisons which are to be built at Ashford and Peterborough. The circumstances which give rise to the present case occurred at Styal. CD is a young woman from Jamaica. She is 19 years of age. In September 2001 she travelled to England 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. In due course she pleaded guilty and was sentenced to three and a half years imprisonment. Her earliest release date is 13 June 2003. She is to be deported upon release.[2]At the time of her arrival in this country CD was pregnant. Her initial places of custody were at Holloway and Bullwood Hall. However on 27 February 2002 she was transferred to the MBU at Styal. On 10 April 2002 she gave birth to her son, AD. They remained in the MBU at Styal until 19 September 2002 upon which date a decision was taken to exclude CD from the MBU and to separate her and her child. From the date of separation in September until the hearing before me on 19 and 20 December, CD was held in a different part of the prison at Styal and, since 20 September AD has lived with and been cared for by SM, a friend of CD, in London. The present proceedings are in the form of an application for judicial review of the decision to exclude and separate. The application is made on behalf of CD and also on behalf of AD, whose interests are being looked after by the Official Solicitor. At the conclusion of the hearing on 20 December, the last day of term, I told the parties that the application for judicial review had succeeded and that I would give reasons in a judgment on 16 January. This is that judgment.[3]The regime in an MBU is more open and less controlled than within the conventional part of a part of a closed women’s prison. Staffing levels are lower. The mothers have responsibility for their own children and there is a need for cooperative behaviour. There is little security within an MBU. The mothers have free access to their own and to other mothers’ rooms and they move about the unit as they wish. Nevertheless, the unit is still part of a prison and it is necessary for there to be rules which are conducive to good order and discipline. This is in the interest of all, particularly the babies. Not all women prisoners are suitable for placement in an MBU.[4]CD was at Bullwood Hall when she applied for an MBU place at Styal. Her application was strongly supported by the staff at Bullwood Hall who described her in various documents as “a very quiet eighteen year old” with no family in this country and therefore no support from outside prison, “always polite and on time”. She participated in the voluntary drug testing programme and tested negative on all occasions. There are three status categories conferred upon prisoners, namely basic, standard and enhanced. Whilst at Bullwood Hall CD “made an excellent effort to settle down….and has already enhanced status. Wing staff have confirmed that she is respectful to staff and mixes well with her peers”.[5]Within days of arriving at Styal CD was recorded in the contemporaneous log maintained by prison officers as being “very upset and emotional today….upset at being moved from prison to prison, young with all her family in Jamaica…baby’s father is also in Jamaica….CD also seems to be afraid of the birth having witnessed X’s waters breaking”. I do not propose to go into great detail about the daily record made in the contemporaneous log. It is apparent that CD was argumentative with other prisoners on occasions, sometimes failed to comply with rules as to timing and the use of cooking facilities and behaved in what the record for 3 May refer to as “a mixed fashion ….can be polite and helpful but equally she can be sullen and stubborn”. As time went by, and particularly after the birth of AD, CD came into conflict with other prisoners. It is quite apparent that CD could be difficult and that she had her ups and downs. One sympathetic note on 19 May suggests that perhaps that she “was suffering baby blues”. On the other hand, the regular visits of the health visitor attracted entries which suggest that CD was coping well as a parent and that AD was making appropriate progress. I have the impression that many of the entries regarding conflict with other prisoners were made by prison officers who had the unenviable task of listening to both sides of a story and having to form an impression based on accounts from people who are probably not wholly reliable. At the very least, however, CDs behaviour was giving cause for concern. Throughout May there are references to conflict with another prisoner but that prisoner left at the end of the month and on 9 June the weekly report is to the effect that “things have really settled down since (the other prisoner left)……(CD) feels much happier now”. The following weekly report also noted “a big improvement….polite, smiling and mixing with everyone on the unit”. Later in June and into July there are records of conflict between CD and prisoners referred to as “the travellers”.[6]Things came to head on 22 July. Mr. Seed, the residential governor in charge of the MBU, referred to two previous written warnings and “expressed some concerns over your continued residence on the unit”. In a memorandum of that date he informed CD “I am giving you notice that if your behaviour does not improve you will be excluded from the unit.” On that day he reduced CD from standard to basic status, thereby depriving her of various privileges. That decision was subject to monthly review and on 28 August CD was restored to the standard regime with immediate effect. The assessment form did not assess her as negative in relation to any of the fifteen behavioural criteria.[7]The weekly report dated 2 September records that CD’s attitude “has improved dramatically…..she attends work regularly and promptly and seems to be approaching staff much more. A big improvement!” On 9 September the weekly report stated:
“A mixed week but on the whole her behaviour is OK. She is cheerful and staying out of the arguments.”
