F v Secretary of State for Home Department & Anor

B e f o r e :

THE HONOURABLE MR JUSTICE MUNBY ____________________

____________________

Mr Ian Wise (instructed by A S Law) for the claimant (mother) Ms Jenni Richards (instructed by the Treasury Solicitor) for the first defendant (Secretary of State) Miss Alison Foster QC (instructed by the Official Solicitor) for the second defendant (child) Hearing dates : 18-19, 22 December 2003 ____________________

HTML VERSION OF JUDGMENT ____________________

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Mr Justice Munby :

Claire F is a young woman, not yet quite 25 years old, who is serving a long sentence of imprisonment. On 20 September 2002 at Doncaster Crown Court she was convicted of a drug-related offence of aggravated burglary of a dwelling-house. On 17 December 2002 she was sentenced to 6 years' imprisonment. However, on 5 September 2003 her sentence was reduced by the Court of Appeal, Criminal Division, to 5 years. This is not her first experience of prison for she has several previous convictions and in August 2000 received a sentence of 12 month's imprisonment. She was pregnant when sentenced and on 11 January 2003 gave birth to a daughter, Lia-Jade. Her earliest parole release date is 13 March 2005, when Lia-Jade will be 2 years and 2 months old; her non-parole release date (the earliest date when she is certain to be released) is 12 January 2006, when Lia-Jade will be 3 years old. She is currently serving her sentence, and has Lia-Jade with her, in the mother and baby unit ("MBU") at HMP New Hall, near Wakefield. This is one of the four prisons within the Prison Service which have MBUs, the others being HMP Askham Grange, near York, HMP Holloway, London, and HMP Styal in Cheshire. New Hall and Holloway take babies up to 9 months old; Askham Grange and Styal take babies up to 18 months old.

The statutory context

Responsibility for the management of prisons, and of the prisoners confined in them, is vested in the Secretary of State by the Prisons Act 1952 and is exercised by him, and by the Prison Service on his behalf, in accordance with the Act and the Prison Rules 1999 made pursuant to section 47 of the Act. Section 12(1) of the Act provides that "a prisoner … may be lawfully confined in any prison" and section 12(2) provides that "prisoners shall be committed to such prisons as the Secretary of State may from time to time direct". Rule 12(2) of the Prison Rules provides that:

There is, of course, inherent in the very fact that the mother is a prisoner a tension between three potentially conflicting interests: those of the mother, those of her child, and those of the Secretary of State. Everyone has the best interests of the child at heart, but the mother's view of where her child's best interests truly lie may not accord with the view of the Secretary of State. The mother's views may be coloured by a perception on her part (whether justified or not) that conditions in prison will be more congenial for her if she is in an MBU with her child rather than elsewhere in the prison system. The mother's interest in keeping her child with her in prison may in fact conflict with the child's interest in being brought up – albeit by someone else – in a more "normal" environment. There may be reasons of good order and discipline why a child should not be allowed to remain in an MBU with his or her mother even though it would otherwise be in the child's best interests to do so. As Maurice Kay J (as he then was) said in R (D) v Secretary of State for the Home Department [2003] EWHC 155 (Admin) , [2003] 1 FLR 979, at para [31]:

The mother has, of course, within the meaning of section 3 of the Children Act 1989, parental responsibility for her child. So too, in certain circumstances, does the father: see sections 2 and 4 of the 1989 Act. The Secretary of State does not. Nor does any other public authority, unless the child happens to be in care, in which case the local authority will have parental responsibility under section 33(3) of the 1989 Act, or happens to be a ward of court, in which case custody of the child is vested in the court: see Lowe & White, Wards of Court (ed 2), para 1-8. But the exercise by the mother of her parental responsibility, like the exercise by a local authority of its parental responsibility and even the custodial powers of the wardship judge, necessarily take effect and operate subject to the necessary requirements of the mother's imprisonment: see A v A Health Authority, In re J, R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin), [2003] Fam 213, at paras [47]-[56], and more particularly R (Howard League for Penal Reform) v Secretary of State for the Home Department [2002] EWHC 2497 (Admin) , [2003] 1 FLR 484 , at paras [136], [142]-[148].

Thus in the final analysis it is for the Secretary of State to decide whether or not a baby should remain in prison with his or her mother. Likewise, insofar as that decision requires consideration of the baby's best interests, in the final analysis it is for the Secretary of State to decide where the baby's best interests lie. Parliament has conferred that power and responsibility on the Secretary of State. Rule 12(2) of the Prison Rules makes it quite clear that the decision is one for the Secretary of State: not the mother; not the local authority; not the court.

Rule 12(2) empowers the Secretary of State not merely to decide what is to happen to the baby in a particular case but also to formulate and adopt a policy in relation to such cases. That is what the Secretary of State has done. His policy is enshrined in Prison Service Order ("PSO") 4801, the second edition of which was published on 10 May 2000. Putting the matter very shortly – the position is, of course, more complex than this: I will go into the details in due course – the policy in PSO 4801 is that in most cases the upper age limit for children to live with their mothers in prison is 18 months. The essential lawfulness of that policy was upheld by the Court of Appeal in R (P) v Secretary of State for the Home Department, R (Q and another) v Secretary of State for the Home Department [2001] EWCA Civ 1151 , [2001] 1 WLR 2002 , a case which for convenience I will from now on refer to as Re P&Q .

The factual setting

Claire wants to keep Lia-Jade with her in prison as long as possible – ideally until she is released, whenever that may be, but at least until Lia-Jade is 18 months old. The Secretary of State has taken a different view. On 9 September 2003 a Separation Care Plan Meeting decided that Lia-Jade should be separated from Claire on 10 October 2003, that is, when she was 9 months old. The plan was for her to go to live with her maternal grandparents, Claire's mother and father. That meeting was chaired by an Independent Chair, Ian Milner, a former Deputy Director of Social Services who has worked for over a decade as an Inspector in the Social Services Inspectorate. One of those attending was Mahala Hodgson, the Governor in charge of the MBU at New Hall. She wrote on 11 September 2003 to Hazel Banks, the acting Head of the Prison Service Women's Estate, reporting the outcome of the meeting, sending her all the relevant papers and saying that she believed there were three options available: Option 1: Lia-Jade separates from Claire on the date originally agreed (18 September 2003); Option 2: Lia-Jade separates from Claire on 10 October 2003, when 9 months old; Option 3: Lia-Jade remains with Claire until she is 18 months old, which would mean moving to Styal (like New Hall a closed prison) and then to Askham Grange (an open prison) if Claire became eligible. The papers were reviewed by Nicholas Montgomery-Pott, the Head of the Women's Estate Policy Unit in the Security Directorate of the Prison Service, who the same day (11 September 2003) minuted the file with a note to the effect that Option 2 was "reasonable" and that "the paperwork backs up the reasons for the decision to separate". The formal decision was taken later the same day by Ms Banks. Having read all the papers and discussed the case with Mr Montgomery-Pott she came to a decision. She agreed with Mr Montgomery-Pott. So the decision of the Separation Care Plan Meeting stood.

