Claire F v (1) Secretary of State for the Home Department (2) Lia-Jade F (a minor by her litigation friend the Official Solicitor)
| Jurisdiction | England & Wales |
| Judgment Date | 30 January 2004 |
| Date | 30 January 2004 |
| Court | Court of Appeal (Civil Division) |
Court and Reference: High Court, Family Division; FD3P02254
: Munby J
Appearances: I Wise (instructed by AS Law) for CF; A Foster QC (instructed by the Official Solicitor) for Lia-Jade; J Richards (instructed by the Treasury Solicitor) for the Home Secretary.
: Whether the policy in relation to Mother and Baby Units was lawful; whether the process followed on the facts was fair.
: In September 2002 CF was convicted of aggravated burglary, and in December 2002 she was sentenced to 6 years' imprisonment, which was reduced on appeal to 5 years. CF was pregnant when sentenced and on 11 January 2003 gave birth to a daughter, LF. Her earliest parole release date was 13 March 2005, when LF would have been 2 years and 2 months old; her non-parole release date was 12 January 2006, when LF would be 3 years old.
Under s. 12 Prisons Act 1952, prisoners are placed where the Home Secretary directs; under r12(2) Prison Rules 1999, the Home Secretary may provide units for prisoners and their babies. The Home Secretary adopted a policy, contained in Prison Service Order 4801 as to the provision of Mother and Baby Units, under which the usual upper limit for children was 18 months: this was based on expert views as to the best interests of the child not being served by the prison environment, and earlier separation was to be considered. The policy had been upheld in previous litigation, provided that it allowed exceptions if the interests of the child so required, which the mother had to be given the opportunity to argue.
Four MBUs were provided, 2 of which had an age limit of 18 months and 2 of which had a limit of 9 months. CF was placed in the MBU at HMP New Hall, where the age limit was 9 months, which she had been informed about before being admitted to it.
In February 2003, CF's home local authority held a strategy meeting which recommended that LF should be placed with her maternal grandparents at the age of 9 months on the basis that prison was not an ideal environment for a child after that age; they then assessed the grandparents as being able to provide adequate care. In June 2003, a Separation Plan Meeting was held, which CF and her parents attended; a separation plan was agreed, due to be put in place in September 2003; but CF subsequently changed her agreement. A Separation Board met on 9 September 2003, at which the social worker from the local authority covering the prison, who attended to represent LF, had been assigned to the case that day. It was chaired by a social work inspector, who was also a member of the group which had formulated the policy; it agreed that LF should be separated when she was 9 months old, on 10 October 2003. The papers from the meeting were reviewed by a senior official at the Prison Service who agreed that the decision was reasonable and supported by the paperwork.
CF issued proceedings seeking a declaration that the decision to separate her and LF was not in LF's best interests and so was in breach of the Home Secretary's own policy and Art 8 European Convention (right to a family life), and an order that they remain accommodated together. She wished LF to remain with her until her release or at least until she was 18 months old.
Expert evidence was filed which set out differing views as to whether it was in LF's best interests to remain with CF in prison or to be placed with her grandparents in light of the abnormal experience of placement in prison: there was expert support for the views of both the Home Secretary and CF; the Official Solicitor, acting for LF, agreed with CF's position. The local authority social worker who had attended the Separation Board and supported the separation had carried out a full assessment of LF's needs and concluded that she should remain with CF.
Submissions Made
(i) The Role of the Court
CF submitted that the court was exercising a merits-based best interests jurisdiction and so had to make a finding as LF's best interests and make whatever order was required to secure that. The Home Secretary argued that the court was limited to reviewing the decision, albeit to an enhanced standard given that fundamental rights were involved. LF submitted that the court had to assess the best interests of the child on the basis of the evidence in front of it as to the up to date position, since that would assist to determine the legality of the Home Secretary continuing with any action as to removal.
