R WB (First Claimant) W (Second Claimant) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Elisabeth Laing |
| Judgment Date | 07 May 2014 |
| Neutral Citation | [2014] EWHC 1696 (Admin) |
| Docket Number | CO/979/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 May 2014 |
[2014] EWHC 1696 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mrs Justice Elisabeth Laing
CO/979/2014
Ms M Sikand (instructed by Hodge, Jones and Allen) appeared on behalf of the First Claimant
Ms C Gallagher (appearing as Litigation Friend the Official Solicitor, instructed by Maxwell Gillott) appeared on behalf of the Second Claimant
Ms F Scolding (instructed by Treasury Solicitors) appeared on behalf of the Defendant
This is a rolled-up hearing of the Claimant's applications for permission to apply for Judicial Review, and, if permission is granted, for Judicial Review, of a decision of the prison Director, made on 5 December 2013 at HMP Bronzefield, to refuse the First Claimant's application for admission to the mother and baby unit at HMP Bronzefield, which I will refer to as "the prison". The First Claimant was at that stage heavily pregnant. The Defendant knew that the Claimant was pregnant at, or shortly after the time of her admission to the prison (see Ms Ellis' file note of 19 August 2013.)
The facts
The Claimant is a remand prisoner. She is 26. Her trial for the attempted murder and wounding with intent of her partner is due to start on 14 July 2014, or perhaps later. There have apparently been difficulties with the key witness. Her former partner is in a vegetative state and, it appears, is unlikely to recover. She was admitted to the prison as a remand prisoner on 14 August 2013. She has no previous convictions or cautions. This is her first experience of prison. She was then about four months' pregnant.
On 19 August 2013 an application was made for her to the admitted to the prison's mother and baby unit ("MBU"). It is important to note that, as the First Claimant is on remand, the application was for temporary admission to the MBU pending the outcome of her trial and sentence. Once that was known, if there were a conviction and sentence, it would, if the first application had succeeded, have been necessary for there to be a further Board to consider what should happen in the light of the First's Claimant sentence. The prison is a private prison, so it has a director instead of a governor.
The First Claimant and her partner have two children, P and W. W was born on 31 December 2013. P and W are, I understand, both the subject of care proceedings brought by the relevant local authority (which I will refer to as "the Authority") under section 31 of the Children Act 1989 ("the 1989 Act"). An Interim Care Order was made in relation to P when the First Claimant was imprisoned. He is now living with a cousin. P was, until the First Claimant was imprisoned, being raised by the First Claimant in the community.
The First Claimant is a Polish national. An undated report from her prison ESOL tutor describes her as "not a fluent speaker of English". She has been taking courses in prison. At the date of that note she could understand and write quite complex sentences and structures but sometimes misunderstood complex instructions and sentences and could not form very complex sentences. On remand, she has been assigned a pregnancy support officer, Ms Tracey Ellis. Her file notes record several meetings with the First Claimant between the date of her remand and today's date. Six of those took place before the hearing in front of the Board.
W is now represented by the Official Solicitor and he is the Second Claimant.
The purpose of an MBU is not to enable a prisoner's ability as a parent to be assessed (see the witness statement of Zoe Markham for the Defendant, paragraph 15.) Each prisoner has parental responsibility for her child (see section 3 of the 1989 Act.) Prison officers are not there to provide safeguarding but the statutory guidance "Working Together to Safeguard Children" provides at paragraph 24 that prison governors should ensure that there is at all times on duty in the MBU a member of staff who is proficient in child protection, health and safety, and first aid. Mothers are expected to care for their babies when not doing prison activities. It is therefore important, in my judgment, that the prison authorities should, in appropriate cases, gather timely information about the ability or otherwise of a person who applies for a place in an MBU to look after her baby in the environment of the MBU.
On 2 December 2013 Ms Ellis recorded that she told the First Claimant that an MBU Admissions Board would sit on 5 December 2013. The First Claimant's case is that after making her application to the MBU in August, it was her understanding that she would automatically be entitled to be admitted to it and it was not until 2 December 2013, when she had this meeting with Ms Ellis, that she realised that this might not be the case. She was at that stage given an opportunity to speak to a social worker from the Authority on the telephone, who told her that the Authority would be opposing her admission to the MBU.
Ms Ellis says in her recent witness statement that she is in regular contact with the Authority during the application process. She had a problem with the Authority as they wanted to wait until they had gone to court in the care proceedings to see if a judge would rule on the issue. Ms Ellis had to explain that this was a prison process, not a court process. An application had been made and a recommendation was needed so that the plan was in place before the baby was due. The delay in the Authority's report, according to Ms Ellis, meant that the Board had to take place much later than Ms Ellis had intended. It seems from the Authority's own document that its limited assessment did not even start until 21 November 2013 (see the Authority's report of 4 December 2013.)
The First Claimant's application was heard by an Admissions Board on 5 December 2013. The Board recommended to the Director of the prison that the application should be refused. I now summarise what happened, from the Board's minutes, and from the witness statement of the independent Chair of that Board, which are in the bundle. The minutes are dated 21 December 2013 and are signed by the Chair alone. That means that they were not before the Director of the prison when, later on 5 December, she made her decision to uphold the Board's recommendation.
The Chair was an independent person. Various representatives of the prison attended the Board and two officers from the Authority. The First Claimant was a present, with a Polish interpreter.
The Chair of the Board was an independent social worker with many years' experience. She estimates that she has chaired at least 400 meetings for admission to the prison's MBU. She had done so since 2005. Only 12 of those have resulted in a split decision.
She remembers that the Authority's report and recommendation were only available on the day of the hearing. In the Chair's view this was not ideal. It is better, she said, for the Local Authority report to be available sooner so that it can be explained in detail. This is especially true in this case, I interject, because the Local Authority very belatedly indicated that it opposed the placement in the MBU and this was the First Claimant's first opportunity to see why the Authority opposed her application.
The Chair remembers that the First Claimant spent time at the start of the meeting with the interpreter, going through the documents. The First Claimant's evidence — and this is not contradicted — was that she was allowed 15 minutes in which to do this. This is a very limited opportunity for a person whose first language is not English to read and get to grips with an entire dossier of documents. The dossier included information about the First Claimant's previous good record, that she had no adjudications, and the fact that she had been recommended for two enhancements while in custody. The wing report, which gave more detail about her polite demeanour and good behaviour, was not in the dossier.
The Chair of the Board said in her witness statement that if the First Claimant had asked for a personal officer to support her, the Chair would have allowed this. But there is no evidence that I have seen that anyone explained to the First Claimant that she could have had someone to support her at the hearing before the Board.
It was clear to the Chair at the Board that no parenting assessment by the Authority would be available before the date of the criminal trial.
The minutes record that the Chair met the First Claimant before the Board in order to ensure that she understood what was going on. The Chair reminded the Board at the outset that the best interests of the child (that is W) were their primary consideration. The First Claimant had had an opportunity to read the papers, said the Chair, and had told the Chair that she understood them. The Chair did her best to ensure that the hearing was fair. Paragraph 10 of her witness statement records that she corrected a passage in the Authority's report which appeared to suggest that the First Claimant had already been convicted.
The Chair explained the admission criteria to the First Claimant. According to the Chair, the First Claimant said that she understood the criteria. She was asked about antenatal care before her remand in custody. She had had none and had missed the 12-week scan. When asked why, the First Claimant said that she was convinced that she could look...
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