On 7 October 2003 Claire issued a CPR Part 8 Claim Form in the Family Division seeking (i) a declaration that the decision to separate her and Lia-Jade was not in Lia-Jade's best interests and so was in breach of the Secretary of State's own policy and of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and (ii) an order that she and Lia-Jade remain accommodated together. Her application was supported by a witness statement Claire made on 29 September 2003. The Secretary of State filed an acknowledgment of service indicating his intention to contest the claim and asserting that the mandatory order sought by Claire can be made only within judicial review proceedings. On 23 October 2003 Johnson J gave directions, including directions that Lia-Jade be added as a defendant and that the Official Solicitor be appointed to act as her litigation friend. Against the Secretary of State's opposition he also directed that there be leave for the papers to be disclosed to an expert child psychologist or psychiatrist to be jointly instructed by Claire and the Official Solicitor. On 3 November 2003 the Official Solicitor filed an acknowledgement of service stating that he would investigate the claim and notify the parties whether he was supporting or opposing it. In the event he has supported it.

In accordance with Johnson J's order, Claire and the Official Solicitor instructed Professor Jonathan Hill, Professor of Child and Developmental Psychiatry at the University of Liverpool and Honorary Consultant Child Psychiatrist at the Royal Liverpool Children's Hospital. His report is dated 28 November 2003. He produced an addendum report dated 14 December 2003. The Official Solicitor filed a statement dated 9 December 2003 in which he summarised his position as being that

The Secretary of State filed a witness statement by Mr Milner, a witness statement by Ms Hodgson, three witness statements by Mr Montgomery-Pott and a witness statement by Ms Banks. He also filed witness statements by Jennifer Adams Young, who is the National Mother and Baby Coordinator in the Women's Estate Policy Unit of the Prison Service, by Carole Walton, the deputy manager of the MBU at New Hall, and by Helen Norris, who works in the sentence-planning unit at New Hall. He has also filed a statement by Dr Dora Black, Honorary Consultant Child and Adolescent Psychiatrist at the Traumatic Stress Clinic in London and Honorary Consultant at the Royal Free Hospital, at the Great Ormond Street Hospital for Children and at the Tavistock Clinic.

The matter came on for hearing before me on 18 December 2003. Claire was represented by Mr Ian Wise, Lia-Jade by Miss Alison Foster QC, and the Secretary of State by Ms Jenni Richards. The hearing concluded on 22 December 2003, when I reserved judgment.

In recent months the BBC, with full cooperation from the Prison Service, Claire and her family, has been filming Claire and Lia-Jade, both inside and outside prison, with a view to preparing and broadcasting a documentary film. That film is not yet complete but, as I was asked to, I have watched the rough cut ("the BBC tape") and studied a transcript of the sound-track.

The issues

As matters have developed, four main issues have emerged. There is a dispute as to the role of the court and the approach it should adopt. There is a challenge to the legality of the Secretary of State's policy. There is a challenge to the decision-making process. And there is a challenge on the merits to the Secretary of State's decision.

Jurisdiction and the role of the court

There is acute controversy between the parties as to the proper role of the court in a case such as this and as to the approach the court should adopt when addressing the central argument that the Secretary of State's decision was wrong on the merits.

Mr Wise submits that I am here exercising a merits-based best interests jurisdiction and that I must decide for myself whether it is in Lia-Jade's best interests to be separated from Claire at this juncture. He says that I should, if necessary, make whatever order is required to ensure that the Secretary of State acts in accordance with Lia-Jade's best interests – that is, her best interests as I determine them to be. Ms Richards disagrees. She submits that my function is limited to reviewing the Secretary of State's decision in the manner indicated in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26 , [2001] 2 AC 532 .

Miss Foster adopts an intermediate but more complex position. She accepts that the Secretary of State's decision is that of a public authority acting within a statutory framework. But, she says, it is important to distinguish between two different elements that may often be present informing the Secretary of State's decision in cases such as this:

ii) Secondly, and this will be an essential feature of every case, there is the question of the child's best interests. This, she says, is an underlying fact forming part of the essential factual matrix informing the Secretary of State's decision. It is not an operational question, nor, she says, is it a discretionary decision where a range of responses may be lawful in public law terms. It is a question of a kind which the court is very familiar with and which it will readily determine when required.

In the present case, as Miss Foster points out, the Secretary of State's decision was made solely on grounds of Lia-Jade's best interests. There were no stated operational reasons for the decision. This is not a case where reasons of good order and discipline within the prison came into play. The case turns on a single issue – Lia-Jade's best interests. Moreover, as Miss Foster also points out, there are no reservations whatsoever with Claire's parenting skills. Dr Black, who has watched the BBC tape though she has never met either Claire or Lia-Jade, describes Claire as "a young mother making an excellent job of mothering." There are no worries either about Claire's behaviour or about her handling of Lia-Jade.

Building on this analysis, and relying upon sections 6, 7 and 8 of the Human Rights Act 1998, Miss Foster accordingly submits that:

ii) But insofar as the Secretary of State's decision is based upon an evaluation of the child's best interests, it is for the judge to decide for himself, as if he was sitting in the Family Division, where the child's best interests truly lie.

So, she says, I should embark upon a two-part review, involving both a best interests evaluation and, if appropriate, a subsequent judicial review on public law grounds.

Miss Foster asserts that since a decision on Lia-Jade's best interests as they currently stand may determine the legality of the Secretary of State's action in seeking to continue removal, the Family Division can and should exercise its jurisdiction, so as to assist the Secretary of State. Moreover, and she is very clear about this, although judicial review is, as she rightly says, a challenge retrospectively to a decision fixed at a single point in time, a best interests decision is, she says, a decision to be taken by the judge upon the evidence as it emerges at the hearing which, as she rightly says, may, particularly in the case of a young child, reflect a different set of facts as time has passed. So my evaluation of Lia-Jade's best interests is to be made in the light of all the evidence available to me at the conclusion of the hearing.

Miss Foster disavows any intention of inviting me to usurp the Secretary of State's functions. A best interests investigation in exercise of the Family Division's jurisdiction would, she says, supplement not oust the proper exercise of the jurisdiction by way of judicial review. She recognises that a judicial determination of Lia-Jade's best interests would not be binding on the Secretary of State: it would, she says, be "of informative but not compulsive force". Nonetheless, she says, I should embark upon the exercise.

In my judgment Ms Richards is quite plainly correct. I am not here exercising a best interests jurisdiction; I am exercising a Daly type reviewing jurisdiction.

This is, as it happens, a matter I have had to consider on a number of occasions in recent months: see A v A Health Authority, In re J, R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin), [2003] Fam 213, esp at paras [71]-[81], [89]-[100], Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam) , [2003] 1 FLR 292 , esp at paras [6]-[7], R (A, B, X and Y) v East Sussex CC (No 2) [2003] EWHC 167 (Admin) , (2003) 6 CCLR 194, esp at paras [28], [159]-[161], and, very recently, R (IR) v Shetty [2003] EWHC 3022 (Admin) , esp at paras [47]-[55].

I need not repeat the analysis that is to be found in those judgments. With all respect to Mr Wise and Miss Foster, and despite the force and ingenuity of their arguments to the contrary, the position is really quite clear and, in my judgment, very simple.

