F v Secretary of State for Home Department & Anor [2004] EWHC 111 (Fam)

“The Secretary of State may, subject to any conditions he thinks fit, permit a woman prisoner to have her baby with her in prison, and everything necessary for the baby’s maintenance and care may be provided there.”

“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.”

“[159] … the … issue comes before the court in the final analysis, and notwithstanding the important human rights arguments, as a matter raising issues of public law. [160] … the court’s function, notwithstanding the important human rights aspects of the case, is essentially one of review … rather than one of primary judicial decision making.”

“On the new Daly approach we have to determine … whether the interference proposed by the Prison Service in the application of its policy in each of these cases is really proportionate to the legitimate aim, sanctioned by article 8(2) of the Convention, which it seeks to pursue. In making this judgment we must be careful to show appropriate deference to the fact that the Prison Service is the expert body appointed to carry out this sensitive public function.”

“[20] … The question at this stage of the consideration is: does the measure have an excessive or disproportionate effect on the interests of affected persons? … [29] … the task of the court is not to make up its own mind on the question of proportionality. The decision-maker is the Secretary of State and it is he who must decide within his discretionary area of judgment whether the interference with family life … is necessary in a democratic society, that is to say justified by a pressing social need, and in particular proportionate to the legitimate aim pursued. In that decision making process, he has in accordance with the Convention and the Human Rights Act, a discretionary area of judgment in achieving the necessary balance. … The task of the Court, in accordance with the jurisprudence of the European Court of Human Rights, 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 … It will do so by subjecting his decision to intense and anxious scrutiny on an objective basis to see whether he could reasonably have concluded that the interference was necessary to achieve one of the legitimate aims set out in Article 8.2 and was proportionate. [35] Accordingly, the function of the court in a case such as this is to decide whether the Secretary of State has struck the balance fairly between the conflicting interests … In reaching its decision, the court must recognise and allow to the Secretary of State a discretionary area of judgment … [36] … 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.”

“The evidence before us … is sufficient to suggest that this might be such an exceptional case as to justify a departure from the policy … this is a case in which the Prison Service should be required to think again. It is not for us to speculate upon the outcome of that reconsideration.”

“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.”

“The court’s inherent jurisdiction is being invoked perfectly properly: not illegitimately, in conflict with, let alone to oust, public authorities, but legitimately and in part to supplement public authority decision-making.”

“[78] It is possible to draw some general conclusions from these authorities: (i) the right to respect for family life is not a right which a prisoner necessarily loses by reason of his/her incarceration; (ii) on the other hand, when a court considers whether the state’s reasons for interfering with that right are relevant and sufficient, it is entitled to take into account (a) the reasonable requirements of prison organisation and security; and (b) the desirability of maintaining a uniform regime in prison which avoids any appearance of arbitrariness or discrimination; (iii) whatever the justification for a general rule, Convention law requires the court to consider the application of that rule to the particular case, and to determine whether in that case the interference is proportionate to the particular legitimate aim being pursued; (iv) the more serious the intervention in any given case (and interventions cannot come very much more serious than the act of separating a mother from a very young child), the more compelling must be the justification. [83] It is clear that family life has been established between these children and their mothers. Compulsory separation is, on the face of it, a serious interference by the state in the children’s right to respect for that family life. The European court has said time and again that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life, and domestic measures hindering such enjoyment amount to an interference with the right protected by article 8: see, amongst many others, W v United Kingdom (1987) 10 EHRR 29, para 59; Olsson v Sweden (1988) 11 EHRR 259, para 59; Johansen v Norway (1996) 23 EHRR 33, para 52, K and T v Finland [2000] 2 FLR 79, para 132.”

“the family, whatever form it takes, is the bedrock of our society and the foundation of our way of life.”

“Private life, in the court’s view, includes a person’s physical and psychological integrity; the guarantee afforded by Art 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings.”

“While the essential object of Art 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves … In order to determine whether such obligations exist, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual.”

“If the rights of a father … and his son conflict then domestic law … requires the conflict to be resolved by reference to the son’s best interests. In domestic law the governing consideration is the son’s welfare. So it is under the Convention. Strasbourg jurisprudence has long recognised that, in the final analysis, parental rights have to give way to the child’s – that the case may be one of sufficiently pressing necessity as to justify, in the interests of the child’s welfare, the supercession and assumption by the State of parental rights and responsibilities. The answer can be no different where the child, although now an adult, remains unemancipated because mentally incapacitated.”

“The balance to be struck in these cases is between the rights of the parents and the rights of the child … In striking that balance, the European court has repeatedly stressed that the interests of the child are of crucial importance.”

“The court reiterates that in judicial decisions where the rights under Art 8 of parents and those of a child are at stake, the child’s rights must be the paramount consideration. If any balancing of interests is necessary, the interests of the child must prevail.”

“These various benefits are as much a part of the ‘private life’ which Art 8 guarantees to S as are the various other factors that I have to bring into the other side of the equation.”

“The family life for which article 8 requires respect is not a proprietary right vested in either parent or child: it is as much an interest of society as of individual family members, and its principal purpose, at least where there are children, must be the safety and welfare of the child. It needs to be remembered that the tabulated right is not to family life as such but to respect for it. The purpose, in my view, is to assure within proper limits the entitlement of individuals to the benefit of what is benign and positive in family life. It is not to allow other individuals, however closely related and well-intentioned, to create or perpetuate situations which jeopardise their welfare. As the European Court of Human Rights said in Marckx v Belgium (1979) 2 EHRR 330, 342, article 8(1): “does not merely compel the state to abstain from ... interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective ‘respect’ for family life.””

“10.3.2 The best interests of the child is the primary consideration at every level of policy making as well as when considering individual situations. 10.3.3 Prison Service policy will reflect the ECHR Article 8, save where it is necessary to restrict the prisoner’s rights for a legitimate reason, such as good order and discipline, or the safety of other prisoners or babies. 10.3.4 When making decisions about the best interest of the child, the long-term developmental needs of the child are given attention as well as the immediate situation. 10.3.5 Parents are enabled to exercise parental responsibility for their children whether the child is with them in prison or outside with other carers ... 10.21 Experts in children’s health and welfare agree that it is the quality of the attachment of the child to his or her main carer which has a determining effect on a child’s development. … If it is in the child’s best interests to be in prison in early life to form an attachment with the mother, who will be returning to care for him or her in the reasonably near future, that should be facilitated. However, there will be occasions when the child needs to form an attachment to an alternative long-term carer … 10.24 The child has a right to freedom, He or she is not detained in custody … There must therefore be respect for the child’s freedom and it should only be curtailed where absolutely unavoidable. The child’s right to freedom is also a consideration in respect of what upper age limit should be applied to mother and baby units … 10.43 Experts from the childcare professions have commented on the large number of children in two of the existing mother and baby units. Such large residential communities are not conducive to a family ethos for the children and the risks of institutionalisation are increased … 10.47 … There is still concern about the effect of a prolonged stay. Accepting the lack of empirical evidence on the optimum age of separation of child from mother, but based on the knowledge and experience of expert members, the group believed that the upper age limit should remain 18 months whilst new research is commissioned. In the meantime, managers of the units and professionals involved should concentrate on enabling mothers to make the best choice for their child in each individual case. The discretion to allow a child over 18 months to stay longer with his/her mother should be exercised only in the child’s best interests … 10.48 During site visits members of the working group were disturbed by the perceived assumption among staff and prisoners that all children allocated a place would stay to 18 months, if the mother’s time in custody warrants it. For some children, separation at an earlier age may be in their best interests ... 10.67 The criterion for separation is the best interests of the child. … it is desirable to keep the stay of any child within a prison as short as is commensurate with those interests … 10.68 The process of separation planning must be considered as early as possible on an individual basis in every case … ”

“contains the findings of a longitudinal, comparative research study of the developmental effects of maternal imprisonment on two groups of young children. Infants who live with their mothers on prison Mother and Baby units were the focus of the study. Their development was compared with that of infants left outside during their mother’s imprisonment.”

