QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
| THE QUEEN ON THE APPLICATION OF (1) CD
(2) AD (BY HIS LITIGATION FRIEND THE OFFICIAL SOLICITOR)
- v -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MISS FENELLA MORRIS (instructed by the Official Solicitor) appeared on behalf of the SECOND CLAIMANT
MISS JENNIFER RICHARDS (instructed by Treasury Solicitors) appeared on behalf of the DEFENDANT
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"I am giving you notice that if your behaviour does not improve you will be excluded from the unit."
On that day he reduced CD from standard to basic status, thereby depriving her of various privileges. That decision was subject to monthly review and on 28 August CD was restored to the standard regime with immediate effect. The assessment form did not assess her as negative in relation to any of the fifteen behavioural criteria.
"A mixed week but on the whole her behaviour is OK. She is cheerful and staying out of the arguments."
However, on 16 September the log records "a huge row between (CD) and (X)". This led to the decision to exclude CD from the MBU and separate her from her baby on 19 September. On the previous day Mr. Seed had requested a member of the unit staff to provide a "brief overview of recent events". The overview referred to the previous month and was not wholly consistent with the tenor of the contemporaneous log for that period. It included a number of allegations against CD which appear to have been based in the main on things said by other prisoners rather than events witnessed by prison staff. According to his witness statement, Mr. Seed then "recognised that CD's persistent bad behaviour was most unlikely to improve". He reported to the governor of Styal, Miss Moulden, recommending that CD be excluded from the MBU immediately. Miss Moulden accepted this recommendation and on 19 September Mr. Seed served a notice of exclusion on CD.
"It has been reported to me that since that time there have been a number of incidents that you have been involved in that fall far short of the behaviour required, and that you have continued to bully others on the unit, made racist remarks and at one stage allegedly threatened to injure a child."
Later in the notice, Mr. Seed refers specifically to a number of incidents listed as follows
"- heated arguments between you and other residents on the unit.
- provoking other women on the house by making inappropriate comments;
- making racist gestures;
- threatening to kick a baby on the unit;
- alleged report that you stood on a baby's fingers;
- number of warning re you being outside the unit whilst on basic regime;
- other warnings being late for work and roll checks."
The notice went on to state that "the decision to exclude you is in no way a reflection on your parenting skills, it is solely about your unacceptable behaviour." It stated that the exclusion would take effect immediately but that CD could appeal to the operational manager for women's prisons.
"Potential disaster has been avoided only by good fortune, and it is inconceivable that this should be allowed to happen again and I would respectfully recommend that procedures are reviewed and tightened to prevent a repetition of this situation."
I wholly agree with those sentiments.
The substantive issue: the interests of the child
"The best interest of the child is the primary consideration at every level of policy making as well as when considering individual situations."
This was expressly adopted by the Prison Service its Response and Action Plan published in December 1999. In addition, a decision-maker within the Prison Service is bound to give effect to Article 8 of the ECHR, the material parts of which provide:
"1. Everyone has the right to respect for his private and family life…..
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….for the prevention of disorder or crime, for the protection of health or morals, or the protection of the rights and freedoms of others."
It is obvious that a decision to separate mother and child engages Article 8. It is an "interference" with the right to family life. Moreover, it is common ground, in the present case, that the best interests of AD are in his being with his mother. The evidence to that effect is unequivocal. The final item of common ground in this context is that, notwithstanding the "primary consideration" status of the child's best interests and the engagement of Article 8, these matters are not by themselves determinative of the issue whether a decision to separate is lawful, even though it could be contrary to the best interests of the child and would amount to an interference with the Article 8 rights of the child and its mother. The substantive dispute in the present case centres upon two issues, namely (1) did the decision-maker in fact accord primary consideration to the best interests of the child? and (2) was the decision to separate a permissible one in the sense of being justifiable and proportionate?
(1) Considerations informing the decision
"If CD's behaviour had been acceptable, a consideration of AD's best interests would have meant that he would stay on the Unit with his mother. Clearly considerable weight has to be attached to AD's best interests against those of the other babies on the Unit and their mothers. In this case, the interests of the 21 other babies on the Unit in being provided with a safe, stable environment outweighed the interests of AD in staying with his mother."
That, Miss Richards submits, is a complete answer to the claim that AD's best interests were not, or not properly considered. The case for CD and AD is that Mr. Seed's witness statement is no more than an after-the-event, late-in-the-day rationalisation.
