F v Secretary of State for Home Department and Another
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Munby,Mr Justice Munby |
| Judgment Date | 30 January 2004 |
| Neutral Citation | [2004] EWHC 111 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD03P02254 |
| Date | 30 January 2004 |
[2004] EWHC 111 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
PRINCIPAL REGISTRY
(In Open Court)
The Honourable Mr Justice Munby
Case No: FD03P02254
Mr Ian Wise (instructed by A S Law) for the claimant (mother)
Ms Jenni Richards (instructed by the Treasury Solicitor) for the first defendant (Secretary of State)
Miss Alison Foster QC (instructed by the Official Solicitor) for the second defendant (child)
Hearing dates : 18–19, 22 December 2003
Approved Judgment
Mr Justice Munby :
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 month's 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 four 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
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 the Prison Rules 1999 made pursuant to section 47 of the Act. Section 12(1) of the Act provides that "a prisoner … may be lawfully confined in any prison" and section 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."
There is, of course, inherent in the very fact that the mother is a prisoner a tension between three potentially conflicting interests: those of the mother, those of her child, and those of the Secretary of State. Everyone has the best interests of the child at heart, but the mother's view of where her child's best interests truly lie may not accord with the view of the Secretary of State. The mother's views may be coloured by a perception on her part (whether justified or not) that conditions in prison will be more congenial for her if she is in an MBU with her child rather than elsewhere in the prison system. The mother's interest in keeping her child with her in prison may in fact conflict with the child's interest in being brought up – albeit by someone else – in a more "normal" environment. There may be reasons of good order and discipline why a child should not be allowed to remain in an MBU with his or her mother even though it would otherwise be in the child's best interests to do so. As Maurice Kay J (as he then was) said in R (D) v Secretary of State for the Home Department [2003] EWHC 155 (Admin), [2003] 1 FLR 979, at para [31]:
"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."
The mother has, of course, within the meaning of section 3 of the Children Act 1989, parental responsibility for her child. So too, in certain circumstances, does the father: see sections 2 and 4 of the 1989 Act. The Secretary of State does not. Nor does any other public authority, unless the child happens to be in care, in which case the local authority will have parental responsibility under section 33(3) of the 1989 Act, or happens to be a ward of court, in which case custody of the child is vested in the court: see Lowe & White, Wards of Court (ed 2), para 1–8. But the exercise by the mother of her parental responsibility, like the exercise by a local authority of its parental responsibility and even the custodial powers of the wardship judge, necessarily take effect and operate subject to the necessary requirements of the mother's imprisonment: see A v A Health Authority, In re J, R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin), [2003] Fam 213, at paras [47]-[56], and more particularly R (Howard League for Penal Reform) v Secretary of State for the Home Department [2002] EWHC 2497 (Admin), [2003] 1 FLR 484, at paras [136], [142]-[148].
Thus in the final analysis it is for the Secretary of State to decide whether or not a baby should remain in prison with his or her mother. Likewise, insofar as that decision requires consideration of the baby's best interests, in the final analysis it is for the Secretary of State to decide where the baby's best interests lie. Parliament has conferred that power and responsibility on the Secretary of State. Rule 12(2) of the Prison Rules makes it quite clear that the decision is one for the Secretary of State: not the mother; not the local authority; not the court.
Rule 12(2) empowers the Secretary of State not merely to decide what is to happen to the baby in a particular case but also to formulate and adopt a policy in relation to such cases. That is what the Secretary of State has done. His policy is enshrined in Prison Service Order ("PSO") 4801, the second edition of which was published on 10 May 2000. Putting the matter very shortly – the position is, of course, more complex than this: I will go into the details in due course – the policy in PSO 4801 is that in most cases the upper age limit for children to live with their mothers in prison is 18 months. The essential lawfulness of that policy was upheld by the Court of Appeal in R (P) v Secretary of State for the Home Department, R (Q and another) v Secretary of State for the Home Department [2001] EWCA Civ 1151, [2001] 1 WLR 2002, a case which for convenience I will from now on refer to as Re P&Q.
The factual setting
Claire wants to keep Lia-Jade with her in prison as long as possible – ideally until she is released, whenever that may be, but at least until Lia-Jade is 18 months old. The Secretary of State has taken a different view. On 9 September 2003 a Separation Care Plan Meeting decided that Lia-Jade should be separated from Claire on 10 October 2003, that is, when she was 9 months old. The plan was for her to go to live with her maternal grandparents, Claire's mother and father. That meeting was chaired by an Independent Chair, Ian Milner, a former Deputy Director of Social Services who has worked for over a decade as an Inspector in the Social Services Inspectorate. One of those attending was Mahala Hodgson, the Governor in charge of the MBU at New Hall. She wrote on 11 September 2003 to Hazel Banks, the acting Head of the Prison Service Women's Estate, reporting the outcome of the meeting, sending her all the relevant papers and saying that she believed there were three options available: Option 1: Lia-Jade separates from Claire on the date originally agreed (18 September 2003); Option 2: Lia-Jade separates from Claire on 10 October 2003, when 9 months old; Option 3: Lia-Jade remains with Claire until she is 18 months old, which would mean moving to Styal (like New Hall a closed prison) and then to Askham Grange (an open prison) if Claire became eligible. The papers were reviewed by Nicholas Montgomery-Pott, the Head of the Women's Estate Policy Unit in the Security Directorate of the Prison Service, who the same day (11 September 2003) minuted the file with a note to the effect that Option 2 was "reasonable" and that "the paperwork backs up the reasons for the decision to separate". The formal decision was taken later the same day by Ms Banks. Having read all the papers and discussed the case with Mr Montgomery-Pott she came to a decision. She agreed with Mr Montgomery-Pott. So the decision of the Separation Care Plan Meeting stood.
On 7 October 2003 Claire issued a CPR Part 8 Claim Form in the Family Division seeking (i) a declaration that the decision to separate her and Lia-Jade was not in Lia-Jade's best interests and so was in breach of the Secretary of State's own policy and of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and (ii) an order that she and Lia-Jade remain accommodated together. Her application was supported by a witness statement Claire made on 29 September 2003. The Secretary of State filed an acknowledgment of service indicating his intention to contest the claim and asserting that the mandatory order sought by Claire can be made...
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