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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> M L, R (on the application of) v Secretary Of State For Heal [2000] EWHC Admin 397 (11 October 2000)
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Cite as: [2000] EWHC Admin 397
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QUEEN v. SECRETARY OF STATE FOR HEALTH EX PARTE M. L. [2000] EWHC Admin 397 (11th October, 2000)
Case No: CO/4858/1999
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 11 October 2000
THE HON MR JUSTICE SCOTT BAKER
THE QUEEN |
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- v - |
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SECRETARY
OF STATE FOR HEALTH |
(Transcript of the Handed Down Judgment of
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)
- - - - - - - - - - - - - - - - - - - - -
Mr Richard Gordon QC & Fenella Morris(instructed by Peter Edwards & Co for the Applicant)
Mr Philip Sales (instructed by The Department of Health for the Respondent)
Judgment
As Approved by the Court
Crown Copyright
MR JUSTICE SCOTT BAKER:
The Applicant is a patient at Rampton Hospital. He seeks to challenge Health Service Circular HSC 1999/160 dated 23 July 1999 which sets out Directions and Guidance for visits by children to patients in high security hospitals namely Ashworth, Broadmoor and Rampton. Patients in these hospitals suffer from mental disorders and need to be treated and cared for in conditions of special security because of their dangerous, violent or criminal tendencies.
The statement of Jennifer Anne Gray sets out in detail the background to this challenge and the circumstances leading to the promulgation of the circular. Section 4 of the National Health Service Act 1977 requires the Secretary of State for Health to provide special hospitals for detained mentally disordered patients. There are three such hospitals of which Rampton, with which this case is directly concerned, has a catchment area that comprises Yorkshire and parts of eastern and central England. It has an average patient population of around 450. Patients are housed in high security wards and the average stay is 7½ years, although some patients remain a good deal longer. Over half of the patients are classified as having a mental illness and of these about one third are classified as having a psychopathic disorder. Some 70% of patients are mentally disordered offenders admitted to Rampton on the authority of the courts or from prison at the direction of the Home Secretary. Those admitted to Rampton require the highest levels of care and security because of the grave danger they present to the public, such that they cannot safely be contained within the security of a regional secure unit.
At the end of 1997 work began to ensure that each of the three special hospitals developed a comprehensive child welfare policy which included child protection matters and addressed agreed principles relative to children visiting patients. Numerous interested parties were consulted and a comprehensive survey was undertaken of current policies and practices on the existing child welfare policies and procedures in each of the hospitals. Eventually three over arching principles for the child protection guidance were agreed:
(i) the child's welfare is paramount and takes primacy over the interests of any and all adults
(ii) the child's welfare should be safeguarded and promoted by all staff within the hospital;
(iii) a child's contact with family members should be supported whenever it is in the child's best interests.
Throughout the consultation process the overriding concern was to develop guidance to safeguard and promote the welfare of children.
In September 1998 specific concerns arose about children visiting known child abusers in special hospitals. As a result, a letter was sent stating that with immediate effect a child could only visit these hospitals if the patient concerned was the child's parent or had parental responsibility for the child or was the grandparent or sibling of the child (the interim measure). The letter stated further guidance would follow.
The report of the Fallon Enquiry was published in January 1999 and its findings were taken into account in finalising the draft directions and guidance. In May 1999 formal consultations took place with the three hospitals concerned and other interested parties. The final Directions and Guidance were issued on 23 July 1999 in the form of HSC 1999/160 to take effect from 1 September 1999.
Meanwhile similar work was being undertaken to develop guidance for visits by children to patients in medium secure units and other psychiatric units. This was issued in October 1999 as HSC 1999/222 but is of no direct relevance in the present case.
The Applicant was convicted of the murder of an elderly man in 1980 and sentenced to life imprisonment. He was moved from HMP Dartmoor to Rampton on 23 February 1996 and is currently detained there under Sections 37 and 41 of the Mental Health Act 1983. He has been diagnosed as suffering from personality disorder.
HSC 1999/160 and the interim arrangement made in 1998 were made under the powers conferred on the Secretary of State for Health by Section 17 of the National Health Service Act 1977 as amended.
