England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/10/2013

Mr Justice Irwin:

Introduction

1. In this application the Claimant seeks judicial review of the decision taken by the Defendant on 12 March 2013 to transfer the Claimant from a Secure Training Centre to a Young Offender Institution. The Claimant challenges the decision on the grounds that it was procedurally unfair, that it failed properly to take into account his best interests and was thus in breach of Article 8 of the European Convention on Human Rights and thirdly that, even if it was lawful to transfer him to a Young Offender Institution, it was unlawful to transfer him to YOI Feltham, because it was not in his best interests and there was no good reason for the decision.

Background

2. ML was born on 9 August 1996 and has thus recently turned 17 years of age. He has had a troubled background. He is of limited intelligence with difficulties in processing information and in expressing himself verbally. His educational attainments are at the bottom end of the range. In his report of January 2013, the clinical psychologist Dr Watts put his results in the bottom 3/4% of the ability range, whilst giving the view this represented a slight underestimation of his underlying ability.
3. He has been involved in offending since January 2010 when he was 13 years old and has been concerned with a number of offences since. Information recorded in the "bail profile" document prepared by the Defendant suggests that by March 2012 ML had been in breach of court bail 37 times. By early 2012 it was clear that he was significantly out of the control of his family.
4. Following earlier offending, ML was remanded to Feltham YOI between August and November of 2011. On 28 November 2011 he was transferred to Vinney Green Secure Children's Home (SCH) where he spent 3 weeks before being granted bail to return home. The transfer to the SCH was recorded in the Defendant's bail profile as being "due to vulnerability concerns". He has also spent a period at Medway SCH during the early part of 2012, followed by a transfer to Vinney Green again; is where he remained for a further five weeks.
5. Contained within the papers disclosed by the Defendants is a report to the Camberwell Youth Court from an officer of the Lambeth Youth Offending Team dated 12 April 2012 bearing on the Claimant's behaviour when in the Medway STC. The report reads in part as follows:

"Since being remanded at Medway Secure Training Centre, [ML] has assaulted almost all of the trainees in his unit as well as staff members. Most recently on 11.04.12 he assaulted a staff member with hot food causing first degree burns. He also demonstrates aggressive and hostile behaviour towards everyone as well as sexualised language and abuse towards female staff. On 10 April Medway STC opened an Anti- Bullying Programme with ML as the perpetrator and the 5 other boys on the residential unit as the victims.

At this juncture Medway Secure Training Centre is not willing to accept ML back at their centre as they have a duty of care to safeguard other vulnerable trainees from ML violent and aggressive behaviour (sic). This situation has left Youth Justice Board no choice except to remand him into Young Offenders Institute therefore, I respectfully request the court to remand ML into custody at Young Offenders Institute instead of secure custody. In order to ensure ML's well-being Young Offenders Institute has a duty to put measures to safeguard him from harm. ML has been remanded to HMP YOI Feltham in the past and to my knowledge no concerns were reported."