(ii) Challenge to the Policy
CF and LF challenged several elements of the policy of the Home Secretary. (a) The evaluation of the child's best interests had shifted from a focus on the bond between mother and child to a policy to loosen the initial mother-child attachment and establish a new attachment with alternative carers, albeit with a view to reattachment to the mother at a later stage. (b) There was no acceptable intellectual or research-based underpinning for this modified policy, which was necessary when there was a further incursion into the child's Art 8 rights. (c) The new policy had not been published or properly communicated to those whom it affected, and so it was "in accordance with the law" because it was not adequately accessible or formulated so that it was reasonably foreseeable.
The Home Secretary submitted that the policy remained that separation should take place at the age which best met the child's interests, which would normally be no later than 18 months; 18 months was the upper limit, not the norm, but was not rigidly enforced; and that this was lawful and met all the requirements of Art 8.
(iii) The Decision-making Process
There were also challenges to the procedure adopted at the hearing on 9 September 2003. (a) It was submitted that the chair of the meeting was not independent because he was also a member of the advisory group which formulated the policy. (b) Decision-making by majority was an inappropriate approach. (c) A prison service attendee had asserted that research indicated that babies should be separated sooner rather than later, 6 months being the most appropriate time, which assertion had formed the focus of the discussion, although there was no such research. (d) CF had not been properly represented; her Personal Officer had not been present; and she had not been able to make representations to the ultimate decision maker in the Prison Service. (e) LF's interests were not properly represented; the social worker involved was unprepared to represent her interests as she was fresh to the case, had not conducted any assessment of LF and was confused as to the facts; reliance was placed on the different view expressed when she carried out a full assessment of LF's needs.
(iv) The Merits of the Decision
It was submitted that the evidence now available supported the view that LF should remain with CF, as was the view of one of the experts who had had the advantage of assessing CF and LF together and so was in a better position to assess LF's best interests; it was also submitted that the reports relied on by the Home Secretary did not deal with how to maximise the long-term development of LF; and that the decision did not deal with the effect of a longer time apart as a result of an earlier separation. It was also submitted that the decision was disproportionate.
The Home Secretary indicated that, whilst he accepted that other views could be held, he stood by his decision, which he had reviewed in light of the further material available; he submitted that the decision to separate was the correct decision, and could not be characterised as unreasonable, disproportionate, or otherwise unlawful.
1. Claire F is a young woman, not yet quite 25 years old, who is serving a long sentence of imprisonment. On 20 September 2002 at Doncaster Crown Court she was convicted of a drug-related offence of aggravated burglary of a dwelling-house. On 17 December 2002 she was sentenced to 6 years' imprisonment. However, on 5 September 2003 her sentence was reduced by the Court of Appeal, Criminal Division, to 5 years. This is not her first experience of prison for she has several previous convictions and in August 2000 received a sentence of 12 months' imprisonment. She was pregnant when sentenced and on 11 January 2003 gave birth to a daughter, Lia-Jade. Her earliest parole release date is 13 March 2005, when Lia-Jade will be 2 years and 2 months old; her non-parole release date (the earliest date when she is certain to be released) is 12 January 2006, when Lia-Jade will be 3 years old. She is currently serving her sentence, and has Lia-Jade with her, in the mother and baby unit ("MBU") at HMP New Hall, near Wakefield. This is one of the 4 prisons within the Prison Service which have MBUs, the others being HMP Askham Grange, near York, HMP Holloway, London, and HMP Styal in Cheshire. New Hall and Holloway take babies up to 9 months old; Askham Grange and Styal take babies up to 18 months old.
The statutory context
2. Responsibility for the management of prisons, and of the prisoners confined in them, is vested in the Secretary of State by the Prisons Act 1952 and is exercised by him, and by the Prison Service on his behalf, in accordance with the Act and thePrison Rules 1999 made pursuant to s. 47 of the Act. Section 12(1) of the Act provides that "a prisoner … may be lawfully confined in any prison" and s. 12(2) provides that "prisoners shall be committed to such prisons as the Secretary of State may from time to time direct". Rule 12(2) of the Prison Rules provides that:
"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."
3. There is, of course, inherent in the very fact that the mother is a...
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