Prison service must consider interests of child

    The court of appeal has considered the policy of the prison
    service that children aged 18 months should cease to stay with
    their mothers in prison.

    It was proper to have the policy but the service was not
    entitled to operate it rigidly, insisting that all children should
    leave their mothers however catastrophic the effect of separation,
    however unsatisfactory the alternative placement, and however
    attractive the alternative solution of combining day care outside
    prison might be. The policy had to admit of greater flexibility
    than that for two inter-related reasons.

    The first was that the policy’s own declared aim, both in
    general and in individual cases, was to promote the welfare of the
    child. That aim had to be set in the context of what prison and the
    prison service was all about.

    It could not therefore be the only aim. But if the effect of the
    policy upon an individual child’s welfare would be catastrophic,
    the policy was not fulfilling its own objective. The policy
    documents themselves contemplated the need for individual
    consideration.

    The second reason was that the interference with the child’s
    family life which the prison service had allowed and encouraged to
    develop had to be justified under article 8.2 of the European
    Convention on Human Rights, as scheduled to the Human Rights Act
    1998.

    In considering whether that interference was proportionate to
    its legitimate aims, the prison service had to strike a fair
    balance between those aims. Those fell into three categories:

    First, there were the necessary limitations on the mother’s
    rights and freedoms brought about by her imprisonment. She could
    not expect to be provided with a child care facility for the whole
    of her sentence. Second, the extent to which any relaxation in the
    policy would cause problems within the prison or the prison service
    generally and, in particular, how it would affect good order and
    discipline. How would that be perceived as favouritism, not only by
    other mothers but also by other prisoners? Third, the welfare of
    the child. That involved consideration of three main factors: the
    extent of the harm likely to be caused by separation from the
    mother, the extent of the harm likely to be caused by remaining in
    the prison and the quality of alternative arrangements.

    In the great majority of cases those considerations would point
    to separating mother and child before the age of 18 months. But
    there might be very rare exceptions where the interests of mother
    and child coincided and outweighed any other considerations. The
    mother had to be given a fair opportunity to argue that that was
    so.

    Further challenges to the application of the policy would have
    little prospect of success unless brought on behalf of a child
    whose welfare was seriously at risk from the separation. In such
    cases the child should be separately represented by the official
    solicitor or the Children and Family Court Advisory and Support
    Service (Cafcass). There is no reason why such a challenge might
    not be brought in the family division.

    Richard White

    White and Sherwin Solicitors

     

     

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