In this case what the claimant seeks to challenge is a decision taken by the Secretary of State in pursuance of the statutory powers conferred on him by rule 12(2) of the Prison Rules 1999. This is not a case like Re S where I was not being asked to impose on a public authority any burden which it was unwilling to assume and where, accordingly, the matter lay entirely within the field of private law and fell to be determined by the court by reference to the usual Family Division criterion of best interests. This is a case, like A v A Health Authority , like R (A, B, X and Y) v East Sussex CC (No 2) and like R (IR) v Shetty , where in the final analysis what the claimant is seeking is the assistance of the court in thrusting upon the Secretary of State – a public authority – a burden and an obligation which he is unwilling to assume: in the present case the obligation to keep mother and child together in an MBU. Such a case raises issues of public law to be determined, whether in the Family Division or in the Administrative Court, by reference to the appropriate principles of public law. It follows from this that the primary decision maker is the Secretary of State and not the court. The court's function in this type of dispute is essentially one of review – review of the Secretary of State's decision – rather than one of primary judicial decision making. It is not the function of the court itself to come to a decision on the merits.

The fact is that in the present context Parliament has chosen to confer the relevant power on the Secretary of State: not on the court or on anyone else. There is nothing in that which is in any way incompatible with the Convention. My duty is to recognise the will of Parliament and not to seek to usurp a power which Parliament, compatibly with the Convention, has chosen to confer on an accountable minister rather than on an unaccountable judge.

I should add that it is nothing to the point that the present case is based upon an allegation that the Secretary of State has acted in breach of section 6 of the Human Rights Act 1998 by acting, so it is said, incompatibly with the mother's and the baby's rights under Article 8 of the Convention. The 1998 Act has not collapsed the fundamental distinction between public law and private law. A case which, properly analysed, is a public law case is not transformed into something different merely because Convention rights are relied upon. As I said in R (A, B, X and Y) v East Sussex CC (No 2) at paras [159]-[160]:

Both in R (A, B, X and Y) v East Sussex CC (No 2) and in R (IR) v Shetty allegations of breaches of the claimant's human rights – in the first case, potential breaches of Articles 3 and 8, in the second case potential breaches of Articles 3 and 5 – were central to the matters being complained of. But in each case the court's function was nonetheless one of review.

Nor can it make any difference for this purpose that the claim has been brought, as here, by means of a free-standing claim in the Family Division seeking relief under section 7 of the 1998 Act rather than, as in R (A, B, X and Y) v East Sussex CC (No 2) and R (IR) v Shetty , by way of a claim in the Administrative Court for judicial review. As I sought to explain in A v A Health Authority at paras [80]-[81], choice of forum or of remedy cannot affect substantive law: procedural pragmatism cannot affect substantive law.

Thus far I have addressed the point as one of general principle. There is in fact, as Ms Richards pointed out, a much shorter and simpler answer to Mr Wise's and Miss Foster's arguments. It is provided by the decision of the Court of Appeal in Re P&Q , a decision which is both directly in point and binding on me. As I pointed out in A v A Health Authority at para [81], two things emerge very clearly from the decision of the Court of Appeal:

ii) The second is that the court is not concerned to review the merits of the Secretary of State's decision; the correct approach is that spelt out in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26 , [2001] 2 AC 532 : see Re P&Q at paras [60], [64].

In Re P&Q , the Court of Appeal went on to say at para [64]:

In relation to "deference" reference was also made in the course of argument before me to Samaroo and Sezek v Secretary of State for the Home Department [2001] EWCA Civ 1139 , [2001] UKHRR 1150 , R (D) v Secretary of State for the Home Department [2003] EWHC 155 (Admin) , [2003] 1 FLR 979, and Edore v Secretary of State for the Home Department [2003] EWCA Civ 716 , [2003] 1 WLR 2979 . It suffices for present purposes to cite only those passages in the judgment of Dyson LJ in Samaroo and Sezek which Maurice Kay J recognised in R (D) v Secretary of State for the Home Department at para [21] as correctly describing the nature of the court's reviewing function in a case such as this.

What Dyson LJ said was this:

I agree with Maurice Kay J that those are the appropriate principles to be applied in a case such as this.

Mr Wise submits, in the alternative, that the intensity of the review demanded in a case such as this is but "a whisker away from a merits review" and that, in examining and assessing the expert evidence, the exercise I am embarked upon is "the same as, or very similar to, that which the court would conduct in a best interests application." That, in my judgment, puts it too high. I must subject the Secretary of State's decision to "intense and anxious scrutiny on an objective basis" whilst at the same time recognising and allowing the Secretary of State a significant margin of discretion.

Let me spell it out plainly. Whether the claim is brought by the mother or on behalf of the child, whether the claim is brought in the Family Division or in the Administrative Court, whether the claim is brought by way of an application for judicial review or by way of an application under section 7 of the Human Rights Act 1998 or purportedly invoking the inherent or wardship jurisdiction of the Family Division, whether the claim is heard by a judge sitting in the Family Division or sitting in the Administrative Court, and whether the claim is heard by a judge who is allocated to the Family Division and/or who is a nominated judge of the Administrative Court, the applicable principles are precisely the same. Neither the venue nor the form of procedure can affect the outcome. The substantive principles that are applicable are the same. The court is not concerned to come to its own assessment of what is in the child's best interests. The court is concerned only to review the Secretary of State's decision, and that is not a review of the merits of the Secretary of State's decision but a Daly type review. As Maurice Kay J said in R (D) v Secretary of State for the Home Department [2003] EWHC 155 (Admin) , [2003] 1 FLR 979, at para [12], "the proceedings are of a kind which require the review of a decision of a public authority by reference to public law criteria".

Lest it be thought that I have overlooked them I should make clear that I have carefully considered the various arguments that Mr Wise and Miss Foster have sought to found on A v Liverpool City Council [1982] AC 363, R v Portsmouth Hospitals NHS Trust ex p Glass [1999] 2 FLR 905 , Re W and B, Re W (Care Plan) [2001] EWCA Civ 757 , [2001] 2 FLR 582 (not affected on this point by In re S (Minors) (Care Order: Implementation of Care Plan), In re W (Minors) (Care Order: Adequacy of Care Plan) [2002] UKHL 10 , [2002] 2 AC 291 ), R (Wilkinson) v Broadmoor Special Hospital Authority [2001] EWCA Civ 1545 , [2002] 1 WLR 419 , and R (N) v M [2002] EWCA Civ 1789 , [2002] 1 WLR 562. In my judgment none of these cases assists them. I refer to what I earlier said in A v A Health Authority and, more recently, in R (IR) v Shetty .

Before turning to a consideration of the impact of the Convention there are three subsidiary points that I must first deal with.

The first is the suggestion that Re P&Q can in some way be distinguished because the challenge in that case was to the lawfulness of the policy whereas the challenge in the present case is primarily as to the application of the policy on the particular facts of the case. I cannot accept this argument. In fact, in Re P&Q (see para [54]), although the primary issue was the lawfulness of the policy, the claimants, P and Q, also sought to challenge the application of the policy in their particular cases. The Court of Appeal, having considered the challenge to the policy, went on (see paras [38]-[48] and [107]-[116]) to consider the facts of the two cases. P's appeal was dismissed, Q's appeal was allowed. But it is to be noted (see para [115]) that the Court of Appeal did not decide for itself what was to be done; that was a matter for the Secretary of State:

Precisely the same approach was adopted by Maurice Kay J in R (D) v Secretary of State for the Home Department [2003] EWHC 155 (Admin) , [2003] 1 FLR 979 at para [30]:

I respectfully agree.