"whether (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."
As Lord Steyn observed (at p547C) "clearly these criteria are more precise and more sophisticated that the traditional grounds of review". He went on (at pp 547 and 548D):
"….the intensity of review is somewhat greater under the proportionality approach….I would mention three concrete differences….First, 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. Secondly, 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. Thirdly, even the heightened scrutiny test developed in R. v. Ministry of Defence, ex parte Smith  QB 517,554, is not necessarily appropriate to the protection of human rights…..In other words, the intensity of review….is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued…..This does not mean that there has been a shift to merits review."
Miss Richards seeks to emphasise the final sentence in this passage and to draw comfort from Samaroo v. Secretary of State for the Home Department  UKHRR 1150. She relies on two passages in the judgment of Dyson LJ:
"The test of the Court….is therefore supervisory of that discretionary area of judgment. The court must decide whether the Secretary of State has, within the discretionary area of judgment accorded to him, struck a fair balance between the relevant interests" (para 29)
"….in a case such as this, the court should undoubtedly give a significant margin of discretion to the decision of the Secretary of State. The Convention right engaged is not absolute. The right to respect for family life is not regarded as a right which requires a high degree of constitutional protection." (para 35)
It is important to appreciate the context of these passages. Dyson LJ had earlier (para 19) accepted that "in deciding what proportionality requires in any particular case, the issue will usually have to be considered in two distinct stages". The passages referred to by Miss Richards relate to Dyson LJ's second stage. However:
"At the first stage, the question is : can the objective of the measures be achieved by means which are less interfering of an individual's rights?…..The eventual purpose of this stage of the inquiry is to see whether the legitimate aim can be achieved by means that do not interfere, or interfere so much, with a person's rights under the Convention. That inquiry must be undertaken by the decision-maker in the first place."
The case for the Claimants in the present case is that the decision-maker - Mr. Seed and/or Miss Moulden – did not undertake that inquiry.
"At the second stage, it is assumed that the means employed to achieve the legitimate aim are necessary in the sense that they are the least intrusive of Convention rights that can be devised in order to achieve the aim. The question at this stage of the consideration is: does the measure have an excessive or disproportionate effect on the interests of affected persons?"
In carrying out its reviewing function in relation to this question the court will recognise a discretionary area of judgment in the manner later described by Dyson LJ in the passages referred to by Miss Richards.
"(a) What is the nature and extent of risk posed by CD to others on the MBU and, in particular, other babies on the MBU?
(b)To what extent can the risk be reduced or managed by, eg
-disciplinary measures against CD such as moving her to 'basic';
-provision of support to CD to enable her to cope with her depression and lack of family;
-a move to another unit?
(c) What is the nature and extent of the detriment to AD of separation from CD for 9 months, including the likely psychological or psychiatric consequences for AD, and the effect on his relationship with CD, in the short and long term?
(d) To what extent can the detriment to AD be reduced or managed by, for example, placing AD with a suitable carer, near to CD, and arranging regular contact with CD?
(e) Does the risk that remains after the taking of steps in (b) outweigh the detriment to AD of separation (however mitigated by the taking of steps in (d)?"
"It is true that Article 8 contains no explicit procedural requirements, but this is not conclusive of the matter. The local authority's decision-making process clearly cannot be devoid of influence on the substance of the decision, notably by ensuring that it is based on the relevant considerations and is not one-sided and, hence, neither is nor appears to be arbitrary. Accordingly, the Court is entitled to have regard to that process to determine whether it has been conducted in a manner that, in all the circumstances, is fair and affords due respect to the interests protected by Article 8."
And in a later passage (para. 64):
"…..what therefore has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as 'necessary' within the meaning of Article 8. "
In addition, Miss Morris seeks to rely on Article 6. However, I very much doubt whether either of these Articles adds significantly to the domestic legal requirement of procedural fairness in this context. The decision to separate mother and baby is plainly one of great importance and it is axiomatic that it can only lawfully be taken within the bounds of procedural fairness.
"[CD's] behaviour has definitely been influenced by the presence of [X] …..I would advise a reassessment."
What is the correct procedure?
MR WISE: I am obliged for that judgment, my Lord. May I apologise at the outset for my solicitors not being in attendance.
MR JUSTICE MAURICE KAY: Do not worry about that.