“The analysis of data found: (i) no significant overall developmental delay in the Unit babies or in their Comparison group age-peers. (ii) The over development of both groups of infants fell within recent British norms. The findings on the Unit group were placed in the context of research on caregiver-mediated institutional environments. (iii) Within this general account of normal development, a significant Group by Length of Time in Unit effect was observed in a smaller sample of long-stay babies. This was due to a gradual decline in Unit babies’ developmental assessment scores and was located in the locomotor and cognitive areas of development. It is hypothesized that, while the Unit environment does not inhibit the development of fundamental abilities, it restricts their exercise and elaboration. (iv) There was a significant increase in Unit babies’ general developmental scores 2 months after their mothers’ release. The developmental [scores] of Comparison group babies remained stable over the 3 month follow-up period. However, the number of babies in the follow-up study was small, and these findings may not be reliable.”

“There are conflicting views about whether babies should be in prison. Some argue that facilities should be expanded to cater for older children. They emphasise the key role of a mother in a child’s emotional development and argue that separation causes long term emotional damage to the child. Others argue that prisons are unsuitable places for children and suggest that the child’s bond does not necessarily have to be with the mother but can be to any adult to who the child becomes attached. To date, prisons in England have taken a compromise position. They accept that the prison environment is not really suitable for children but that for very young babies it may be in the child’s best interests to remain with his or her mother rather than be separated. However, older children need freedom of movement and contact with older children, which my not be available in the prison setting. Reflecting this policy, Holloway and New Hall take babies up to the age of nine months, while Askham Grange and Styal take babies up to the age of 18 months. There has been little research on the progress of babies in prison nurseries apart from Catan’s (1989) study. She compared the development of unit babies with babies separated from their imprisoned mothers and cared for in the community. Both groups of babies showed normal, healthy physical growth and their overall development fell within accepted norms. However, the babies who stayed in the units for four month or more, showed a slight and gradual decline in locomotor and cognitive scores. Once they started to sit up, crawl and walk there was less opportunity for the unit babies to explore and make use of these skills. Instead, they spent relatively more time confined to baby walkers, bouncers and pushchairs and had few places to go other than the nurseries and their mothers’ rooms. When babies left the units, there was a significant increase in their general development scores, whereas the development of babies left outside remained stable over the follow-up period. These findings gave support to the 18 months upper age limit for unit babies.”

“Previous research and advice from the Social Services Inspectorate has established no conclusive evidence to alter the current upper age limit of 18 months. Recent discussions with SSI inspectors and Nursing Officers from the Department of Health have given emphasis to the importance of considering the length of stay of each child as an individual case. There should be room for flexibility and the exercise of discretion. Above all the culture which structures the expectations of staff and mothers that every child will stay to the upper age limit if the mother remains in custody should be changed to ensure the child’s best interest[s] are the primary consideration. However the Prison Service accepts that policy should be based on evidence and research will be commissioned.”

“The purpose of providing mother and baby unit places is to allow the mother/baby relationship to develop whilst safeguarding the child’s welfare … The upper age limit for children to live with their mothers in prison is eighteen months. Arrangements will be made for babies to leave the units at an earlier age if it is considered to be in the best interests of the child.”

“3.10.1 Planned separations must be agreed with the multi-disciplinary team. Children must leave the units before they reach the ‘maximum’ age limit of the unit if this is considered to be in the best interest of the child which is the primary consideration. 3.10.2 Plans must be made, at the earliest opportunity, to ensure that arrangements are in place, in case, at any time, it is necessary for the child to be handed out to an alternative carer.”

“It is likely that mothers serving long sentences may wish to have their babies with them for the maximum time available. It is important to remember that the focus must be on the child. If eventual separation is likely to take place careful consideration must be given to the point at which it is likely to be in the best interests of the child and cause the least amount of disruption in settling with alternative carers.”

“[Counsel] told us, in effect, that on occasion the Prison Service turns a Nelsonian blind eye to the rigidity of the rule. A typical example would be where a mother is due to be released from prison soon after her child’s cut-off age, and it is considered better for mother and child to leave prison together. This ad hoc discretion, which is nowhere articulated in writing, does not extend to permit the much longer stays requested by the present applicants.”

“It is … difficult to envisage any possible balance of the various relevant interests, other than the complete abandonment of any sort of limit, which could result in PB being able to stay with her mother for the whole of that time.”

“[45] Mr Seed’s primary concern, if a child were to remain in the unit over the age of 18 months, related to the effect of a prison environment on a child who has become more aware of his or her surroundings. The accommodation at Styal consists of 18 Victorian houses set in gardens within the prison perimeter fence, and mothers are allowed to take their children into these gardens to allow for a larger space for play. Mr Seed says that the effect of this is that the children in the unit come into contact with other prisoners, who include 22 lifers serving sentences for offences including murder and offences against children, and he considers this contact to be undesirable. [46] Mr Seed also describes how children on the unit start to become much more aware of events particular to the prison environment once they reach the age of 14 months, and when they reach the current age limit of 18 months they have become more and more aware of their institutionalised surroundings. He mentions, too, the jealousies created among other inmates who believe the prisoners in the MBU are allowed special treatment, and fears that if there was an expansion of the unit, or if mothers were likely to spend an increased amount of their time resident there, difficulties concerned with the need to preserve good discipline throughout the prison might increase. [47] … Kathryn Dodds … says that although Askham Grange is set in attractive grounds, it is nonetheless a prison and has to operate in the manner of an institution which must preserve good order and discipline. It is not a normal home environment for a child. There have been numerous incidents of children learning and using prison jargon which they overhear. Their surrounding environment is still institutionalised and despite best efforts cannot be entirely flexible. There are occasional disagreements between mothers caused by the stress of having to live with their children in such an environment. If a perception develops that one prisoner is getting special attention because of the needs of their child, this can cause disagreement within the unit.”

