COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(Lord Woolf CJ and Lightman J)
Strand, London, WC2A 2LL
Friday 20th July 2001
B e f o r e :
LORD JUSTICE BROOKE
LADY JUSTICE HALE
ON THE APPLICATIONS OF "P" and "Q" and QB
|SECRETARY OF STATE FOR THE HOME DEPARTMENT & ANR
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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)
Crown Copyright ©
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).
|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|
|18.||Our conclusion: the P case||107|
|19.||Our conclusion: the Q case||112|
|20.||Some concluding comments||117|
LORD PHILLIPS, MR:
This is the judgment of the court.
2. The Formation of Prison Service Policy
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;
v) 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 continuing rise in the number of women in prison with the consequent rise in the number of mothers in prison was of enormous concern to the working group. It would like to see the Prison Service making representations to the Home Office for new work on sentencing policy. One idea it wished to be pursued is that of deferring committal to prison until child care arrangements have been made
Only 31% of women remanded in custody receive a custodial sentence. Sixty-one per cent of convicted women receive a sentence of less than six months. While this may be construed as a brief spell of imprisonment for the mother, for young children six months may represent a significant period of early development, and the impact of separation could be detrimental. At times, sentencers appear to lack information about a defendant's childcare responsibilities "
"The significance of regular contact with a mother or father will vary with the child's age and the nature of that contact. A newborn baby needs close contact with his or her carer of significant duration and frequency in order to form an attachment. This is of vital importance in the earliest weeks and months of infancy, declining with age and independent mobility through early childhood. There is no finite line of demarcation in this natural progression towards separation and independence. If the situation is well-managed, even in the prison setting, once attachment is established contact may be reduced without significantly damaging the relationship."
"Research carried out in the United States showed that prisoners who have retained close family ties were six times less likely to re-offend in the first year after release that prisoners who were released without family support."
"Foreign national women of particular concern to the working group were those pregnant or with accompanying children on arrest, serving long sentences (often for importation of drugs so called 'drug mules' often tempted into this role to earn money to support their families). Some of these women have left children in their own country without any long-term care arrangements because they expected to return within hours or days. This can be a source of acute anxiety to these women, in addition to all the other traumas they are experiencing. Account needs to be taken of such issues as separation of mother and child, cultural differences, deportation at the end of sentence of mother and child or children who have not lived in their country of origin for years, if at all, "
"The working group acknowledged that prison is not an ideal place for babies or children to live. The group reiterated many times its wish to see fewer mothers committed to custody, in the best interests of children. However, in pursuing those same best interests, the Prison Service must provide for those mothers who are in custody, quality facilities and distinct policies and procedures for the provision of services, based on clearly stated principles."
"The Main Principle
The purpose of a mother and baby unit in a prison is to enable the mother/baby relationship to develop whilst safeguarding and promoting the child's welfare.
The best interest of the child is the primary consideration at every level of policy making as well as when considering individual situations.
Prison Service policy will reflect ECHR Article 8, save where it is necessary to restrict the prisoner's rights for a legitimate reason, such as good order and discipline, or the safety of other prisoners or babies.
When making decisions about the best interests of the child, the long-term developmental needs of the child are given attention as well as the immediate situation.
Principles for parents
Parents are enabled to exercise parental responsibility for their children whether the child is with them in prison or outside with other carers
Parents and other significant carers are involved in decision making about their children.
Principles for babies/children and families
Care planning for the child is essential from before birth, if relevant, including the plan for a baby's exit from the mother and baby unit. "
"There is still concern about the effect of a prolonged stay. Accepting the lack of empirical evidence on the optimum age of separation of child from mother, but based on the knowledge and experience of expert members, the group believed that the upper age limit should remain 18 months whilst new research is commissioned. In the meantime, managers of the units and professionals involved should concentrate on enabling mothers to make the best choice for their child in each individual case. The discretion to allow a child over 18 months to stay longer with his/her mother should be exercised only in the child's best interest and monitored carefully by the women's policy group. The current difference in age limits among the existing units should be examined and reviewed in order to establish a clear rationale for any difference. (Emphasis added).
During site visits members of the working group were disturbed by the perceived assumption among staff and prisoners that all children allocated a place would stay to 18 months, if the mother's time in custody warrants it. For some children, separation at an earlier age may be in their best interests. ...
