Bryan v Secretary of State for Justice [2010] EWHC 2507 (Admin)

Case No CO/4492/2010

[2010] EWHC 2507 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 24/08/2010

Before

MR JUSTICE RYDER

Between

Michael BryanClaimant

Secretary of State for JusticeDefendant

(Transcript of the Handed Down Judgment of

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Ms Flo Krause (instructed by Wainwright & Cummins, Solicitors) for Claimant

Mr Sam Karim (instructed by the Treasury Solicitor) for Defendant

Hearing Hearing date: 27 July 2010

Judgment

Mr Justice RYDER :

[1]On 9 October 2006 the Claimant who is a Jamaican national received a sentence of 3 ½ years imprisonment in respect of two counts of sexual assault against 7 year old girls. Following that conviction, the Claimant was convicted of a further sexual assault against a 7 year old girl while on bail for the first two offences. He was sentenced to indeterminate imprisonment for public protection (IPP) with a minimum period that expired on 2 April 2010. He is serving his sentence at HMP Wayland. The Claimant maintains his innocence in respect of the offences. He is to be deported upon his release from custody.

[2]The determinate sentence relates to offences committed in 2006 against a friend of his eldest daughter and in the home where his daughter lives. The victim of the offence for which the indeterminate sentence was imposed was the daughter of the girlfriend of his brother.

[3]The Claimant is the father of two children and the step father of a third, all of whom are relevant children for the purposes of contact decisions. The first child who I shall refer to as A was born on 20 July 1998 and is aged 12. A’s mother remains in supportive contact with the Claimant although they were not in a relationship at the time the offences were committed. Since the Claimant has been in prison A has regularly expressed a wish to see her father.

[4]The Claimant’s second child, who I shall refer to as B, is by a different mother with whom the Claimant had been living since 2003. B is 4 years of age and will not have known any other father figure throughout his life. B’s mother also has a 6 year old child, C, who has a different father but who was part of the same family unit until the Claimant was imprisoned. The mother of B and C is likewise supportive of the Claimant.

[5]The Claimant’s eldest child, A, was allowed regular direct contact with the Claimant during her mother’s prison visits until the IPP was imposed and HMP Brixton made the decision that the Claimant should thereafter have level 3 contact with the children.

[6]The Claimant challenges the decision made on 21 December 2010 and notified to the Claimant’s solicitors on 15 January 2010 which refused him level 4 contact with his children. On 15 May 2007 while at HMP Maidstone a decision was taken to permit the Claimant level 3 contact with his children i.e. written correspondence and telephone calls. That decision was reviewed at HMP Brixton on 15 December 2008 and again at HMP Wayland on 26 June 2009 and in December 2009. Each review confirmed that level 3 contact should remain in place.

[7]In summary, level 1 involves no contact at all, level 2 contact is by written correspondence only, level 3 provides for written correspondence and telephone calls and level 4 also permits photographs and prison visits.

[8]Permission to bring this claim was refused on paper on 20 May 2010 but was granted at an oral permission hearing by Nicol J on 21 June 2010 on limited grounds, namely:(a) whether the Defendant had taken into account the report of Lambeth Social Services dated 21 October 2009 before making the impugned decision of 21 December 2009 and

(b) whether the Defendant considered the risk in the context of restrictions that would apply if the Claimant was visited in prison i.e. within the confines of the actual restricted visiting conditions which would apply. The key issue identified was whether the assessed risk justified the nature and extent of the interference with the Claimant’s right to respect for private and family life by the prohibition of level 4 contact.

[9]The decision was notified in a letter from the Claimant’s prison probation officer, Mr Dan Roper, dated 21 December 2009 in the following terms: “I am aware that contact was not made with your office prior to the review, contrary to an undertaking in my letter dated 4th December. The purpose of such contact would have been to notify any significant changes in circumstances or information on which comment would have been helpful prior to the meeting. In the event no such issues arose and no contact was made… The IRMT meeting held today considered the question of Mr Bryan’s child contact arrangements. The meeting had the benefit of a verbal report of any evidence of progress in respect of Offender behaviour work and of the most recent contact with the Offender Manager. The most recent correspondence received from Social services was as follows:• A letter dated 4th November 2009 from Lambeth Children’s Services to Ms Powell in respect of [A], this concludes “I have recommended that [A] should be allowed supervised contact with her father and should not at any time by (sic) left unsupervised with him”

• Email correspondence from Mr Ofori of Croydon Social services dated 22nd October in respect of [B] and [C]. This notes that the mother of the children is in favour of Level 4 contact but that the department would be guided by Probation’s risk assessment before referring the matter to their legal team. …The IRMT meeting reviewed this matter and made the decision not to increase child contact from level 3.”

• A letter dated 4th November 2009 from Lambeth Children’s Services to Ms Powell in respect of [A], this concludes “I have recommended that [A] should be allowed supervised contact with her father and should not at any time by (sic) left unsupervised with him”

[10]The letter is detailed as to the opinions which were taken into account and is explicit that the most salient information was that as to the lack of any significant evidence of progress in respect of offending behaviour so as to reduce risk and the ‘static risk factors’ arising out of the index offences. The letter sets out the analysis as follows:

“The pattern of these offences indicates an immediate and ongoing risk to children and it is noted that although Lambeth social services support level 4 contact they do not support any unsupervised time even within the controlled confines of a Prison Visitors Centre. …The “over-riding principle” in Chapter Two of the Public Protection Manual is that “any contact must be in the child’s best interests”

. The definition of Level Four contact that Mr Bryan is seeking is “no restrictions necessary”. Although the views of the parent/carers and social Services were taken into account by the Interdepartmental Risk Management team these were counteracted by the existence of the recent sexual convictions against children and the absence of any significant evidence of work being undertaken or of attitudinal change that would reduce the high risk of harm that Mr Bryan is assessed as presenting to children. On this basis the meeting did not consider it to be in the “best interests” of the children to allow unrestricted contact with a man twice convicted of seemingly spontaneous sexual assaults on young children and who shows little evidence of positive work on his offending.”