6. The bail profile document also recounts how on 31 August 2012 ML was removed from his home and placed in local authority accommodation in Liverpool. This was because of "concerns for his welfare and safety, as a result of being involved with gangs. His mother stated he was out of control and putting her and the rest of the family at risk.". ML stayed at the placement in Liverpool for 2 days and then absconded on 1 September. He was missing from that date until his arrest on 22 October 2012.
7. ML was arrested in premises in Kent, as plain clothes police officers executed a firearms search warrant on 22 October 2012. The allegations are serious consisting of allegations of Class A drug dealing associated with significant cash and firearms ammunition found at the scene. He was charged with five offences as a result. I was informed in the course of the case that, following a plea of guilty to three offences, a Newton hearing had taken place to establish the basis of sentence, which was concluded adversely to the Claimant. He is expected to be sentenced in late October 2013. He was found not guilty in respect of the other two offences.
8. Following his arrest for these offences the Claimant was brought before the Croydon Youth Court on 24 October 2012. The court found the criteria for remand in secure accommodation pursuant to Section 23(5) of the Children and Young Persons Act 1969 ["CYPA"] were made out. The Claimant's solicitor Ms Millardship submitted to the court that the Claimant should be deemed vulnerable within the meaning of Section 23(5A) of the CYPA and the court so directed. Following these directions he was remanded to Oakhill STC.
9. Subsequent remand hearings took place at Croydon Youth Court on 31 October and 21 November 2012, and at Croydon Crown Court on 7 December 2012, 25 January, 15 February, 8 March and 12 March 2013. The relevant provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ["LASPO"] came into force on 3 December 2012 and hence the remands after that date were pursuant to the court's powers under LASPO. According to the witness statement of Ms Millardship, there was no reference to LASPO at the time of the relevant later remands.
10. From the point of admission to Oakhill STC in late October 2012 continual records were kept, both of specific incidents and in the form of a "rolling contact sheet". The opening record on 24 October 2012 draws on previous records in both Vinney STC and Medway SCH, concluding that it was not appropriate to have the Claimant back in those centres. On 25 October it was recorded that initial screening for substance abuse was not completed with ML as he refused to comply.
11. On 26 October ML assaulted members of staff on two separate occasions.
12. On 29 October ML requested contact with a number of people who he claimed were his brothers and sisters. Contact has to be approved between trainees in an STC and those outside the centre. It transpired that he had sought to mislead the staff and the names were not those of his siblings.
13. On 30 October ML informed the staff on the unit that he was going to request a move to a YOI. He attempted to call his Youth Offending Team ["YOT"] but failed to get through. In fact he then requested transfer to Medway STC but was informed it would be unlikely this would be permitted, in the light of his previous behaviour there.
14. Concern arose on 4 November 2012 that ML had been making another resident "uneasy", throwing cereal at him, kneeing him in the leg and commenting on his appearance. This individual was upset and crying as a result. ML later dismissed this behaviour as "banter".
15. By the middle of November ML had been placed on a "tracking log" because of concern that he was bullying another young resident. His behaviour and educational achievement were poor. On 15 November, the notes record a telephone conversation between ML and his allocated YOT worker Colin Hanson. Mr Hanson encouraged ML not to seek a transfer but to engage with the routine at Oakhill. When this conversation was passed on to the Oakhill worker, Rachael Wood, she informed the YOT worker that ML had been witnessed:

"retrospectively on CCTV to have assaulted another young person with whom there is currently an interaction log open due to concerns of bullying. This incident appears to have been premeditated out of the eye and earshot of staff, in which he took a window of opportunity to assault this young person."

16. On 22 November 2011 ML was involved in a further episode including throwing paper at a teacher and being rude to duty managers.
17. In early December, ML's behaviour began to improve. He had a positive education report on 5 December with similar reports on the 10^th and 14^th. Although there was an incident of some concern on 30 December, this was regarded by staff broadly as a positive response by ML in that his reaction to the situation he had faced was not more impulsive. On 2 January 2013 staff noticed that ML "has been doing very well recently". He was moved from one unit to another within the STC in order to improve his situation, although he did not react well to the change.
18. By 10 January the record was to the effect that ML's behaviour was deteriorating. On that day he had to be escorted by an officer out of the association area and his "recent unsettled and rude behaviour towards staff" was noted in the ensuing days. However, when spoken to on 15 January ML appeared to understand that he must avoid frustration and disruptive behaviour.
19. There was a serious episode on 17 February. ML had not got out of bed or completed his chores. He was told he would not be able to join in the day's programme until he had done so. He became verbally aggressive and then threw a metal tin which struck a member of staff in the face. The staff member had to be seen by healthcare and received pain relief as a result. As a consequence of this episode, ML lost the regime level he had achieved and reverted to the lowest level of "bronze".
20. On 23 February it was discovered that ML had concealed a television in his bedroom. His loss of privileges meant that he should not have had a television in his possession. When it was discovered, he again became violent and threw a laundry box at a staff member, causing a deep cut and a contusion to the staff member's head. He was aggressive with all staff present.
21. On 27 February a "Bullying Concern Form ["BCF"] was completed in relation to ML's behaviour. With another trainee, ML was acting in an aggressive way towards a third resident. He wiped black marker pen on that resident's face and then threw a chair at him.
22. In the bundle of documents disclosed are a series of reports on ML from G4S, who operate the Acorn Education Centre in Oakhill. They are in a standardized format, completed by the different tutors. They are all dated 28 February. Many include positive comments, in some cases very positive, about ML's engagement in education, including for example the "Hair and Beauty" class. However, by 28 February ML was no longer attending the Hair and Beauty class due to an incident in which he damaged property. He had also ceased to attend one-to-one sessions with his learning support assistant. It appears that at least to some extent, the positive educational reports referred back to an earlier period than the end of February.
23. The Director of Oakhill STC, Ms Nadia Syed states simply that:

"On 28 February, having discussed the position with ML's YOT Oakhill, Rachael Wood, as the allocated case manager, submitted a transfer request to YJB Placements requesting that he be transferred to the YOI secure estate."