However, on 16 September the log records “a huge row between (CD) and (X)”. This led to the decision to exclude CD from the MBU and separate her from her baby on 19 September. On the previous day Mr. Seed had requested a member of the unit staff to provide a “brief overview of recent events”. The overview referred to the previous month and was not wholly consistent with the tenor of the contemporaneous log for that period. It included a number of allegations against CD which appear to have been based in the main on things said by other prisoners rather than events witnessed by prison staff. According to his witness statement, Mr. Seed then “recognised that CD’s persistent bad behaviour was most unlikely to improve”. He reported to the governor of Styal, Miss Moulden, recommending that CD be excluded from the MBU immediately. Miss Moulden accepted this recommendation and on 19 September Mr. Seed served a notice of exclusion on CD.[8]The notice of exclusion referred to the warning of 22 July and went on “It has been reported to me that since that time there have been a number of incidents that you have been involved in that fall far short of the behaviour required, and that you have continued to bully others on the unit, made racist remarks and at one stage allegedly threatened to injure a child.” Later in the notice, Mr. Seed refers specifically to a number of incidents listed as follows “- heated arguments between you and other residents on the unit. - provoking other women on the house by making inappropriate comments; - making racist gestures; - threatening to kick a baby on the unit; - alleged report that you stood on a baby’s fingers; - number of warning re you being outside the unit whilst on basic regime; - other warnings being late for work and roll checks.” The notice went on to state that “the decision to exclude you is in no way a reflection on your parenting skills, it is solely about your unacceptable behaviour.” It stated that the exclusion would take effect immediately but that CD could appeal to the operational manager for women’s prisons.[9]Although CD accepts the reference to warnings about being outside the Unit, being late for work and missing roll checks, she has a case either by way of denial or explanation in relation to the other more serious allegations. It is common ground that she was not given an opportunity to answer the allegations on 18 or 19 September before she was served with the notice.[10]The accounts of CD and Mr. Seed are not wholly consistent about the meeting on 19 September. According to Mr Seed, he had been been informed by someone else that AD was not being breast fed at the time. He accepts that that was an error. Moreover, it is common ground that he made no enquiry of CD on the matter although she says (but he denies) that she volunteered the information to him.[11]The intention of Mr. Seed was to entrust AD to SM, CDs friend in London. The two women had met as fellow prisoners in Holloway and CD had nominated SM in her application to the MBU as a person to whom AD could be entrusted. Indeed, on two occasions AD had been given into SM’s care for short periods of time. On or about 18 September, but without the knowledge of CD, Mr Seed had made enquiries of SM who had indicated her willingness to take AD but not before 20 September. Mr. Seed had then contacted Cheshire Social Services as the responsible agency in the area of Styal to arrange overnight accommodation for AD pending a transfer into the care of SM the next day. In the event, that is what happened.[12]Following the decision and its implementation, CD pursued an internal appeal and made complaints of her own to the effect that she had been bullied by X. The appeal was unsuccessful I shall return to the investigation of her complaints later and also to the fact that, after the commencement of proceedings, the Prison Service convened an independent review of the decision which confirmed it on 16 December. On 8 October 2002 solicitors became involved on behalf of CD. On 6 November the solicitors threatened an application for judicial review and on or about 20 November proceedings were issued in the Family Division pursuant to CPR part 8. Thereafter the President transferred the proceedings to the Administrative Court. It is common ground that the proceedings are of a kind which require the review of a decision of a public authority by reference to public law criteria and which are properly litigated by way of an application for judicial review in the Administrative Court (see A v A Health Authority (2002 Fam 213). In A Munby J expressed the view that it is preferable that a case such as this should be heard by a nominated judge of the Administrative Court who is also a judge of the Family Division. I agree. However, following consultation between the President and myself, it transpired that no such judge would be available to hear this case within the desirable time scale and in the circumstances it was agreed that I should hear it.[13]At a hearing on 28 November I granted permission to apply both to CD and to AD who was then added as the second claimant. I gave directions which resulted in the preparation of reports by two jointly instructed experts. Doctor Peter Randall is a consultant psychologist. It is his firm opinion that it is in AD’s best interests to be reunited with CD on the basis of a phased return as soon as possible. Stuart Sinclair is a consultant social worker. He strongly recommends that mother and child be reunited in a different MBU. It is his opinion that not to reunite them as a matter of urgency through a sensitively prepared and adequately resourced programme “is very likely to cause long term serious psychological harm through attachment disruption”. He is very critical of the peremptory way in which mother and baby were separated following minimal contact with local social services and with no opportunity for professionals to assess SM as a carer. As it happens MS is a dedicated young woman who is managing remarkably well. However, Mr. Sinclair states his view that “Potential disaster has been avoided only by good fortune, and it is inconceivable that this should be allowed to happen again and I would respectfully recommend that procedures are reviewed and tightened to prevent a repetition of this situation.” I wholly agree with those sentiments.[14]Perhaps the most startling thing about this case is that there are no prescribed procedures governing a decision to exclude and separate in these circumstances, notwithstanding the magnitude of such a decision. There is a rigorous procedure for admission to an MBU and it is made clear in the Prison Service Order The Management of Mother and Baby Units and the Application Process that temporary or permanent separation may occur in a number of circumstances including when there is an imminent risk to the child as defined by the Local Area Protection Child Care Procedures, when a woman has failed to comply with the compact into which she enters upon admission, and when as a consequence of a disciplinary offence, or blatant and/or persistent misdemeanours which are likely to affect children on the unit, it is no longer possible for the mother to remain on the unit with her child. In other words, there is provision for the substantive pre-conditions to exclusion and separation. However it does not address the procedural aspect. The Order refers to plans being made at the earliest opportunity to ensure suitable arrangements for separation when the baby reaches the maximum age limit which, at Styal is eighteen months. There is a reference to separation in circumstances “agreed by the multi disciplinary team”. However the question of separation as a consequence of a disciplinary offence or blatant and/or persistent misdemeanours does not attract a specific procedure in the Order. Again, I shall return to this later.[15]On behalf of the Claimants, the challenge to the decision to separate them and to exclude CD from the MBU is put on a number of different but to some extent overlapping bases. They raise both substantive and procedural issues and rely on Article 8 of the ECHR as well as established principles of domestic administrative law.

