Refusal of child care leave to female prisoners was unlawful, rules High Court

16 April 2012 by

MP, R(on the application of) v the Secretary of State for Justice   [2012] 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.

Background

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.

Application granted.

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.[79]

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 [2008] 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.[70]

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 [2011] 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.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: