CD & Anor, R (on the application of) v Secretary of State for the Home Department

A decision to exclude a mother from a prison Mother and Baby Unit and separate her from her child engages Article 8 and must be substantively and procedurally lawful. The decision-maker must treat the child’s best interests as the primary consideration, while recognising that they are not determinative. Proportionality requires consideration of whether the legitimate aim can be achieved by less intrusive means, followed by assessment of the balance between the remaining risk and the harm caused by separation. Procedural fairness normally requires that the mother be given an opportunity to answer allegations and make representations. A later review will not cure the defect if it merely accepts the original allegations and gives no effective opportunity to respond.

The claimants were a serving prisoner and her infant son. The mother had been placed with the child in a Mother and Baby Unit, but the Prison Service excluded her following alleged misconduct and separated her from the child without first giving her an opportunity to answer the allegations. The child was placed temporarily with a friend.

The claim challenged the decision by judicial review on substantive and procedural public-law grounds, including Article 8. The central issues were whether the child’s best interests had been properly considered, whether separation was a proportionate interference with family life, and whether the decision-making process was fair.

1. Outcome. The application for judicial review succeeded. The exclusion and separation decision was quashed. The court declined to make a mandatory order restoring the mother and child to the Unit, because the Prison Service had to reconsider the matter lawfully and the outcome was not predetermined.
2. Best interests and proportionality. The child’s best interests were the primary consideration under Prison Service policy and Article 8 was engaged by separation. Those interests were not, however, determinative. Following R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, and the proportionality approach discussed in de Freitas v Permanent Secretary of Ministry of Agriculture [1999] 1 AC 69 (PC), the decision-maker had to consider whether the legitimate aims of good order, discipline and the welfare of other babies could be achieved by less intrusive measures. The decision-maker then had to assess whether the remaining risk outweighed the detriment to the child from separation.
3. The decision-makers had not properly assessed the risk posed by separation, the suitability of the alternative care arrangements, or possible measures such as disciplinary restrictions, support, transfer to another Unit, and managed contact. The decision therefore failed at the first stage of the proportionality inquiry and was substantively flawed.
4. Procedural fairness. Given the importance of the decision, fairness required an opportunity to answer the allegations and make representations before exclusion and separation. Previous warnings did not satisfy that requirement. The decision was based on a one-sided and materially inaccurate account, and the later ad hoc review did not cure the defect because the mother was not notified or heard and the original allegations were accepted at face value.
5. Future procedure. Even where immediate action is necessary, appropriate procedural fairness should follow. Decision-makers may need expert assistance, including from Social Services, particularly where the child’s welfare and the proportionality assessment cannot properly be evaluated without specialist evidence.

First-instance judicial review proceedings. The claim was initially issued in the Family Division under CPR Part 8 and was transferred by the President to the Administrative Court.