24. The relevant notes are brief, reciting incidents which had taken place over the period up to this request. The notes conclude:

"ML has been spoken to by numerous members of staff, most recently a Duty Operations Manager discussed his most recent incident, with him responding that he would continue to behave in this manner and put others at risk."

25. The notes also record a discussion between Ms Wood and ML's YOT caseworker Colin Hanson, wherein Mr Hanson expressed his "concerns over how [ML] would cope in a YOI given his learning difficulties and low IQ". Another member of Oakhill staff (Ms MacFayden) noted concerns with ML's suitability for an STC given the level of risk he posed. Ms Wood went on to note that she had consulted with Ms Kate Langley, Senior Practice Manager of the Lambeth Youth Offender Service and she noted Ms Langley's views as "whilst understanding ML's learning difficulties feels that he presents too high a risk to other YP and would support a move to Feltham as catchment YOI. I am therefore referring to Feltham……." In her evidence Ms Langley confirms there was such a discussion. She simply records that "I was advised that Oakhill were no longer able to manage him and therefore agreed with the proposal to transfer". Ms Langley also recites in her evidence how at the same juncture Mr Hanson had begun by:

"Advocating for [ML] to remain at the STC however Oakhill stated they were not prepared for him to remain due to the recent incidents. Colin agreed that due to placing others at risk he was in agreement with the transfer however he needed to discuss this with his manager."

It was as a consequence of that response from Mr Hanson that Ms Langley had become involved.

26. Between the request for transfer on 28 February and the move to Feltham 12 March, Mr Hanson had at least one discussion with ML, in the course of which he discussed "the incidents and potential outcomes for ML should ML continue to display continuing and challenging violent behaviour". On 4 March there was a further discussion between ML and his YOT worker. This was intended to address ML's bad behaviour and record over recent times. This conversation was retailed to the relevant staff member at Oakhill. The information was in part as follows:

"ML informed Colin that he felt he had nothing to loose (sic). Colin was informed that ML's behaviour was concerning and that he had showed no remorse for his assault on staff and the staff member involved had to receive hospital treatment. Colin understood that his behaviour had deteriorated significantly."

27. There is no evidence that ML was asked for his views on this transfer in the course of this conversation, or at any other stage. It seems clear that his social workers at Lambeth were not involved and nor was his mother. She was in any event not fully engaged with him and his progress. The only discussions concerning this transfer were between Oakhill staff and the Youth Offending Service, and between Oakhill and Feltham.
28. ML had court appearances on 8 and 12 March. It was following the second of those appearances, when he was again remanded into detention, that he was told of the transfer which then took place.
29. It is sufficient to complete the picture in summary. In discussion at court on 12 March, ML expressed a preference for transfer to HM YOI Cookham Wood rather than Feltham. For unconnected reasons, Cookham Wood were not accepting any new placements at that stage and thus ML went to Feltham. His solicitors, learning of the transfer to YOI, protested. Concerns were raised with Andrew Marsland, then Deputy Head of the Defendant's Placement Service. He acquainted himself with the case and concurred that an STC was not "tenable in the long term". There was then a case conference of 2 April at which, exceptionally, Mr Marsland was in attendance. So also was Ms Langley. This was described as an "all professionals meeting" and was attended by the Claimant's solicitor. ML's solicitor argued that an STC was appropriate. All others concluded otherwise. However as Ms Langley's witness statement expresses it:

"there was an acknowledgement that in the light of [ML's] wish to undertake more education, Cookham Wood was a more appropriate establishment."

30. ML's attitude and condition deteriorated whilst he was in Feltham. Ms Kaufmann QC has argued forcibly that this demonstrates the placement was unsuitable. Ms Broadfoot for the Defendant submits that the critical factor was the failure of the bail application made on his behalf on 4 April. On 11 April Lambeth YOT submitted a transfer request that ML be moved to Cookham Wood. That transfer took place on 19 April and ML has remained in Cookham Wood since.
31. ML had a very rocky time in Cookham Wood for quite a period. His progress is summarised in the evidence of Michael Woodbine, safeguarding manager at Cookham Wood who reviewed the Claimant shortly after his arrival there. He records:

"his initial impressions…..that he displays very challenging behaviour and that he has a high capacity for violence. ML displayed anti-social behaviour in the days following his arrival at Cookham Wood, threats towards staff, attempts to assault staff, making weapons."