HSC 1999/160 goes into considerable detail. It is to be found at pages 21-44 of the bundle of documents. The summary at the beginning of the circular provides that:
"From 1 September 1999, a hospital may not allow a child to visit any patient in the hospital unless the hospital authority has approved the child's visit in accordance with the directions in part A of this circular and in particular is satisfied that the visit is in the child's best interests. The only exception to this is where there is a contact order made under the Children Act 1989 which specifies that the child may visit the patient in the special hospital. In such cases, visits should be allowed except where there are concerns about the patient's mental state at the time of the proposed visit such that the nominated officer decides the visit would not be in the child's best interests.
In the case of patients convicted of murder or manslaughter or an offence listed in Schedule 1 to the Sex Offenders Act 1997 or who have been found unfit to be tried, or not guilty by reason of insanity, in respect of a charge of murder or manslaughter or a Schedule 1 offence, the child must be in the permitted categories of relationship as set out in paragraph 2(2)(b) of the Directions. If the child does not satisfy the relationship criteria, the hospital must refuse the request for a visit."
"Child" is defined as a person under the age of 18.
Paragraph 2 of the Circular is headed Visits. Paragraph 2 (1) provides that a hospital authority is not to permit a patient to be visited by a child except in accordance with the Directions.
The permitted categories in paragraph 2 (2)(b) are where the patient:
(i) is the parent or relative of that child;
(ii) has parental responsibility for that child; or
(iii) was cohabiting with the parent of the child immediately prior to his detention under the Mental Health Act 1983 and the child was treated as a member of his household.
Paragraph 2(3) defines parent as meaning the mother or father, the adoptive mother or father or the stepmother or stepfather of the child and relative as meaning a grandparent, brother, sister, uncle or aunt or cousin related to the child by blood (including half blood) or marriage. The definitions are, therefore, quite wide.
There is an exclusion in paragraph 2 (4) which says that sub paragraph (2) does not apply where an order has been made under the Children Act 1989 that the child may visit the patient in the special hospital. Nevertheless, any such visit still has to comply with paragraph 2(1); it is not removed altogether from the ambit of the Directions.
Paragraph 3 sets out in detail the procedure for dealing with requests for visits. This includes nomination by the hospital authority of a senior manager to oversee the process. The nominated officer must arrange for the patient's clinical team to carry out an assessment of whether a visit is appropriate and, if it is, to make the necessary arrangements for the visit to take place safely (sub paragraph (4)). Under sub paragraph (5) the nominated officer must refuse the request if after the assessment he is satisfied it would not be appropriate for the child to visit the patient. In any other case he then has to seek the advice of the relevant social services authority whether it is in the best interests of the child to visit the patient. He has to send a copy of the assessment with the request for advice.
By sub paragraph (6) when he receives the advice he has to decide whether to approve the visit and by sub paragraph (7) he may not approve the visit where the advice is that the visit is not or may not be in the best interests of the child.
By sub paragraph (11) where a patient is a schedule 1 offender or has a conviction for murder or manslaughter and the child is not within the permitted categories under paragraph 2(b) the above provisions do not apply and the nominated officer must refuse the request. This, however, is subject to sub paragraph (14) which provides that the nominated officer must allow the visit to take place where an order under the Children Act 1989 specifies that the child may visit the patient in the special hospital.
There is an overriding provision that the nominated officer may refuse to allow a visit if there are concerns about the patient's mental state at the time of the proposed visit.
It is not necessary for the purposes of this judgment to make specific reference to any of the other provisions in the circular.
It is said that while he was in prison the Applicant was allowed visits by his nieces and nephews and these visits continued after he moved to Rampton until September 1998 when the interim measure was brought in. He has not seen them since and contact has been broken for the last two years. He has made two applications under 1999/160 but still awaits risk assessment by the clinical team. Any unreasonable delay in that regard cannot be laid at the door of Secretary of State and does not go to the lawfulness of the circular with which this case is concerned. As will become apparent, it is necssary to examine the evidence of his relationship with his nephews and nieces with some care and I shall return to this in a moment.
Mr Richard Gordon QC, for the Applicant makes five main submissions which he summarises as follows.
(i) The policy in the circular assimilates schedule 1 offenders with those convicted of murder or manslaughter. It is disproportionate and illogical in terms of policy and objective to treat the two categories in the same way.