Next, Mr Wise and Miss Foster sought to rely upon In re D (A Minor) [1987] 1 WLR 1400 and also upon my own decision in A v A Health Authority (see in particular at paras [57]-[58] and [115]-[116]) in support of the proposition that, even if the court's function is essentially one of review, it can nonetheless properly express its own views as to where Lia-Jade's best interests lie. They submitted that in the present case, just as in In re D and in A v A Health Authority , to invoke the assistance of the court in this way would be perfectly proper. They sought to rely upon what I had said in A v A Health Authority at para [115]:

With all respect to Mr Wise and Miss Foster they read too much into those authorities. Indeed, as I pointed out in A v A Health Authority at para [49], In re D is itself one of the key authorities for the proposition that the court will not, indeed cannot properly, exercise its inherent jurisdiction so as to interfere with the statutory duties of public authorities. Both differed from the present case in one vital respect: in each there was, quite apart from any challenge to the public authority's decision-making, a quite separate and distinct reason for the court to be involved. In In re D there were wardship proceedings on foot in relation to the children embracing issues extending beyond the one issue which involved the public authority whose decision was under attack. In A v A Health Authority , as I explained at paras [111]-[114], there were five issues before the court, four of which required a judicial determination of the claimant's best interests and only one of which involved a judicial review of public authority decision-making. It was in that context that, as Woolf LJ put it in the passage in In re D at p 1417 which I quoted in A v A Health Authority at para [58] and picked up again at para [115], the proceedings "supplemented any powers which the local authority wanted to exercise but did not purport to oust such powers or their exercise." Here the position is quite different. The only matter before the court is the challenge to the Secretary of State's decision.

Finally, Mr Wise sought to derive assistance from the President's observations in Simms v Simms, A v A (A Child) [2002] EWHC 2734 (Fam) , [2003] Fam 83 , at paras [70]-[71]. Whilst I entirely agree, if I may respectfully say so, with every word uttered by the President, it does not seem to me assist Mr Wise in the slightest. On the contrary, when it suddenly emerged at a very late stage in the proceedings in that case – proceedings brought in the Family Division and invoking the inherent jurisdiction – that the relevant Hospital Trust was unwilling to carry out the treatment which the President had held was in the patients' best interests, she recognised that she could not make an order binding the Trust. Far from Simms supporting Mr Wise it seems to me to support Ms Richards.

The Human Rights Act 1998 and the Convention

Both Mr Wise and Miss Foster placed considerable reliance upon the Human Rights Act 1998 and in particular Article 8 of the Convention, which protects 'the right to respect for … private and family life'. Not surprisingly, they both sought to emphasise what the Court of Appeal had said on this subject in Re P&Q at paras [78] and [83]:

I entirely recognise that, as the Court of Appeal put it, compulsory separation is, on the face of it, a serious interference by the State in a child's right to respect for family life. Indeed, as the Court of Appeal said, interventions cannot come very much more serious than the act of separating a mother from a very young child. As I said in Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam) , [2003] 1 FLR 292 , at para [47]: "the family, whatever form it takes, is the bedrock of our society and the foundation of our way of life." Re P&Q rightly recognises the high importance in this context of a mother's and her baby's Article 8 rights, even if the mother is a convicted felon.

But the mother's right to respect for her family life is only a part, even if a very important part, of the picture. Claire and Lia-Jade both have rights protected by Article 8, and Article 8 protects the right to respect for both "private" and "family" life. Private life is not the same as family life and the two may sometimes come into conflict. In particular, in a case such as this, Claire's right to respect for her family life may come into conflict with Lia-Jade's rights to respect both for her family life and for her private life: see the analysis in Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam) , [2003] 1 FLR 292 , at paras [35]-[39].

I need not further elaborate what is meant by family life save to observe that, although Lia-Jade's family life is primarily that shared with her mother, one must not overlook that part, and an important part, of her family life which is shared with her maternal grandparents. But it is important for present purposes to understand what is embraced within the concept of private life.

In Niemietz v Germany (1993) 16 EHRR 97 at para [29] the Court indicated that private life includes at least two elements. The first is the notion of "an "inner circle" in which the individual may live his own personal life as he chooses"; the second is "the right to establish and develop relationships with other human beings". Applying Niemietz v Germany , the Court in Botta v Italy (1998) 26 EHRR 241 at para [32] said:

This was elaborated by the Court in Bensaid v United Kingdom (2001) 33 EHRR 205 at para [47] and in Pretty v United Kingdom (2002) 35 EHRR 1 , [2002] 2 FLR 45 , at para [61], where it was pointed out that "Article 8 … protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world:" see Re Angela Roddy (A Minor) [2003] EWHC 2927 (Fam) at paras [30]-[31], [35].

So, as I pointed out in R (A, B, X and Y) v East Sussex CC (No 2) at paras [99] and [114], included in the private life respect for which is guaranteed by Article 8, and embraced in the "physical and psychological integrity" protected by Article 8, is the right to participate in the life of the community and to have access to an appropriate range of social, recreational and cultural activities.

As the Court has long recognised – the principle goes back at least as far as Marckx v Belgium (1979–80) 2 EHRR 330 – the respect for private and family life which Article 8 guarantees imposes on the State not merely the duty to abstain from inappropriate interference but also, in some cases, certain positive duties. The State may be obliged to take positive action to prevent or stop another individual from interfering with private life. As the Court put it in Botta v Italy at para [33]:

Now this has potentially important implications when seeking to evaluate and balance what may be the conflicting rights and interests of a parent and his or her child, a topic which I had to explore in Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam) , [2003] 1 FLR 292 . That case involved a dispute between a local authority and a father, DS, in relation to his son S. In fact, S was a mentally incompetent adult rather than a child, but the essential principles are the same. Having analysed the problem at paras [35]-[39], I continued at para [42]:

That reflects what the Court of Appeal had earlier said in Re P&Q at para [84]:

To this I would only add, as I pointed out during the course of argument, that the Court has now made clear that, as between parent and child, the child's interests are paramount. As the Court said in Yousef v The Netherlands [2003] 1 FLR 210 at para [73]:

Re S usefully illustrates the practical significance of the principles to be found in Botta v Italy, Bensaid v United Kingdom and Pretty v United Kingdom . The local authority submitted that S, who had been removed from his father's care and was living temporarily at a residential unit, RM, should go to live permanently in another residential unit, HC. Part of the local authority's case (see at para [114]) was that

Accepting that submission I commented at para [120] that

I said at para [122] that the

I contrasted that, at para [123], with

I continued:

As Sedley LJ said in a passage in In re F (Adult: Court's Jurisdiction [2001] Fam 38 at p 57 to which Ms Richards drew my attention:

I respectfully agree. This is the very point which, less eloquently, I sought to capture in Re S .

