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