“A sudden unplanned separation of young children from their mother (or primary caregiver) is traumatic and can lead to lasting psychological damage both to the child and the mother. Our understanding of the effects of separation has grown steadily since the pioneering work of John Bowlby and the Robertsons which began just after the second world war and in the last seven or eight years there has been a series of studies by Peter Fonagy and colleagues at University College London looking at the long term effects, examining also the intergenerational influences of attachment patterns. Put simply: children need to build up a secure attachment to their mother (or other caretaker) during the first five or six years of life. If this attachment is broken suddenly, with no substitute attachment in place, there are both immediate and long-term effects ... Research on separating children from their major attachment figure when it is essential (eg when the mother has to go into hospital or when there has been a change in foster-carer) has shown that is possible to engineer a planned separation but this needs both time and careful thought. The key factor is whether the children have sufficient language to be able to prepare them adequately for the change.”

“It is also acknowledged that children’s development is determined by a combination of genetic and environmental factors: depriving them of rich and varied experiences is the psychological equivalent of depriving them of food. Recent understanding of early development of the brain has added to the realisation of the importance of both a good environment and of stability in the first couple of years of a child’s life. Glaser (2000) pointed out that environmental influences can affect the actual structure of the brain in a long lasting fashion. She writes of the way in which “early experiences shape neural connections in the developing brain … Changes in the family’s social context and in the child’s immediate caregiving relationships, as well as the child’s own adjustment, all influence the later outcome for the child’s development.”

“A commonplace of child psychology is that children vary hugely in their needs and their characteristics, as do families. In this context one major difference is that the problems presented by mothers with short sentences (ie up to two or three years) are different from those whose sentences are longer. Other differences are seen within the child: the characteristics and needs of children under six months old are not the same as those of eighteen months; those of a two year old with learning difficulties are not the same as those of a child of the same age whose intelligence is normal. This is particularly pertinent when separation is concerned since it is very much harder to prepare a child for a break with the mother if the child has no language. It is also accepted that there are significant environmental differences between prisons: what is appropriate for an open prison may not be so for one that is closed.”

“Looking at what actually happens to children when their mothers are in prison is not easy since there has been so little research on the subject. Liza Catan, in her 1982 study, showed that a stay in an MBU lead to a slowing in motor and cognitive development the longer the child was in the unit, although there was catch up on release. Evidence of what happens to children looked after outside the prison is not encouraging either. Although their physical and intellectual development was unimpaired, the transition from mothers to the alternate carers was, in Catan’s words, “rarely smooth.”

“Thus material imprisonment initiates an unsettled period for babies, whether they are taken into the units or left outside.” • Jane Woodrow, writing from the Institute of Criminology, Cambridge University, in 1992 saw children separated from their imprisoned mothers as “the most deprived group in our society.”

“Thus material imprisonment initiates an unsettled period for babies, whether they are taken into the units or left outside.” • Jane Woodrow, writing from the Institute of Criminology, Cambridge University, in 1992 saw children separated from their imprisoned mothers as “the most deprived group in our society.”

“The overarching principles that have determined the proposals that follow are: a. That the child’s best interests are paramount. b. That each case should be regarded on its own merits. c. That planning should be carried out at the earliest possible moment. Planning It will be essential to work out details according to each case and to have an assessment and planning period as early as possible, certainly before a mother is on an MBU. As one of us (DB) has written, assessing a mother’s parenting capacity requires a high level of skill and experience. The composition of the assessment/planning team will vary to some extent depending on the needs of the case, but the core should include, as well as the mother and the appropriate prison staff, the community paediatrician and a representative of social services. It is proposed also that assessment will be an ongoing process, in which each child in monitored by a person or a small team, the composition of which will have to be determined. Mothers with long sentences When mothers will be unable, even with the most flexible arrangements, to go out with their child it will generally be advisable to effect a separation as soon as possible. This should entail a smooth, gradual transfer to another carer but the key is careful planning. The role of the MBU in such cases would be to ensure that there is a sensitive hand-over to another carer as soon as it is compatible with the needs of the child. Equally important would be the need to plan for the child’s being reunited with the mother and for regular and frequent contact between the two. Mothers with shorter sentences The fundamental aim should be to ensure, as far as possible, that the child keeps in close contact with the mother but at the same time lives in an environment that is as similar as possible to the normal. One way to achieve this would to keep the age limits of MBUs more or less as they are in terms of looking after a baby full time, but to have children who have reached that limit looked after by a child minder in the community all day. This would allow mother-child contact at the emotionally vital times of getting up and going to bed, and would also give the child an opportunity to experience a normal life during most of the waking hours. Such provision would have the added advantage of being cheaper than foster care and it would avoid the often unsatisfactory arrangements for care by relatives that are made now. Weekends might be difficult since it is unlikely that child minders would want to look after anyone for seven days a week. But there could be a system whereby the child minder links with the mother, bringing toys and books into prison, so that there would be a consistency in what the child did. This would avoid the need of the prison to buy a range of toys and books suitable for older children. One of the objections to older children being in prison is that they might pick up bad language from other prisoners who would be a poor role model in various ways. So care may have to be taken to ensure that there is little or no contact at meal times, which could mean that the child and mother eat alone or with just a small number of others. Further difficulties might arise when children are sick, but it would be quite appropriate for the mother to care for her child at such a time anyway. An alternative to the child minder approach would be to arrange for the children to attend a local nursery; as has already been done in at least one case. This would be better than remaining in prison, and would be easier to manage, but lacks the personal contact that the child would have with a child minder. Perhaps one should look at building up a package of care opportunities, varying with the needs of the child and the availability of help. NB It must be emphasised that we are not proposing non- maternal care for very small babies, ie those in their first year or so. Here we are aware of the work of Belsky (2001) who concluded, after an exhaustive review of the evidence, that early and extensive non maternal child care is associated with adverse effects including elevated levels of aggression in children which extends into the primary school period and possibly beyond. Age limits There are considerable drawbacks in the system, as it is now perceived by most mothers. The essential difficulty is that the age limit has come to be seen as the expected age of separation rather than the maximum age. As we have made clear above, we anticipate that the more flexible approach that has been demanded will undermine this expectation. Indeed, if our proposal is accepted, there would be a lowering of the age of separation in a number of cases, notably those where the mother has a long sentence. We suggest that age limits should not be seen as hard and fast cut-off points, rather they be part of a set of guidelines which will allow a high degree of flexibility and which will enable the best interests of the child to be paramount. On the other hand, even with the most flexible system there will have to be some limits; we do not anticipate that we will, at present at least, be following the example of having children in prison until they are five years old. We acknowledge that this is a tricky area and that it will need careful thought.”

“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 addition, a decision-maker within the Prison Service is bound to give effect to Article 8 of the European Convention … 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?”

“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 [PSO 4801] 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. PSO 4801 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 PSO 4801.”

“The best interests of the child who is to be separated from his/her mother must be given full consideration at local level, and this must be clearly evidenced, prior to any separation taking place.”

“Planning for separations must start from the beginning of the mother’s admission to an MBU, particularly if they have long sentences. Placing a child in foster care is not the only solution. In some cases it is better for a child to remain with their mother until reaching 18mths. Each case must be looked at on an individual basis.”

“There should be room for flexibility and the exercise of discretion. Above all the culture which structures the expectations of staff and mothers that every child will stay to the upper age limit if the mother remains in custody should be changed to ensure the child’s best interest[s] are the primary consideration.”