The significance of all this, and of Botta v Italy in particular, will become apparent when we examine the Secretary of State's policy and its application in the present case.

The Secretary of State's policy

The policy and its development have been extensively described and analysed by the Court of Appeal in Re P&Q : see in particular paras [2]-[35]. It was further considered by Maurice Kay J in R (D) v Secretary of State for the Home Department : see paras [14], [16]. In the circumstances I can take matters more shortly than would otherwise have been possible. But in the light of some of the submissions made to me, I must, nonetheless, set the history out in more detail than would otherwise have been necessary.

For present purposes the story can be broken down into six successive stages: (1) the initial formulation of policy and its implementation in PSO 4801; (2) the work of the Steering Group for the Mother and Baby Unit Pilot on Removal of Age Limits; (3) the decision of the Court of Appeal in Re P&Q ; (4) the reaction to Re P&Q , including the work of the Mother and Baby Policy Group; (5) the decision of Maurice Kay J in R (D) v Secretary of State for the Home Department and the reaction to it; and (6) the continuing work of the Mother and Baby Policy Group.

(1) The story begins with the publication on 6 July 1999 of the Report of a Review of Principles, Policies and Procedures on Mothers and Babies/Children in Prison . This was the product of a multi-disciplinary expert working group whose members included Dr Dora Black. Its contents were reviewed at some length by the Court of Appeal in Re P&Q at paras [5]-[32] so I can be brief. I need only draw attention to the following paragraphs in Chapter 10 of the Report (emphasis in original):

Earlier, in paragraph 7.3, the Report had commented that "once attachment is established contact may be reduced without significantly damaging the relationship" between mother and child.

Two important pieces of research that had been considered by the working group were The Development of Young Children in HMP Mother and Baby Units , published in 1988, by Liza Catan of the School of Social Services at the University of Sussex, and Age Limits for Babies in Prison: Some Lessons from Abroad , published in 1998, by Diana Caddle of the Home Office Research, Development and Statistics Directorate (Research Findings No. 80).

Catan's report is long and detailed. It:

Catan summarised her findings as follows:

Caddle's paper is primarily useful for its wide-ranging summary of practice in various countries around the world. But she makes some general points:

In December 1999 the Prison Service published its Report of a Review of Principles, Policies and Procedures on Mothers and Babies/Children in Prison – Response and Action Plan . It accepted most of the working group's recommendations: see Re P&Q at paras [33]-[34]. Here I need only draw attention to what was said in paragraph 27, in response to paragraph 10.47 of the Report :

The first edition of PSO 4801 The Management of Mother and Baby Units and the Application Process was published on 11 February 2000. The second edition, which remains in force, was published on 10 May 2000. Amongst the Key Points set out in PSO 4801 were:

In relation to separations, PSO 4801 provides as follows:

Annex F sets out the form of letter communicating to a mother the decision of the admission board granting her application for a place on a mother and baby unit. It makes clear that the child

Annex G sets out the form of Care Plan for a child on a mother and baby unit. It includes the statement that:

(2) Consistently with one of the recommendations in the working group's Report , the Prison Service established a Steering Group charged with the task of drawing up detailed plans for a pilot study at an MBU on the review of the application of the age limit of 18 months: see Re P&Q at paras [51]-[52]. The members of the Steering Group included Mr Montgomery-Pott, Dr Dora Black and Dr Richard Lansdown, a Chartered Educational and Clinical Child Psychologist, and, at a later stage, Ms Adams Young. The Steering Group met on 15 December 2000, and again on 26 January 2001 and 23 March 2001. The minutes of the second and third meetings reflect the Steering Group's recognition (meeting on 26 January 2001) that

and that

and (meeting on 23 March 2001) the view of Dr Black and Dr Lansdown that the more flexible approach they were recommending in preference to a rigid age limit

On the other hand (and this is a point particularly emphasised by Mr Wise) it is to be noted that at its meeting on 26 January 2001 the Steering Group was prepared in principle to contemplate an upper age limit as high as three to three and a half years.

On 18 June 2001 the Prison Service wrote to the Steering Group saying that it had been decided not to proceed with the pilot and that the emphasis would now be on better assessment tools, for

(3) On 20 July 2001 the Court of Appeal handed down its judgment in Re P&Q . The primary issue in that case (see para [54]) was the lawfulness of a policy which contained a rigid cut-off date of 18 months for the age of a child in a MBU, although as I have already mentioned the claimants also sought to challenge the application of this policy in their particular cases. In fact (see para [55]) it had emerged during the course of argument that there was some flexibility in the policy:

The Court of Appeal held that that limited degree of flexibility was not enough. Its reasoning is to be found at paras [100]-[106]. The whole section requires to be read in full.

Save in that limited respect the Court of Appeal said nothing to throw any doubt on the complete propriety of the policy in PSO 4801. I say "limited respect" because, as Ms Richards was at pains to point out, the Court of Appeal acknowledged explicitly that in "the great majority of cases" and with only "very rare exceptions" separation at or before 18 months would be entirely lawful and proper.

In this context it is worth noting why the Court of Appeal dismissed P's appeal. Having commented (at para [107) that P had been sentenced to eight years' imprisonment, that she was not eligible for parole until her daughter PB would be nearly 4 and that her non-parole release date was not until PB would be 5, the Court of Appeal continued at para [109]:

(4) The fourth meeting of the Steering Group took place on the same day (20 July 2001) as the Court of Appeal handed down judgment. The Steering Group took the view that "keeping the child until 20 months old was acceptable" but suggested that "6 months would be the most suitable age for separation but this too should be flexible." Two members of the Steering Group, Kathryn Dodds, the manager of the MBU at Askham Grange and David Seed, the manager of the MBU at Styal, referring to the problems encountered with older children in MBUs,

They had said very much the same in the evidence they gave in Re P&Q (see paras [45]-[47]):

The fifth and final meeting of the Steering Group took place on 27 February 2002, when it was announced that a new PSO to replace PSO 4801 was to be prepared. Dr Black and Dr Lansdown agreed to prepare a paper setting out briefly the learning on the implications of separating children of various ages from their mother. Thereafter the Steering Group was transformed, with a membership expanded in due course to include Mr Milner, Ms Walton and Ms Hodgson, into the Mother and Baby Policy Group. The first meeting took place on 10 June 2002. Dr Black and Dr Lansdown presented their paper and agreed to revise it in the light of the discussion that had taken place.

The revised version of the paper by Dr Black and Dr Lansdown is dated 21 June 2002. It is entitled Implications of the Separation of Babies from their Mothers in HM Prisons' MBUs: Towards a Flexible Policy on Age Limits – A discussion document by Dora Black & Richard Lansdown . It is an important document that merits extensive citation. It begins by summarising child development research. Under the heading 'attachment' the following points are made:

An important passage under the heading 'the need for a rich environment' reads as follows:

Under the heading 'individual differences':

The next major section is headed 'What happens in Practice'. It includes this:

Catan concludes: "Thus material imprisonment initiates an unsettled period for babies, whether they are taken into the units or left outside."