In short, the principle should be that the purpose of the place should be clearly defined at the Admission Board and regularly reviewed to see that residence remains in the child's best interest. The emphasis should be on empowering the mother to make an informed choice. Where separation is inevitable, the responsibility of the Prison Service is to facilitate the alternative child care arrangements being put in place, in co-operation with the relevant external agencies."
"There would however be an element of discretion for those situations where the child and mother could go out [ie leave prison] together a little after the age limit but the discretion should be closely monitored."
"(i) an enquiry to ascertain the optimum age limit for a child to be resident in a mother and baby unit in a prison; and
(ii) the long-term impact on children's development of residence in a prison mother and baby unit."
"They were restricted to the unit they could not attend education because they could not take their babies to the classes and there were no crθche facilities to leave children. They stated they were bored, watched a lot of television and spent long hours together with their children."
"Previous research and advice from the Social Services Inspectorate has established no conclusive evidence to alter the current upper age limit of 18 months. Recent discussions with SSI inspectors and Nursing Officers from the Department of Health have given emphasis to the importance of considering the length of stay of each child as an individual case. There should be room for flexibility and the exercise of discretion. Above all the culture which structures the expectations of staff and mothers that every child will stay to the upper age limit if the mother remains in custody should be changed to ensure the child's best interest[s] are the primary consideration. However the Prison Service accepts that policy should be based on evidence and research will be commissioned." (Emphasis added).
3. The policy and its legal status
"4(1) Special attention shall be paid to the maintenance of such relationships between a prisoner and his family as are desirable in the best interest of both."
"12(2) 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."
4. The facts of the two cases
"P is a 32 year old Jamaican. She was sentenced to 8 years imprisonment on 28 June 1999 for an offence of unlawfully importing drugs into this country. She could be eligible for release on parole in 2003 and if she is not granted parole she should complete the custodial part of her sentence in .
Her baby 'PB' was born on 8 July 1999 so that she is now 20 months of age. P has three other children who are being looked after in Jamaica. P was arrested on arrival in this country on 3 March 1999. At the time of her arrest she was approximately five months pregnant. A recommendation for her deportation at the expiry of her sentence was made by the trial judge. She is herself HIV positive and although, at one time, it was thought that PB could be HIV positive, this complication fortunately does not now arise.
P is at HMP Styal. Initially it was proposed that PB should be transferred to the care of her father when she was 18 months old, but approximately eight months ago [P] had an argument with the father, following which she decided that she would not allow PB to go to her father.
In November 2000, a social worker employed by Cheshire County Council visited P in prison to discuss arrangements for PB to be placed in foster care. A proposed foster mother was identified and she visited P and PB at Styal on 8 January 2001 and a number of subsequent occasions. The proposed foster mother lives in the Manchester area with her husband and their two children together with a foster child whose mother is also at HMP Styal.
P has visited the foster parent's home and is concerned that her daughter will share a small room with a young boy. A separation had originally been proposed for 8 January 2001 but was postponed at first until 8 February and subsequently to 15 February 2001.
P at present lives with PB in the mother and baby unit at the prison. This unit can accommodate 22 mothers with their babies in two blocks of 11 prisoners.
P was given a 'separation plan' which consisted of no more than a list of dates when the foster mother would have PB. On two of the dates (15 and 18 January 2001) the foster mother did not attend because she was ill and her car had broken down and this is why the date of separation was delayed until 15 February 2001. P also was given a list of dates on which PB would regularly see her mother after the separation.
The manager of the mother and baby unit has filed an affidavit on behalf of the defendants indicating that he does not consider that the Baby Unit is suitable for children over 18 months. There is an issue as to whether this is the case. A consultant chartered psychologist who has prepared a report on behalf of P states, not surprisingly, the opinion that no matter how good the environment within the prison, it is likely that some essential aspects of normal development will be affected adversely. He is therefore not of the opinion 'that PB can continue in the present circumstances if she is to develop her full potential'. This is contrary to P's wishes which are that PB should remain with her for the period of her sentence. P does however accept that special arrangements will have to be made if PB is to remain with her to enable PB to carry on activities outside the prison. The consultant's view of the best solution would be that P should serve her sentence at an open prison, a setting that would allow both her and PB to remain together whilst PB attended community-based pre-school opportunities for further stimulation and personal social development."