The substantive issue: the interests of the child

[16]It is common ground that the decision-maker was obliged to have regard to the best interests of AD when considering whether or not to separate mother and child. One source of that obligation is the policy of the Prison Service itself. In July 1999 a working group which had been established by the Director General of the Prison Service published its Report of a Review of Principles, Policies and Procedures on Mothers and Babies/Children in Prison . It identified a number of overarching principles, the first of which is expressed in these terms:
“The best interest of the child is the primary consideration at every level of policy making as well as when considering individual situations.”
This was expressly adopted by the Prison Service its Response and Action Plan published in December 1999. In addition, a decision-maker within the Prison Service is bound to give effect to Article 8 of the ECHR, the material parts of which provide:
“1. Everyone has the right to respect for his private and family life….. 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….for the prevention of disorder or crime, for the protection of health or morals, or the protection of the rights and freedoms of others.”
It is obvious that a decision to separate mother and child engages Article 8. It is an “interference” with the right to family life. Moreover, it is common ground, in the present case, that the best interests of AD are in his being with his mother. The evidence to that effect is unequivocal. The final item of common ground in this context is that, notwithstanding the “primary consideration” status of the child’s best interests and the engagement of Article 8, these matters are not by themselves determinative of the issue whether a decision to separate is lawful, even though it could be contrary to the best interests of the child and would amount to an interference with the Article 8 rights of the child and its mother. The substantive dispute in the present case centres upon two issues, namely (1) did the decision-maker in fact accord primary consideration to the best interests of the child? and (2) was the decision to separate a permissible one in the sense of being justifiable and proportionate? (1). Considerations informing the decision[17]It is a fact that Mr. Seed’s decision letter of 19 September 2002 made no reference to the interests of AD having been considered. Nor did the letter from the Governor, Miss Moulden, dated 26 September. This leads Mr. Wise and Miss Morris to submit that there was no or no proper consideration of the best interests of AD before the decision to separate was made. The Acknowledgment of Service filed on behalf of the Secretary of State refutes that submission and, in his witness statement, Mr. Seed says:
“If CD’s behaviour had been acceptable, a consideration of AD’s best interests would have meant that he would stay on the Unit with his mother. Clearly considerable weight has to be attached to AD’s best interests against those of the other babies on the Unit and their mothers. In this case, the interests of the 21 other babies on the Unit in being provided with a safe, stable environment outweighed the interests of AD in staying with his mother.”
That, Miss Richards submits, is a complete answer to the claim that AD’s best interests were not, or not properly considered. The case for CD and AD is that Mr. Seed’s witness statement is no more than an after-the-event, late-in-the-day rationalisation.[18]It is well established that the court should exercise caution before accepting reasons for a decision which were not articulated at the time of the decision but were only expressed later, in particular after the commencement of proceedings (see, for example, Nash v. Chelsea College of Art and Design [2001] EWHC Admin 538 at para 34 per Stanley Burnton J). In the present case what is in issue is not the reason for the decision but the question whether an important countervailing consideration was properly taken into account. Nevertheless, it is still necessary for the court to exercise a degree of caution before accepting that something important was properly considered at the time of the decision, even though there was no express reference to it prior to the commencement of proceedings.[19]I regret to say that I have come to the conclusion that Mr. Seed probably did not give proper consideration to the best interests of AD before making the decision to separate. I base this not simply on the absence of express reference in the contemporaneous documentation but more on the facts surrounding the decision. The circumstances in which the decision was communicated and implemented do not live easily with any proper consideration of the best interests of a child who was still (albeit not to the inadequately informed knowledge of Mr. Seed) at the breast-fed stage. In my judgment, no one giving proper consideration to the best interests of AD would have communicated and implemented the decision in the way in which it occurred in this case. That looms large in my assessment that the decision itself was probably not based upon any such proper consideration. (2). Proportionality[20]The case for CD and AD under this heading is that the decision to separate them is not sustainable because it was disproportionate and, as such, was not a justifiable interference with their Article 8 rights. This precipitated rival submissions as to the approach which the court should take. I accept that the appropriate starting point is the speech of Lord Steyn in R (Daly) v. Secretary of State for the Home Department [2001] 2 AC 532. In comparing the traditional Wednesbury and “Super-Wednesbury” grounds of review with the approach of proportionality in relation to Convention rights, Lord Steyn referred first to the threefold test formulated by Lord Clyde in de Freitas v. Permanent Secretary of Ministry of Agriculture [1999] 1 AC 69 (PC) at p80, to the effect that, when considering fundamental rights, the court should ask itself:
“whether (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.”