Jane Woodrow, writing from the Institute of Criminology, Cambridge University, in 1992 saw children separated from their imprisoned mothers as "the most deprived group in our society."

After a reference to practice in other countries, the concluding section is headed 'Proposals'. It deserves to be set out in full:

The second meeting of the Policy Group took place on 27 November 2002. There was some discussion of the contents of the new PSO but nothing else which bears on the present case.

(5) On 16 January 2003 Maurice Kay J handed down his judgment in R (D) v Secretary of State for the Home Department [2003] EWHC 155 (Admin) , [2003] 1 FLR 979. That was a case in which a mother, CD, was excluded from a MBU and separated from her child, AD, following her alleged misbehaviour on the MBU. Maurice Kay J summarised the relevant principles as follows at para [16]:

The decision was quashed on three grounds: first (see para [19]) that the decision-maker "did not give proper consideration to the best interests of AD before making the decision to separate", secondly (see para [23]) that "the decision to separate was made without proper consideration by the decision-maker of highly relevant proportionality issues", and, thirdly (see para [28]) that the procedure adopted "fell well short of what fairness required."

Maurice Kay J was critical of the fact that PSO 4801 contained no procedure for dealing with a case of exclusion. At para [14] he said this:

At paras [31]-[32] he expressed certain views as to what form the correct procedure might take in such cases. I need not take up further time dealing with this aspect of the case, for the case I am concerned with is not one of exclusion for misconduct.

New procedures, as set out in a letter from the Prison Service to the Governors of each MBU dated 27 January 2003, were very promptly put in place to meet Maurice Kay J's criticisms. However, these new procedures were not confined to cases of the type he had had to consider, for they are described as applying to "separations which are contentious and are usually without the mother's consent". That description is apt to cover the present case, even though it does not fall into any of the situations given by way of example ("for example, where the mother's behaviour is such that it proves disruptive to the rest of Unit residents, or the mother is deemed to present some form of risk to her own child, other children, or other mothers"). The separations to which the new procedures apply are contrasted with "separations which are planned and carried out with the full consent of the mother" – which is plainly not this case. I need not, however, go into these procedures in detail, for there is no complaint that they have not been complied with in the present case. All that needs to be noted is the requirement in paragraph 5 that:

(6) The last part of the story is shortly told. On 25 June 2003 Dr Black and Dr Lansdown, with others, produced a paper Mother and Baby Units in Prison – What should be the Age-limit? An International Perspective . This summarised the practice in a number of countries, demonstrating that "the variation in the way babies and young children are accommodated is enormous" and pointing out that "a number of countries allow children to remain to a later age than in the UK but usually in open conditions." Two such countries are Australia, where some of the States allow children to remain with their mothers up to the age of 5, and the Netherlands, where children can stay until the age of 4. As the authors of the paper commented,

The third and most recent meeting of the Policy Group took place on 29 July 2003. There was further discussion about the format and contents of the new PSO but nothing else in the minutes that calls for comment save for the reiteration that:

The challenge to the policy

There was much debate before me as to whether, and if so to what extent, the Secretary of State's policy has changed since it was published in PSO 4801 in May 2000 and, if it has, as to what the consequences might be.

Ms Richards submits that fundamentally the policy has remained unchanged since then. It is to be found, she says, in the Report of the working group, in the Prison Service's Response and Action Plan and, of course, in PSO 4801. The policy, she says, always has been, and remains, that the child's best interests are critical. The key elements of the policy remain as set out in the passage in paragraph 27 of the Response and Action Plan that I have already quoted but which I think bears repetition:

In other words, says Ms Richards, ever since PSO 4801 was published the policy has been not that separation at 18 months is the norm but that separation should take place at the age which best meets the child's interests – and that will normally be no later than 18 months. Eighteen months is the upper limit, not the norm. The only major change in the policy, she says, is a softening in the rigidity of the 18 months upper limit to meet the decision of the Court of Appeal in Re P&Q . There has been a change of emphasis in the practical functioning of the policy, reflecting in particular the expert advice from Dr Black and Dr Lansdown, which has had the effect – foreshadowed, she says, both in paragraph 27 of the Response and Action Plan and in PSO 4801 – of producing separation at earlier ages than was previously the case. What one sees in the subsequent work of the Steering Group and the Policy Group, she says, is not a change in the policy but rather an ongoing and active debate as to how the policy might be implemented. The paper by Dr Black and Dr Lansdown is not a statement of policy; it is, says Ms Richards, merely advice to the Secretary of State, albeit advice that has subsequently informed his application of the policy.

Mr Wise, and more particularly Miss Foster, challenge the policy on a number of fronts. They have three major complaints. I shall take them in turn.

First, they say that there has been a significant change in the policy. Previously, so they say, the evaluation of the child's best interests was focussed on the bond between mother and child. Now, they say, the policy is to loosen the initial mother-child attachment and establish a new attachment with alternative carers, albeit with a view to reattachment to the mother at a later stage. It is fanciful, says Miss Foster, to suppose that there is no new policy. She characterises what she calls "this departure" as being "radical and invasive", a policy that "sets out to break not to nurture the mother-child bond"; a policy that where mothers are serving long sentences it is generally considered best for the child to leave early.

In this connection Miss Foster points in particular not merely to what was said in the paper prepared by Dr Black and Dr Lansdown –

but also to the evidence of Mr Montgomery-Pott that

and to Ms Adams Young's summary of the advice from Dr Black and Dr Lansdown as being that

She points also to Ms Adams Young's acknowledgement that

Moreover, Miss Foster points out, the very fact that there is a 'mindset' amongst mothers that requires to be changed – that 18 months is seen as the expected age of separation rather than the maximum age – might be thought to be an indication that there has not hitherto been a policy generally based on early separation.

I cannot accept that there has been any change in the policy of the kind suggested by Mr Wise and Miss Foster, let alone a change anything like as drastic and radical as Miss Foster would have it. I have already set out the relevant passages and need not do so again. It is necessary only to look at paragraphs 10.48 and 10.67 in the Report of the working group, paragraph 27 of the Response and Action Plan and the Key Points and paragraph 3.10.1 and Annexes F and G in PSO 4801 to see that ever since 2000 at the latest the Secretary of State's policy has been that the child's best interests are the primary consideration, that the child will leave the MBU at the point when it is considered to be in his or her best interests to do so, and that this may well be before the child has reached the maximum age limit of the MBUs. And the need to change the culture in MBUs so that mothers treat the 18 month limit as a ceiling, and not as the norm, was plainly signalled in paragraph 10.48 of the Report , was picked up by the Secretary of State in paragraph 27 of the Response and Action Plan and was given effect to in PSO 4801.

I think, if I may say so, that the point is put very fairly and sensibly by Mr Montgomery-Pott in one of his witness statements. He says that the paper by Dr Black and Dr Lansdown "re-focussed minds on the learning about separations and its effects" and generated a greater recognition that

He continues:

It is that policy, he asserts, that was being applied in the present case.

I agree with Mr Montgomery-Pott. The fundamental policy remains unchanged: the child's best interests are the primary consideration, each case must be regarded on its own merits, and 18 months is normally the ceiling not the norm. But the application of the policy has evolved with time and in the light of informed advice.