32. Within a relatively short period, ML was transferred to a specialist intensive unit within Cookham Wood known as the Phoenix Unit. A specific Care Plan with identified targets was initiated. Between 23 April and 19 July 2013, ML received 13 separate adjudications, 10 of which involved assaults or fights. Over time, particularly whilst within the Phoenix Unit, ML made good progress, changing his behaviour and reducing his risk towards others. He was successfully reintegrated to the main population of the YOI, whilst continuing to receive specific support from Phoenix staff on a daily basis. Mr Woodbine concludes his evidence in the following terms:

"I believe that the time ML spent in Phoenix has helped him in gaining a greater understanding of his actions, how to manage conflict and how to reflect post incident. He is suitable for location in a YOI. In my experience and given my knowledge of ML it is my view that given the risks he presents to others and the needs that he has, he is not suitable for placement in a STC."

33. Whilst ML was in Cookham Wood, an Assessment Report was prepared on him by a consultant psychologist Dr Tranah and a trainee colleague Dr Taylor instructed by ML's solicitor. Their conclusion in late June 2013 was that ML was not suited to long term placement in the Phoenix segregation unit in Cookham Wood, nor was he suited to placement with the normal population of a YOI. Their view was that "the placement most able to address [ML's] complex needs would be an STC with a clear structured behavioural plan in place".

Legal Framework

34. Since the relevant provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ["LASPO"] came into force on 3 December 2012, the remands after that date were pursuant to the court's powers under LASPO.
35. By Section 91(4), the court may remand a child to youth detention accommodation (section 91 of LASPO) where the relevant conditions under Section 98 and 99 are fulfilled. It is agreed that the relevant conditions were fulfilled here. Remand is pursuant to section 102 which reads as follows:

"102 Remands to youth detention accommodation

(1) A remand to youth detention accommodation is a remand to such accommodation of a kind listed in subsection (2) as the Secretary of State directs in the child's case.

(2) Those kinds of accommodation are-

(a) a secure children's home,

(b) a secure training centre,

(c) a young offender institution,

………….

(6) Where a court remands a child to youth detention accommodation, the court must designate a local authority as the designated authority for the child for the purposes of-

(a) subsection (8),

(b) regulations under section 103 (arrangements for remands), and

(c) section 104 (looked after child status).

……………….

(9) A function of the Secretary of State under this section (other than the function of making regulations) is exercisable by the Youth Justice Board for England and Wales concurrently with the Secretary of State."

36. The effect of these provisions is fairly simple to state. A child, now defined as any person under 18, may be remanded to youth detention accommodation once the relevant conditions are fulfilled; once remanded, the direction as to which accommodation amongst the categories identified is a matter for the Secretary of State and that function is (normally) exercised by the Youth Justice Board.
37. The Act requires the designation of a local authority by the court at the time of the remand into youth detention, and by section 104 of the Act:

"a child who is remanded to youth detention accommodation is to be treated as a child who is looked after by the designated authority."

This last point is not a matter of discretion for the court or indeed the Defendant. The child remanded into youth detention becomes a "looked after" child, it would seem, even if he or she is fortunate enough to have an actively engaged, responsible family.

38. The request to transfer the Claimant from Oakhill and the effective transfer on 14 March came between the commencement of the relevant provisions of LASPO and the formulation of written policy by the Defendant as to how such decisions should be conducted. In June 2013, the Defendant promulgated its "Placement Review and Transfer Protocol ["PRTP"] This is a significant document of some 26 pages plus annexes, setting out in detail the Defendant's policy and approach. The central provisions are in sections 2 and 3 of the policy which read as follows:

"2. Placement review – multi disciplinary meetings

2.1 A placement review by the YJB Placement Service maybe required when a child or young person's current circumstances have changed or an issue has been identified by a person with responsibility for the care or welfare of the child or young person (see paragraph 2.2) that has caused them to believe either that:

a) There is a risk to the child or young person's welfare; or

b) The child or young person poses a specific risk to the welfare of other children or staff in the establishment.

c) The child or young person requires a planned move

2.2 A person that has responsibility for the care, welfare or case management of the child or young person may include:

Member of staff in current establishment

YOT worker

Local authority

Parent

Legal representative or advocate

Teacher or classroom assistant

Any other person that deals with the needs or welfare of the child or young person

The child or young person themselves

2.3 When a risk has been identified this must be brought to the attention of a key member of staff in the current establishment such as a case worker or unit manager and a multi-disciplinary meeting (MDM) should be convened with the purpose of establishing how the risk can be managed or reduced.