(ii) The policy discriminates, for no sensible reason as regards the welfare of children, between serving prisoners and detained patients. This is an irrationality that is intrinsic to the entire scheme.
(iii) The policy breaks up family life contrary to Article 8 of the European Convention on Human Rights (ECHR).
(iv) The Directions and Guidance offend against the principle of illegality articulated by the House of Lords in R -v- Secretary of State for The Home Department ex parte Simms [1999] 3 WLR 328 in that the content is not justified by pressing social need and in any event extends well beyond the stated objective of the welfare of the child.
(v) The policy conflicts with its own expressed objectives. Its effect is to break contact across the board and takes no account of attachments developed in individual cases.
Mr Philip Sales for the Secretary of State points out it is necessary from the start to be clear what the real challenges are. The underlying challenge seems to me to be to the irrationality of the circular. Secondly there is a challenge that is more specific to the Applicant in that the circular is said to sweep up those convicted of murder and manslaughter with offenders under Schedule 1 to the Sex Offenders Act 1997. Whereas the latter category presents an obvious potential danger to children, the same is not necessarily true of someone convicted of murder or manslaughter. Take for example the present Applicant who killed an 80 year old man; his offence had nothing whatever to do with children.
I turn therefore to consider each of Mr Gordon's five submissions.
Assimilation of murder/manslaughter and Schedule 1 Offenders.
Mr Gordon says there is no logical reason for grouping those convicted of murder or manslaughter with Schedule 1 Offenders. It is unjust and unfair to someone in the Applicant's position. The fact that he has in the past killed an adult does not put him in a special category of risk to children. It should be emphasised that the consequence for this group is that its members are ordinarily excluded from receiving visits from children other than those falling within paragraph 2 (b). I say "ordinarily" because there is an exception where a court has made an order under the Children Act 1989 (see paragraphs 2(4) and 3(14)). In the Applicant's case the fact that he is grouped with Schedule 1 Offenders and caught by paragraph 2(b) makes no difference because the nephews and nieces from whom he wishes to have visits are within the permitted categories of child. His position is therefore no different from any other patient in a special hospital; he is allowed visits but not unless they have been approved in accordance with the Directions.
Mr Gordon's argument, as I understand it, runs thus. The Directions are either irrational or they are not and one has to look therefore beyond the facts of this case to other patients who have murder convictions and may wish to be visited by children outside the paragraph 2(2)(b) categories. Why should that patient be grouped with Schedule 1 Offenders?
The statement of Ms Gray on behalf of the Secretary of State sets out in very great detail the circumstances in which these Directions were considered necessary and the reasoning behind the various provisions in them. I regard this statement of considerable importance; it sets the background against which it is crucial to consider the issues in the case. In the section of her statement headed "applicability of directions to patients convicted of murder". She makes a number of points. These are:
(i) Patients in the special hospitals are some of the most dangerous people in society and those convicted of murder or manslaughter of an adult may pose a continuing risk of serious harm to children.
(ii) It may be disturbing to a child to visit a patient known to have committed any of these offences. In some cases the patient may have killed a parent or other near relative of the child. Even if the child wishes to visit a patient, the effects may be so traumatising that it is not in the child's best interest to do so.
(iii) Patients in the special hospitals have a combination of offending behaviour and severe mental instability. There may be a risk of violence (although stringent security measures are put in place to minimise this). Of wider relevance is the emotional harm the children will be at risk of suffering, both from being disturbed by visiting someone known to have committed terrible acts and from any hurtful or disturbing thing that the patient may say to them or do in their presence. This risk is always present to some degree in this class of case.
(iv) The type of conviction may often not provide all the information about the patient's violent or abusive past history. Many of those in special hospitals who have committed murder or manslaughter have histories of committing violent offences and, in some cases, sexual offences, but will not necessarily have been convicted of those offences. It is therefore considered that a visit could normally only be justified where there is a family tie between patient and child which may make a visit in the child's interest, despite the inevitable risk.
(v) The grouping commended widespread support among consultees and it was considered important to have a clear and readily understandably standard, not least among the patients for whom fairness is of some importance in a therapeutic environment.
