JM, R (On the Application Of) v Secretary of State for Justice

Article 8 may be engaged by a decision to close a young offender institution where closure is likely to affect family contact. The relevant question is whether the interference is unwarranted, taking account of its comparative effect on the young offender population as a whole.

The best interests of children are a primary consideration, but may be outweighed by sufficiently weighty countervailing factors, including financial and operational efficiency. A public authority may adopt a broad-brush assessment where precise forecasting of future placements and travel burdens is inherently difficult. The court must not substitute its own judgment for that of the decision-maker unless the decision is unlawful or irrational.

The claimant, a 17-year-old detained at Ashfield young offender institution, sought judicial review of the decision by the Secretary of State for Justice, following a recommendation by the Youth Justice Board, to decommission Ashfield. He contended that relocation would make visits by his mother substantially more difficult and would unlawfully interfere with family life under article 8 of the European Convention.

The claim raised whether the decision disproportionately affected young offenders from south-west England, whether the Board had sufficiently investigated and considered that effect, and whether additional mitigation, such as transport or advance travel assistance, was required.

1. Claim dismissed. The closure of Ashfield was capable of engaging article 8, but the central issue was whether the claimant’s rights had been subjected to an unwarranted interference in comparison with the effects on other young offenders.
2. The Board was not required to produce a highly precise forecast of the effects of closure. The available data were necessarily provisional and a detailed spreadsheet could not reliably capture differences in journey times, public transport, affordability and individual placement requirements. The Board’s broad-brush assessment was reasonable and did not demonstrate that south-western young offenders would suffer an impact vastly or very significantly greater than the population as a whole.
3. Even if the adverse impact on south-western young offenders were treated as significant, the best interests of children remained a primary consideration. They were capable of being outweighed by countervailing considerations. The Board was entitled to take account of financial efficiency, operational considerations and adverse effects on young offenders in other regions. Decommissioning Ashfield produced substantially greater savings than the alternative options.
4. Under the principles explained in Khatun v Newham London Borough Council [2005] QB 37, the decision-maker, subject to Wednesbury review, determines the relevance of considerations and the manner and intensity of inquiry. The court could not substitute its own assessment for that of the Board.
5. The Board’s failure expressly to specify mitigation for affected families gave rise to a legitimate concern. However, that issue had not been sufficiently identified in the claim or addressed in the evidence, and could not fairly found relief in these proceedings. The Board was nevertheless advised to address transport and travel-funding assistance in future decisions.
6. The dominant cause of the claimant’s likely difficulties was the decision to decommission Ashfield, although that conclusion did not affect the result. The claimant had not shown that a more detailed inquiry would probably have produced a different decision. The application was dismissed, with publicly funded costs subject to detailed assessment.

First-instance judicial review. Permission was granted by Parker J on 22 April 2013. The Administrative Court dismissed the claim.