As Lord Steyn observed (at p547C) “clearly these criteria are more precise and more sophisticated that the traditional grounds of review”. He went on (at pp 547 and 548D):
“….the intensity of review is somewhat greater under the proportionality approach….I would mention three concrete differences….First, 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. Secondly, 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. Thirdly, even the heightened scrutiny test developed in R. v. Ministry of Defence, ex parte Smith [1996] QB 517,554, is not necessarily appropriate to the protection of human rights…..In other words, the intensity of review….is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued…..This does not mean that there has been a shift to merits review.”
Miss Richards seeks to emphasise the final sentence in this passage and to draw comfort from Samaroo v. Secretary of State for the Home Department [2001] UKHRR 1150. She relies on two passages in the judgment of Dyson LJ:
“The test of the Court….is therefore supervisory of that discretionary area of judgment. The court must decide whether the Secretary of State has, within the discretionary area of judgment accorded to him, struck a fair balance between the relevant interests” (para 29) “….in a case such as this, the court should undoubtedly give a significant margin of discretion to the decision of the Secretary of State. The Convention right engaged is not absolute. The right to respect for family life is not regarded as a right which requires a high degree of constitutional protection.” (para 35) It is important to appreciate the context of these passages. Dyson LJ had earlier (para 19) accepted that “in deciding what proportionality requires in any particular case, the issue will usually have to be considered in two distinct stages”
. The passages referred to by Miss Richards relate to Dyson LJ’s second stage. However:
“At the first stage, the question is : can the objective of the measures be achieved by means which are less interfering of an individual’s rights?…..The eventual purpose of this stage of the inquiry is to see whether the legitimate aim can be achieved by means that do not interfere, or interfere so much, with a person’s rights under the Convention. That inquiry must be undertaken by the decision-maker in the first place.”
The case for the Claimants in the present case is that the decision-maker - Mr. Seed and/or Miss Moulden – did not undertake that inquiry.[21]Returning to the judgment of Dyson LJ, he continued (para 20):
“At the second stage, it is assumed that the means employed to achieve the legitimate aim are necessary in the sense that they are the least intrusive of Convention rights that can be devised in order to achieve the aim. The question at this stage of the consideration is: does the measure have an excessive or disproportionate effect on the interests of affected persons?”
In carrying out its reviewing function in relation to this question the court will recognise a discretionary area of judgment in the manner later described by Dyson LJ in the passages referred to by Miss Richards.[22]It seems to me that, in the present case, Mr. Wise and Miss Morris are essentially setting out their stall by reference to Dyson LJ’s “first question”, whereas Miss Richards is endeavouring to respond on the ground set aside for the “second question”. This becomes clearer when one considers the way in which Miss Morris puts the case in her skeleton argument. On the basis of R (P and Q) v. SSHD [2001] 1 WLR 2002 she acknowledges the legitimate aim of the Prison Service in maintaining good order and discipline in the MBU and in the welfare of all the babies accommodated within it. She then submits that the correct approach to be adopted by the decision-maker would have been to ask the following questions: “(a) What is the nature and extent of risk posed by CD to others on the MBU and, in particular, other babies on the MBU? (b)To what extent can the risk be reduced or managed by, eg -disciplinary measures against CD such as moving her to ‘basic’; -provision of support to CD to enable her to cope with her depression and lack of family; -a move to another unit? (c) What is the nature and extent of the detriment to AD of separation from CD for 9 months, including the likely psychological or psychiatric consequences for AD, and the effect on his relationship with CD, in the short and long term? (d) To what extent can the detriment to AD be reduced or managed by, for example, placing AD with a suitable carer, near to CD, and arranging regular contact with CD? (e) Does the risk that remains after the taking of steps in (b) outweigh the detriment to AD of separation (however mitigated by the taking of steps in (d)?” -disciplinary measures against CD such as moving her to ‘basic’; -provision of support to CD to enable her to cope with her depression and lack of family; -a move to another unit?[23]In my judgment it was incumbent upon Mr. Seed and/or Miss Moulden to approach the decision in such a manner. I am not satisfied that they did so and, accordingly, I conclude that there was a failure properly to address the first stage of the proportionality question. There is no evidence of any assessment of the risk to AD of separation either in relation to the fact of separation from CD or as to the suitability of the arrangements for his care. It seems that Mr. Seed simply relied on the fact that two previous short periods of time when AD had been entrusted to the care of SM had not attracted adverse comments. No steps were taken on this occasion to devise measures to minimise the risk of harm to AD, who did not see CD again until after the commencement of these proceedings. No prison contact was made with Social Services in the London Borough where SM lives. Contact was made with Cheshire Social Services but, it seems, simply with a view to caring for AD in the 24 hours or so before SM could assume responsibility for him. All this leads me to the conclusion that the decision to separate was made without proper consideration by the decision-maker of highly relevant proportionality issues and, in these circumstances, the decision never reached the point of refinement at which the judicial obligation of deference crystallised. For these reasons I find the decision to be substantively flawed as it involved breaches of AD’s and, perhaps to a lower extent, CD’s Article 8 rights.

