F v Secretary of State for Home Department & Anor

A challenge to a decision about a child living with her imprisoned mother is a public law challenge. The court reviews the Secretary of State’s decision and does not decide the child’s best interests afresh. The review requires intense and anxious scrutiny, but the Secretary of State retains a significant margin of discretion.

The child’s best interests are a primary consideration. The decision-maker must balance the child’s family-life and private-life rights against the mother’s rights and the legitimate requirements of prison administration. A lawful policy may permit separation before the usual maximum age where the individual circumstances justify it.

Where the decision turns entirely on the child’s best interests, inadequate preparation or representation of the child may vitiate the decision.

The claimant, a serving prisoner, challenged the Secretary of State’s decision that her infant daughter should leave the mother and baby unit and live with her maternal grandparents. The claim alleged breaches of the Prison Service’s policy and article 8 of the Convention.

The court considered the proper jurisdiction, the lawfulness and accessibility of the policy, the decision-making process, and the merits of the proposed separation. The child’s interests were represented by the Official Solicitor, and the Secretary of State relied on expert, social-work and Prison Service evidence.

1. Jurisdiction and standard of review. The claim concerned the exercise of a statutory power under rule 12(2) of the Prison Rules 1999. The court’s function was supervisory, not a best-interests determination. The same substantive principles applied whether the claim was brought in the Family Division or Administrative Court, and whether under judicial review or section 7 of the Human Rights Act 1998.
2. The Secretary of State’s decision had to receive “intense and anxious scrutiny on an objective basis”. The court had to determine whether a fair balance had been struck, while allowing the Secretary of State a significant discretionary area of judgment. The possibility that another decision might reasonably have been reached did not itself establish a breach of article 8.
3. Policy. The policy in PSO 4801 remained lawful. It treated the child’s best interests as the primary consideration, required individual consideration, and treated 18 months as a maximum age rather than an automatic entitlement. The policy was sufficiently accessible and foreseeable for article 8 purposes. The Secretary of State was entitled to rely on informed multidisciplinary expertise even without peer-reviewed research.
4. Article 8 protected both family life and the child’s private life, including psychological integrity, development and participation in the wider community. The Secretary of State was entitled, and required, to consider the potential developmental disadvantages of a child remaining in the abnormal environment of a mother and baby unit, while balancing those disadvantages against the mother-child relationship and other relevant interests.
5. Procedural fairness. Article 8 required a decision-making process which enabled the parents’ and child’s views to be known and taken into account. The child’s social-work representative had been allocated to the case only immediately before the meeting, had not properly familiarised herself with the papers, and subsequently expressed a materially different view without explaining the change. The child’s interests were therefore inadequately represented and protected.
6. The defective representation was material. The meeting’s recommendation could not stand, and the Secretary of State’s subsequent decision was likewise vitiated because he could not know that the child’s representation had been deficient. The decision was quashed and remitted to the Secretary of State for reconsideration as soon as possible, with proper representation of the child’s interests.
7. The local authority in whose area the prison was situated had primary responsibility for children living in the prison’s mother and baby unit, although the prisoner’s home authority should be involved where it could contribute usefully.