CF v Secretary of State for the Home Department and another
| Jurisdiction | England & Wales |
| Judgment Date | 2004 |
| Date | 2004 |
| Court | Family Division |
Human rights – Private and family life – Child born in prison – Role of court – Secretary of State deciding child and mother to be separated when child nine months old – Whether separation in child’s best interests – Whether breach of policy – Whether breach of right to family life – Human Rights Act 1998, Sch 1, Pt I, art 8.
The pregnant mother was sentenced to six years’ imprisonment for aggravated burglary. She subsequently gave birth in prison. She and the child lived in the mother and baby unit of a prison which accommodated children up to the age of nine months. At the time of her earliest parole release date the child would be two years and two months old, at the time of her non-parole release date the child would be three years old. Rule 12(2) of the Prison Rules 1999 provided, inter alia, that the Secretary of State could permit a female prisoner to have her baby with her in the prison. Following a separation care plan meeting it was decided that the child should be placed with her maternal grandparents at the age of nine months. The mother brought proceedings pursuant to CPR Pt 8 seeking: (i) a declaration that the decision to separate was not in the child’s best interests and was consequently a breach of the Secretary of State’s policy and of art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998); and (ii) an order that she and the child remain accommodated together. Directions were given that the child be joined to the proceedings as a defendant which resulted in the appointment of the Official Solicitor as her litigation friend. Issues arose, inter alia, in respect of: (i) the role of the court and the approach which should be adopted by the court; (ii) the legality of the Secretary of State’s policy; and (iii) the decision-making process.
Held – (1) Cases where, in the final analysis, what the claimant was seeking was the assistance of the court in thrusting upon a public authority a burden and an obligation which it was unwilling to assume (in the instant case the obligation to keep the mother and child together in a mother and baby unit (MBU)) raised issues of public law to be determined, whether in the Family Division or in the Administrative Court, by reference to the appropriate principles of public law, not private law where the court would refer to the usual criterion of best interests. It followed that the primary decision maker was the Secretary of State and not the court. The court’s function in the
instant case was essentially one of review—review of the Secretary of State’s decision—rather than one of primary judicial decision making. It was not the function of the court itself to come to a decision on the merits. The instant case raised issues of public law to be determined by reference to the appropriate principles. A public law case was not transformed simply because Convention rights were relied upon, as the fundamental distinction between public and private law remained. In relation to arguments based on art 8 of the Convention it should be noted that respect for private life and family life were separate and could conflict. Included in the private life respect for which is guaranteed by art 8, and embraced in the ‘physical and psychological integrity’ protected by art 8, is the right to participate in the life of the community and to have access to an appropriate range of social, recreational and cultural activities. Moreover, the state had, in addition to a duty to abstain from inappropriate interference, a positive duty to prevent another individual from interfering with private life. Both the parent’s and the child’s rights and interests had to be balanced; A v A Health Authority, Re J (a child) [2002] 1 FCR 481, R (P) v Secretary of State for the Home Dept, R (Q) v Secretary of State for the Home Dept[2001] 3 FCR 416 and R (on the application of Daly) v Secretary of State for the Home Dept [2001] 3 All ER 433 considered.
(2) The fundamental policy in respect of the separation of mother and child remained unchanged. Pursuant to the policy the child’s best interests were the primary consideration. However, each case had to be regarded on its merits with separation at 18 months being the ceiling, not the norm. The rule of law demanded an adequate statement of the ‘concept’ but recognised that ‘conceptions of the concept’ might change over time. The policy in its current formulation and implementation was lawful and met all the requirements of art 8. It was respectful of the rights of both the mother and the child.
(3) The procedural guarantees afforded by art 8 applied as much to a child as to his or her parents. Children were not the largely passive objects of more or less paternalistic parental, judicial or Prison Service decision-making. In the instant case the child had not had sufficient involvement in the decision making process as a whole to provide her with the requisite representation or protection of her interests. Firstly, the appointed social worker only became involved with the child on the day of the separation care plan meeting. As she had only been allocated the case the day before the meeting she was unable properly to perform her allotted tasks. Secondly, the views attributed to her could not, in the circumstances, be fundamentally relied upon, yet there was a real chance that others present at the meeting were swayed by her opinion. Consequently, there had been a breach of the child’s art 8 rights. Accordingly, the decision to separate would be quashed and the matter reconsidered.
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D (a minor), Re [1987] 3 All ER 717, [1987] 1 WLR 1400, [1988] 1 FLR 131, CA.
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J v C [1969] 1 All ER 788, [1970] AC 668, [1969] 2 WLR 540, HL.