"must not be reallocated to open conditions unless highly exceptional circumstances arise (eg to enable a mother and baby to stay together when the only suitable establishment is an open prison). Governors must seek the approval of the Operations Manager Women's Prisons for such a transfer to open conditions."
"Q gave birth to QB on 26 July 1999. On that date she was on bail in respect of offences relating to class B drugs. She was convicted on 31 March 2000 and sentenced to 5 years imprisonment. Her parole eligibility date is 25 July 2002 and her non-parole release date is 24 May 2003. Q was separated from QB for a short period following her conviction but they were reunited at HMP Holloway. On 6 July 2000 Q was transferred to HMP Askham Grange, a small open prison in Yorkshire, where she has remained ever since. Askham Grange has substantial grounds to which the prisoners have free access. In addition Q and QB are able to leave the prison every weekend.
It had been clear that the Policy might result in the separation of Q and QB. But a pilot project was being considered by the Prison Service to allow children to remain with their mother beyond the age of 18 months and Q hoped that if she was selected for the pilot project this would mean that she would not be separated from QB. But on 27 January 2001 Q was told that the pilot project would not proceed and that accordingly separation would take place. A letter written on behalf of the Prison Service dated 13 February 2001 indicated that when suitable carers for QB were found, an introduction programme would begin 'with a view to separation sometime in April'.
On 27 January 2001, Q applied to the Family Division of the High Court for an injunction and declaration but the proceedings were dismissed by Kirkwood J on 8 February 2001 on the grounds that judicial review was the appropriate form of proceedings.
A problem in finding foster carers for QB is her Anglo/Indian/West Indian heritage. Because of this a suggestion was made that Q should be transferred to a London prison where foster parents with this background would be more likely to be found.
In support of her present application, Q relies upon a statement by an independent social worker. She says that QB is a well adjusted toddler who would suffer significant harm were she to be separated from her mother. The social worker does accept that 'there are real concerns about a child being brought up in prison'. Her conclusion as to the best result from QB's point of view is that she should be offered 4 to 5 days a week day-care by York (the local) social services as a 'child in need'.
Having been unsuccessful in the application to the Family Division, Q made her present application."
5. The concerns of the Prison Service
6. Continuing research and Prison Service planning
"I agree that 18 months is a bad age to separate a child from his primary caretaker. So is nine months. It is achievable with a slow handover, but this is impracticable with only a few units so that the new carer cannot be in the vicinity. Again, with sufficient financial support, she might be able to take up residence for say a week, in the vicinity of the prison so she could have increasing time with the baby before taking over his care completely. Four years is probably even worse. Research has shown that a child is at the height of his attachment behaviour between 3-4 years of age. In my opinion if a mother has more than a 4 year sentence, the baby should be in the care of someone else from an early stage. 4 years in jail is barely acceptable only if the mother and child would come out together, not if the child has then to be handed out anyway.
One solution, as described in other countries, might be to have a hostel outside the prison for mothers and children. The children would attend a creche or nursery school in the community while the mothers attended in the prison for their work and training. We need to have much more information about these foreign projects."
7. The potentially traumatic effect of separation
"For any eighteen month old the basis of love and trust and the self-esteem and confidence that grows out of this, is a close and continuing attachment with not more than two or three loving adults who are completely committed to that child. For most children, with few exceptions, and in the vast majority of cultures world-wide, the central person in such intimate and constant relationships is the mother
Children who have been with their mothers in prison have benefited from strong emotional attachment that has flourished because they have spent so much time together. On the other hand, when children do not have a continuing relationship with other individuals in the nuclear and extended family, they are especially vulnerable to separation from their mothers. When prisoners' babies are cared for outside prison 50% are shifted between four and five different homes before their first birthday. [A footnote cites a 1997 Home Office research study for this statement].
If the mother and child are separated, either at nine or at 18 months, the mother then has the task when she is released from prison of building a relationship with a child who may by this time be emotionally disturbed. [Four different articles in specialist journals published in 1990 and 1998 are cited].
To take an eighteen month old from a person with whom he or she has formed a close and passionate attachment is to emotionally mutilate both the mother and the child."
She also referred, as did Ms Jones, to some of the standard literature on attachment and separation.