MR WISE: My Lord, may I also apologise for not putting any typographical errors in. I have simply not had time since the draft judgment was sent through to chambers. Your Lordship may be anxious to know what the current position is.
MR JUSTICE MAURICE KAY: Yes.
MR WISE: If I could pass up to your Lordship a letter that I have received this morning from those instructing me. My solicitor went to see my client yesterday at the prison and she has emailed me this this morning, my Lord. It is just over a page.
MR JUSTICE MAURICE KAY: What do you want me to look at?
MR WISE: It is just the letter from those instructing me which sets out how well my client has been doing since she was transferred to Bullwood Hall. Your Lordship sees that she has applied for enhanced status and it is anticipated that that will be granted, subject to her gaining full-time employment. I was instructed just a few moments ago that she does now have a job, so it is anticipated that her status will be enhanced in the very near future. She has also applied for open conditions. An answer to that request should also be forthcoming very shortly. There have been no concerns about her behaviour whilst at Bullwood Hall, so I think it is fair to say that the situation has been very satisfactory in the last few weeks.
My Lord, there is an issue however. Does your Lordship see the paragraph beginning "We understand"? There has been some correspondence between those instructing me and the Treasury Solicitor about the arrangements for the fresh hearing that is due to take place next week. It is hoped, I think, that the hearing will be next Tuesday, although it may be later in the week. A request was made by those instructing me for my client to be represented at the fresh hearing. As your Lordship sees, that request has been refused. Your Lordship should have, at the third page of the hand-up I have just given you, the response that the Treasury Solicitor gave to that request. What they say, put shortly, is that my client can have somebody to assist and that there can be written representations made by solicitors, but the solicitors cannot attend and represent my client.
We would say that that is a highly unsatisfactory arrangement. As your Lordship is aware, my client does not have family or contacts within this country. She is 18 years old. The issues are of some complexity and, clearly, are very serious indeed. It would be fair, we would say, to enable a proper hearing to take place and for my client to be properly represented, for her to have the opportunity of representation at the fresh hearing.
MR JUSTICE MAURICE KAY: You keep referring to it as a "hearing"; I am not sure that that is correct.
MR WISE: I apologise, my Lord.
MR JUSTICE MAURICE KAY: It is only a hearing if, in fact, your request is acceded to, is it not?
MR WISE: Well, as I understand it, my Lord, there will be a hearing next week. There will be a Board constituted, in accordance with your Lordship's judgment, and my client will have the opportunity to attend; that much is clear.
MR JUSTICE MAURICE KAY: Yes.
MR WISE: The question is as to whether --
MR JUSTICE MAURICE KAY: And she will be permitted to make written representations, presumably, in addition to attending.
MR WISE: Yes, my Lord.
MR JUSTICE MAURICE KAY: Would the Official Solicitor be making written representations as well, on behalf of the child?
MISS MORRIS: The difficulty we have is that we have no jurisdictional standing to make representations.
MR JUSTICE MAURICE KAY: You have no funding?
MISS MORRIS: The only funding we have is the legal aid funding for these proceedings. That is not part of legal procedures. Therefore, we would not --
MR JUSTICE MAURICE KAY: Yes, but ...
MISS MORRIS: My Lord, I am instructed that the Official Solicitor is only able to appear in proceedings where he has been instructed to do so by the Lord Chancellor, and, because a hearing -- or whatever happens before the Board -- does not fall within that, the Official Solicitor has no jurisdiction to appear.
MR JUSTICE MAURICE KAY: I see, but short of appearing, is there any inhibition upon his choosing to make his views known in writing?
MISS MORRIS: My Lord, certainly the preliminary view is that this falls outwith the Lord Chancellor's directions and that, furthermore, it is suggested it might be more appropriate for social services to express a view because, of course, they are the body normally charged with concern for the welfare of a child. Indeed, as I recall I suggested to the court on the last occasion, it is social services that he would look to for information about the welfare of the child and the impact of a decision on him.
MR JUSTICE MAURICE KAY: And that would be Southwark Social Services, being the social services for the area in which the child now is?
MISS MORRIS: Yes, my Lord.
MR JUSTICE MAURICE KAY: I see.
MR WISE: Clearly, my Lord, if written representations are made and matters arise during the consideration of my client's application, then my client will be prohibited from responding. Your Lordship knows my client's background and circumstances. Fairness, we would say, dictates that she has the opportunity to be represented. I do not know if your Lordship wants to deal with that before we come on to other matters.
