Refusal of child care leave to female prisoners was unlawful, rules High Court
16 April 2012
MP, R(on the application of) v the Secretary of State for Justice  EWHC 214 (Admin) – read judgment
The prison authorities had acted unlawfully in restricting childcare resettlement leave to prisoners who were within two years of their release date and had been allocated to “open” conditions.
Two female prisoners applied for judicial review of decisions of the defendant secretary of state and prison governors to refuse them childcare resettlement leave (CRL). CRL is a type of temporary licence available to prisoners who have sole caring responsibility for a child under 16. CRL enables prisoners to spend up to three days at home (including nights), provided certain conditions are met. The principal issue in the claim was whether the secretary of state was acting lawfully in restricting CRL to female prisoners who have less than 2 years until their earliest release date.
The claimants, who had sole care of children aged under the age of sixteen, applied for CRL when they had over two years remaining before their earliest release date and when they had been allocated to closed conditions. CRL is governed by a prison service rule, PSO 6300. The secretary of state refused the applications on the basis of a policy that prisoners should not be allocated to open conditions more than two years from their release date.
The claimants argued that PSO 6300 showed that CRL was intended to be available throughout a prisoner’s sentence and that therefore the secretary of state had acted unlawfully in restricting CRL to prisoners meeting the criteria for open conditions. They also contended that the decisions had breached their rights under Article 8 of the European Convention on Human Rights. Finally they argued that the secretary of state had unlawfully restricted his own discretion by applying a blanket rule without considering the merits of individual cases.
The defendants responded, inter alia, that although PSO 6300 stated that there was no minimum eligibility date for CRL, it also expressly stipulated that prison governors should bear in mind another prison rule which required them not to release a prisoner on temporary licence if they thought that public confidence in the administration of justice would thereby be eroded, because of the length of sentence which remained to be served. They also submitted that the role of Article 8 was of limited effect in the context of adult prisoners’ temporary leave. Unlike the immigration context, there was no primary legislation enshrining the primacy of the best interests of the child.
The Court’s reasoning
The secretary of state had misinterpreted PSO 6300 and the policy on CRL. Lang J was inclined to the view that the terms of PSO 6300 reflected a policy that CRL could, in principle, be available at any stage of a prisoner’s sentence, provided other eligibility criteria were met. The stated purpose of CRL, she noted, is:
to encourage the maintenance of the parent/child tie and to help prepare the prisoner for the resumption of their parental duties on release.
The maintenance of the mother/child bond is clearly not something that could be picked up in the last two years of a long sentence, as for instance employment skills could be. A mother’s relationship with her child will require continual nurturing throughout their separation if family ties are to be maintained. Unlike housing or employment, a child’s needs do not only arise during the last part of a sentence of imprisonment.
The thorough risk assessment and decision-making process in PSO 6300 was capable of meeting the requirements of release on CRL at any stage of the sentence. The fact that CRL was “resettlement” leave did not mean that it had not been intended to be taken early in a sentence: other documents from the prison and probation services showed that resettlement work was not limited to the final stages of the custodial term.
It had become an inflexible rule that the prisoner had to be within those two years to be eligible for CRL and the secretary of state had not taken into account all relevant considerations in reviewing the application of CRL to “open” and “closed” prisons, in particular whether these categorisations were compatible with Article 8 of the Convention and the 1989 UN Convention on the Rights of the Child. Although Article 8 allowed for certain justifications for interference, such as the possibility of offending public opinion, which covered the loss of public confidence in the administration of justice, this was not the sole factor which might justify interference with Article 8 rights. The Strasbourg authorities including Dickson v United Kingdom  1 F.L.R. 1315 and Hirst v United Kingdom (2006) 42 E.H.R.R. 41 indicated that Article 8 was engaged whenever a public authority applied a policy which restricted benefits to a particular class of people such as prisoners, and it was important to remember this principle, set out in Hirst and cited in Dickson:
Nor is there any place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion….Accordingly, a person retains his or her Convention rights on imprisonment, so that any restrictions on those rights must be justified in each individual case. This justification can flow, inter alia, from the necessary and inevitable consequences of imprisonment or … an adequate link between the restriction and the circumstances of the prisoner in question. However, it cannot be based solely on what would offend public opinion.
And contrary to the defendants’ arguments regarding the primacy of the best interests of the child, the issues arising from the separation of female prisoners from their children was clearly a case for the application of the principles set out in ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4, (see our post on this decision). Further, separate consideration should be given to the children’s rights under the Human Rights and the 1989 UNCRC. Article 8 had been engaged when the secretary of state reviewed his policy on CRL and when decisions were taken to refuse the claimant prisoners leave. Article 3(1) of the 1989 UNCRC had to be considered as part of the application of Article 8. The defendants had erred in giving little or no consideration to either provision An inflexible policy in relation to CRL had been routinely applied which did not involve consideration of the merits of individual cases and did not permit any exceptions. That was unlawful, since the secretary of state had thereby fettered his discretion.
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