R (P) v Secretary of State for the Home Department

A prison service may adopt an age-based policy governing children’s residence in mother and baby units. It must, however, consider whether exceptional circumstances require departure from that policy.

Where separation would interfere with family life under Article 8, the authority must assess whether separation is proportionate in the individual case. Relevant considerations include the limitations inherent in imprisonment, the effect of relaxation on prison administration, and the child’s welfare. The welfare assessment encompasses the harm from separation, the harm from continued residence in prison, and the quality of the proposed alternative care.

Separation at or before 18 months will ordinarily be justified. Very rare cases may require an exception where the interests of mother and child coincide and outweigh the competing considerations. The mother must have a fair opportunity to establish that such circumstances exist.

Two mothers serving substantial prison sentences appealed from the Administrative Court’s dismissal of their applications for judicial review. They challenged the formulation and application of Prison Service Order 4801, under which children could not remain in prison mother and baby units beyond 18 months, apart from a short informal extension near the mother’s release.

P and her child lived in a closed prison. P had several years of her sentence remaining, and a culturally appropriate foster placement had been identified nearby. Q and her child lived in an open prison. No satisfactory alternative placement had been found, the child was securely attached to Q, and community day care might reduce the disadvantages of continued residence.

The central issue was whether the Prison Service could apply its age limit rigidly despite the individual consequences for the child and the right to respect for family life under Article 8 of the Convention.

1. Disposition. The court, in a single judgment delivered by Lord Phillips MR, allowed Q’s appeal and required the Prison Service to reconsider her case. It dismissed P’s appeal because further consideration could not realistically produce a different result.

2. The Prison Service was entitled to maintain an age-based policy for mother and baby units. It could decide what facilities it would offer and for which age groups. The different needs of babies, toddlers and older children objectively justified distinctions based on age. Prison Service orders lacked statutory status, but the Service could issue policy guidance governing the performance of its statutory functions.

3. The policy could not lawfully be applied as an absolute rule. Its declared purpose was to safeguard and promote children’s welfare, and its own documents contemplated individual consideration. A policy that compelled separation despite catastrophic consequences for a particular child would frustrate that purpose.

4. Separation also interfered with the family life which the Prison Service had permitted to develop. Under Article 8 and the proportionality approach applied in Daly, the Service had to determine whether separation was proportionate to its legitimate aims in the individual case. Appropriate respect remained due to its institutional expertise.

5. The balance comprised three categories: the limitations necessarily arising from the mother’s imprisonment; the effect of an exception on prison discipline, resources, fairness and the availability of places; and the child’s welfare. The last category required assessment of the harm caused by separation, the harm caused by remaining in prison, and the quality of the alternative care. Local authority services capable of reducing harm within or outside prison were relevant to that assessment.

6. Almost invariably, those considerations would justify separation at or before 18 months. There could nevertheless be very rare exceptions where the interests of mother and child coincided and outweighed the competing considerations. The mother had to receive a fair opportunity to argue that her case was exceptional.

7. P’s remaining sentence, the unsuitable closed-prison environment and the availability of a nearby foster placement made an exception unsustainable. In Q’s case, the potential harm from separation, absence of an acceptable care plan, open-prison regime and possible availability of community day care justified reconsideration. The court did not determine what that reconsideration should conclude.

• Court of Appeal: Q’s appeal was allowed and her case returned to the Prison Service for reconsideration. P’s appeal was dismissed. Permission to appeal to the House of Lords was refused in P’s case; the Secretary of State was permitted seven days to seek permission in Q’s case.
• Administrative Court: Lord Woolf CJ and Lightman J, sitting as a Divisional Court, dismissed both applications for judicial review on 17 May 2001. The court held that the Prison Service was entitled to adopt the policy and that it did not impair the local authorities’ assessment responsibilities.