[11]On the 11 February 2010 Mr Roper disclosed the relevant correspondence from the two children’s services authorities upon which reliance had been placed. Inexplicably, having regard to the careful detail of Mr Roper’s assessment reasoning, he declined to comment further on the children’s wishes and feelings. The disclosed correspondence, however, added the following and it was implicit that Mr Roper had placed reliance on the same: i) From Croydon Children’s Services on 22 October 2009: that the mother of B and C had been contacted and that she “seems pleased about an increase of contact to level 4” They added that the mother had informed them that a member of Mr Bryan’s family would accompany the children if the visit was to take place. ii) From a senior social worker at Lambeth on 4 November 2009: confirming that an initial assessment had been completed in order to provide an update on A’s wishes and feelings about having contact with her father. It is clear from the content of the letter that both the mother and the child’s views were obtained. The advice arising out of the initial assessment was “[A] should be allowed to have supervised contact with her father and should not at any time be left unsupervised with him. It is also my view that [A and another child of the mother unrelated to Mr Bryan] should not be allowed to have contact with Mr Bryan outside the prison environment until an in-depth assessment is completed on him”.

[12]Despite the disclosure which belatedly occurred and as to which there was an acknowledgement that disclosure would normally be considered at the meeting which makes recommendations leading to the decision (i.e. so that the prisoner can know of the material upon which a decision is made), the subsequent request by the Claimant for disclosure of the social services assessments which informed the decision and for information relating to the relevant visiting arrangements and child protection procedures was refused by the Defendant. In a letter of the 28 June 2010, the Treasury Solicitor went so far as to assert that the material requested was not relevant and that information provided by other agencies could only be disclosed with the authority of the agencies concerned. As to the first assertion, that was neither helpful nor correct and as to the second, the basis for withholding disclosure was asserted to be paragraph 6 of the ‘Public Protection Manual’. That was also incorrect.

[13]The Prison Service has issued written policy and statutory guidance in the form of the ‘Public Protection Manual, Chapter 2, Section 2, Child Contact Procedures, version 4.0, January 2009’ [known as the ‘PPM’]. The relevant basis upon which disclosure is to be considered by a prison governor is set out at paragraph 3.3 of that manual. That had already been conceded by the Defendant in their decision letter of 21 December 2009.

[14]Paragraph 3.3, which is entitled ‘disclosure’ reads:

“The process of assessing whether or not to permit child contact should be as open a process as possible. The information that is taken into consideration may be challenged and disclosure necessary. Guidance is provided on disclosure within Probation Circular 13/03 “Sharing Information to Inform Decisions on Offender Release and Recall” ”

[15]As can be deduced from its title, circular 13/03 relates to a different decision making process but gives the clearest guidance which by its inclusion in the PPM the Defendant clearly intended be replicated and applied. At paragraph 6 it states: “6. Generally all information taken into account in reaching a decision about an offender’s conditions of release will be disclosed to the offender. However, the Prison Service … have procedures in place for withholding information from offenders and, in some cases, their representatives, where this is necessary.”

about an offender’s conditions of release will be disclosed to the

[16]Those procedures are set out in detail at paragraph 9 et seq of the circular and can be summarised as a staged process from full disclosure, through disclosed précis (the so called ‘sanitised version’) to an application made by the agency providing the information to the Prison Service for withholding of disclosure. The responsibility for making a disclosure recommendation (which can be regarded as an initial disclosure decision) is placed on the agency providing the information and it is implicit that a prison governor making the decision must know what form of disclosure is to be provided and the reason(s) for the same. It is not appropriate to withhold disclosure until the Claimant has obtained the providing agency’s authority to disclose. Although permission has not been given to pursue this claim on the basis of procedural impropriety, one might at least expect that the Defendant’s legal correspondence proceeds on the basis of knowledge of the Defendant’s published procedures.

Legal Framework

[17]These proceedings were heard together with R (on the application of Westwater) v Secretary of State for Justice

[2010] EWHC 2403 (Admin)

. The submissions as to the legal framework which applies are the same. In order that each decision can be read without the need to cross reference to the other, the court’s conclusions as to that framework are set out in consistent but not identical terms as follows. Despite this, it will be helpful for this decision to be read together with Westwater in order that the implications of both decisions can be considered together.

[18]The Secretary of State is empowered to make rules for the regulation and management of prisons by section 47 of the Prisons Act 1952. The Prisons Rules 1999 (as amended) have been made in accordance with this power.

[19]Rule 7(1) is as follows:

“Prisoners shall be classified, in accordance with any directions of the Secretary of State, having regard to their age, temperament and record and with a view to maintaining good order, and facilitating training and, in the case of convicted prisoners, of furthering the purpose of their training and treatment as provided by Rule 3 of these Rules. ”

[20]The Claimant is a category C prisoner. That is the lowest risk category other than those who are placed in open prisons. In accordance with the definitions to the Rules at paragraph 31.2, prisoners in this category are:

“Prisoners who cannot be trusted in open conditions but who do not have resources or will to make a determined escape attempt”

[21]Internal Prison Service Guidance (PSO 0900) provides for an objective assessment leading to categorisation based upon the likelihood of escape and the risk the prisoner would pose should (s)he do so. Risk includes not just that arising out of the index offence but also the prisoner’s custodial behaviour.

[22]Rules 3 and 4 state:

“Purpose of prison training and treatment 3. The purpose of the training and treatment of convicted prisoners shall be to encourage them to lead a good and useful life. Outside contacts 4. (1) Special attention shall be paid to the maintenance of such relationships between a prisoner and his family as are desirable in the interests of both (2) A prisoner shall be encouraged and assisted to establish and maintain such relations with persons and agencies outside prison as may, in the opinion of the governor, best promote the interests of his family and his own social rehabilitation.”

