Prisons

PRISONS

Prisoners' rights - policy requiring children to cease to live with mothers in prison at 18 months old - policy lawful but not to be applied rigidly in every caseR (P) v Secretary of State for the Home Department and another; R (Q and another) v Secretary of State for the Home Department and another: CA (Lord Phillips of Worth Matravers MR, Lords Justice Brooke and Hale):20 July 2001P and Q, were sentenced to imprisonment and allowed to have their babies with them in prison.The Prison Service informed the prisoners that the babies could not remain with them in prison beyond the age of 18 months in accordance with the policy contained in Prison Service Order No 4801.

P, Q and Q's child sought judicial review of those decisions.

The Queen's Bench Divisional Court [2001] Gazette, 21 June, 47 refused the applications.

The applicants appealed.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 and her child.

Eleanor Grey (instructed by the Treasury Solicitor) for the secretary of state and the prison governors.Held, dismissing P's appeal but allowing Q's appeal, that the prison service was entitled to have a policy such as that in the Prison Service Order; but that, having regard to the policy's stated objective to promote the welfare of the child and to the mother and child's right to respect for family life under article 8 of the Convention for the Protection of Human Rights, as scheduled to the Human Rights Act 1998, the prison service was not entitled to apply the policy rigidly in every case regardless of the catastrophic effect that separation might have, but was required to balance the welfare of the child and the proposed interference with the mother and child's rights against the necessary limitations on the mother's rights by reason of her imprisonment and the legitimate aims recognised by article 8(2), such as the maintenance of prison discipline.

(WLR)