Procedural issues

[24]Mr. Wise and Miss Morris also challenge the decision to separate on the ground of procedural unfairness. To a degree, Article 8 also arises in this context because the Strasbourg jurisprudence makes it clear that Article 8 may impact not only upon the substance of a decision but also upon the procedure pursuant to which it is reached. Thus, in W v. United Kingdom (1987) 10 EHRR 29 the Court said (para 62):
“It is true that Article 8 contains no explicit procedural requirements, but this is not conclusive of the matter. The local authority’s decision-making process clearly cannot be devoid of influence on the substance of the decision, notably by ensuring that it is based on the relevant considerations and is not one-sided and, hence, neither is nor appears to be arbitrary. Accordingly, the Court is entitled to have regard to that process to determine whether it has been conducted in a manner that, in all the circumstances, is fair and affords due respect to the interests protected by Article 8.”
And in a later passage (para. 64):
“…..what therefore has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as ‘necessary’ within the meaning of Article 8. ”
In addition, Miss Morris seeks to rely on Article 6. However, I very much doubt whether either of these Articles adds significantly to the domestic legal requirement of procedural fairness in this context. The decision to separate mother and baby is plainly one of great importance and it is axiomatic that it can only lawfully be taken within the bounds of procedural fairness.[25]At no stage prior to the making of the decision was CD given a proper opportunity to answer the allegations or to make representations as to why she and AD should not be separated. In effect, she was presented with a faitaccompli. Whilst it is true that she had been told on previous occasions, and in particular on 22 July, that her behaviour had to improve if she was to remain on the Unit, that does not satisfy the requirement of procedural fairness in relation to the active consideration of exclusion in September.[26]The memorandum which Mr. Seed handed to CD on 19 September referred to a number of incidents. It is apparent from her witness statement that, in relation to most of them, CD had a case to put. For example, she would have wished to call another inmate as a witness to support her account of one matter. Moreover, there is reason to suppose that, if there had been an investigation in which she and others had been allowed to participate, things may have appeared in a different light. When, after the decision to separate, Mr. Rowland, South Group Manager was instructed to investigate CD’s complaint of bullying by inmate X, his conclusions which were set out in a memorandum to Miss Moulden dated 30 September would have been helpful to CD in the context of the decision to separate. He identified X as “the main protagonist” in the bullying and considered that, if X had never been located in the MBU, CD would not have been excluded, adding:
“[CD’s] behaviour has definitely been influenced by the presence of [X] …..I would advise a reassessment.”
[27]In addition, if C had been provided with a proper opportunity to deal with the matters put against her and to make representations, she would have been able to point to some factual errors which may have influenced the decision. For example, Mr. Seed seems to have thought that CD’s behaviour consistently deteriorated in the period leading to the challenged decision. In fact, on 28 August she had been upgraded from the “basic” to the “standard” regime. The allegation that CD had “stood on a baby’s fingers” on 18 September is not recorded in the contemporaneous documentation and seems to have emanated from X alone. It was never put to CD. Her answer to it is that she did not do it and that, if it happened, it may have been attributable not to her but to another inmate with a similar sounding Christian name. Mr. Seed appears to have formed the erroneous impression that CD had given a false account about some money received from her mother which became a subject of dispute between CD and X. Mr. Seed did not accept that CD had received this money (and therefore he rejected her account), whereas it is clear from material which is before this court that she was telling the truth about it. Moreover, if Mr. Seed had checked the position concerning breast-feeding with CD, he would not have remained under the misapprehension that she was no longer breast-feeding.[28]On any basis CD did cause difficulties in the MBU and I do not suppose for one moment that she has a persuasive answer to everything. However, I cannot escape the conclusion that if she had had the opportunity to answer the allegations prior to the decision and to make representations, there may have been a different outcome. In the event, the procedural approach to a decision of such palpable importance fell well short of what fairness required.

The reconsideration

[29]The case for the Secretary of State is that, even if the original decision to separate and exclude was flawed, any defect was cured by the reconsideration which took place on 16 December. I readily acknowledge the independence and seniority of those who carried out the review, the fact that they had the benefit of the report of Mr. Sinclair and Dr. Randall together with the views of the Official Solicitor and the fact that the best interests of AD were expressly considered, but I do not consider that the review provided a procedural corrective. The review was an adhoc one, there being no such prescribed procedure. It was convened by the National Mother and Baby Coordinator in the Prison Service. Neither CD nor her solicitor was informed that it was taking place. Again, no opportunity was provided for representations to be made by CD or her solicitors. The reviewers simply took the original allegations against CD at face value. In the circumstances, it cannot be said that the original procedural flaws were remedied.

Relief

[30]For all these reasons the application for judicial review succeeds. I next turn to the question of relief. I do not hesitate to quash the decision. Mr. Wise submits that, when so doing, I should in effect restore CD and AD to the MBU by way of a mandatory order. I do not accede to that submission. In my judgment, having made a flawed decision, it is for the Prison Service to reconsider the position, which I understand they are ready and willing to do forthwith, now that they have the benefit of this judgment. I am not in a position to conclude that such reconsideration could have only one possible outcome. It is for the Prison Service to reach a lawful decision following a procedurally and substantively correct reconsideration.