Outside contacts (2) A prisoner shall be encouraged and assisted to establish and maintain such relations with persons and agencies outside prison as may, in the opinion of the governor, best promote the interests of his family and his own social rehabilitation.”

Outside contacts

[23]In any event, whether the Rules had provided for the same or not, the Claimant is entitled to respect for his private and family life in accordance with the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Pt 1 of Sch 1 of the Human Rights Act 1998) (‘the Convention’).

Article 8 of the Convention

reads as follows:

“Right to respect for private and family life 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.”

[24]By section 11 of the Children Act 2004 [CA 2004] the governor of a prison in England is one of a specified group of officials and public bodies who are required to make arrangements to safeguard and promote the welfare of children. The governor must do so by having regard to any guidance given for the purpose by the Secretary of State. The public bodies concerned include a local authority (known for this purpose as children’s services authority in England) and a local probation board. The duty and the persons to whom it applies are as follows:

“11 Arrangements to safeguard and promote welfare (1) This section applies to each of the following— (a) a children's services authority in England; (b) a district council which is not such an authority; (c) a Strategic Health Authority; (d) a Special Health Authority, so far as exercising functions in relation to England, designated by order made by the Secretary of State for the purposes of this section; (e) a Primary Care Trust; (f) an NHS trust all or most of whose hospitals, establishments and facilities are situated in England; (g) an NHS foundation trust; (h) the police authority and chief officer of police for a police area in England; (i) the British Transport Police Authority, so far as exercising functions in relation to England; (j) a local probation board for an area in England; (ja) the Secretary of State in relation to his functions under sections 2 and 3 of the Offender Management Act 2007, so far as they are exercisable in relation to England; (k) a youth offending team for an area in England; (l) the governor of a prison or secure training centre in England (or, in the case of a contracted out prison or secure training centre, its director); (m) any person to the extent that he is providing services in pursuance of section 74 of the Education and Skills Act 2008. (2) Each person and body to whom this section applies must make arrangements for ensuring that— (a) their functions are discharged having regard to the need to safeguard and promote the welfare of children; and (b) any services provided by another person pursuant to arrangements made by the person or body in the discharge of their functions are provided having regard to that need. (3) In the case of a children's services authority in England, the reference in subsection (2) to functions of the authority does not include functions to which section 175 of the Education Act 2002 (c 32) applies. (4) Each person and body to whom this section applies must in discharging their duty under this section have regard to any guidance given to them for the purpose by the Secretary of State.”

[25]By section 10 CA 2004 as amended a children’s services authority in England must make arrangements to promote co-operation between itself and other bodies to improve the well being of children. In doing so, the authority must have regard to the importance of parents and other persons caring for children in improving the well being of children. The authority must exercise their functions having regard to any guidance given to them for the purpose by the Secretary of State. The duty and the purpose of the arrangements are described as follows:

“10 Co-operation to improve well-being (1) Each children's services authority in England must make arrangements to promote co-operation between— (1) Each children's services authority in England must make arrangements to promote co-operation between— (a) the authority; (b) each of the authority's relevant partners; and (c) such other persons or bodies as the authority consider appropriate, being persons or bodies of any nature who exercise functions or are engaged in activities in relation to children in the authority's area. (2) The arrangements are to be made with a view to improving the well-being of children in the authority's area so far as relating to— (a) physical and mental health and emotional well-being; (b) protection from harm and neglect; (c) education, training and recreation; (d) the contribution made by them to society; (e) social and economic well-being. (3) In making arrangements under this section a children's services authority in England must have regard to the importance of parents and other persons caring for children in improving the well-being of children. (4) For the purposes of this section each of the following is a relevant partner of a children's services authority in England— (a) where the authority is a county council for an area for which there is also a district council, the district council; (b) the police authority and the chief officer of police for a police area any part of which falls within the area of the children's services authority; (c) a local probation board for an area any part of which falls within the area of the authority; (ca) the Secretary of State in relation to his functions under sections 2 and 3 of the Offender Management Act 2007, so far as they are exercisable in relation to England; (cb) any provider of probation services that is required by arrangements under section 3(2) of the Offender Management Act 2007 to act as a relevant partner of the authority; (d) a youth offending team for an area any part of which falls within the area of the authority; (e) a Strategic Health Authority and Primary Care Trust for an area any part of which falls within the area of the authority; (f) a person providing services in pursuance of section 68 of the Education and Skills Act 2008 in any part of the area of the authority; (fa)-(fe)---] (g) . . .. (5) The relevant partners of a children's services authority in England must co-operate with the authority in the making of arrangements under this section. (5A) For the purposes of arrangements under this section a relevant person or body may— (a) provide staff, goods, services, accommodation or other resources to another relevant person or body; (b) make contributions to a fund out of which relevant payments may be made. (6) . . . (7) . . . (8) A children's services authority in England and each of their relevant partners must in exercising their functions under this section have regard to any guidance given to them for the purpose by the Secretary of State. (9) Arrangements under this section may include arrangements relating to— (a) persons aged 18 and 19; (b) persons over the age of 19 who are receiving services under sections 23C to 24D of the Children Act 1989 (c 41); (c) persons over the age of 19 but under the age of 25 who have a learning difficulty, within the meaning of section 13 of the Learning and Skills Act 2000, and are receiving services under that Act. (10)---] (11) In this section— ---] “relevant person or body” means— (a) a children's services authority in England; (b) a relevant partner of a children's services authority in England.”

[26]By section 7 of the Local Authority Social Services Act 1970 [LASSA 1970], a local authority that is exercising its social services functions, which includes children services, is required in the exercise of those functions including any discretion conferred by any relevant enactment, to act under the general guidance of the Secretary of State i.e. the guidance is to be complied with unless there are exceptional reasons justifying a variation.