2.4 The multi-disciplinary meeting (MDM) should be arranged and chaired by a senior manager of staff.

Members of the meeting should include:

Operational Manager (Chair)

Case worker

Personal Officer

Unit Manager

YOT worker

Parents

Advocate for the child or young person

Local authority social worker (if the child or young person is looked after)

Representative from healthcare and/or CAMHS professional

The child or young person (for all or part of the review)

2.5 Notification of an intention to hold a MDM (Annex A) must be sent to the YJB Placement Service functional mailbox as a flag to alert the YJB that a placement of a child or young person is causing concern……

2.6 This meeting should review all options to support the child or young person in the current establishment. A plan should be discussed, agreed and implemented before any request to move a child or young person under this protocol is made.

2.7 If at this meeting, or at some point afterwards, it is decided that the child or young person should be transferred to a new establishment a request should be made by the establishment to the placement review team located within the YJB Placement Service using the application form described in Section 3 of this protocol. This completed application must be sent ……….

2.8 Clear evidence of all strategies used to manage the child or young person within the current establishment must be presented when an application for a placement move is submitted.

2.9 Arrangements for submission of an application are covered in section 5 of this protocol.

3. Required action before requesting a placement move

3.1 A placement move should only be requested when all other avenues of managing the child or young person in their current establishment have been explored.

3.2 Clear evidence must be presented and recorded on the MDM Record and Recommendation Form (MDMRRF) (Annex F) that demonstrates the range of actions that have been taken to manage the child or young person. Reasons must be given to explain why these strategies were not successful in managing or reducing the risk posed by the child or young person and how a change of placement would do so.

3.3 This evidence must also be recorded onto the electronic records (eAsset, C Nomis) which will be checked during the application process.

3.4 Examples of evidence that should be provided include:

Records of Arbitration or mediation (restorative practice);

Support plans or risk assessments;

Records of any disciplinary hearings and outcomes;

Reintegration plans;

Behaviour management plans or contracts/compacts;

Records of psychological or psychiatric interventions;

Records of periods of separation or segregation;

Incident reports;

Security intelligence;

Case notes – personal officer entries;

eAsset case recordings

The following evidence is mandatory and must be provided in all cases

Multi Disciplinary remand or sentence planning meeting notes; (the most recent available)

Recommendations from the multi disciplinary meeting MDM (see annex F)

Evidence from 3.4 to accompany the MDM Record and Recommendation Form

3.5 The list at paragraph 3.4 is not exhaustive but gives guidance on the type of evidence and where it should be recorded that the YJB placement review team in the Placement Service will consider when dealing with a request for a placement move.

3.6 The following principles must be taken into account when requesting a placement move and the YJB will be seeking evidence that:

Everything that can be done within the establishment to alleviate the risk has been done (evidenced will be sought in records of multi disciplinary sentence planning);

All management strategies to reduce risk and reintegrate the child or young person that have been attempted must be provided.

All partners involved in the welfare of the child or young person must be consulted before an application for a placement move is made to the YJB.

………."

39. Since this policy was not in force at the relevant time, Ms Kaufmann for the Claimant does not found her case on a breach of established policy. However she does rely upon the policy formulated both as to the procedural fairness point and her substantive criticism of the decision taken. In effect she makes two points: firstly, that the policy represents what should all along have been recognised as good practice, and secondly that the policy demonstrates what was practicable.