Secondly, Mr Wise and Miss Foster say that there is no adequate or acceptable intellectual underpinning for this new or modified policy. There is no adequate up to date researched and peer-reviewed support for it. And, they say, it lacks proper research-based criteria. There is, says Miss Foster, no body of refereed academic opinion justifying the contention that it is better for a child to be separated in the first year, before speech has developed, rather than later.

Miss Foster submits that if a policy which already impinges upon the child's rights under Article 8 – the accepted right of a child to be with its mother – is to be modified in such a way as to involve what she calls a further and significant incursion into the child's Article 8 rights, that modification must be properly evidence based. The policy, she says, should not – indeed, cannot lawfully – be changed without this background. She accepts that the Secretary of State's new policy may be well-founded, but says that, because there is no research and nothing approaching a proper scientific evidence based investigation, we simply cannot tell. There has never been, she says, a clean, first principled analysis and argument as to where a child's best interests might lie at various stages of its development. It is impossible, she says, properly to carry out the Article 8 exercise without first determining the principles and assumptions against which the best interests of the child fall to be considered. In this case, she says, Dr Black and Dr Lansdown, who happen to hold the same particular point of view, started from what she calls unresearched and untested propositions. This, she accepts, may be a starting point for discussion, but it never got further than that, and that, she says, is not enough. The research which the Steering Group and Policy Group (and indeed the paper by Dr Black and Dr Lansdown) envisaged as necessary has for whatever reason never been carried out.

I do not accept the premise which underlies this argument for, as I have already said, the policy in my judgment remains fundamentally unchanged. But in any event I would not accept the argument that a policy such as is here in issue cannot pass muster under Article 8 unless supported by refereed or peer-reviewed academic research. Such a limitation would simply be a recipe for paralysis. The reality is that, if he is to meet his Convention obligations, the Secretary of State must have a policy. What is he supposed to do if there is no refereed or peer-reviewed academic research? Inactivity is not an option. It may be that he can commission research of the kind called for by Miss Foster, but research meeting her rigorous requirements is unlikely to produce speedy results. Lia-Jade and all the other babies in the MBUs cannot wait whilst the Academy ponders. Nor can the Secretary of State. The common sense of it is that when crafting a policy such as this the Secretary of State must do what he has in fact done: he must summon the assistance of expert and practical opinion and be guided by what those who have relevant expertise or experience have to tell him. The Secretary of State is not to be criticised but is rather to be complimented for what he has done in enlisting the multi-disciplinary assistance first of the working group, then of the Steering Group and latterly of the Policy Group, in heeding their advice, and in deciding to give effect to it. The policy, as it seems to me, is securely founded in the advice the Secretary of State has received from a multi-disciplinary group of highly-qualified individuals. Between them they have brought their very considerable expertise and experience to bear first in crafting, and then in assisting the Secretary of State in implementing, a policy which, even if it is not based on peer-reviewed academic research, quite plainly in my judgment has a more than adequate, acceptable and secure intellectual underpinning. To suggest the contrary is simply to belittle all the impressive work done by those who have been advising and assisting the Secretary of State.

Thirdly, Mr Wise and Miss Foster say that this new, and as they would have it very different, policy has not been published or properly communicated to those whom it affects. A policy of this importance must be made available. Internal discussion papers, they say, cannot constitute promulgation of a policy. Indeed, says Miss Foster, nowhere in all the voluminous documentation I have been taken through is it stated in terms that where mothers have long sentences it is generally considered best for the child to leave early. That policy, she says, is to be found – indeed it has emerged – only in the statements of the various witnesses made during the course of the present proceedings. Thus, she says, it is impossible at present for a prisoner to know that her baby will generally be separated from her at 9 months if she has a long sentence: it is not possible for her to know how the Secretary of State's discretion will be exercised.

Miss Foster submits that merely to state that, where best interests demand, the baby must be separated, does not meet the requirement of Article 8(2) that any interference with family life must be "in accordance with the law". For that purpose, she says, drawing attention to Re P&Q at para [65], the policy must be "adequately accessible and formulated so that it is reasonably foreseeable".

In this connection Miss Foster took me to the convenient statement of the principle (it appears in many other places) in Olsson v Sweden (1988) 11 EHRR 259. In that case the complaint (see para [60]) was that the measures taken were not "in accordance with the law" within the meaning of Article 8 because the relevant Swedish child care legislation set no limits on the discretion which it conferred and was drafted in terms so vague that its results were unforeseeable. Addressing this complaint the Court summarised the relevant principles at para [61]:

The Court went on to hold (see paras [62]-[63]) that the relevant legislation passed muster, and was "in accordance with the law", notwithstanding that it was:

The principle prayed in aid by Miss Foster is one of fundamental importance. As the Court itself recognised in Olsson , it is fundamental to the very concept of the rule of law. But, as the Court also acknowledged, the law needs to keep pace with changing circumstances. How then does one accommodate these two somewhat conflicting requirements? The fundamental principle, surely, is that "the law" must be formulated with sufficient precision to give the individual adequate protection against what the Court called "arbitrary interferences by public authorities".

It may be helpful to bear in mind here Professor Dworkin's distinction between the 'concept' which does not change and changing 'conceptions of the concept': see Birmingham City Council v Oakley [2001] 1 AC 617 at p 631, R (Smeaton) v Secretary of State for Health [2002] EWHC 610 (Admin) , [2002] 2 FLR 146 , at paras [323]-[325], and R (A, B, X and Y) v East Sussex CC (No 2) at paras [94]-[98]. The rule of law demands adequate statement of the 'concept' but recognises and, within appropriate limits, can accommodate the fact that 'conceptions of the concept' may change over time. That is why we do not pursue the chimerical search for what Judge Bork would call the "original understanding" of the founding fathers but rather recognise that our statute-law is "always speaking" in the sense used by Lord Steyn in R v Ireland [1998] AC 147 at p 158. And this is recognised in the Strasbourg jurisprudence: see, for instance, Selmouni v France (2000) 29 EHRR 403 at para [101], where the Court described the Convention as a "living instrument which must be interpreted in the light of present-day conditions" and considered that "certain acts which were classified in the past as 'inhuman and degrading treatment' as opposed to 'torture' could be classified differently in future." So, as Lord Hoffmann said in Oakley at p 631F, "The content may change but the concept remains the same." Surely the principle in Olsson must be flexible enough to accommodate the principle recognised in Selmouni .

Forty or fifty years ago corporal punishment with a cane or similar implement was a not unusual childhood experience. Today it can be viewed as "inhuman or degrading treatment or punishment" breaching Article 3 of the Convention (see A v United Kingdom (1998) 27 EHRR 611) and no doubt, in an appropriate case, as amounting to significant harm sufficient to engage section 31 of the Children Act 1989, on the footing that a reasonable parent would not resort to such methods. So the potential reach of section 31 may change over time, but no-one could sensibly suggest that the criteria set out in section 31 are not sufficiently precise to pass constitutional muster or to meet the Olsson test.