[27]It is to be noted that whereas governors of prisons in England have to make arrangements to ensure that their functions are discharged having regard to the need to safeguard and promote the welfare of children, there is no duty upon a governor to co-operate with a children’s services authority in making arrangements to improve the well being of children. The governor is not a relevant partner for this purpose in sections 10(4) and 10(5) CA 2004 albeit that by section 10(1)(c) CA 2004 the children’s services authority would have to make arrangements to promote co-operation with the governor of a prison in their area where that governor was exercising functions in relation to children. Likewise, the governor does not have to have regard to the guidance which is issued to a children’s service authority under section 10 CA 2004 (or under section 7 LASSA 70) but which is not also issued to a governor under section 11(4) CA 2004.

[28]In the circumstances of this case, the protection afforded to a governor by that deliberate omission is academic. However, it is important to note that the omission is designed to ensure that a governor’s primary duties in respect of prisoners are not overridden e.g. to keep a prisoner in custody inter alia by their categorisation and placement. The duty to make arrangements to ensure that a governor’s exercise of his or her functions having regard to the need to safeguard and promote the welfare of children with whom (prisoners) have contact is not intended to apply in such a way that the capacity of an adult prisoner as a parent of a child can influence decisions about that prisoner’s placement or transfer.

[29]The protection is academic in the circumstances of this case because, as hereafter described, the provisions of the relevant guidance and procedures which relate to child contact decisions have in any event been issued, among others, to prison governors and children services authorities by the Secretary of State under section 11(4) CA 2004 and it is to that guidance which a prison governor must have regard when making a child contact decision.

[30]The guidance is entitled ‘Statutory guidance on making arrangements to safeguard and promote the welfare of children under section 11 of the Children Act 2004’. It was issued in response to the recommendations of Lord Laming in the Victoria Climbie Inquiry report. Prison governors and children’s services authorities are to have regard to this guidance i.e. they must take it into account and if they decide to depart from it they must have clear reasons for doing so (see paragraph 1.6 of the guidance). The framework of the 2004 Act is there to ensure that all agencies working with children, young people and their families take all reasonable steps to ensure that the risks of harm to children’s welfare are minimised and where there are concerns about children and young people’s welfare, all agencies take all appropriate actions to address those concerns, working to agreed policies and procedures in partnership with other agencies (see paragraph 2.10 of the guidance).

[31]At paragraph 2.8 safeguarding and promoting the welfare of children is defined in a way that is consistent with other guidance issued under section 7 LASSA 1970 as follows:

“protecting children from maltreatment; preventing impairment of children’s health or development; and ensuring that children are growing up in circumstances consistent with the provision of safe and effective care;…(sic) and undertaking that role so as to enable those children to have optimum life chances and to enter adulthood successfully.”

[32]Paragraph 2.9 cross refers these aspects of welfare to the five outcomes for improving the well being of children which are defined in section 10(2) CA 2004 and which include not just protection from harm and neglect but also physical and mental health and emotional well being. For the avoidance of doubt, paragraph 2.7 repeats the Children Act 1989 definitions of welfare, health and development i.e. health includes ‘physical or mental health’ and development includes ‘physical, intellectual, social or behavioural development’.

[33]At paragraph 2.11 of the guidance it is recognised that each agency will have different contributions to make towards safeguarding and promoting the welfare of children depending on the functions for which they have responsibility. At paragraph 2.12 key features are described which all agencies will need to take account of when undertaking their functions. These include: “b. A clear statement of the agency’s responsibilities towards children… This should include any children in the care of the agency, any with whom they work directly and those with whom they come into contact. It could form part of an agency’s existing policy and/or procedures… and g. Effective inter-agency working to safeguard and promote the welfare of children This involves agencies and staff working together to safeguard and promote the welfare of children. Inter-agency working is crucial to ensuring the effectiveness of such working. The sharing of information and constructive relationships between individual members of staff and teams should be supported by a strong lead from the Lead Member for Children’s Services, and the Director of Children’s Services and the commitment of all chief officers. This effective working should be at a strategic and an individual child level, in accordance with guidance from their local ACPC, or its successor, the Local safeguarding Children Board (LSCB), regarding safeguarding children, or for the Prison service, in accordance with the policy agreed with the ACPC/LSCB local to each prison. The ACPC/LSCB guidance should be consistent with the current statutory guidance The Framework for the Assessment of Children in Need and their families (2000) and Working Together to Safeguard Children (1999)”.

[34]It has to be accepted that the primary purpose of the guidance is to identify risk to children and young people who are themselves held in custody. However, paragraph 10.3 of the guidance describes the section 11 duty in relation to children who are not in custody:

“10.3 Governors/Directors understand their contribution to safeguarding and promoting the welfare of children, in practice, to be in the development and implementation of policies and arrangements designed to: • Protect the children committed to their custody from significant harm…. • Safeguard the children who are not in the Service’s custody but with whom the Service has routine contact – when in contact with those children, i.e. children visiting the establishment and prisoner’s children who are resident in Mother and Baby Units; and • Minimise the risks of harm to children in the community by prisoners who have been identified as presenting such a risk, which could occur during any form of contact with a child, including correspondence, telephone and visits.” • Protect the children committed to their custody from significant harm…. • Safeguard the children who are not in the Service’s custody but with whom the Service has routine contact – when in contact with those children, i.e. children visiting the establishment and prisoner’s children who are resident in Mother and Baby Units; and • Minimise the risks of harm to children in the community by prisoners who have been identified as presenting such a risk, which could occur during any form of contact with a child, including correspondence, telephone and visits.”

[35]Paragraph 10.22 specifically refers to and incorporates the Prison Service policy on the visits of children which is set out in the PPM:

“10.22 Governors/Directors of all prison establishments are required by the Service’s National Security Framework to have in place arrangements for the protection of visitors, including children. They are also required by Prison Service policy, set out in the Public Protection Manual, to implement measures to minimise the risks of harm to children by prisoners who have been identified as presenting a risk of harm to children that could take place during any form of contact, including correspondence, telephone and visits.”

