R (Al-Hasan) v Secretary of State for the Home Department; R (Carroll) v Same

JurisdictionEngland & Wales
Judgment Date20 July 2001
Neutral Citation[2001] EWCA Civ 1151,[2001] EWCA Civ 1224
Docket NumberCase No: C2001/0546, C2001/0549, C2001/0681,Case No: C/2001/1114 & C/2001/1110
CourtCourt of Appeal (Civil Division)
Date20 July 2001
Regina On the Applications of "P" and "Q" and QB
Secretary of State for the Home Department & ANR

[2001] EWCA Civ 1151


The Master Of The Rolls

Lord Justice Brooke and

Lady Justice Hale

Case No: C/2001/1114 & C/2001/1110




(Lord Woolf CJ and Lightman J)

Royal Courts of Justice

Strand, London, WC2A 2LL

Richard Gordon QC and Ian Wise (instructed by Hickman & Rose for the Appellant P)

Richard Gordon QC and Hugh Southey (instructed by Thanki Novy Taube for the Appellant Q)

Eleanor Grey (instructed by the Treasury Solicitor for the Respondent on both appeals)


(This summary does not form part of the judgment)

In these appeals two serving prisoners appealed against the decision of the Divisional Court on 17th May 2001 whereby their challenges to the lawfulness of aspects of the Prison Service's policy in relation to Mother and Baby Units, and the application of that policy in these two cases, were dismissed.

The Court of Appeal held that the Prison Service was entitled to have a policy of the kind under challenge. It considered, however, that the Prison Service was not entitled to operate its policy in a rigid fashion, insisting that all children must leave a unit by the age of 18 months at the latest (give or take a few weeks if their mother is about to be released), however catastrophic the separation might be in the case of a particular child, however unsatisfactory the alternative placement available for the child, and however attractive the alternative solution of combining day care outside prison.

The court reached this conclusion for two reasons (see paras 101–106). The first was because the policy's own declared aim was to promote the welfare of the child. If the effect of the policy upon an individual child's welfare would be catastrophic, the policy would not be fulfilling its own objectives if mother and child were separated at this stage. The second was because on the proper application of Article 8 of the European Convention on Human Rights there might be very rare exceptions where the interests of mother and child coincide and outweigh any other considerations arising from the fact of the mother's imprisonment and the implications of any relaxation in the policy on the individual prison and the Prison Service generally.

The court dismissed the appeal of one of the mothers on the grounds that there was no realistic possibility of any further consideration of the merits of the case of this mother and child producing a different outcome (see paras 107–111). It allowed the appeal of the other mother because the evidence before the court was sufficient to suggest that this might be such an exceptional case as to justify the Prison Service in departing from its policy. It therefore required the Prison Service to reconsider this case in the light of its judgment (see paras 112–115).

The judgment contains a review of the implications of the European Convention on Human Rights in cases concerned with parents in prison and their access to their children (paras 65–88) and the implications of the Children Act 1989 in this context (paras 89–97).


Part Paragraph
1. Introductory 1
2. The Formulation of Prison Service Policy 2
3. The policy and its legal status 35
4. The facts of the two cases 37
5. The concerns of the Prison Service 43
6. Continuing research and planning 49
7. The potentially traumatic effect of separation 53
8. The traditional approach of the courts on issues of policy 54
9. The Daly approach 57
10. The balance in ECHR Article 8 cases 65
11. ECHR Article 8 and prisoners' rights 67
12. The effect of Article 8 on the sentencing process 79
13. Prisoners' rights and the common law 80
14. The effect of Article 8 in a wider family context 81
15. The implications of the Children Act 89
16. The approach of the Divisional Court 98
17. Our approach 99
18. Our conclusion: the P case 107
19. Our conclusion: the Q case 112
20. Some concluding comments 117

This is the judgment of the court.




These two appeals are brought by mothers serving substantial prison sentences against an order of the Administrative Court dated 17th May 2001 whereby the Lord Chief Justice and Mr Justice Lightman, sitting as a Divisional Court of the Queen's Bench Division, dismissed their applications for judicial review. By these applications they had challenged the lawfulness of the formulation and the application of the present policy of the Prison Service contained in Prison Service Order No 4801 ("PSO 4801") issued on 10th May 2000. This order prohibits babies from remaining with their mothers in prison after they have reached the age of 18 months. We will follow the practice adopted in the court below of describing the two mothers as P and Q and their children as PB and QB. We have also continued in effect the order protecting the anonymity of these two mothers and their children.


The Formation of Prison Service Policy


In December 1998 the then Director-General of the Prison Service announced the appointment of an expert working group whose task was to examine existing Prison Service policy in relation to mothers and babies in prison. The group was asked to submit its report, together with recommendations for future strategy in this field, within four months. In particular, it was invited to address nine specific issues. For the purposes of this appeal, it is only necessary to mention four of them:

i) The rights of imprisoned mothers and their babies/children and the principles that should underpin the policy on the care of babies/children of mothers in prison;

ii) The responsibility of HM Prison Service for the provision of services and facilities for mothers and their children;

iii) A strategy for provision for mothers and babies/children in prison, including the type, location, number of places, age range and length of stay;


the criteria and procedures for separation of mother and baby when necessary or for the removal of a mother from a mother and baby unit.


The group was chaired by a member of the Prison Service's Women's Policy Group, and it contained a mix of senior Prison Service personnel, including two prison governors, and people drawn from a wider field with expert knowledge of the issues that were being addressed by the review. For instance, the group included representatives of the Prisons Inspectorate and the Social Services Inspectorate; the Department of Health and the Royal College of Midwives; three non-governmental organisations active in this field; representatives of the Associations of Directors of Social Services and of Chief Officers of Probation; and Dr Dora Black, a well-known consultant child and adolescent psychiatrist. Members of the group paid visits to the four prison mother and baby units ("MBUs") in England and Wales, and the group held eight meetings and conducted a seminar for a wider constituency before submitting its report within the timetable requested of it.


The group prepared a careful, well-balanced report. Its main report covers 44 pages of text, and these are followed by seven annexes. It would be wrong for us to attempt to consider the questions of law we have to decide on these appeals without first referring in some detail to the report which represented the foundation of the policies that are under challenge before us.


The group began its report by explaining that its work had excited intense interest among those working in the four MBUs. It had therefore decided to form a reference group, comprising the managers of all four MBUs, together with the social worker and the probation officer attached to each unit and an official responsible for maintaining family ties. This reference group was chaired by the deputy governor of a female prison, and it included an official from the Prison Service's Women's Policy Group who was also a member of the main working group. During the review the reference group was involved as an expert practitioner group to inform the review process, and after the Director-General had decided which of the working group's recommendations he would accept, the reference group remained in being for the purpose of carrying out the detailed policy formulation needed to implement those recommendations.


The working group took it to be within its remit to consider the needs of mothers in prison from a much wider perspective than if it simply reviewed the provision of MBUs. Its review also covered visiting arrangements and information available on the services for imprisoned mothers and their children in other countries, the position of fathers who were the primary carers for their children before being imprisoned, and the framework of national and international law pertaining to policy-making in this field.


The fourth chapter of the report was concerned with statistics. At the time of the review there were 16 prisons for women in England (and none at all in Wales). The annual average number of women in prison had doubled between 1993 and 1998. In particular, the working group noted that in the calendar year 1998 the number of females in prison had risen by 11%, whereas the male population had risen by only 2.9%. 22% of the total female prison population were on remand.


The report contained other statistics which reflected the increase in the sentenced female prison population, although it was noted that women still form only a small proportion of the total prison population, and remain less likely than men to receive a custodial sentence. As at...

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