What is the correct procedure?

[31]With the encouragement of the parties I propose to go beyond what has been necessary to decide the case and to say something about the correct approach. It is a matter for regret that the existing procedures of the Prison Service do not provide for the procedure which should be followed when separation and exclusion fall to be considered in a case such as this. This is surprising in view of the carefully devised procedures which apply to admission to a MBU and to disciplinary charges. Clearly the decision is one of great importance. No doubt there can be cases which call for immediate steps to be taken but even then it is surely necessary to provide appropriate procedural fairness, if only after the necessary immediate steps have been taken. In a case such as the present, procedural fairness requires that the mother be given the opportunity to answer any allegations and to make representations. It is not right for the decision-maker to proceed on the basis of a one-sided presentation of the facts. The greatest difficulty facing the Prison Service decision-maker is that he is rightly enjoined to treat the best interests of the child as “the primary consideration” but must also keep in mind at all times that the context is one of a prison which has a profound need for the maintenance of good order and discipline. I have already referred to the proportionality exercise that Article 8 requires the decision-maker to perform. I doubt that a member of the Prison Service, even one of relative seniority, is well-equipped to carry out such an exercise unaided. I am not surprised that, in his witness statement, Mr. Seed admits that such a decision “is not a task I feel comfortable with”.[32]In some cases it may not be obvious what the best interests of the child may be. In such a case, it is incumbent upon the decision-maker to enlist assistance from appropriately expert sources, including Social Services. Even where it is accepted that the best interests of the child are in remaining with its mother, the sort of questions which will arise in carrying out the proportionality exercise will often be answerable only with the benefit of externally provided expertise. It has to be appreciated that the Prison Service is not a family proceedings court but nor must it be forgotten that, in a case such as this, it is required to make a decision of equal importance implicating the welfare of a child. My hesitation to impose too great a burden on the Prison Service is alleviated by the knowledge that such cases are very rare. This is the first time in his five years in charge that Mr. Seed has excluded a mother for behavioural rather than parental reasons. Exclusion for reasons of parental shortcomings average about one per year at Styal. The rarity of the cases suggests that the imposition of demanding procedures would not be an undue burden. I very much hope that the Prison Service will devise a procedure to be applied in all the MBUs. <hr> MR WISE: I am obliged for that judgment, my Lord. May I apologise at the outset for my solicitors not being in attendance. MR JUSTICE MAURICE KAY: Do not worry about that. MR WISE: My Lord, may I also apologise for not putting any typographical errors in. I have simply not had time since the draft judgment was sent through to chambers. Your Lordship may be anxious to know what the current position is. MR JUSTICE MAURICE KAY: Yes. MR WISE: If I could pass up to your Lordship a letter that I have received this morning from those instructing me. My solicitor went to see my client yesterday at the prison and she has emailed me this this morning, my Lord. It is just over a page. MR JUSTICE MAURICE KAY: What do you want me to look at? MR WISE: It is just the letter from those instructing me which sets out how well my client has been doing since she was transferred to Bullwood Hall. Your Lordship sees that she has applied for enhanced status and it is anticipated that that will be granted, subject to her gaining full-time employment. I was instructed just a few moments ago that she does now have a job, so it is anticipated that her status will be enhanced in the very near future. She has also applied for open conditions. An answer to that request should also be forthcoming very shortly. There have been no concerns about her behaviour whilst at Bullwood Hall, so I think it is fair to say that the situation has been very satisfactory in the last few weeks. My Lord, there is an issue however. Does your Lordship see the paragraph beginning "We understand"? There has been some correspondence between those instructing me and the Treasury Solicitor about the arrangements for the fresh hearing that is due to take place next week. It is hoped, I think, that the hearing will be next Tuesday, although it may be later in the week. A request was made by those instructing me for my client to be represented at the fresh hearing. As your Lordship sees, that request has been refused. Your Lordship should have, at the third page of the hand-up I have just given you, the response that the Treasury Solicitor gave to that request. What they say, put shortly, is that my client can have somebody to assist and that there can be written representations made by solicitors, but the solicitors cannot attend and represent my client. We would say that that is a highly unsatisfactory arrangement. As your Lordship is aware, my client does not have family or contacts within this country. She is 18 years old. The issues are of some complexity and, clearly, are very serious indeed. It would be fair, we would say, to enable a proper hearing to take place and for my client to be properly represented, for her to have the opportunity of representation at the fresh hearing. MR JUSTICE MAURICE KAY: You keep referring to it as a "hearing"; I am not sure that that is correct. MR WISE: I apologise, my Lord. MR JUSTICE MAURICE KAY: It is only a hearing if, in fact, your request is acceded to, is it not? MR WISE: Well, as I understand it, my Lord, there will be a hearing next week. There will be a Board constituted, in accordance with your