[36]Paragraph 2.15 sets out the key features of an effective system which a prison governor should take into account, when acting inter alia in accordance with paragraphs 10.3 and 10.22 and when carrying out his or her normal functions:• “Children and young people are listened to and what they have to say is taken seriously and acted upon in an appropriate manner;

• ….]

• Where possible/practicable, the wishes and feelings of the particular child are obtained and taken into account in relation to him or her….

• ….]

• Assessments of children and families are consistent with the Framework for the Assessment of Children in Need and their Families (2000) and professionals contribute to subsequent plans, interventions and reviews in accordance with requirements in relevant regulations and guidance;

• …]”

[37]As is described at paragraphs 3.15, 3.25, 3.26, 3.27 and 3.29 of the guidance, it is integral to effective inter-agency working to safeguard and promote the welfare of children that the Framework for the Assessment of Children in Need and their Families is used as the basis for inter-agency work.

[38]The Prison Service’s written policy and statutory guidance is set out in the PPM i.e. the ‘Public Protection Manual, Chapter 2, Section 2, Child Contact Procedures, version 4.0, January 2009’. The PPM is a comprehensive document, deriving its procedures from the guidance referred to above. Paragraph 1 states:

“The over-riding principle is that the child’s welfare is paramount – and that any contact must be in the child’s best interest It is necessary to carry out fully comprehensive risk assessment for the child in order to decide what, if any, form of contact is appropriate. Contact includes correspondence, telephone calls and visits.”

[39]The PPM sets out a procedure at paragraph 3.2 which “establishments must follow”. Putting to one side monitoring, review and appeals processes, the main points of that procedure as described in the manual are:• “Prisoners are aware of procedures

• Request made for contact

• A record is maintained

• Parental Support for Contact

• A multi-agency assessment is carried out

• The Governor’s decision – based on the best interests of the child

• Level of contact decided”

[40]The following narrative accompanies the procedure at paragraphs 3.2 and 3.4:

“We have a duty to ensure that prisoners who represent a risk to children do not have contact with children prior to the completion of a full risk assessment…. It is necessary to identify and manage the risk in a manner that is proportionate to the individual concerned and not to apply the same arrangements to all prisoners. Decisions to prevent or restrict contact need to take into account the risk presented by the offender, the needs and best interests of the child, balanced against the prisoner’s right to a family life. In all cases decisions will be based on what is best for the child. The welfare and safety of the child is our primary concern. The rights of a child to be safeguarded and protected from harm must take priority over an offender’s right to family life as set out in the 1998 Human Rights Act if the offender’s right would mean that contact could place a child at risk. It is therefore appropriate that incremental restrictions are employed where required in the interests of the child.”

[41]The detailed procedure for child contact decisions is set out at paragraph 4 of the PPM. It includes asking those prisoners who present a possible risk of harm whether they intend to request child contact and making a record which is to be kept with the prisoner’s records. There is an application form for the prisoner to complete and specific provision for requests made by a parent or child which must be put to the prisoner so that s/he can decide whether to make an application for contact. The parent or carer of a child is to be asked whether they support contact or not and at what level. The wishes and feelings of the child are to be ascertained by children’s services during a home visit so that they can be taken into account.

[42]The risk assessment which is provided for is informed by assessments from a number of agencies including the police, the probation service and, where appropriate, the NSPCC. Arguably the most important external agency in most cases will be the children’s services department of the local authority. At paragraph 4.6 of the PPM there is a detailed procedure to be followed in obtaining a written report from the local authority. First of all the child protection register of the local authority must be accessed and then a request for an assessment from children’s services is made which it is envisaged will take three weeks to complete. That will include the wishes and feelings of the child and the child’s carer obtained during a home visit. In order to inform the local authority, the governor has to complete a form describing the facilities, resources and procedures which are available and which will apply to contact visits in the prison.

[43]I am satisfied that the detail of the information which is to be provided by the governor to children’s services is intended to inform that agency’s Framework assessment so that the report writer may know of the circumstances in which level 4 contact could take place. In conventional social work terms, the report writer who will be a social worker will want to consider whether unsupervised, monitored or supervised direct contact is in the interests of the child concerned and if not, whether there should be indirect contact and of what kind. A recommendation relating to contact can only be meaningful if the social worker can assess the risk by reference to the child concerned, the adult concerned and the context. Paragraph 4.6 of the PPM provides explicit guidance on what is required:

“Establishments must complete the section of this form headed ‘visits facilities’ which is intended to provide the report writer with a ‘pen picture’ of what the visiting facilities provide(d) by the prison are. This could include the following:- • The number of staff supervising the visiting area • Whether there are separate seating arrangements for child approved visits • Whether there are likely to be other prisoners identified as risk to children (R2CHPA) in near proximity • Description of the layout and style of chairs and tables • Refreshments and other facilities • Search processes” • The number of staff supervising the visiting area • Whether there are separate seating arrangements for child approved visits • Whether there are likely to be other prisoners identified as risk to children (R2CHPA) in near proximity • Description of the layout and style of chairs and tables • Refreshments and other facilities • Search processes”

[44]I am likewise satisfied that having regard to clear terminology in the guidance issued by the Secretary of State to prison governors and children’s services authorities and by the specific inter-relationship between the terminology of the PPM and that guidance, there is only one interpretation that can be put upon the policies, procedures and statutory guidance which together apply to decisions about contact between prisoners and children. In my judgement, the governor must request an assessment in the form of a report in writing from children’s services and that assessment must be in accordance with the Framework for the Assessment of Children in Need and their Families. That request must specify the context in which prison visits could occur i.e. the facilities available in the prison.