The Procedural Challenge

40. The heart of the criticism made is that none of ML, his mother, his legal representative or his social worker were warned that a transfer to the YOI system was in contemplation, following the incident of 27 February or at any time until the transfer decision on 12 March. Ms Kaufmann adds that the fact that Mr Hanson, the representative of the Youth Offending Service was involved, and argued, at least initially, against such a transfer, does not cure the defect: he was not an advocate for or representative of the Claimant's interests, since his position carries responsibilities which may conflict with the interests of such a claimant.
41. Ms Kaufmann relies on the principles of fairness famously analysed in the speech of Lord Mustill in R (Doody and Others) –v- Home Secretary [1994] 1 AC 531 at page 560 D/G. Ms Kaufmann emphasises that the fourth Doody principle – the context of the relevant statute – is of particular importance where a child is concerned. She relies upon the fifth principle: fairness will usually require that a person adversely affected should have the opportunity to make representations; and the sixth principle – such a person or his representatives must be sufficiently informed, in order to make worthwhile representations on the point in issue.
42. The case of Doody concerned prisoners subject to mandatory life imprisonment but the principles are of general application. They were expressly adopted by the Court of Appeal in R (T) –v- Home Secretary [2004] EWCA Civ 1750, a case which concerned an order for segregation of a prisoner. In that case, Mr Justice Jack, applying the Doody principles, concluded that there was an obligation to grant such a prisoner the opportunity to make representations before an order for segregation was made, absent any particular reason why that practice should not be followed. The Court of Appeal agreed that conclusion.
43. In addressing this part of the case, Ms Broadfoot conceded that matters could have been handled better. Neither the Claimant nor his mother nor his social worker were involved. In answer to a direct question from me, she confirmed that there was no evidence to suggest that any conscious thought had been given to consultation with any of those. Ms Broadfoot did say that Mr Hanson was capable of being taken to represent the Claimant's position and had in fact spoken in his interest and against a transfer to YOI. However she conceded that Mr Hanson's position was such that he could not properly be regarded in a straightforward sense as a representative of the Claimant.
44. In my judgment, Ms Kaufmann is right to say that the mishandling of this decision was procedurally unfair and unlawful. She rightly emphasises that the Claimant is a child with intellectual deficit and in that sense is vulnerable. She is right to say that the transfer from the STC regime to a YOI regime is a significant matter. It had acquired specific significance in this case since the Claimant's solicitor had pressed so clearly for him to be remanded into the STC regime. In his case, if representations were to be made at all effectively, he would need help. All of those circumstances make it clear that this Claimant should have been given an opportunity to make representations and that at least his mother and social worker should have been informed, so that there was a sensible opportunity for someone to speak for him against the proposal to transfer.
45. Ms Kaufmann submitted that the Claimant should have declaratory relief if such a breach were made out. I consider that application below, following giving my conclusions on the substantive decision to transfer to Feltham.

The Substantive Decision: the nature of the review

46. It is accepted by the Defendant that Article 8 of the Convention is engaged by a decision regarding ML's custody placement, as has been established since at least R (Day) –v- Home Secretary [2001] UKHL 26. The Article 8 rights of a person remanded into custody survive in an attenuated or qualified form. The substantive legal question then becomes whether the interference in the Claimant's Article 8 rights was proportionate.
47. It is also accepted on behalf of the Defendant that the function of the court extends beyond traditional judicial review, even accentuated by "anxious scrutiny". The approach was defined by Lord Bingham in the course of his speech in R (SB) The Governors of Denbigh High School [2007] 1 AC 100 at paragraph 30:

"….it is clear that the court's approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting. The inadequacy of that approach was exposed in Smith and Grady –v- United Kingdom (1999) 29 EHRR 493, para 138, and the new approach required under the 1998 Act was described by Lord Steyn in R (Daly) –v- Secretary of State for the Home Department [2001] 2 AC 532, paras 25-28, in terms which have never to my knowledge been questioned. There is no shift to a merit review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test adopted by the Court of Appeal in R –v- Ministry of Defence, ex p Smith [1996] QB 517, 554. The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time: Wilson –v- First County Trust Limited (No 2) [2004] 1 AC 186, paras 62-67. Proportionality must be judged objectively, by the court: R (Williamson) –v- Secretary of State for Education and Employment [2005] 2 AC 246, para 51. As Davies [op.cit.] observed "the retreat to procedure is of course a way of avoiding difficult questions." But it is in my view clear that the court must confront these questions, however difficult. The school's action cannot properly be condemned as disproportionate, with an acknowledgement that on reconsideration the same action could very well be maintained and properly so."