“There has been no recent change in the policy on the separation of mothers and babies. The current policy follows that set out in the Review and has not changed fundamentally since it was promulgated in the PSO: the best interests of the child continue to be the central criterion. What has changed is the quality and depth of the consideration that is given to the assessment of the child’s best interests. The possibility that separations would take place early in a mother’s sentence was always envisaged as one of the consequences of proper assessment of the child’s best interests. The Review commented that “members of the working group were disturbed by the perceived assumption amongst staff and prisoners that all children allocated to a place will stay to 18 months if the mother’s time in custody warrants it. For some children separation at an earlier age may be in their best interests.”

“Requirements which the Court has identified as flowing from the phrase “in accordance with the law” include the following: (a) A norm cannot be regarded as a “law" unless it is formulated with sufficient precision to enable the citizen – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail; however, experience shows that absolute precision is unattainable and the need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague. (b) The phrase “in accordance with the law” does not merely refer back to domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law; it thus implies that there must be a measure of protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by, inter alia, paragraph 1 of Article 8. (c) A law which confers a discretion is not in itself inconsistent with the requirement of foreseeability, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference.”

“admittedly rather general in terms and confers a wide measure of discretion, especially as regards the implementation of care decisions. In particular, it provides for intervention by the authorities where a child’s health or development is jeopardised or in danger, without requiring proof of actual harm to him.”

“the law and practice in relation to infants … have developed, are developing and must, and no doubt will, continue to develop by reflecting and adopting the changing views, as the years go by, of reasonable men and women, the parents of children, on the proper treatment and methods of bringing up children; for after all that is the model which the judge must emulate for … he must act as the judicial reasonable parent.”

“There is nothing to suggest that the Swedish authorities did not act in good faith in implementing the care decision. However, this does not suffice to render a measure “necessary” in Convention terms: an objective standard has to be applied in this connection. Examination of the Government’s arguments suggests that it was partly administrative difficulties that prompted the authorities’ decisions; yet, in so fundamental an area as respect for family life, such considerations cannot be allowed to play more than a secondary role.”

“children’s development is determined by a combination of genetic and environmental factors: depriving them of rich and varied experiences is the psychological equivalent of depriving them of food.”

“Prior to the decision of Mr Justice Munby, we attempted where possible to get a prisoner’s home Social Services Department involved. After the decision, it became very clear that the Local Authority in which the prison was located had a responsibility for all the children within the walls of the prison. The judgement [in Re P&Q] also made it clear that it was important that we tried to involve local Social Services (Wakefield) on behalf of the child. It is for this reason that I telephoned Wakefield Social Services on 22 August 2003 as soon as it became apparent that [Claire] had changed her mind about separation.”

“Unfortunately, this is not an isolated example of difficulties that we have experienced in this area. It appears that Wakefield Social Services are not aware of the full ramifications of the decision of Mr Justice Munby despite our best endeavours to engage them. They have recently written to me, asking me to clarify their role as regards both Child Protection more generally and specifically Mother and Baby Units. I am in the process of drafting replies to both these queries. I have been trying for a considerable time now to obtain Social Services representation for the child on Admissions Board. Wakefield Social Services did not initially want to get involved. Recently, however, [Ms B] has started attending Admissions Boards. I am hopeful, therefore, that their appreciation of their role will improve.”

“Mahala Hodgson pointed out that if the decision of the board was that an 18 month unit was in the best interest of Lia-Jade then Styal would be the only option, at least in the short term. It was explained that Styal only offered closed conditions, which would deny Lia-Jade a normal environment more so than Askham Grange. The potential effect of this being that the environment would not meet the needs of a developing child and also the child would experience institutionalisation … Claire … stated that she thinks that the best interests of Lia-Jade are for her to remain with her mother (herself) and that she only wanted what others have had. Mahala Hodgson said that it was impossible for her to comment on other cases and that each one was dealt with on an individual basis … [C] stated that she was concerned that Lia-Jade would be only 8 months at the date of the separation 17/09/03 and not 9 months. Mahala stated that they agreed this at the previous separation board on the 5th June 2003. Mahala went on to explain that research showed that it was best to separate a baby sooner rather than later and that 6 months was deemed to be the most appropriate time to separate. At the previous separation board the date agreed gave sufficient time for the Grandparents and Claire to come to terms with the separation through increasing home visits. Carole Walton stated that this concern had not been raised at the time of the previous board and had not been raised since. Claire said that she had raised this issue and Mahala recognised this to be the case and that it had been addressed recently during two admission boards with Claire. [G] said that he had contacted everyone who could regarding Claire and Lia-Jade he stated that he would agree to nothing less than a place on an 18-month unit for them. Mahala stated that the reason for this meeting was to decide what was in the best interest of Lia-Jade. She stated that [Ms B] was present to represent Lia-Jade’s best interests … Claire said that she thought it was still not fair and that if she was currently at Askham or Styal she would be able to remain with Lia Jade until 18 months. Mahala explained that this was not the case and reiterated the fact that each case was looked at on an individual basis. Kaye Vollans referred to her report regarding Lia-Jade’s development. Kaye stated that Claire was a good Mother but that Lia-Jade’s development would be hindered if she were to remain within the prison environment. [C] said that she did not agree with this statement and that nobody was listening to what they were stating. Claire said that she did not agree with Kaye and that what was best for Lia-Jade was to remain with herself irrespective of the prison environment. Mahala explained that the reason for having so many people on the board was to decide what was best for Lia-Jade. [Ms B] stated that a home environment is required for a baby to develop fully and explained that [C] and [G] could provide this environment, which Claire was unable to do within a prison environment. Claire asked [Ms B] what would happen if her Mother and Father were not there to offer Lia-Jade a suitable home. Claire wanted to know whether she would be granted a place on an 18 month unit in these circumstances. [Ms B] said that an interim court order would be sought if [C] and [G] could not offer a home for Lia-Jade, because a home environment would remain to be in Lia-Jade’s best interests. [G] said that Claire should be given a place on an 18 month unit because she had done so well in prison. [G] said that Claire had done everything to put her past behind her, which included the use of drugs since the age of 14. Mahala said that the decision on whether Claire would get a place on an 18 month unit would be made on the best interests of Lia-Jade and not Claire. She explained the difficulties in separating Lia-Jade’s interests from Claire’s but said that this is what had to be done and was the reason for social service presence. Ian Milner asked what [G] and [C] wanted for Lia-Jade. [G] said that he wanted Lia-Jade to remain with Claire for a few more months. He said that he wanted Claire to go to Styal then move to Askham with Lia-Jade. [G] stated that it was far too early to separate the Mother and Baby. [Ms B] said that a decision had to be made which would reduce the trauma of separation for Lia-Jade. [She] stated that the trauma would be much less now than it would be later on in Lia-Jade’s life. For this reason alone [Ms B] stated it would be in the baby’s best interest to separate sooner rather than later. [C] said that there would always be trauma and that it has to be expected. [Ms B] explained that a Baby’s future has to be planned and that Lia-Jade would suffer more trauma and have a greater understanding of that trauma at 18 months. [She] also explained that as Lia-Jade gets older more trauma would be experienced by each period of home leave. [She] stated that children need routines, which a home environment with weekly visits to Claire would provide. This would not undermine Claire’s position as Mother. [Ms B] went on to explain that further time in prison would not provide a home environment and the use of home leave which would compensate for this would undermine the child’s need for routine … [G] and [C] both stated that they did not feel that the board was not [sic] listening to what they had to say. Ian Milner asked them both whether they were agreeing to separation at nine months or whether they were requesting a place for Lia-Jade on an 18 month unit. [G] said that he wanted Claire to be given more time with Lia-Jade and that separation should not happen until Claire was ready. Mahala Hodgson said that it was not for Claire to make that decision because the decision must be in the best interests of Lia-Jade and not Claire. Mahala explained that Social Services were present at the meeting to represent Lia-Jade and to ensure that a decision was made in her best interests. Claire stated that she disagreed with this because she was raising Lia-Jade, not the Social Services. Mahala Hodgson discussed the benefits Lia-Jade had gained from the recently increased level of Home Leave. The home leaves had clearly offered Lia-Jade a “normal” and supportive home environment, which could not be offered by any Mother and Baby Unit … Mahala Hodgson asked whether there was any further information, which needed to be considered by the board. It was agreed that there was not and that a decision need to be made. [C] stated that she just wanted Claire to have more time with Lia-Jade and to come to terms with her sentence. [G] asked whether there would be a place on an 18 month Mother and Baby unit. The meeting decided there were three options available for Lia- Jade. 1 To separate from Claire on Wednesday 17th September in accordance with the original separation plan. 2 Lia-Jade to separate from Claire at 9 months giving Claire a period to come to terms with the result of her appeal. 3 Lia-Jade to remain with Claire until 18 months. The Board by a majority agreed that option 2 would be in the best interests of Lia-Jade given the fact that [C] and [G] would be happy to take care of Lia-Jade at this point. [C], Claire and [G] made it clear that they all wanted a place for Lia-Jade on an 18 month unit but that they would agree to separation at 9 months. Mahala Hodgson explained that they would not be able to change their minds in a couple of week. [Ms B] made it clear that if [C] and [G] refused to take care of Lia-Jade at 9 months then she would apply for an interim care order.”

