DT, R (on the application of) v Secretary of State for Home Department

A decision to detain a person under 18 in prison is reviewable by the courts and must be made individually, having regard to the applicable statutory powers, policies and the child’s welfare. The child’s best interests are a primary consideration, but they are not the sole consideration where the child has committed a serious offence and accommodation is limited.

A general policy of transferring young people to prison because of pressure on places may be unlawful if it replaces individual assessment. On the facts, however, the claimant’s transfer was sufficiently consistent with the relevant policy, did not breach Article 8 of the ECHR, and did not establish a breach of Article 37(c) of the UNCRC because the reservation and the domestic policy framework applied.

The claimant, aged 16, challenged the lawfulness of her detention at HMP Eastwood Park from 28 June 2002 to 13 May 2003. She had been sentenced under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 and transferred from a local authority secure children’s home because of pressure on places in the juvenile secure estate.

She argued that the transfer breached section 92 of the Act, PSO 4960, Article 8 of the ECHR, Article 37(c) of the UNCRC and the welfare principles reflected in the Children Act 1989. The central questions were whether the decision was individually assessed, whether suitable alternative accommodation was available, and whether detention with prisoners over 18 was unlawful.

1. The application was dismissed. The decision to move the claimant from Stamford House was not irrational. Her deteriorating behaviour, bullying of younger detainees, age difference from the other residents and the convenience of family visits supplied rational reasons for moving her, although the age difference had to be treated cautiously.
2. The contemporaneous evidence showed that the transfer to Eastwood Park was driven principally by pressure on places in local authority secure children’s homes and secure training centres. The decision-making approach tended towards transfer of those aged 15 to 17 unless there was a good or compelling reason against it. That approach did not itself determine the lawfulness of the claimant’s individual transfer.
3. Her best interests had not been properly analysed in relation to Eastwood Park. The decision-maker had not adequately considered her vulnerability, the regime at Eastwood Park or the alternative Atkinson Unit. A child’s best interests were a primary consideration under Article 3 of the UNCRC and the welfare principles reflected in the Children Act 1989, but were not the sole consideration. The pressure on places and the claimant’s serious offending could also be considered.
4. The reservation to Article 37(c) of the UNCRC was construed as applying only where there was a lack of suitable accommodation or adequate facilities for the particular child in an institution where young offenders were detained. The court rejected the argument that the reservation was incompatible with the Convention. It did not need finally to decide whether section 92 had to be exercised consistently with the UNCRC.
5. PSO 4960 contained descriptions of practice which were inaccurate or inconsistent with PSO 4950, but the claimant’s individual transfer was sufficiently in accordance with the factors in PSO 4960, including age, vulnerability, behaviour, educational and health needs, and family access. Article 8 was engaged, but the interference was lawful, necessary and proportionate. The court’s power to scrutinise individual placements did not permit it to prohibit the use of prison accommodation generally, which was a matter for Parliament.

There was no order for costs, subject to the claimant’s undertaking not to enforce the earlier costs order. Permission to appeal was refused.

First-instance judicial review. The court refused permission to appeal and made no order for costs, subject to an undertaking concerning an earlier costs order.