Johansen v Norway (1996) 23 EHRR 33, [1996] ECHR 17383/90, ECt HR.
K and T v Finland[2000] 3 FCR 248, [2000] 2 FLR 79, ECt HR.
L (care: assessment: fair trail), Re[2002] EWHC 1379 (Fam), [2002] 2 FCR 673, [2002] 2 FLR 730.
M (care: challenging decisions by local authority), Re [2001] 2 FLR 1300.
M (childs upbringing), Re[1996] 2 FCR 473, [1996] 2 FLR 441, CA.
Marckx v Belgium (1979) 2 EHRR 330, [1979] ECHR 6833/74, ECt HR.
McMichael v UK (1995) 20 EHRR 205, [1995] EHRC 16424/90, ECt HR.
Niemietz v Germany (1992) 16 EHRR 97, [1992] ECHR 13710/88, ECt HR.
Olsson v Sweden (no 1) (1988) 11 EHRR 259, [1988] ECHR 10465/83, ECt HR.
Pretty v UK[2002] 2 FCR 97, ECt HR.
R (A) v East Sussex CC (No 2) [2003] EWHC 167 (Admin), (2003) 6 CCLR 194, [2003] All ER (D) 223 (Feb).
R (HP and KP) v London Borough of Islington [2004] EWHC 7 (Admin).
R (IR) v Shetty [2003] EWHC 3022 (Admin).
R (on the application of Ala) v Secretary of State for the Home Dept [2003] EWCA 521 (Admin), [2003] All ER (D) 283 (Mar).
R (on the application of BP) v Secretary of State for the Home Dept [2003] EWHC 1963 (Admin), [2003] All ER (D) 310 (Jul).
R (on the application of CD) v Secretary of State for the Home Dept [2003] EWHC 155 (Admin), [2003] 1 FLR 979.
R (on the application of Daly) v Secretary of State for the Home Dept[2001] UKHL 26, [2001] 3 All ER 433, [2001] 2 AC 532, [2001] 2 WLR 1622, HL.
R (on the application of N) v M[2002] EWCA Civ 1789, [2003] 1 FCR 124, [2003] 1 WLR 562, [2003] 1 FLR 667.
R (on the application of Samaroo) v Secretary of State for the Home Dept[2001] EWCA Civ 1139, [2001] UKHRR 1150.
R (on the application of Smeaton) v Secretary of State for Health [2002] EWHC 610 (Admin), [2002] 2 FCR 193, [2002] 2 FLR 146.
R (on the application of the Howard League for Penal Reform) v Secretary of State for the Home Dept [2002] EWHC 2497 (Admin), [2003] 1 FLR 484.
R (on the application of Wilkinson) v Broadmoor Special Hospital Authority[2001] EWCA Civ 1545, [2002] 1 WLR 419.
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R v Cornwall CC, ex p L[2000] 1 FCR 460, [2000] 1 FLR 236.
R v Ireland, R v Burstow [1997] 4 All ER 225, [1998] AC 147, [1997] 3 WLR 534, HL.
R v Mayor and Burgesses of the London Borough of Hackney, ex p S (13 October 2000, unreported).
R v Mayor and Burgesses of the London Borough of Hackney, ex p S (No 2) [2001] EWHC Admin 228.
R v Portsmouth Hospitals NHS Trust, ex p Glass[1999] 3 FCR 145, [1999] 2 FLR 905, CA.
Roddy (a child) (identification: restriction on publication), Re, Torbay BC v News Group Newspapers[2003] EWHC 2927 (Fam), [2004] 1 FCR 481.
S (adult patient) (inherent jurisdiction: family life), Re[2002] EWHC 2278 (Fam), [2003] 1 FLR 292.
Selmouni v France (2000) 7 BHRC 1, ECt HR.
Simms v Simms; A v A (a child) [2002] EWHC 2734 (Fam), [2003] 1 FCR 361, [2003] Fam 83, [2003] 1 All ER 669, [2003] 2 WLR 1465.
W and B (children) (careplan), Re, Re W (children) (care plan) [2001] EWCA Civ 757, [2001] 2 FCR 450, [2001] 2 FLR 582; rvsd in part sub nom Re S (children: care plan); Re W (children: care plan) [2002] UKHL 10, [2002] 1 FCR 577, [2002] 2 All ER 192, [2002] 2 AC 291, [2002] 2 WLR 720, [2002] 1 FLR 815.
W v UK (1987) 10 EHRR 29, [1987] EHRC 9749/82, ECt HR.
Yousef v Netherlands[2002] 3...
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