ML (A Child), R (on the application of) v Youth Justice Board

A decision to transfer a child between forms of youth detention must be procedurally fair and proportionate under Article 8. A vulnerable child with intellectual difficulties should ordinarily have an opportunity to make representations, receive the gist of the proposed reasons, and have appropriate assistance from a parent or social worker. A Youth Justice Board decision is subject to substantive proportionality review rather than traditional rationality review, although the court must not conduct a merits review or disregard the expertise of those managing detained children. The transfer may nevertheless be proportionate where serious and continuing violence places other children or staff at immediate risk. The lawfulness of the particular receiving institution must be assessed on the information available when the decision was made. Later events cannot retrospectively invalidate the decision.

The claimant, a 16-year-old child remanded in custody, was transferred from Oakhill Secure Training Centre to Feltham Young Offender Institution following serious incidents involving violence and bullying. The decision was made without consulting the claimant, his mother, his solicitor or his social worker. The claimant was later moved from Feltham to Cookham Wood, where specialist support was available.

He sought judicial review on grounds of procedural unfairness, breach of Article 8 through failure to consider his best interests, and disproportionality in selecting Feltham. The central issues were whether the transfer decision was procedurally fair, whether transfer to a young offender institution was proportionate, and whether Feltham was an unlawful placement.

1. Procedural fairness. The transfer from a secure training centre to a young offender institution was a significant decision affecting a vulnerable child with intellectual difficulties. Applying the general principles in R (Doody and Others) v Home Secretary [1994] 1 AC 531, and their application in R (T) v Home Secretary [2004] EWCA Civ 1750, fairness required an opportunity to make representations. The claimant should have been informed of the gist of the proposed transfer, and his mother or social worker should have had a sensible opportunity to assist him. The Youth Offending Team worker did not adequately represent the claimant’s interests. The failure was unlawful.
2. Article 8 and proportionality. Custody placement engaged Article 8, but the rights were attenuated. The court had to decide whether the interference was proportionate, applying the approach in R (SB) The Governors of Denbigh High School [2007] 1 AC 100. This required a substantive value judgment, assessed objectively by reference to the circumstances existing when the decision was made. It did not require a merits review, and appropriate weight remained due to the judgment of those with specialist knowledge of detained children.
3. Transfer to a young offender institution. The claimant’s history of violence, bullying and two recent serious assaults on staff justified the conclusion that continued placement at Oakhill posed an immediate risk. The absence of a specific individual behaviour plan or multidisciplinary meeting did not make the transfer disproportionate. In light of his previous difficulties at other institutions, transfer away from the secure training centre was proportionate.
4. Feltham. The decision to send the claimant to Feltham was also proportionate. Cookham Wood was not accepting new placements, Feltham was close to the relevant court, and the claimant had previously been held there without concrete evidence of adverse consequences. Later deterioration and the subsequent transfer to Cookham Wood could not be treated as circumstances known to the decision-makers at the relevant time.
5. The claimant was entitled to the conclusion that the procedure had been unlawful. The judge was doubtful that a formal declaration would add anything and invited further written submissions on that remedy.