48. This approach was approved by Lord Carswell, giving the leading speech in E –v- Chief Constable of the Royal Ulster Constabulary and Another [2008] UKHL 66, see paragraphs 52-54.
49. In the course of argument, Ms Kaufmann QC emphasised the necessity for a close and thorough review when considering a question such as this. The more serious the interference with the Article 8 rights, the more compelling must be the justification: R (P & Q) –v- SSHD [2001] EWCA Civ 1151, at paragraph 78. The matter gains emphasis from the obligation to consider the best interests of the child as a primary consideration, whether under Article 3(1) of the UNCRC or under domestic law, in which respect Ms Kaufmann cites section 11 of the Children Act 2004. The Supreme Court has recognised the duty to consider the best interests of a child as a primary consideration in making proportionality assessments under Article 8 in the context of immigration decisions, see ZH (Tanzania) –v- SSHD [2011] UKSC 4, 2 AC 166.
50. In the course of argument Ms Kaufmann acknowledged that in fact there may be little distinction between the approach she advocated and a merits review.
51. In response, whilst accepting the authority cited for the Claimant and in particular accepting the principles formulated by Lord Bingham in the Denbigh case, Ms Broadfoot suggested Ms Kaufmann went too far in her approach and was in effect seeking to "micro-manage" the decisions of the Defendant.
52. In conducting this review, I have followed the test laid down by Lord Bingham. The question is one of substance: was the decision proportionate, not merely reasonable? I bear in mind that the review is of the decision taken at the time, in the circumstances of the time, and by those with manifold responsibilities, including responsibilities for other children apart from this Claimant. I have not conducted a merits review and I have borne in mind that appropriate weight must be given to the judgment of those with special knowledge of the management of detained children.

Was the decision to transfer to a YOI proportionate?

53. Ms Kaufmann has argued with force and eloquence that the decision was not proportionate. Her client's vulnerability and limited intelligence were central. No specific behaviour plan was laid down before the transfer, beyond the overall regime applicable to all students within Oakhill. No multi-disciplinary meeting or conference was convened in late February before the decision to request a transfer was made. There was too little engagement with ML in the last days of February and a failure to put him on notice that unless his behaviour changed, he was at risk of transfer to a YOI. No further incidents of a worrying nature were reported between 28 February and the move on the 12 March. There was no use and, so far as the evidence affords, no consideration of the use, of the power of removal from association given to the Defendant under Regulation 36 of the Secure Training Centre Rules 1998. There was insufficient engagement by STC staff with the Claimant's family or with Mr Hanson, designed to modify his behaviour before taking the decision to move him.
54. The Defendant submits that the Claimant has a high potential for violence and history of violence both during his immediate period of detention in question and earlier. He is six foot tall and physically intimidating. Even if there was no explicit personal behaviour management plan, there were consistent behaviour management practices within Oakhill which had been deployed in relation to the Claimant. The Claimant had been closely attended to within the context of such an approach. For a period he had responded, and it is clearly demonstrated that the Defendant's employees had borne with his initial difficult reaction after placement in Oakhill. By considerable effort they had helped him improve his behaviour for the period leading up to February 2013. However, despite that approach, his behaviour deteriorated significantly thereafter. The combination of observed bullying of other residents and two significant assaults on staff, one of which caused the need for hospital treatment, were more than enough to make a move proportionate and thus justifiable.
55. Ms Kaufmann argued that the Claimant's response to the Phoenix Unit within Cookham Wood showed that the decision to move him from Oakhill was disproportionate. It appears to me there are two problems with this proposition. Firstly, as Ms Broadfoot emphasised, the regime in the Phoenix Unit is highly specialised and very intensive, involving in effect one to one staffing. That regime was not available within Oakhill. Secondly, it is anachronistic to place the outcome of a subsequent intensive engagement such as that, as if it was one of the circumstances known to the Defendant's staff when taking their decision. Even then, there were repeated breakdowns of behaviour when the Claimant was returned from the Phoenix Unit to normal conditions within Cookham Wood. Had Oakhill had available that anachronistic knowledge, it seems to me likely it would have re-enforced the decision to seek a transfer rather than otherwise.
56. The same limitation applies to the views expressed by the psychological experts in their report of June 2013. It is unclear to me whether they had looked closely at the sequence of events in Oakhill. Certainly their views were focussed heavily on events after the transfer to Cookham and on ML's admission to the Phoenix Unit. I did not find their views persuasive as to the appropriateness of the decision months earlier to transfer ML out of Oakhill.
57. I have outlined earlier in this judgment the relevant events in chronological order. I should add that the evidence contained in the witness statement of Nadia Syed, Director of Oakhill STC appears to me a careful and thorough analysis of the substantive decision that was taken. The nub of her evidence is contained in paragraph 48 of the statement where she says:

"……behaviour management plans are an effective tool and utilised frequently at Oakhill but when the safety of staff and young people is placed at immediate risk with the perpetrator showing no remorse and threatening further incidents then the option for formalised plans is taken out of our control as priority must remain with the immediate welfare of staff and young people."