The fact that it would have been perfectly possible to draw the dividing line between those patients who are and are not to fall within the paragraph 2(2)(b) restriction in a different place does not mean the Directions are irrational and unlawful. In my judgment, once the circumstances have been examined it can be seen that there is no valid ground of criticism for drawing the line where it has been drawn.
At one time I was concerned that the Directions might absolutely exclude visits by a child who did not fall within the categories of 2(2)(b) but nevertheless was well acquainted with the patient, for example a godchild or a neighbour. The answer however is that no child is absolutely excluded. There is always the fallback of an application to the court for a contact order under Sections 8 - 10 of the Children Act 1989 (see paragraph 2(4) and 3(14) of the Directions as mentioned above.)
Discrimination between serving prisoners and detained patients.
Ms Gray deals with this at paragraphs 38-40 of her statement. It is trite to say that prisons and special hospitals are different. They hold different populations and different considerations apply. A range of measures exists to minimise the risks that certain prisoners, particularly those convicted of, or charged with, sexual offences against children, may present to children whilst in prison. These are the Prison Service Instruction 41/1998 (and accompanying Prison Service Order 4400) Prisoner Communications: Child Protection Measures. They are exhibited in a statement and were formulated by the prison service rather than the Department of Health. There are some differences between the Directions and the Prison Service Instructions. These are:
(i) Prisoners convicted of or charged with murder or sexual offences where the victim was a child can only be considered for visits from their own children and their siblings unless, exceptionally, the governor of the prison believes it is in the best interests of a child outside this category to visit. Whilst the Directions give a broader definition of children who may be considered for visits, the chief executive of a special hospital does not have discretion to consider visits by children who fall outside the definition. In such a case a court order must be obtained.
(ii) In the Prison Service Instructions the list of offences used to identify prisoners who pose a potential risk to children include murder and the offences listed in Schedule 1 of the Sex Offenders Act 1997. However, the list only applies where the victim was a child. The Directions cover cases where the victim was a child or an adult.
(iii) Prison governors have some discretion in deciding whether prisoners, who are initially identified as presenting a risk to children because of their offence, do not present an ongoing risk to children (for example murder of a 16 or 17 year old by a 19 year old in a fight). With the Directions in special hospitals there is no such discretion. Ms Gray says the purpose of this is to ensure clarity in applying paragraph 2(2)(b) of the Directions so that the welfare of children is not put at risk through the poor exercise of discretion.
(iv) Prison governors have to decide whether there are other prisoners, not convicted of or charged with any of the listed offences who nonetheless pose a potential risk to children. Accordingly they have a discretion to prevent a child visiting a prisoner whose conviction is neither murder nor a Schedule 1 Offence.
Whilst there are some similarities between prisoners and patients who have been convicted of the same index offence, there is one very important difference, the patient is in the special hospital because he suffers from mental disorder and requires to be cared for in conditions of special security. The comparison is not between like and like and I am unpersuaded by Mr Gordon's argument there is an irrational discrimination between prisoners and patients.
Article 8 of the ECHR
There is an issue whether Article 8 is of direct effect and applies to this case in domestic law prior to 2 October 2000. Mr Sales contends that it does not; Mr Gordon argues that it does. He relies on the code of practice prepared by the Secretary of State under Section 118 of the Mental Health Act 1983 and the first guiding principle when applying the code that people to whom the Act applies:
"Should receive recognition of their basic human rights under the European Convention of Human Rights."
Mr Sales submits Section 118 has nothing whatever to do with this case. This case is not concerned with child visits under medical supervision and the definition of medical treatment under Section 145 makes it perfectly clear that in cases like the present child visits do not fall within the ambit of Section 118(1)(b). Mr Gordon drew my attention in his reply to HSC 1999/222 and says that nurses are present when visits take place and that there will have been a clinical assessment beforehand. In the result it is unnecessary for me to decide the point because I am entirely satisfied that there has been no breach of Article 8. My provisional view is that Mr Sales is correct; Section 118 does not apply. This case is not concerned with the code of practice but with Directions issued pursuant to powers given by Section 17 of the National Health Service Act 1977.
Mr Gordon argues that regardless of whether Article 8 is of direct effect before 2 October 2000 the Directions do not comply with it. Article 8 provides:
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."