“… if Lia Jade is separated from Claire now she would be ‘without’ her mother for a far greater period than if she were to separate at eighteen months old eg eight months as opposed to seventeen months. The trauma of separation may be further reduced if contact and day visits were facilitated for the latter part of Claire’s term in prison. The contact she would have with Claire would be very limited if she separated now and this may induce ‘a detachment’ whereby Lia Jade will no longer share a close bond with Claire, but instead transfer this to her caregivers. This would ultimately present its problems upon Claire’s release when she tries to re-establish the attachments, by Claire feeling inadequate or undermined when she observes the interaction of Lia Jade with grandparents. If Lia Jade separated from Claire at a later stage, there would still remain some separation anxiety but this could be minimised by Lia Jade having a little better understanding and greater communication skills. The level and quality of contact between Claire and Lia Jade is also a significant factor in this. There is no evidence to suggest that Lia Jade is at risk of significant harm whilst in the care of her mother. Since her grandparents have stated they would care for her upon separation, there would be no reason or need to ‘accommodate’ Lia Jade in the care of the Local Authority. It is my professional opinion that every effort should be made to move Claire and Lia Jade to HMP Askham Grange or Styal to enable them to continue their close relationship for as long as possible. If this is not possible and separation is unavoidable then every effect should be made to facilitate more frequent contacts between Claire and Lia Jade in order to maintain the already established bonds.”

“At the meeting in discussing the separation of Lia-Jade from her mother I was led to believe that at the time Miss Frost was not eligible for transfer to another prison, which would enable her to keep Lia-Jade until she was eighteen months old. It was also stated that Miss Frost’s sentence was considerably longer than eighteen months and she was therefore not eligible for transfer to any open conditions. It therefore appeared in my opinion to have been more suitable for an earlier separation. With regards to my initial assessment … stating otherwise, it materialised that Miss Frost would be eligible for transfer and would therefore be entitled to home leave etc. This would in effect reduce the trauma of separation for Lia-Jade. I have since been informed that Miss Frost and Lia-Jade are eligible for home leave from the 13th December 2003 as this is Miss Frost’s new fled date. I have been informed that the fled date was March 2004 which had further excluded Miss Frost from transfer. I would also like to point out to the Court that much of what was discussed in the meeting of the 9th September is not minuted. For example, the minute taker did not record the scenarios given to me, ie what would the position be for the Local Authority if the grandparents refused to take Lia-Jade and separation was imminent. My response to this was that permission for accommodation would be sought from Miss Frost and failing that it may be necessary to institute care proceedings.”

“I am wholly confused by it. I am extremely surprised that she criticised the minutes of the meeting. I took the minutes and they are an accurate account of what occurred. I faxed a copy of the minutes to Ms B as soon as they were written on either 10 or 11 September 2003 and she did not criticise them in any way. Indeed I have seen Ms B on a number of occasions since the meeting in September, at the Admissions Board for example, and she has not raised any concern about the meeting or the minutes. I have not received a request for amendment from any attendee. Ms B says that much of what was discussed at the meeting was not minuted. I refute this allegation. She gives one example. She says that the fact that she would instigate care proceedings, if the grandparents did not take the child was not minuted. This is, in fact, minuted twice. I cannot comprehend that Ms B could have attended the meeting in September and not realised that transfer to an 18-month unit was an option. It is set out in the minutes as 1 of the 3 options that we spent the meeting discussing. She was certainly not informed by me or by anyone else that transfer to an 18-month unit was not an option. Further, Ms B states that she was led to believe that the Claimant’s sentence was considerably longer than 18 months; it is. She was sentenced to 6 years, which was reduced on appeal to 5 years. Her earliest parole date is 13 March 2005 and her next possible release date is 12 January 2006.”

“From the video, I was able to get a picture of a young mother, making an excellent job of mothering, who had recognised early on, with great pain, that it was in her child’s best interests to be placed with the maternal grandparents. The grandparents seem fit, young and already caring for another young grandchild. It seems, from what I have seen, that they will be able to maintain the child’s contact with her mother for the remainder of her sentence, as they live within a reasonable distance of New Hall Prison. [Claire] seemed, however, less able to put the interests of her child above her own, as time went on and she realised she would have to be in prison beyond the 18 month point. Several of her statements to camera were about her feelings and her needs, rather than the child’s. It seemed, from what I saw on the video, that the maternal grandfather, in particular, had a realistic understanding that it was in the child’s best interests for early separation to occur. He seemed to appreciate that he and his wife can offer the child a more normal set of experiences and can keep up her attachment to her mother by visits until [Claire’s] release. The maternal grandmother said to camera that she thought [Claire] needed more time with the child. She was clearly, and understandably, primarily feeling compassion for her daughter and also perhaps seeing the child as “medicine” her daughter needs to remain drug-free and crime free. In my opinion, however, this is not putting the child’s needs first.”