8. The traditional approach of the courts on issues of policy
9. The Daly approach
i) The doctrine of proportionality may require the reviewing court to assess the balance which the decision-maker has struck, not merely whether it is within the range of rational or reasonable decisions;
ii) The proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations;
iii) Even the heightened scrutiny test developed in R v Ministry of Defence, ex p Smith  QB 517, 554 was not necessarily appropriate to the protection of human rights. In cases involving Convention rights, the intensity of the review is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued.
"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"It is unlawful for a public authority to act in a way which is incompatible with a Convention right."
10. The balance in ECHR Article 8 cases
"Such an interference can only be justified under Article 8.2 if three conditions are fulfilled:
i) It must be 'in accordance with the law'. This means more than it must have a basis in domestic law; the domestic law must also be adequately accessible and formulated so that it is reasonably foreseeable; and there must be adequate and effective safeguards in that law to protect against arbitrary interference: see Sunday Times v UK (1979) 2 EHRR 245; Silver v UK (1983) 5 EHRR 523. Subject to that, however, the need for flexibility and discretion are also recognised, particularly in child care cases: see Olssen v Sweden (No 1) (1988) 11 EHRR 259, para 61; Eriksson v Sweden (1989) 12 EHRR 183, paras 59, 60; Andersson v Sweden (1992) 14 EHRR 615.
ii) It must be in pursuit of one of the legitimate aims provided for in the Article: compulsory measures of care can be justified for the protection of health or morals or for the protection of the rights of the child. The rights of a child are not confined to his Convention rights and in this context include his interests: see Hendricks v Netherlands (1983) 5 EHRR 223; Andersson v Sweden (1992) 14 EHRR 615; Johanssen v Norway (1996) 23 EHRR 33.
iii) It must be 'necessary in a democratic society': that is to say, the reasons given for the interference must be 'relevant and sufficient'. It must correspond to a 'pressing social need' and be 'proportionate' to the legitimate aim pursued: see Olssen v Sweden (No 1) (1988) 11 EHRR 259. Thus, at least where there is no question of adoption, the care decision should be 'regarded as a temporary measure, to be discontinued as soon as circumstances permitted, and any measures of implementation should have been consistent with the ultimate aim of reuniting family' (para 81). The more serious the intervention, the more compelling must be the justification: see Johanssen v Norway (1996) 23 EHRR 33. The most important question in most care cases is therefore whether the proposed interference with the right to respect for family life is proportionate to the need which makes it legitimate."
11. ECHR Article 8 and prisoners' rights
"The Court accepts, moreover, that the 'necessity' for interference with the exercise of the right of a convicted prisoner to respect for his correspondence must be appreciated having regard to the ordinary and reasonable requirements of imprisonment. The 'prevention of disorder or crime', for example, may justify wider measures of interference in the case of such a prisoner than in that of a person at liberty. To this extent, but to this extent only, lawful deprivation of liberty within the meaning of Article 5 does not fail to impinge on the application of Article 8."
" notes that it is generally considered to be justified for the prevention of disorder in prison not to allow sexual relations of married couples in prison. The Commission accepts that in fact the security and good order in prison would be seriously endangered if all married prisoners were allowed to keep up their conjugal life in the prison. In this case the respect for privacy would require that the prison authorities renounce their right of constant supervision.
The fact that the applicants were kept in the same prison cannot be seen as changing the general situation. Other prisoners would consider the position of the applicants as privileged if this fact were to give them additional rights. The arguments which are valid for prisoners in general do, therefore, apply to the applicants as well."
"regard must be had to the ordinary and reasonable requirements of imprisonment and to the resultant degree of discretion which the national authorities must be allowed in regulating a prisoner's contact with his family."
"because it must be recognised that in general it is justifiable to apply to prisoners a uniform regime avoiding any appearance of arbitrariness or discrimination."
The Commission for its part had put (see para 71) administrative and security requirements into the balance against Mr Boyle's interests and Mr and Mrs Boyle's family life, and had been unable to find that the approach of the prison authorities violated Article 8.
"Moreover, the Commission recognises that the interference had a legitimate purpose, namely enforcement of the sentences handed down by the courts according to their severity and having regard to security requirements, with a view to the prevention of disorder or crime.
As for the necessity of the measure taken in this case, the Commission cannot ignore the fact that the prison authorities do not seem to have done everything in their power to guarantee the effective exercise of the applicant's right of access to his daughter. The Commission wonders whether greater efforts to move the applicant closer to his daughter's place of residence, bearing in mind, in particular, the child's mother's reluctance to let her meet her father, might not have been possible and compatible with the requirements of prison organisation and security.