The cornerstone of Mr Sales argument is that the Directions are entirely compatible with Article 8 and a fortiori cannot therefore be characterised as perverse and irrational. A cursory glance at Article 8(2) is enough to see that a balancing exercise is required. The words necessary in a democratic society flag up proportionality and the reference to the protection of the rights and freedoms of others shows that in drafting these Directions the Secretary of State has to weigh the interests of children on the one hand against those of patients on the other. That it seems to me is precisely the exercise to be carried out under domestic law regardless of the Convention. Interestingly, it should be noted, there is no criticism of the three over arching principles behind the Directions.
For reasons on which I shall expand in a moment, I accept Mr Sales' argument that the Directions comply with Article 8. Whilst there appears to have been a substantial delay in dealing with the Applicant's request for visits from his nephews and nieces there is nothing inherent in the Directions themselves to suggest that such a delay as has occurred will occur. The Directions set out an entirely realistic procedure which seems to me to be perfectly capable of being operated with due expedition. The fact, if it be the case, that it has not been should be laid at the door of the hospital authority rather than the Secretary of State.
There was considerable debate in argument about the ambit of family life. Mr Sales contends that there is no presumption that family life exists in the present type of case. It is up to the Applicant to establish as a matter of fact that it does and he has not done so. Mr Gordon referred to a number of authorities from which he says the following propositions can be gleaned:
(i) The question of whether there is family life is not a narrow test but one that is broadly applied.
(ii) A blood relationship is not essential.
(iii) Family life goes well beyond parental ties and embraces relatives such as grandparents, uncles and aunts.
(iv) It is the exception rather than the rule that justifies treating a relationship that would otherwise be classified as a "family relationship" as having been extinguished.
(v) The margin of appreciation in these cases is not broad and has to be carefully monitored.
Whilst I can accept the first three of these propositions I remain unpersuaded about the fourth and fifth.
Marckx -v- Belgium (1979/80) 2EHRR 330 concerned the relationship between an unmarried mother and her child. It was held that Article 8 makes no distinction between the "legitimate" and the "illegitimate" family. The single woman and her child is one form of the family no less than others. The Court said at paragraph 45 of the judgment at page 348 that in its opinion "family life" within the meaning of Article 8 includes at least the ties between near relatives, for instance, those between grandparents and grandchildren, since such relatives may play a considerable part in family life. However, the context of Article 8 was different in Marckx from the present case and more importantly there was not as here any conflict of convention rights. There is a tension in the present case between the rights of the child and the rights of the patient. In my judgment where, as here, there are conflicting rights there is necessarily a wider margin of appreciation for the member state in interpreting how the provision of the Article should be applied.
Keegan -v- Ireland (1994) 18 EHRR 342 concerned the placement for adoption of a child by the mother without the father's knowledge or consent. Although this accorded with Irish law and pursued the legitimate aim of protecting the rights and freedoms of the child, the interference thereby created with family life was not necessary in a democratic society and there was a violation of Article 8. The placement jeopardised the father's ties with the child and set in motion a process which put him at a significant disadvantage in his contest with the prospective adopters for the custody of the child. It was emphasised in the judgment that "family" in Article 8 was not confined solely to marriage based relationships and could encompass other de facto ties where the parties are living together outside marriage. There thus exists a bond amounting to family life even if at the time of his or her birth the parents are no longer cohabiting or if their relationship has then ended.
Boughanemi -v- France (1996) 22 EHRR 228 involved a Tunisian who had lived in France since 1968 but was deported in 1988 after a number of criminal convictions. He returned to France and lived illegally with a French woman whose child he formally recognised in April 1994. His parents, brothers and sisters were legally resident in France. He was deported again in 1994. It was held that there was no violation of Article 8. The Court did however say that a finding that the Applicant had no private and family life in France was not justified. The Court said at paragraph 35 on page 245:
"The concept of family life on which Article 8 is based embraces, even where there is no co-habitation, the tie between a parent and his or her child, regardless of whether or not the latter is legitimate."
Again the focus was on the immediate family and again there was no question of conflicting convention rights.