“For an older child, an MBU constitutes a deprived environment, however much money and effort the prison service expends. Brain growth is most rapid in the first 18 months of life. It is at this time that most neural connections are developed. For optimum development of the child’s brain, a process which promotes language development and lays the foundation of intelligence, he/she requires rich and varied stimulation of the senses and body. This would involve interaction with a variety of people, male and female, (family, friends, neighbours etc), older children, opportunities to explore the world outside home/prison, including streets, shops, parks as well as the opportunities for play which the prison can afford. Thus the questions to be considered are as follows: (i) Is it in the child’s best interest to stay with her mother until 18 months and then be separated rather than separate earlier according to the plan already formulated? (ii) Should the child stay the extra 8 months (or more if parole is not granted), in spite of inadequate resources on the MBUs for older children? (iii) If it is not in the child’s best interests to stay with the mother until release (whenever that may be), what is the best time to separate her from her mother? (iv) Are there any feasible alternatives? I consider that the original separation plan was well formulated and was in the child’s best interests. It enabled her to live with caring grandparents, who were suitable in every way to care for a young baby, in a normal environment which provided good stimulation and would enable optimum development, while her mother served her sentence for aggravated burglary and addressed her offending behaviour. Further, had separation occurred as originally agreed it would have enabled [Lia-Jade] to maintain contact with her mother pending the latter’s release from prison. Separation at this earlier stage would have minimised distress to the child. The separation plan provided for a gradual increase in staying contact with the grandparents so that [Lia-Jade] could become familiar with her new caretakers before she was separated. Furthermore, if [Claire], on release relapsed in her drug-taking and criminal activity, or was recalled to prison for other reasons during her parole, it provided with familiar carers to ensure continuity of care and minimise attachment disruption which can lead to a risk of psychiatric disorder. Given the proximity of excellent substitute care, there is no doubt in my mind that the plan was the least detrimental one which could be devised, given that [Claire’s] original criminal behaviour (and that of the child’s father) had placed the baby she was expecting in a position where she could not be cared for uninterruptedly by either of her parents.”

“It is very difficult to comment on this case because it is not yet clear what it is. It is said that research states that it is better to separate at 6 months than 18 months, but none is cited. Without a study directly comparing the two, which as far as I am aware has not been done, and would be difficult to conduct ethically, direct evidence is unlikely to be available. Terms are used without definition or in a way that is misleading. For example it is stated that the child would experience ‘institutionalisation’. However most of the research on institutions, for example children’s homes, refer to conditions in which children experience multiple caretakers. Indeed considerable evidence suggests that the lack of a consistent caregiver with whom the child can form an enduring attachment has long-term consequences (Tizard and Hodges 1989, Rutter 2000). This is quite unlike this case where a stable attachment figure is in the institution with the child. The term ‘trauma’ is used, without definition, and without explanation as to the sense in which the separation would be traumatic. Generally trauma refers to extreme experiences such as war, disasters, physical or sexual abuse, and these are clearly not relevant in this case. Furthermore it is clear that ‘separation’ is not unitary. There is certainly evidence that repeated separations through hospitalisation can affect a child’s adjustment, but also that this effect depends on whether the child comes from a home with conflict, and on the quality of the relationship with the parents (Quinton and Rutter 1976). In other words, not only can one not readily refer to a separation as a trauma, it is also essential to consider the child’s personal resources in coping with it, and the context of the separation. Reference is also made to the abnormal environment of the prison, without either clarifying the key features of that environment, nor the changing needs of a developing child in relation to the environment.”

“a prolonged experience being cared for by a caregiver with whom one has a secure attachment is likely to increase coping strategies. There is considerable evidence from the accounts of [Claire] with Lia-Jade that she is a sensitive mother, and in particular she engages in the balanced, attentive, well-timed interactions with her daughter, that are associated with subsequent secure attachment. Lia-Jade clearly used her mother as a source of protection when meeting me, but also warmed up with smiles and gurgling, suggesting a secure base. Her concern on her mother leaving the room, and her evident pleasure when she came back in, are typical of a secure attachment. Thus all considerations would suggest that prolonging this experience of secure attachment is likely to confer resilience. Equally there is substantial evidence that children can form attachment relationships with several adults, provided they have enough close contact with them. This is important because it means that Lia-Jade is capable of developing attachment relationships with her grandparents as well as her mother. What then of the concerns? As I have indicated these are not spelled out in detail. However they seem to hinge on the abnormal ‘environment’ of the prison. I have no doubt that up to now Lia-Jade has not suffered at all from being with her mother in prison. The mother and baby unit is very child centred, with skilled staff who fully respect the needs of the babies to be cared for by their mothers. The babies are better protected than many out of prison. The considerations are however different in the child’s second year, mainly because, especially in the second half of the year, peer interactions become more important. The one-year-old child does not interact much with other children, the two year old is quite skilled at peer interactions. There is therefore a need to create a setting for play with peers over the second year, and this is more pressing in the second than the first half. However there is no reason why that should not be done within a prison setting. Other possible abnormalities of the environment include lack of experience of a wider range of people, streets, houses, shops, and so on. Here the key is Lia-Jade’s relationship with her grandparents. She already regularly stays with them overnight, and apparently manages this well. It seems then that she has already the capacity to enjoy being in the wider world, and has not as far as I am aware shown signs of difficulty in coping with being outside. Thus if separation at 18 months were to take place, continuation of the same arrangement up to that point would ensure that she experiences the outside world. Then there is the issue of the effects of separation at 18 months. Three factors will reduce the impact as compared with earlier separation. Firstly, as I have indicated, the fact of the secure attachment to her mother, means it is likely that Lia-Jade will have more personal resources to cope at 18 months, than if separation took place earlier. Secondly there will be an opportunity over the months leading up to the separation for Lia-Jade to ‘practice’ being away from her mother, by spending nights with her grandparents, while still benefiting from the support of her mother. Lastly, by l8 months she will be more cognitively mature and language will have started to develop, and these will advance rapidly through the second half of the year. This means that her grandparents will be able to talk to her about her mother, she will be able to take part in simple phone calls, and may be able to use photographs or other momentoes.”

“If the child were to go to live with her grandparents at the conclusion of these proceedings, she would become attached to them. My impression is that they are caring and competent, so this would probably be a secure attachment. The relationship with her mother is much less easy to predict. Lia-Jade would have a period of at least 14 months over which her mother would not be available to act as an attachment figure, so it is possible that Lia-Jade will start to relate to her as a friendly adult without attachment significance. The key then is the question of how Lia-Jade would cope with being returned to her mother on her release. If [Claire] went to live with her parents, it is possible that gradually Lia-Jade would come to see her mother again as an attachment figure, but could continue to favour her grandparents. Under those circumstances the grandparents might feel obliged to reduce their contribution, in order to promote the attachment between mother and daughter, a process that could be stressful and uncertain for all of the family. Ms B in her report dated 3rd October has also highlighted the possible difficulties for Lia-Jade and her mother on [Claire’s] release if she is no longer seen by her daughter as an attachment figure, and I agree completely with those comments.”

“Clearly this would be highly stressful for Lia-Jade whatever the arrangements. If separation were to take place now, it is very likely that by the time she is three years old Lia-Jade would be definitely attached to her grandparents, and would not have an attachment relationship with her mother. Re-establishing the relationship with her mother would be probably very difficult. Even with separation at 18 months the same risks would be present, and this would make the case even stronger for maintaining mother and daughter together in prison at least until Lia-Jade was two years old, again combined with regular stays with grandparents. If this eventuality arose, the issue of whether she should be in the prison during her third year would need to be reviewed.”