Lordship's judgment, and my client will have the opportunity to attend; that much is clear. MR JUSTICE MAURICE KAY: Yes. MR WISE: The question is as to whether -- MR JUSTICE MAURICE KAY: And she will be permitted to make written representations, presumably, in addition to attending. MR WISE: Yes, my Lord. MR JUSTICE MAURICE KAY: Would the Official Solicitor be making written representations as well, on behalf of the child? MISS MORRIS: The difficulty we have is that we have no jurisdictional standing to make representations. MR JUSTICE MAURICE KAY: You have no funding? MISS MORRIS: The only funding we have is the legal aid funding for these proceedings. That is not part of legal procedures. Therefore, we would not -- MR JUSTICE MAURICE KAY: Yes, but ... MISS MORRIS: My Lord, I am instructed that the Official Solicitor is only able to appear in proceedings where he has been instructed to do so by the Lord Chancellor, and, because a hearing -- or whatever happens before the Board -- does not fall within that, the Official Solicitor has no jurisdiction to appear. MR JUSTICE MAURICE KAY: I see, but short of appearing, is there any inhibition upon his choosing to make his views known in writing? MISS MORRIS: My Lord, certainly the preliminary view is that this falls outwith the Lord Chancellor's directions and that, furthermore, it is suggested it might be more appropriate for social services to express a view because, of course, they are the body normally charged with concern for the welfare of a child. Indeed, as I recall I suggested to the court on the last occasion, it is social services that he would look to for information about the welfare of the child and the impact of a decision on him. MR JUSTICE MAURICE KAY: And that would be Southwark Social Services, being the social services for the area in which the child now is? MISS MORRIS: Yes, my Lord. MR JUSTICE MAURICE KAY: I see. MR WISE: Clearly, my Lord, if written representations are made and matters arise during the consideration of my client's application, then my client will be prohibited from responding. Your Lordship knows my client's background and circumstances. Fairness, we would say, dictates that she has the opportunity to be represented. I do not know if your Lordship wants to deal with that before we come on to other matters. MR JUSTICE MAURICE KAY: Miss Richards, they are not adversarial proceedings -- MISS RICHARDS: My Lord, there is not going to be someone from the Prison Service there arguing against -- MR JUSTICE MAURICE KAY: No. It is for the decision makers to fully inform themselves, so as to make a decision within the parameters that I have suggested or such other parameters as may apply. MISS RICHARDS: My Lord, precisely so, particularly in view of your Lordship's judgment. They will obviously want to hear from the claimant herself. She will have a personal officer who will be there with her. Miss Malcom(?) obviously could attend, if that was thought to be appropriate, which is something that she wanted to do. It has been indicated that, exceptionally, written representations from her solicitors would be considered. MR JUSTICE MAURICE KAY: I am surprised you think that should be exceptional. If a woman in that situation asks that written representations be considered on her behalf, it would seem to me to be wholly inappropriate to refuse to consider them. MISS RICHARDS: My Lord, it is exceptional in the sense that most women applying to Mother and Baby Units at permission hearings do not have legal representation at that stage, in any event. So it is unusual. MR JUSTICE MAURICE KAY: This is a bit of a hybrid, in a sense, is it not? Although you are going to consider it through an Admission Board, in fact it is the reconsideration of an exclusion, in one sense. MISS RICHARDS: My Lord, it is. Certainly any written documentation that her solicitor wants to put in will be put before the decision-making Board. Any of the material that has already been produced by the Official Solicitor, whose views have been made very clear, can be put before the Board. The Board will obviously have the reports of Mr Sinclair and Dr Randall. MR JUSTICE MAURICE KAY: Yes. MISS RICHARDS: The Board is not dealing with the determination of complex legal issues. It is not going to have to decide what the test is, for example, because your Lordship has very helpfully done that. The Board will be considering the facts and conducting an exercise of judgment. MR JUSTICE MAURICE KAY: Yes. MISS RICHARDS: My Lord, your Lordship, in my submission, is not in a position to determine the legality or not of the Prison Service's decision not to permit legal representation. I was only told about this issue moments before coming into court, which is not a great deal of time. Your Lordship will know that there is a wealth of case law -- MR JUSTICE MAURICE KAY: Absolutely. It goes back years. It started off with greyhounds, I think. MISS RICHARDS: My Lord, the law is (inaudible) in that respect. Your Lordship cannot resolve that, and your Lordship does not have any material -- MR JUSTICE MAURICE KAY: No. MISS RICHARDS: I am not in a position to argue. I would need to take instructions and I was not warned that the issue would be raised by Mr Wise. My Lord, we hear what Mr Wise has to say. If there was an adverse decision to his client, no doubt he may seek to argue that there was a flaw in the decision-making process, but, my Lord, the fact is that we have a procedure set up which more than safeguards her interests, in my respectful submission. There is nothing, in our submission, that your Lordship can direct appropriately today. MR JUSTICE MAURICE KAY: And if Southwark Social Services chose to make any written representations, presumably they would be properly considered. It may be that they are solicited in the light of what I have said in the judgment. MISS RICHARDS: Yes. I do not know whether Southwark Social Services have been contacted or not, specifically with a view to the Board next week. Certainly anything that they want to contribute would be considered. MR JUSTICE MAURICE KAY: Thank you. MR WISE: Just very