None of the authorities persuades me that it is necessarily the case that the relationship between an uncle or an aunt with a nephew or a niece amounts to family life within the meaning of Article 8. Family life it seems to me, is an elastic concept that depends very much on the facts of the individual case. In some cases the existence of family life will be immediately obvious; in others the reverse will be true. But the onus of establishing family life in each case is in my judgment on the Applicant.
Accordingly it is important to look at the evidence in the present case. The Applicant's complaint relates to nephews and nieces who are the children of two of his sisters. The position is as follows. The two sisters, T and K, each have six children. The Applicant is godfather to three in each family. Whilst in Rampton up until September 1998 he was visited by K and some of her children. T has not and will not visit Rampton with her children because it would cause difficulties between her and her husband. Until 1995, when he was in prison, he was permitted as a Category C prisoner visits from his child relatives. He used to be transferred from Lewes Prison to Guernsey for ten weeks at a time. This happened on about six occasions. When in Guernsey there would be four or five visits a week. These would either be from relatives to the prison or the Applicant would go from the prison to the homes of his relatives and members of the prison staff would accompany him. It is said that his last stay in Guernsey prison lasted seven months because his mother was very ill at the time. There were almost daily visits to the hospital or his sisters house and no restriction on contact with nephews and nieces. No information is provided about the age of K's children or the extent to which the Applicant has had contact with them over the years. There is minimal evidence about his relationship with them. T's children are not relevant to the application because there is no question of their going to Rampton.
Mr Sales submits that it is important not to equate the mere existence of a relationship with family life. Generally, the protection of family life under Article 8 involves cohabiting dependants, such as parents and their dependant, minor children. Whether it extends to other relationships depends on the circumstances of the particular case see App No 10375/83, S & S -v- United Kingdom 10 December 1984 DR40, 196. I remain unpersuaded that the relationship under consideration can be classified as family life.
The next issue is whether if there is an interference with family life the Directions go beyond what is necessary in a democratic society. There is in my judgment no doubt about the legitimacy of the objective pursued by the Directions namely the protection of children. The Directions are in the interests of public safety and also for the protection of the rights and freedoms of others i.e. children who might otherwise be put at risk. The Directions are a response to a pressing social need as identified in the course of the Government's consultation process. In my judgment the Directions are not disproportionate to the aims sought to be achieved. In the application of the proportionality test (i.e. striking a balance between the rights of the individual and the needs of society) the authorities of a contracting state are accorded a margin of appreciation in determinating what is necessary in a democratic society. In domestic law they are accorded a discretionary area of judgment. See Lord Hope in R -v- DPP Ex Parte Kebiline [1999] 3WLR 972, 993. The discretionary area of judgment will be wider where the convention itself requires a balance to be struck. Lord Hope said at 994C:
"It will be easier for such an area of judgment to be recognised where the convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection."
In the present case the convention requires a balance to be struck between the rights of children and the rights of patients and accordingly the Secretary of State enjoys a wide margin of discretion in determining what measures are appropriate. This Court should hesitate before interfering, not least where it is clear that the Directions have followed an extensive consultation exercise with experts and interested bodies. There is a further point on which it is unnecessary for me to dwell. In striking the balance, points out Mr Sales, there can be no doubt that it is the rights of children that are the more important, involving as they do rights to physical integrity, the opportunity to develop their personalities free from harmful influences and to be free from serious harm.
On the evidence before the Court I am unable to accept that family life is established with which the Directions will interfere. If I am wrong about that I am satisfied that directions are "necessary in a democratic society". The Secretary of State has to achieve a difficult balance between the interests of patients and the interests of children. Article 8 entitles him to do this and in my judgment he has done so. There has been no breach of Article 8; its provisions have been met.
The principle of illegality articulated in Ex parte Simms
I have already touched on the objective of the Directions and the pressing social need to protect children visiting patients in special hospitals. In my judgment the content of the Directions does not exceed what is necessary. I confess I have had some difficulty in following how Mr Gordon is assisted by R -v- Secretary of State for the Home Department ex parte Simms [1999] 3 WLR 328. That case was concerned with the construction of prison rules. See Lord Steyn at p 340.
Conflict between the policy and its expressed objective.