[45]None of this in any way diminishes the importance of the contributions and assessments of other agencies. It ought to be stated with clarity that the assessment of the risk of harm to children is a part of the senior manager’s own assessment which will have regard not just to the child specific information which a Framework assessment will provide but also, inter alia, the prisoner’s risk to the public which includes, for example, other children who may be likely to be present in a prison’s visit facilities. This is summarised at paragraph 4.7 of the PPM as follows:

“The…decision will take into account the follow(sic) factors: • The child’s needs, wishes and feelings • The capacity of the parent/carer to protect the child from likely harm • The prisoner’s risk to the public • The OASys assessment • Static Risk Assessment (Thornton’s Risk Matrix 2000) • Pre Sentence Report • Previous Convictions • Custodial behaviour and any other documentation highlighting risk.” • The child’s needs, wishes and feelings • The capacity of the parent/carer to protect the child from likely harm • The prisoner’s risk to the public • The OASys assessment • Static Risk Assessment (Thornton’s Risk Matrix 2000) • Pre Sentence Report • Previous Convictions • Custodial behaviour and any other documentation highlighting risk.”

[46]At paragraph 4.8 the governor’s ultimate decision is summarised as follows:

“The level of contact permitted should be proportionate to the risk identified.”

[47]This is not the place to describe in detail the contents of the Framework but in essence when a local authority receives a request for an assessment report to which the section 7 LASSA 1970 guidance in the Framework applies, absent exceptional circumstances, the local authority must adopt a systematic approach to the assessment which takes into account what are known as the three domains: the child's developmental needs, parenting capacity, family and environmental facts. Failure to do so will result in the local authority’s actions being unlawful: see Richards J in R (on the application of AB and SB) v Nottingham City Council

[2001] EWHC Admin 235

, [2001] 3 FCR 350.

[48]A referral from a prison governor will trigger an initial assessment which should address the dimensions of the assessment framework and that initial assessment will determine whether a further, more detailed core assessment should be undertaken. Having regard to the factors which the PPM requires a governor to consider in coming to a contact decision which specifically include a child’s needs, wishes and feelings and the capacity of the parent/carer to protect the child from likely harm (see paragraph 4.7) it is to be expected that an initial assessment will suffice unless that assessment itself reveals a need for more in-depth consideration. There is even an initial assessment record which children’s services are to use and which can be communicated to the governor in response to the referral.

[49]That a prisoner may be subjected to restrictions to his right to respect for private and family life and thereby his contact with his children is self evident. If any justification is necessary, it can be found in R (Banks) v. Governor of Wakefield Prison [2002] 1 FCR 445 per Harrison J at paragraphs 22, 24 and 25 in his consideration of a challenge concerning previously existing guidance known as PSO 2200 and its proportionality:

“There is no dispute that prison life necessarily involves restriction of family life. I accept that it is for the defendant to justify the proportionality of the restriction…it seems to me that the objective of the policy, namely to protect children, is legitimate in the light of the public concern about the sexual abuse of children. Having regard to the terms of art 8.2, it can properly be said to have been necessary in a democratic society, in the interests of public safety, for the protection of the rights and freedoms of others, and for the protection of health and morals. Secondly, I am satisfied, in the light of the information available to me and having regard to the extensive consultation exercise, that the objective of the policy could not have been achieved by means which were less interfering of the defendant’s rights (see R (on the application of Samaroo) v Secretary of State for the Home Dept [2001] EWCA Civ 1139). Thirdly, and bearing in mind that the policy maker has a wide margin of discretion in deciding what measures are necessary to achieve the legitimate aim, I am satisfied, after intense scrutiny, that the balance achieved between the rights of the child and the rights of the prisoner was not disproportionate, unfair or unreasonable…I conclude that, if there were an interference with family life, which in my view there was not, there would not be a breach of art 8.2. That conclusion applies both to the policy and to the decision in this case.”

[50]The concept of proportionality is again well developed in this field. In R (Daly) v Home Secretary

[2001] 2 WLR 1622

at 1634 Lord Steyn said:

“ 27 The contours of the principle of proportionality are familiar. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 the Privy Council adopted a three stage test. Lord Clyde observed, at p 80, that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive 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.”” “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.””

[51]The policy i.e. the guidance and procedures issued by the Secretary of State have been the subject of intense scrutiny by this court. They describe a careful multi-agency approach which is consistent with best practice assessment and child protection procedures. The balance achieved between the rights of the child and the rights of the prisoner are not disproportionate, unfair or unreasonable. The interference with a prisoner’s right to respect for private and family life is in accordance with the law and pursues one or more of the legitimate aims contemplated in paragraph 2 of Article 8, namely the protection of public safety, the prevention of disorder or crime, the protection of health and morals and the protection of the rights and freedoms of others.

[52]As to the necessity of the interference, that has to correspond to a pressing social need and, in particular, must be proportionate to the legitimate aim pursued. In Sporring v Sweden

[1982] 5 EHRR 35

at paragraph [69] that test was described in these well known words:

“…the court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights…The search for this balance is inherent in the whole of the Convention…”

[53]In so far as the Defendant suggests that the court should not have regard to whether a fair balance is struck, that submission is rejected.

[54]The role of this court is supervisory. As aptly stated in Banks at paragraph 31 [supra] “The court does not substitute its own decision for that of the executive. It reviews the decision of the executive to see whether it is permitted by law…”. The function of the court is to decide whether the Secretary of State has struck the balance fairly between the conflicting interest of the Claimant’s right to respect for his private and family life on the one hand and the legitimate aims set out in paragraph 2 of Article 8 which include the prevention of crime and disorder and those aims which have come to be colloquially referred to as ‘safeguarding the welfare of the child’, which include the protection of that child’s rights as well as the child’s health, morals and safety.

[55]It is not necessary for the purpose of this judgment to deal with the court’s function in the detail described, for example, in R (on the application of Samaroo) v Secretary of State for the Home Department

[2001] EWCA Civ 1139

. Suffice it to say that the court has asked the question ‘can the objective of the measure be achieved by means which are less interfering of an individual’s rights’ and then assuming that the means employed to achieve the legitimate aim are necessary i.e. they are the least intrusive ‘does the measure have an excessive or disproportionate effect on the interests of affected persons’. The court reminds itself that it can only intervene if the decision complained of falls outside the range of responses open to a reasonable decision maker and that requires a substantial justification for the interference.