MR JUSTICE MAURICE KAY: Miss Richards, they are not adversarial proceedings --
MISS RICHARDS: My Lord, there is not going to be someone from the Prison Service there arguing against --
MR JUSTICE MAURICE KAY: No. It is for the decision makers to fully inform themselves, so as to make a decision within the parameters that I have suggested or such other parameters as may apply.
MISS RICHARDS: My Lord, precisely so, particularly in view of your Lordship's judgment. They will obviously want to hear from the claimant herself. She will have a personal officer who will be there with her. Miss Malcom(?) obviously could attend, if that was thought to be appropriate, which is something that she wanted to do. It has been indicated that, exceptionally, written representations from her solicitors would be considered.
MR JUSTICE MAURICE KAY: I am surprised you think that should be exceptional. If a woman in that situation asks that written representations be considered on her behalf, it would seem to me to be wholly inappropriate to refuse to consider them.
MISS RICHARDS: My Lord, it is exceptional in the sense that most women applying to Mother and Baby Units at permission hearings do not have legal representation at that stage, in any event. So it is unusual.
MR JUSTICE MAURICE KAY: This is a bit of a hybrid, in a sense, is it not? Although you are going to consider it through an Admission Board, in fact it is the reconsideration of an exclusion, in one sense.
MISS RICHARDS: My Lord, it is. Certainly any written documentation that her solicitor wants to put in will be put before the decision-making Board. Any of the material that has already been produced by the Official Solicitor, whose views have been made very clear, can be put before the Board. The Board will obviously have the reports of Mr Sinclair and Dr Randall.
MR JUSTICE MAURICE KAY: Yes.
MISS RICHARDS: The Board is not dealing with the determination of complex legal issues. It is not going to have to decide what the test is, for example, because your Lordship has very helpfully done that. The Board will be considering the facts and conducting an exercise of judgment.
MR JUSTICE MAURICE KAY: Yes.
MISS RICHARDS: My Lord, your Lordship, in my submission, is not in a position to determine the legality or not of the Prison Service's decision not to permit legal representation. I was only told about this issue moments before coming into court, which is not a great deal of time. Your Lordship will know that there is a wealth of case law --
MR JUSTICE MAURICE KAY: Absolutely. It goes back years. It started off with greyhounds, I think.
MISS RICHARDS: My Lord, the law is (inaudible) in that respect. Your Lordship cannot resolve that, and your Lordship does not have any material --
MR JUSTICE MAURICE KAY: No.
MISS RICHARDS: I am not in a position to argue. I would need to take instructions and I was not warned that the issue would be raised by Mr Wise. My Lord, we hear what Mr Wise has to say. If there was an adverse decision to his client, no doubt he may seek to argue that there was a flaw in the decision-making process, but, my Lord, the fact is that we have a procedure set up which more than safeguards her interests, in my respectful submission. There is nothing, in our submission, that your Lordship can direct appropriately today.
MR JUSTICE MAURICE KAY: And if Southwark Social Services chose to make any written representations, presumably they would be properly considered. It may be that they are solicited in the light of what I have said in the judgment.
MISS RICHARDS: Yes. I do not know whether Southwark Social Services have been contacted or not, specifically with a view to the Board next week. Certainly anything that they want to contribute would be considered.
MR JUSTICE MAURICE KAY: Thank you.
MR WISE: Just very shortly, my Lord, clearly there is a wealth of case law on requirements of fairness in hearings such as this --
MR JUSTICE MAURICE KAY: But legal representation was not part of the case that was before me. I really think it would be wholly inappropriate for me now to impose that on the defendants, particularly as (1) Miss Richards says she is not on any proper kind of notice, and (2) I am bound to say my gut reaction is that it is certainly something that I ought not to direct in the absence of full, structured and notified argument.
MR WISE: Very well, my Lord, save to say that the Treasury Solicitor was clearly aware of the issue. Hence (inaudible) correspondence. It cannot come as a great surprise. Given the view that your Lordship takes and moving on, the other issues that arise from your Lordship's judgment are the issues of damages and costs. So far as damages are concerned, your Lordship sees that damages are pleaded in this case. Damages for breach of Article 8 are, of course, a well-established right. There is a wealth of Convention case law on it. What I would invite your Lordship to do is to adjourn the damages claim for further consideration and further particularisation and for the matter to come back, we would suggest before your Lordship -- your Lordship having heard the detail of the case, it would be helpful, in our submission, for your Lordship to deal with it -- and for a direction that the matter be heard this term. There is no pressing urgency, but at the same time one does not want to break off and --
MR JUSTICE MAURICE KAY: There is one piece of urgency and that is that the claimant is going to depart these shores in the summer,is she not?