“Ultimately the view expressed by Dr Lansdown in response to Professor Hill’s report is that the best interests of the child will be served by encouraging her to make firm attachments to her grandparents. He acknowledges that re-establishing the relationship with her mother will be difficult, but emphasises that the fact is that the grandparents are figures who will be constantly present and available to the child. In the long run, that is what is important because during the vital development period a child needs a constant and readily available adult figure on whom to rely. Dr Lansdown considers that the logical response to the uncertainty over the date of release would be to arrange a separation as soon as possible to allow the strengthening of the attachment which seems to have begun between the child and her grandparents.”

“The general case seems to be that prison is not a normal environment and that there is a risk of impaired brain development over the first 18 months in this setting. In favouring early separation Dr Black comments that an MBU constitutes a deprived environment, and that depriving children of rich and varied experiences is the psychological equivalent of depriving them of food. These varied experiences include, ‘interaction with a variety of people, male and female, (family, friends, neighbours etc), older children, opportunities to explore the world outside home/prison, including streets, shops, parks, as well as the opportunities for play which the prison can afford’. She also states that the optimum development of the brain over the first 18 months requires these experiences, and implies that spending the first 18 months of life in a MBU could affect brain development. In the paper by Dr Black and Dr Lansdown, but not in Dr Black’s report, there is a reference to an article by Glaser (2000) on this matter. The paper is entitled ‘Child abuse and neglect and the brain’ and as the title suggests it is concerned mainly with the impact of abuse and neglect on development. There has been no suggestion in any of the documentation available to me that the timing of separation hinges on issues of abuse or neglect. However this article does also consider the animal evidence that high quality social experiences appear to be important for brain development. My view is that extreme caution should be exercised in extrapolating from animal work to humans. There is substantial species specificity, for example contrasting rodents and non-human primates (Sanchez et al 2001), and the differences between any one animal model and humans are also likely to be substantial. Crucially humans can make use of language and symbolic objects (such as toys and photographs) to modify the effects of separation. Equally, if the animal work is to be taken as an indicator of the likely key factors in early brain development, they point consistently to the quality of mothering experiences. Glaser refers to factors that may be important to the optimal development of synaptic connections (junctions where signals are sent from one nerve to another) in brain maturation. These include ‘handling of young infants, responsive gaze, and talking to the infant.’ Quoting the work of Hofer (1994) on rats Glaser comments that sensitive interactions with a caregiver leads to physiological as well as behavioural regulation, ‘In the brain of the infant who sees the responsive mother’s face, brain stem dopaminergic fibres are activated, which trigger high levels of endogenous opiates. These endorphins are biochemically responsible for the pleasurable aspects of social interactions and social affect, and are related to attachment.’ Thus, inasmuch as the animal evidence can be used cautiously, it underlines the importance of early mother infant experiences, and not the wider experiences detailed by Dr Black. Equally there is no doubting the importance of rich and varied experiences as the child goes into her second year. We do not however know how to weigh up the relative importance of each, nor how often they have to be repeated for them to be beneficial. There are not, as far as I am aware, strong reasons to think that they all need to be available all of the time in the young child’s life, nor that if they are not, the child will be at increased risk for impaired brain development. The various reports on mothers and babies in prison are extremely valuable, and clearly reflect substantial care and thoughtfulness by the authors. The implications of the findings can be read in more than one way, however my overall impression was that they do not support the degree of certainty regarding available research on separation reported from meetings regarding the planned separation of Lia-Jade from her mother. I would highlight four points. Firstly there is almost no research directly addressing the issues of early versus late separation. The most relevant study appears to be that of Catan who is quoted as finding that ill effects either of staying in prison or being separated could not be clearly identified. The reports consistently underscore the need for research in the area. The paucity of good research directly addressing the issues of separation is evident in Annex C of ‘The Report of Principles, Policies and Procedures on Mothers and Babies/Children in Prison’. None of the studies summarised was published in a peer review journal, and only the opinions of the authors are given. Secondly the reports repeatedly emphasise the need to make decisions based on the individual needs of the child, and not using a fixed policy. Thirdly there is substantial international variability in separation practices, with some countries separating all babies in the first year of life and others maintaining them with their mothers in prison, well after their second birthday. Strikingly there does not appear to be any research comparing the progress of children brought up in countries with contrasting policies. Fourth there is considerable favourable comment by the authors regarding the possibility of flexible arrangements. For example Black and Lansdown discuss the possibility of having a child minder by day, and returning to the prison by night, allowing mother-child contact, ‘at the emotionally vital times of getting up and going to bed, and (this) would also give the child an opportunity to experience a normal life during most of the waking hours’. They also comment, ‘Perhaps one should look to building up a package of care opportunities, varying with the needs of the child and the availability of help.’ In my view a care plan that takes account of these considerations would be most appropriate.”

“There were five stays with grandparents, totalling 18 days, illustrating the considerable experience Lia-Jade is already having of the outside world. I will consider the objections to this as they appear in the various documents. Firstly it is reported by Ms Walton that Lia-Jade looks ‘really well’ and is ‘very active’ on return from grandparents. This is viewed as evidence of the potential advantage of early separation to be with grandparents. This seems to me to be a rather narrow interpretation. The key attachment concept is that of the ‘secure base’. The securely attached infant is generally confident in exploring and engaging with the world. As I have indicated in my report, my assessment and the comments of numerous professionals working with [Claire], suggest there is a secure attachment between Lia-Jade and her mother. Therefore the most likely explanation of the effect of periods with grandparents is that the secure attachment provides the basis of Lia-Jade’s ability to deal with the separation from her mother and to benefit from an experience of the outside world; the warmth and familiarity of the grandparents further supports that process; and Lia-Jade shows pleasure on being reunited with her mother. Secondly Dr Black suggests that earlier separation would be feasible because Lia-Jade could be with caring grandparents, and ‘had separation occurred as originally agreed it would have enabled the second Defendant to maintain contact with her mother pending the latter’s release from prison’. There is no doubt that Lia-Jade would be well cared for by her grandparents, however this does not address the likely consequence of early separation for the attachment to her mother. As I outlined in my report contact visits do not maintain the link in terms of the mother remaining a caretaker, or as Black and Lansdown put it, of being available ‘at the emotionally vital times of getting up and going to bed’. Separation at the conclusion of the proceedings, would lead to at least 14 months without this kind of contact between mother and daughter, leaving each with a major task of re-establishing the relationship on the mother’s release. Thirdly there are repeated references to minimising the trauma of separation. I have already referred in my report for the need for care in using the term ‘trauma’, particularly where there is considerable scope to modify the experience. It is already apparent that Lia-Jade is well able to deal with separations from her mother of up to 5 days and there would be opportunities for more prolonged periods in the lead up to a separation at 18 months or later. As I indicated in my report, the consolidation of her relationship with her mother, and her increasing cognitive and linguistic abilities will support this process. Fourth Dr Black suggests that early separation would ensure that the grandparents become attachment figures who could provide longer term care if [Claire] were to return to drugs and crime. Maintenance of regular stays with grandparents up to the separation, as well as a period with grandparents after the separation, would also provide this back up facility. Finally in my opinion the reports do not adequately deal with the issue of maximising the long-term development of Lia-Jade. The key here is the period after [Claire’s] release from prison. Clearly there are risks, including the possibility that she will re-establish relationships that put her at risk for further drug taking, and I agree completely that this eventuality should be anticipated. Equally consideration needs to be given to maximally supporting the attachment relationship between mother and daughter which clearly has the potential to promote Lia-Jade’s long-term welfare. As I indicated in my report, in my opinion this is best served by providing a prolonged opportunity for the relationship to develop prior to any separation.”