I am unable to detect any conflict between the policy and its expressed objectives. Mr Gordon's argument is that the Directions wreck contact across the board and do not take account of the attachment that has arisen in individual case. But in reality what happens is that there is a vetting procedure to look at the circumstances of each case before a visit is approved or otherwise. It is only in what is likely to be a small minority of cases where the relationship falls outside paragraph 2 (2)(b) that visits will not be permitted. If there are special circumstances in which the patient has good reason for being visited by a child who is not within the permitted category relationship the remedy is to apply to the Court for an order under the Children Act 1989.
Conclusion
In my judgment Mr Sales is correct, this application is in reality a rationality challenge. The Directions do not breach Article 8 of the ECHR. The Secretary of State has had to conduct a balancing exercise between the rights and interests of children on the one hand and patients on the other. The Directions are the result of wide consultation with those having knowledge and experience in the relevant field; they are carefully structured and build in the necessary safeguards. There is no basis whatever for concluding they are unlawful. Accordingly this application fails.
MR JUSTICE SCOTT BAKER: For the reasons given in the judgment that has been handed down, this application is dismissed.
Miss Morris, I have been told this case has been listed in the name of the applicant and there is a question as to whether it should be reported under initials.
MISS MORRIS: My Lord, my memory is that this Court did make a reporting restriction at the beginning of the substantive hearing, because certainly after the permission hearing there were some very unfortunate reports in the press where the relevant family lived. My memory is that your Lordship did issue reporting restrictions really in order to protect them as much as anyone. In those circumstances, because of some of the materials in the judgment, I would ask that that be continued.
MR JUSTICE SCOTT BAKER: Yes, I shall continue that order, then. I think it was listed as in the name of the applicant on the last occasion, was it not?
MISS MORRIS: It was listed and an oral application was made at the beginning of the hearing. That is my memory of what happened.
MR JUSTICE SCOTT BAKER: It should be reported in such a way that the individual family cannot be identified.
MISS MORRIS: My Lord, I am grateful.
I do make an application for permission to appeal. The original application was made essentially on two grounds: (1) irrationality and (2) under the Convention. In particular I make my application for permission to appeal in relation to the Convention point. The central issue is whether the family life to which these patients are entitled is breached by the policy. But ancillary to that is whether there is an article 14 issue of discrimination and that is because of the difference between the prison policy and the policy which pertains to those that are in special hospitals.
It is the applicant's case that there is nothing inherently more dangerous or more risky to children by being a patient in a special hospital than there is, for instance, in being a category A prisoner.
MR JUSTICE SCOTT BAKER: I did deal with that of course. You do not agree with the answers.
MISS MORRIS: And in those circumstances, we say in particular that the public interest is engaged, and we would ask for permission to appeal.
MR JUSTICE SCOTT BAKER: Well, I had better see what Miss McCafferty has to say.
MCCAFFERTY: My Lord, the respondent resists the application for permission to appeal. The Convention points were aired and aired thoroughly before your Lordship and a good half of your Lordship's judgment deals with the Convention points. In particular, as your Lordship has mentioned, you did indeed deal with that and the judgment said that it does not involve a comparison of like with like as regards the position of special hospitals and prison. It is the respondent's submission that the judgment given has dealt with all the issues comprehensively and conclusively and that permission should be refused.
MR JUSTICE SCOTT BAKER: I do not think a Convention point really does arise in this case as you appreciate from the judgment. I think it is really a rationality issue. So I am afraid your application is refused. You will have to go to the other route.
MISS MCCAFFERTY: My Lord, the respondent would like an order for its costs.
MISS MORRIS: My Lord, I cannot resist that, save to say that the applicant is legally aided and I would ask for an order in the usual terms.
MR JUSTICE SCOTT BAKER: You can have your costs. I can never remember what the usual terms are.
MISS MORRIS: No, they change all the time.
MR JUSTICE SCOTT BAKER: Not to be enforced without permission? No, here we are. The determination of the applicant's liability for the payment of such costs be postponed pending further application.
MISS MORRIS: I am grateful. May I also have a legal aid taxation?
MR JUSTICE SCOTT BAKER: The certificate has been filed?
MISS MORRIS: Yes, my Lord. Miss Morris, I am very grateful to you and both sides for your helpful arguments in this case.
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