[56]Having said this, the focus of Convention jurisprudence should not be forgotten. In Secretary of State for the Home Department v Nasseri

[2009] UKHL 23

Lord Hoffman set out the correct approach to cases which concern an alleged infringement of a Convention right:

“13. In my respectful opinion the judge was wrong in saying that article 3 creates a procedural obligation to investigate whether there is a risk of a breach by the receiving state, independently of whether or not such a risk actually exists. In making this mistake the judge was in good company, because it seems to me that he fell into the same trap as the English Court of Appeal in R (SB) v Governors of Denbigh High School [2005] 1 WLR 3372; [2007] 1 AC 100 and the Northern Irish Court of Appeal in Belfast City Council v MissBehavin’ Ltd [2007 1 WLR 1420. It is understandable that a judge hearing an application for judicial review should think that he is undertaking a review of the Secretary of State’s decision in accordance with normal principles of administrative law, that is to say, that he is reviewing the decision-making process rather than the merits of the decision. In such a case, the court is concerned with whether the Secretary of State gave proper consideration to relevant matters rather than whether she reached what the court would consider to be the right answer. But that is not the correct approach when the challenge is based upon an alleged infringement of a Convention right. In the Denbigh High School case, which was concerned with whether the decision of a school to require pupils to wear a uniform infringed their right to manifest their religious beliefs, Lord Bingham of Cornhill said, in para 29: “the focus at Strasbourg is not and has never been on whether a challenged decision or action is the product of a defective decision-making process, but on whether, in the case under consideration, the applicant’s Convention rights have been violated.”

[57]In my judgment, provided the guidance and procedures issued by the Secretary of State are complied with, there is no doubt that the interference with a prisoner’s Article 8 rights contemplated by the policy of the Defendant corresponds with a pressing social need and is proportionate to the legitimate aims pursued. In other words the Secretary of State has struck a fair balance between the competing interests. It was not submitted that the objective of the policy could be achieved by a means which involved less interference and nor would the policy have an excessive or disproportionate effect on the prisoner or the child provided the multi-agency assessments contemplated in the guidance and procedures are undertaken.

[58]However, it is fundamental to the proportionality of the policy that a decision in an individual case is made on the basis of the assessments described. A decision made otherwise is likely to be arbitrary and lacking in the justification necessary for the interference which, one should recollect, would be both as respects the prisoner and the child whose personal relationship and direct contact with both parents is interrupted.

Formulation

[59]The Claimant submits that the guidance and procedures set out above were not followed in that the wishes of the children and their carers were not taken into account, there was no assessment undertaken either by children’s services at the request of a senior manager of the service or by a senior manager in reliance upon the information available. Further, such assessment as there was failed to have regard to the specific facilities at the establishment where prison visits could take place. The Claimant submits that the monitoring and supervision of prison visits by CCTV, an accompanying responsible adult and the public circumstances of the same adequately protect the child from any potential harm a visit to her father may cause her by impairing the Claimant’s right to respect for family life in a proportionate way. Accordingly, it is submitted, the decision that was made was irrational and unlawful and the contact provided for was a disproportionate interference with the Claimant’s Article 8 right to respect for family life.

[60]A sophisticated argument was pleaded in writing on behalf of the Claimant based upon Article 6 of the Consolidated Treaty on European Union as amended by the Treaty of Lisbon which recognises the Charter of Fundamental Rights of the European Union 2000 as adopted on 12 December 2007 and in particular Article 24: “3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless this is contrary to his or her interests”.

[61]Permission was not given to pursue this ground of the claim and suffice it to say, for the reasons previously adverted to, a decision by a governor based upon a multi-disciplinary assessment which has the child’s best interests as its paramount consideration and which is itself based upon a Framework assessment which is child specific in its contact recommendations will be Convention compliant and will accord with Article 24 of the Charter.

[62]The Defendant submits that section 10 CA 2004 does not apply to a prison governor, that it is arguable whether section 11 applies and that in any event there is only a limited duty to safeguard children who are not in the Defendant’s custody. Further, the Defendant submits that there was overwhelming professional evidence to support the restrictions imposed which were accordingly rational, lawful and proportionate. In pre-action correspondence, Mr Roper had asserted that there was no professional unanimity for a more relaxed contact regime and hence it could not be implemented. Very sensibly, this erroneous view was not pursued in argument. There is no requirement for unanimity in the assessment or decision making processes albeit that a lack of consensus may highlight a particular factor or line of reasoning which may be key to the decision taken.

[63]As to the limited grounds of the permission given, the Defendant submits that a) the report of Lambeth of 21 October 2009 was taken into account, b) there was no requirement pursuant to the PPM for the Defendant to have considered the risk in the context of restrictions that would apply if the Claimant was visited in prison i.e. at HMP Wayland, and c) the restrictions on contact which were imposed were justifiable having regard to the risk identified and accordingly there was no Article 8 breach.

[64]The substantive hearing of this claim was adjourned on 21 July 2010 to allow the Defendant to disclose any further relevant documents including the correspondence which requested an assessment from Lambeth and Croydon children’s services departments relating to contact with the children. The disclosed correspondence records a request from Mr Roper to each department for: i) Any changes in relation to the wishes and feelings of the child concerned and the child’s carer regarding contact with the prisoner; ii) A risk assessment regarding children’s services opinion as to the “feasibility of Level 4 contact”; iii) A recommendation “from your Department regarding increased contact levels to allow personal visits by the child (accompanied) to this Establishment”; and iv) “Your views regarding disclosure of both the current and previous report to Mr Bryan”.