58. It is also necessary to bear in mind the problems which had been generated by the Claimant during his previous periods in other institutions. If he was to be moved from Oakhill, it seems to me entirely proportionate to conclude that no other STC was an appropriate placement, even if another STC could have been found which would have accepted him.
59. For these reasons I conclude without hesitation that the decision to transfer ML to YOI was proportionate. Were I to have conducted a merits review, on the material before me I would have reached the same conclusion.

Was it proportionate to transfer to YOI Feltham?

60. Ms Kaufmann contends that even if the transfer to a YOI was lawful, there were specific reasons rendering the transfer to YOI Feltham unlawful. In written submissions she began by making the point that the Claimant's vulnerability required careful consideration of a suitable allocation within the YOI system. She suggests that there is no record of the placement team attempting to accommodate the Claimant in Cookham Wood and that the records indicate no consideration being taken to where the Claimant should best be located.
61. Ms Kaufmann relies on part of the report from HM Chief Inspector of Prisons, following an inspection of Feltham in January 2013. The relevant passage reads:

"We had serious concerns about the safety of young people held at Feltham A. Many told us they were frightened at the time of the inspection, and that they had little confidence in staff to keep them safe. Gang-related graffiti was endemic. There was an average of almost two fights or assaults every day. Some of these were very serious and involved groups of young people in very violent, pre-meditated attacks on a single individual with a risk of very serious injury resulting."

There was no evidence as to whether that report was available to those taking the decision in relation to this Claimant at the end of February.

62. The Defendant's decision on this issue was fairly straightforward. At the stage when ML was being transferred, Cookham Wood was not accepting any new placements, following an incident shortly beforehand. ML was due to stand trial in the near future and Feltham was the closest institution to the court he would have to attend.
63. Despite Mr Hanson's concerns as I have already observed, ML had a previous period in Feltham without any undue consequence being noted. He had been moved due to concern about his vulnerability, but there is no concrete evidence of specific bad effects.
64. When ML arrived in Feltham on 12 March, he was not considered to present any particular problems. He was seen by his social worker on 27 March 2013 when he was assessed as managing quite well. He had not been assessed as particularly vulnerable. There was a remand review on 2 April 2013 and, as Ms Broadfoot has emphasised, he was assessed as having adapted to the change "rather well" and made no complaint about being in Feltham although he did make it clear he would prefer not to be in custody.
65. ML did deteriorate whilst in Feltham, but I accept the submissions of Ms Broadfoot that the down turn was not recorded until after the refusal of bail, on 4 April. It may be that the precipitating factor was the refusal of bail or it may be that he had been able to handle Feltham rather better while he was anticipating release on 4 April. In any event, his case was reassessed and on 19 April he was transferred to Cookham Wood, since that was better able to meet his educational and social needs. Again all these events post-dated the decision challenged in this case and cannot have been known to those decision makers.
66. For these reasons, it seems to me there is no basis for saying that the transfer to Feltham was disproportionate and therefore unlawful, and I reject the challenge on that ground.

Remedy

67. I now return to consider the question of declaratory relief. The breach established is that it was unfair and therefore unlawful on the part of the Defendant to fail to give the Claimant the opportunity to make representations in respect of his prospective move from Oakhill STC. It is a necessary implication of this judgment that, unless a specific reason arises concerning good order and discipline, or other relevant special circumstance, someone in this Claimant's position should be given such an opportunity. Moreover, a young person, particularly with vulnerability and of low intelligence, will need to be informed of the gist as to why it is proposed to move him. Such a young person should have the assistance of a parent or social worker to speak to him and for him, as may be appropriate in the circumstances. There is no requirement for any legal advice to be given and nothing I have said indicates a requirement for a formal hearing or proceedings of any kind. All of that should already be clear from this judgment.
68. Following submissions I indicated that the question of declaratory relief might best be addressed when my findings were known. At this stage I am doubtful if there is anything to be gained by a declaration given the terms of this judgment, but I am content for the parties to make further representation in writing, or if necessary in a hearing, if they so desire.