Prisons

Mother and baby units - policy requiring children to leave units by 18 months old - policy lawfulR (P) v Secretary of State for the Home Department; R (Q) v Secretary of State for the Home Department: DC (Lord Woolf CJ and Mr Justice Lightman): 17 May 2001The applicants were two prisoners living with their children in prison mother and baby units.

The policy of the prison service was to allow children to remain with their mothers in prison only until they were 18 months old.

The applicants sought judicial review of that policy on the ground that it contravened sections 1 and 17 of the Children Act 1989 and article 8 of the Convention for the Protection of Human Rights, as scheduled to the Human Rights Act 1998.Richard Gordon QC and Ian Wise (instructed by Hickman & Rose) for P.

Richard Gordon QC and Hugh Southey (instructed by Thanki Novy Taube) for Q.

Eleanor Grey (instructed by the Treasury Solicitor) for the secretary of state.Held, dismissing the applications, that the provisions of the Children Act 1989 had no direct application to the secretary of state or the prison service since they had not assumed parental responsibility for the children of prisoners under section 3 and they were not subject to the duties under section 17, which applied to the local authority; that the qualifications, in article 8(2) of the convention, on the right to respect for family life applied by reason of the legality, recognised by article 5, of the prisoners' imprisonment; that the role of the secretary of state and the prison service was subject to the provisions of the Prison Act 1952; that prisoners were sent to prison as a punishment, a deterrence and for rehabilitation and the impairment of the right of family life was a consequence of the deprivation of liberty which prison involved; that rehabilitation involved prisoners having to address their offending conduct and take advantage of opportunities provided for education and training; that promoting the welfare of prisoners' children was constrained by those considerations and the need for the efficient running of, and the maintenance of good order and discipline within prisons; that, despite that, the policy enabled a mother to have her child with her for a limited period and, to that extent, it was intended to be supportive of a child's welfare and family rights; that, in those circumstances, there was no lack of sufficient statutory underpinning for the policy; that the policy did not preclude in its application the consideration whether, in any particular case, it should be modified or not apply; and that the prison service had sought to adopt a reasonable balance between the various considerations involved and its conclusion was not flawed (WLR).