[65]It is clear that Mr Roper properly requested that which would have been necessary for him to complete his assessment in order for the governor to make a decision in accordance with the guidance and the PPM: namely, an assessment which included the wishes and feelings of the child and the carer of the child and a recommendation which had regard to the facilities at the prison concerned. In so far as the decision to be made was a review of previously existing decisions regarding contact (as it was), no objection can be taken to reliance upon a previous Framework assessment by children’s services or by the governor provided that any facts and matters upon which reliance was placed were checked so that changes were identified and could be re-assessed and considered.

[66]In fact, the Defendant relied not only on the replies from the two children’s services departments but also on assessments dated 21 October 2009 and 27 March 2007 (in relation to A by Lambeth) and 15 May 2007 (in relation to B and C by Croydon). The 2009 assessment disclosed to the court as a consequence of the limited permission given by Nicol J is in the recommended form and contains the prescribed content for a Framework assessment so that a child specific recommendation was made in relation to the contact issue identified. That assessment was overtly based on a home visit to ascertain the child’s own and her mother’s wishes and feelings. Having considered the fact that A’s mother who supports contact may be in denial of the Claimant’s offending, the author recommends ‘supervised contact’ i.e. [she] “should not at any time be left unsupervised with him”. Tellingly, the author does not recommend contact outside the prison environment until an in-depth assessment is undertaken. To the extent described, the Defendant complied with the published guidance and procedures and did take into account the 21 October 2009 Framework assessment relating to child A in coming to his decision. Accordingly, this aspect of the claim is dismissed.

[67]The court cannot comment on the nature and extent i.e. the content and form of the assessments completed in 2007 by Lambeth and Croydon as they have not been voluntarily disclosed by the Defendant. As a consequence, had permission been given to pursue this ground of the claim, it would not have been possible on the material disclosed to the court to say that the governor made a decision in relation to the Claimant’s contact with children B and C which had regard to a Framework assessment.

[68]The court is entitled to take note of the fact that children will have markedly different wishes and feelings as their age and understanding changes and likewise as their primary care circumstances change. If and in so far as there are to be further reviews of the Claimant’s contact while he is imprisoned a value judgement will have to be undertaken by both of the relevant children’s services departments and the governor as to the need for a Framework assessment or updating material. Assessments are also child specific and what was satisfactorily undertaken in respect of child A may need to be undertaken in respect of children B and C if the Defendant is not to fall foul of the guidance and procedures he must follow.

[69]Turning then to the second ground of the claim. The Defendant concedes that the risk to children and / or to the Claimant’s children was not considered in the context of the restrictions i.e. conditions which would apply to prison visits in HMP Wayland. The Defendant submits that to have considered the context would be inherently dangerous and contrary to the PPM. Furthermore, despite an opportunity to disclose relevant documents during the adjournment provided for, there is no evidence before the court that the prison visits facilities were ever described by the governor to either of the children’s services departments in the manner set out at paragraph 4.6 of the PPM.

[70]The Defendant submits that because the prison’s visits facilities are not listed as one of the elements in paragraph 4.7 of the PPM they are not to be considered by the governor as a relevant factor in coming to a decision. With respect, this flies in the face of the procedure described in the PPM. As already described, the ‘pen picture’ of the prison’s visiting facilities informs the children’s services assessment and that is specifically provided for at paragraph 4.6 of the PPM. It must logically play a part in assessing the risk to children generally, whether those held in the custodial estate or those visiting the same and who may come into contact with the Claimant. To ask those agencies who contribute to the multi-disciplinary assessment to have regard to the prison’s visiting facilities but then to suggest that the governor should disregard the same is simply illogical and wrong. In my judgment it would be potentially dangerous and certainly irrational and unreasonable to fail to have regard to the context of the risk assessment.

[71]Accordingly, the remaining question is whether the risk was properly assessed in the context of the restrictions which would apply if the Claimant was to have prison visits from his children at HMP Wayland, which is a category C prison in Norfolk. It can readily be understood that the regime and facilities which may be applicable to a “category C …adult male training prison taking suitable prisoners…who wish to address their offending behaviour” may be different from those at other types and categories of establishment. Furthermore, for obvious reasons, it cannot be assumed that a children’s services department in Lambeth or Croydon will know what facilities are available at a prison in Norfolk unless they are told.

[72]As has already been recorded, although there is evidence that Mr Roper asked for the context to be considered, it is conceded that it was not. Accordingly, there is no assessment material in respect of any of the children or of children generally which considered risk in the context of the conditions which would apply at HMP Wayland. As this court said in Westwater, although it would be an entirely reasonable opinion to hold that a prisoner who maintained his innocence in respect of his sexual offences against children is still a risk to children generally (a risk which is likely to be a highly pertinent factor in the governor’s overall assessment), the risk to his own children is specific to each of them and will be a unique combination of factors including each child’s own needs, wishes and feelings and the interruption in that child’s relationship with her/his father. The risk will be in context i.e. it will be specific to the prison resources and facilities which have to be taken into account. All of that requires assessment.

[73]A governor who obtains a response which does not consider the context cannot simply rely on it. The governor has an independent duty to assess the risk to the child concerned. Where the governor is not provided with a Framework assessment from children’s services which considers the child’s wishes and feelings, the position of the child’s carer and the context of the request which s/he has made (i.e. the facilities available at the prison), then he does not comply with the guidance and procedures issued to him.

[74]On the facts of this case, the senior manager responsible for the decision did not comply with the procedures in the PPM. As a consequence, there was no consideration of the merits of any lesser interference in the relationship between father and each child. Accordingly, in my judgement the Defendant was not entitled on the evidence and information before the court to reach the conclusion that he did. His decision was arbitrary and accordingly a disproportionate interference with the Convention rights of the Claimant and for that matter his children.

[75]Accordingly, I shall quash the decision and direct that assessments in accordance with the guidance and procedures issued by the Secretary of State be undertaken and a new decision made. Judgment Ends