MR WISE: That is correct, my Lord. Certainly, while one does not need to have this matter determined in the next week or so, to be determined this term would be quite adequate.
MR JUSTICE MAURICE KAY: It is difficult to say anything about it in advance of the next stage. When the outcome of that is known, whether it be favourable or unfavourable to your client, it seems to me that what should follow then is that you should formulate and particularise that claim. So, shall we say by 7 February with liberty to apply, but that the matter should then come before me for further directions? As to the eventual hearing, if there is to be one, we will consider then whether that should be reserved to me or just simply released.
MR WISE: So far as the directions hearing -- your Lordship has fixed a date of the 7 February; I do not know when your Lordship is sitting in the Administrative Court --
MR JUSTICE MAURICE KAY: Not in the week after that because I have a week's leave, but other than that on every foreseeable occasion for the foreseeable future.
MR WISE: If the matter is going to be determined this term, my Lord --
MR JUSTICE MAURICE KAY: Well, apart from the week of 10 February, I am here all the time.
MR WISE: Shall we say that, save for that week, it be listed before the end of February?
MR JUSTICE MAURICE KAY: Yes.
MISS RICHARDS: My Lord, can I just clarify? Your Lordship has also directed that any claim for damages should be particularised by the claimant by 7 February, as I understood it.
MR JUSTICE MAURICE KAY: Yes.
MISS RICHARDS: I am grateful for that. My Lord, perhaps by the same date the Official Solicitor could also indicate whether any claim for damages is pursued on behalf of the child.
MR JUSTICE MAURICE KAY: Miss Morris was about to do because she had just stood up.
MISS MORRIS: My Lord, the position of the Official Solicitor is that, certainly the prime purpose of his participation in these proceedings was not to secure damages. However, to the extent that that part of the claim is pursued on behalf of the mother, we would ask for permission to particularise any claim, if so advised to bring one, by 7 February.
MR JUSTICE MAURICE KAY: Very well.
MR WISE: That merely leaves the question of costs, my Lord. We seek our costs up to today from the defendants.
MISS MORRIS: We also seek our costs, my Lord.
MR JUSTICE MAURICE KAY: Any argument about that?
MISS RICHARDS: My Lord, I do oppose two sets of costs. Two sets of costs in judicial review proceedings tend to be the exception rather than the rule. Whilst the Official Solicitor obviously appeared, to a considerable extent, at the invitation of the court -- was joined at the invitation of the court, the fact remains that, at a fairly early stage in the proceedings, it was apparent that there was no conflict of interest between the mother and child. Whilst, no doubt, your Lordship has been assisted by the presence of Miss Morris as well as Mr Wise, it does not follow from that that the defendant should have to bear two sets of costs. I ask that the defendant be only ordered to pay one set of costs.
MR JUSTICE MAURICE KAY: They are, in fact, two claims which are being considered together, are they not?
MISS RICHARDS: They are two claims in the sense that the mother has brought a claim and the child has brought a claim. It is not a case in which there was any argument that it was in the child's interest not to be with the mother; that had never been the case.
MR JUSTICE MAURICE KAY: No.
MISS RICHARDS: The sole question in terms of the mother was that the mother's behaviour -- in terms of the reasoning of the Prison Service. It is not a case in which there was a separate interest which demanded separate representation, in our submission. The defendant should not be penalised by bearing two sets, rather than one set, of costs.
MR JUSTICE MAURICE KAY: Thank you. I think the way in which a case such as this comes into court, involving the interests of the mother and the interests of the child, and the way in which it developed, disposes me, exceptionally, to make orders in favour of both claimants.
There is community funding assessment as well, is there?
MR WISE: There is, my Lord. A final matter, just for completeness is to enlarge the anonymity order.
MR JUSTICE MAURICE KAY: Yes, certainly.
MR WISE: That is a matter which must be dealt with.
MR JUSTICE MAURICE KAY: Yes, certainly. Thank you all very much.