“It remains Dr Black’s considered opinion that the initial decision in this case to separate on 12 September 2003 at the 8-month stage was the correct decision which properly reflected the child’s best interests. Despite the postponement of separation which has occurred as a result of these proceedings, she is of the opinion that separation sooner rather than later remains in the child’s best interests. There is evidence that the child is bonding with her grandparents. In this regard, Dr Black noted that Professor Hill had not seen the child with her grandparents and has thus not been in a position to assess the strength of the child’s attachment to them. He did, however, comment that his impression from talking to Mrs Frost was that “the grandparents are also child-centred and are sensitive alternative parent figures for” the [Lia-Jade]. He also acknowledges that the child “is capable of developing attachment relationships with her grandparents as well as her mother”

“In her view this suggestion is “the worst possible thing to do”

“Given the delay already in this case, Dr Black recognises that the question of the benefits of early separation is different than it was when the decision was initially taken. Then the case for separation was clear. Having considered the case again, however, in addition to the reports of Professor Hill and the Official Solicitor, she is of the view that separation in the near future is preferable to later separation at 18 months or beyond. Separation at this stage will give the child the opportunity to develop her attachment with her grandparents and will not, as already discussed, mean that reattachment to her mother will be significantly harder. Dr Black noted the problems many prisoners experience on release. It is often difficult for released prisoners to adjust from the controlled and organised prison environment to the more chaotic world outside. Given that [Claire] had a chaotic lifestyle before her imprisonment, this experience may be even more traumatic for her.”

“Having further considered this matter and the addendum report of Professor Hill and having taken advice from Dr Black, I remain of the view that [Lia-Jade] ought to be separated from her mother as soon as possible.”

“A prison environment is not an ideal place to bring up any child. The accommodation at Styal … consists of 18 Victorian houses set in gardens within the perimeter fence of the prison. Although women without children cannot enter the MBU or the adjacent play area, it is possible for prisoners to have free association with one another within the gardens and the medical centre. The effect of this is that babies in the MBU may, when in the care of their mothers, come into contact with other prisoners in the prison. One of the concerns of staff is that mothers, despite repeated warnings to them, occasionally hand their babies to other prisoners whose offences are unknown to them. This is a concern at all MBUs. Contact with other prisoners, who may have committed a wide range of offending behaviour, can create additional risks. Such contact can have a more pronounced effect on an older child. The prison population within an MBU is constantly changing as mothers arrive to start their sentences or to commence care for their child. In addition, other mothers may leave because their child has left the MBU or their sentence has come to an end. The disruption caused by this constant change is not an ideal environment for children who would benefit from stable surroundings. Conversely, however, children who live in the MBU are subjected to the same environment on almost a permanent basis. This prevents them from becoming familiar with every day objects they might be faced with in the community, for example, cars, animals, shopping areas. This reduces the amount of stimulation and learning experiences available to these children. It has been the practical experience on MBUs that children as they get older start to become much more aware of events particularly to a prison environment. There have been occasions, for example, of babies referring to officers as “Miss” in the same way as prisoners and getting upset when they saw men, especially with a beard, as they have little experience of men. It is most undesirable that they absorb and react to matters which are specific to a prison environment.”

“There is also a procedural right inherent in an effective respect for family life: the administrative decision-making process must be such as to secure that the parents’ views are made known and taken into account and that they are able to exercise in due time any remedies available: see W v United Kingdom (1987) 10 EHRR, para 63; McMichael v United Kingdom (1995) 20 EHRR 205, para 91.”

“It is the Convention itself and, in particular, the concept of proportionality which confers upon the decision maker a margin of discretion in deciding where the balance should be struck … A decision-maker may fairly reach one of two opposite conclusions, one in favour of a claimant the other in favour of his removal. Of neither could it be said that the balance had been struck unfairly. In such circumstances, the mere fact that an alternative but favourable decision could reasonably have been reached will not lead to the conclusion that the decision maker has acted in breach of the claimant's human rights. Such a breach will only occur where the decision is outwith the range of reasonable responses to the question as to where a fair balance lies between the conflicting interests. Once it is accepted that the balance could be struck fairly either way, the Secretary of State cannot be regarded as having infringed the claimant's Article 8 rights by concluding that he should be removed.”

“Claire: I know she’s missing out on me going to the shops with her and that, but she can go on more frequent home leaves. Grandfather: I think Lia-Jade should be out here, not in prison. I don’t believe she should be in there for one minute. I think all children really in that situation should be with the grandparents or the other parent, whichever is in a position to look after the child.”

“Grandfather: She loves it. When she sees them trees and … Claire: Yeah, she likes it outside, doesn’t she.”

“… What I want to say, Dad, Mum, is that if I’m really, really truthful with myself, and I know Lia-Jade is better separating from me and being on the out with you’s. But it just hurts me to admit it. But when she grows up I will tell her why I kept her in prison with me, if I can, and tell her it’s because I love her so much, I want her with me. Yes, I might be selfish, but Mum, Dad, believe me when I tell you both she’s the best thing ever, ever happened to me … ”

“if any further challenges of this kind are made, they are likely to be challenges not so much to the lawfulness of the Prison Service’s policy itself as to the application of that policy … in an individual case … such challenges will have little prospect of success unless brought on behalf of a child whose welfare is seriously at risk from the separation.”

“I would like to stress at the end of this judgment the right of a claimant such as this to bring an action under section 7 of the Human Rights Act 1998, to which Munby J drew attention in the Howard League case. Such an action would give rise to the possibility of live evidence in relation to past events, such live evidence might lend force to the contentions of someone in the position of the claimant and afford an opportunity to cross-examine witnesses on behalf of the Home Department. This will provide a powerful incentive, whatever the result, that that Department should comply with its obligations in relation to young detainees under the 1998 Act.”

“There is no reason why a challenge of [this] kind may not be brought in the Family Division by way of a claim that the Prison Service has acted or proposes to act in a way which is made unlawful by section 6(1) of the Human Rights Act 1998. Although the assessment of the merits of such a challenge must inevitably take into account policy considerations … there is no statutory provision, rule or practice direction which requires such challenges to be brought in the Administrative Court, and the Family Division is the venue of preference for such cases. Needless to say, if relief is sought which is only available from the Administrative Court in CPR Part 54 proceedings, that procedure must be followed, but in any event it is desirable that the challenge should be heard by a judge of the Family Division.”