shortly, my Lord, clearly there is a wealth of case law on requirements of fairness in hearings such as this -- MR JUSTICE MAURICE KAY: But legal representation was not part of the case that was before me. I really think it would be wholly inappropriate for me now to impose that on the defendants, particularly as(1) Miss Richards says she is not on any proper kind of notice, and(2) I am bound to say my gut reaction is that it is certainly something that I ought not to direct in the absence of full, structured and notified argument. MR WISE: Very well, my Lord, save to say that the Treasury Solicitor was clearly aware of the issue. Hence (inaudible) correspondence. It cannot come as a great surprise. Given the view that your Lordship takes and moving on, the other issues that arise from your Lordship's judgment are the issues of damages and costs. So far as damages are concerned, your Lordship sees that damages are pleaded in this case. Damages for breach of Article 8 are, of course, a well-established right. There is a wealth of Convention case law on it. What I would invite your Lordship to do is to adjourn the damages claim for further consideration and further particularisation and for the matter to come back, we would suggest before your Lordship -- your Lordship having heard the detail of the case, it would be helpful, in our submission, for your Lordship to deal with it -- and for a direction that the matter be heard this term. There is no pressing urgency, but at the same time one does not want to break off and -- MR JUSTICE MAURICE KAY: There is one piece of urgency and that is that the claimant is going to depart these shores in the summer,is she not? MR WISE: That is correct, my Lord. Certainly, while one does not need to have this matter determined in the next week or so, to be determined this term would be quite adequate. MR JUSTICE MAURICE KAY: It is difficult to say anything about it in advance of the next stage. When the outcome of that is known, whether it be favourable or unfavourable to your client, it seems to me that what should follow then is that you should formulate and particularise that claim. So, shall we say by 7 February with liberty to apply, but that the matter should then come before me for further directions? As to the eventual hearing, if there is to be one, we will consider then whether that should be reserved to me or just simply released. MR WISE: So far as the directions hearing -- your Lordship has fixed a date of the 7 February; I do not know when your Lordship is sitting in the Administrative Court -- MR JUSTICE MAURICE KAY: Not in the week after that because I have a week's leave, but other than that on every foreseeable occasion for the foreseeable future. MR WISE: If the matter is going to be determined this term, my Lord -- MR JUSTICE MAURICE KAY: Well, apart from the week of 10 February, I am here all the time. MR WISE: Shall we say that, save for that week, it be listed before the end of February? MR JUSTICE MAURICE KAY: Yes. MISS RICHARDS: My Lord, can I just clarify? Your Lordship has also directed that any claim for damages should be particularised by the claimant by 7 February, as I understood it. MR JUSTICE MAURICE KAY: Yes. MISS RICHARDS: I am grateful for that. My Lord, perhaps by the same date the Official Solicitor could also indicate whether any claim for damages is pursued on behalf of the child. MR JUSTICE MAURICE KAY: Miss Morris was about to do because she had just stood up. MISS MORRIS: My Lord, the position of the Official Solicitor is that, certainly the prime purpose of his participation in these proceedings was not to secure damages. However, to the extent that that part of the claim is pursued on behalf of the mother, we would ask for permission to particularise any claim, if so advised to bring one, by 7 February. MR JUSTICE MAURICE KAY: Very well. MR WISE: That merely leaves the question of costs, my Lord. We seek our costs up to today from the defendants. MISS MORRIS: We also seek our costs, my Lord. MR JUSTICE MAURICE KAY: Any argument about that? MISS RICHARDS: My Lord, I do oppose two sets of costs. Two sets of costs in judicial review proceedings tend to be the exception rather than the rule. Whilst the Official Solicitor obviously appeared, to a considerable extent, at the invitation of the court -- was joined at the invitation of the court, the fact remains that, at a fairly early stage in the proceedings, it was apparent that there was no conflict of interest between the mother and child. Whilst, no doubt, your Lordship has been assisted by the presence of Miss Morris as well as Mr Wise, it does not follow from that that the defendant should have to bear two sets of costs. I ask that the defendant be only ordered to pay one set of costs. MR JUSTICE MAURICE KAY: They are, in fact, two claims which are being considered together, are they not? MISS RICHARDS: They are two claims in the sense that the mother has brought a claim and the child has brought a claim. It is not a case in which there was any argument that it was in the child's interest not to be with the mother; that had never been the case. MR JUSTICE MAURICE KAY: No. MISS RICHARDS: The sole question in terms of the mother was that the mother's behaviour -- in terms of the reasoning of the Prison Service. It is not a case in which there was a separate interest which demanded separate representation, in our submission. The defendant should not be penalised by bearing two sets, rather than one set, of costs. MR JUSTICE MAURICE KAY: Thank you. I think the way in which a case such as this comes into court, involving the interests of the mother and the interests of the child, and the way in which it developed, disposes me, exceptionally, to make orders in favour of both claimants. There is community funding assessment as well, is there? MR WISE: There is, my Lord. A final matter, just for completeness is to enlarge the anonymity order. MR JUSTICE MAURICE KAY: Yes, certainly. MR WISE: That is a matter which must be dealt with. MR JUSTICE MAURICE KAY: Yes, certainly. Thank you all very much.

Cited in 9 later judgments