However, taking into account the margin of appreciation enjoyed in such cases by the national authorities responsible for enforcing prison sentences, the Commission takes the view that the position adopted in this case by the authorities cannot be regarded as disproportionate in relation to the aim pursued."
"Under the Commission's case law, a prisoner has no right to choose where he will serve his sentence and his separation from his family is an inevitable consequence of his detention. Only in exceptional circumstances would the detention of a prisoner a long way from home constitute a violation of Article 8. This case did not disclose any such exceptional circumstance."
i) The right to respect for family life is not a right which a prisoner necessarily loses by reason of his/her incarceration;
ii) On the other hand, when a court considers whether the state's reasons for interfering with that right are relevant and sufficient, it is entitled to take into account
a) The reasonable requirements of prison organisation and security; and
b) The desirability of maintaining a uniform regime in prison which avoids any appearance of arbitrariness or discrimination;
iii) Whatever the justification for a general rule, ECHR law requires the court to consider the application of that rule to the particular case, and to determine whether in that case the interference is proportionate to the particular legitimate aim being pursued;
iv) The more serious the intervention in any given case (and interventions cannot come very much more serious than the act of separating a mother from a very young child), the more compelling must be the justification.
12. The effect of Article 8 on the sentencing process
13. Prisoners' rights and the common law
"Any custodial order inevitably curtails the enjoyment, by the person confined, of rights enjoyed by other citizens. He cannot move freely and choose his associates as they are entitled to do. It is indeed an important objective of such an order to curtail such rights, whether to punish him or to protect other members of the public or both. But the order does not wholly deprive the person confined of all rights enjoyed by other citizens. Some rights, perhaps in an attenuated or qualified form, survive the making of the order. And it may well be that the importance of such surviving rights is enhanced by the loss or partial loss of other rights." (Emphasis added).
14. The effect of Article 8 in a wider family context
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
However, it recognises in Article 18.1 that
" . . . Parents or, as the case may be, legal guardians have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern."
Article 9.1 allows the state to intervene only where necessary:
"States parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with the necessary law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence."
"Where such separation results from any action initiated by a state party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of information would be detrimental to the well being of the child . . . "
It seems clear that this provision contemplates separation of parent and child in circumstances other than those contemplated by Article 9.1, ie where separation is not necessary in the interests of the child but for some other reason.
15. The implications of the Children Act 1989
". . . the course to be followed will be that which is most in the interests of the child's welfare as that term has now to be understood. That is the first consideration because it is of first importance and the paramount consideration because it rules on or determines the course to be followed."
"Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of . . . (c) the person who has been caring for him being prevented (whether or not permanently and for whatever reason) from providing him with suitable accommodation or care."
If these children are separated from their mothers they will be accommodated under this provision.
"It shall be the general duty of every local authority (in addition to the other duties imposed upon them by this Part) (a) to safeguard and promote the welfare of children within their area who are in need; and (b) so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children's needs."
For the purpose of facilitating the discharge of this general obligation, authorities have the specific duties and powers set out in Part 1 of Schedule 2. Under section 18(1) and (5), they must provide such day care for children in need under five who are not attending school, and such care or supervised activities outside school times and terms for children in need who are attending school, in both cases "as is appropriate".
"a child shall be taken to be in need if (a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part; (b) his health or development is likely to be significantly impaired, or further impaired, without the provision of such services; or (c) he is disabled."
Thus the distinguishing feature of a "child in need" for this purpose is not that he has needs - all children have needs which others must supply until they are old enough to look after themselves - but that those needs will not be properly met without the provision of local authority social services.
16. The approach of the Divisional Court
" [at] least in the first instance, it is for the Prison Service to decide what in the light of the available options they are prepared to do and what they are not prepared to do. They must have an area of discretion as to the facilities and support they are prepared to provide for the mother. Like any other government body, the Prison Service's resources are certainly not unlimited.
[Counsel] alternatively submits that the Policy is unlawful because it interferes with the assessment which is the responsibility of the local authority under Section 17. Again we disagree. The local authority's duty to undertake an assessment is undiminished by the Policy. What the Policy does is to provide an option which is available to meet those needs."
17. Our Approach
18. Our conclusion: the P case
19. Our Conclusion: The Q case
20. Some concluding comments