Again, and closer to the present case, consider the statement in section 1(1)(a) of the Children Act 1989 that "When a court determines any question with respect to … the upbringing of a child … the child's welfare shall be the court's paramount consideration." The concept of the child's welfare or best interests as something central to decision-making in respect of the child has of course been part of our law for well over a century: see R (Howard League for Penal Reform) v Secretary of State for the Home Department [2002] EWHC 2497 (Admin) , [2003] 1 FLR 484 , at para [34]. But what is meant by "welfare"? Not surprisingly, "conceptions" of that "concept" – what Lord Hoffmann would call the "content" – have changed, and are continuing to change. For as Lord Upjohn famously observed in J v C [1970] AC 668 at p 722:

One has, indeed, only to contrast the outcome in J v C itself with the outcome in Re M (Child's Upbringing) [1996] 2 FLR 441 to see the extent to which judicial attitudes in such matters had changed between 1967 and 1995. But no-one could sensibly suggest that the "welfare principle" does not meet the Olsson test. Indeed, it is, as we have seen, a core principle of the Strasbourg jurisprudence: see Yousef v The Netherlands [2003] 1 FLR 210 at para [73].

So much for the law. What of the facts? Again, I am in this difficulty that I simply do not accept the premise which underlies this part of the argument. But quite apart from that, I cannot accept Miss Foster's criticisms. In my judgment the statement of the policy in PSO 4801 quite plainly meets the Olsson test, even more so if PSO is read in the light of the Report of the working group and the Response and Action Plan . And however one chooses in semantic terms to characterise its subsequent development, the policy, in my judgment, remains compliant with the Olsson test.

Miss Foster accepts that the Prison Service has made valiant attempts to deal with the policy situation with which it was presented. However, as she points out, administrative considerations are no answer to inadequacies or failures under Article 8. In this connection Miss Foster took me to the passage in Olsson v Sweden where at para [82] the Court said this:

All the more so, says Miss Foster, in the context of the rights of a child, who has done no wrong whatsoever and whose rights are intact. With that I have absolutely no quarrel but, in the circumstances of the present case, properly understood, it does not seem to me to assist Miss Foster at all. Ms Richards does not pray in aid administrative difficulties to justify defective decision-making. She submits that the policy as currently formulated and implemented is lawful and that it meets all the requirements of Article 8.

I agree. The policy has been subjected to minute analysis and much criticism. In my judgment all those attacks fail. The policy as it is currently formulated and currently implemented is lawful. It meets all the requirements of Article 8. It properly respects the human rights of both the mother and the baby.

There is one particular aspect of the policy that I ought perhaps to emphasise. Botta v Italy and the other cases I have referred to show that the private life protected by Article 8 extends to the emotional and developmental environment in which a child is brought up. A child's Article 8 rights may be engaged if he is being bought up in surroundings that isolate him socially or confine or stultify him emotionally. The ability to establish and develop relationships with the outside world – the ability to participate in the life of the community – is an important aspect of the "psychological integrity" protected by Article 8. This, as it seems to me, is very important when assessing the implications of the fact that a child living in a MBU is not living in a normal environment.

There is a significant body of evidence identifying the various disadvantages to children – particularly older children – of living in MBUs. The problem was identified in the Report of the working group. As we have seen it has exercised those with practical experience of running the MBUs at Askham Grange and Styal. It was picked up by Dr Black and Dr Lansdown in their paper. They acknowledged that

and offered this striking metaphor:

In the light of this material, and having regard to the principle in Botta v Italy , it seems to me that, when deciding whether and at what stage to separate a mother and her baby, the Secretary of State is entitled to have regard to the potential disadvantages to the baby of living in the abnormal environment of a MBU. Indeed, he must have regard to it if he is properly to balance, as he must, the child's rights under Article 8 (including the child's right to respect for that part of its private life referred to in Botta v Italy ) against the mother's rights under Article 8 to respect for her family life. I am not saying that this factor alone will be decisive, but it will often, I suspect, carry considerable weight, particularly as the child gets older.

Before leaving the policy there is one final observation I feel I ought to make. Notwithstanding that every challenge to the policy has failed, I cannot help thinking that the sooner the new PSO which is intended to replace PSO 4801 can be published the better for all concerned. It has been in preparation, as I understand it, since early 2002 (see paragraph [69] above and paragraph [149] below). I do not want to be thought to be in any way critical of Ms Adams Young – I am not: I understand and sympathise with the burdens she has been carrying in performing her extensive and onerous duties – but I would hope that the Prison Service could see its way to ensuring that the work is completed as soon as possible.

The decision in the present case

In accordance with PSO 4801 planning in relation to Lia-Jade began even before she was born. An internal memo dated 2 December 2002 shows that Ms Walton had told Claire that the length of her sentence would mean that her baby would need separating before her sentence ended and that this might have to occur before the 9 months stage.

On 4 February 2003 Claire's home local authority, Doncaster Metropolitan Borough Council ("Doncaster"), held a Strategy Meeting. Claire was neither present nor represented. Nor was the Prison Service. The recommendation was that Lia-Jade should be placed with her maternal grandparents when she was 9 months old. Those present "Agreed prison not considered an ideal environment for a child after this age."

On 11 March 2003 Doncaster wrote to the Governor of New Hall confirming that Lia-Jade could be placed with her maternal grandmother. Social services had made a home visit and were satisfied that the maternal grandparents are able to provide an adequate standard of care.

On 21 April 2003 Lia-Jade's Care plan was reviewed. Separation plans were discussed and Claire is recorded as understanding "that this will happen before 9 month stage in the best interests of Lia-Jade."

On 5 June 2003 there was a Separation Plan Meeting. It was chaired by Ms Hodgson and attended by Claire and her parents. Claire said that she felt it was in Lia-Jade's best interests to be with her. The health visitor said that the bond between mother and baby should not be affected if regular contact was maintained after separation. Ms Walton explained that research shows that babies develop memories around the 9 month period and that moving Lia-Jade around in the prison system would be unsettling and might cause problems when Lia-Jade began to integrate with other children on the outside. Claire's mother "informed the meeting that Lia-Jade has a lot of family support on the outside and benefits very much from the contact she has with other family members during home visits."

After Claire and her family had been given time alone with the nursery nurse to consider the discussions that had taken place, the meeting reconvened. Claire and her family said that "they agreed that voluntary separation was in the best interests of Lia-Jade." A separation plan was then agreed for separation on 12 September 2003. At that stage, of course, Claire's appeal had not yet been heard. It was agreed that the meeting would re-convene whatever the outcome of her appeal "although it was stressed that only a significant reduction in sentence would result in the decision … being changed".

The Official Solicitor observes that neither at the strategy meeting on 4 February 2003 nor at the Separation Care Plan meeting on 5 June 2003 was there any person present either to represent Lia-Jade's interests or to give Claire independent advice. In particular her personal officer, PO Rhodes, was not present on the latter occasion.

On 22 August 2003 Claire attended a Mother and Baby Admission Board. It was clear that she was no longer willing to adhere to the separation plan, for she stated that there was no way she was going to hand out Lia-Jade. Ms Hodgson reminded her that the separation plan had been made in the best interests of Lia-Jade and told her that if she was not going to adhere to it she (Ms Hodgson) would have to contact social services – that is, Wakefield Metropolitan District Council ("Wakefield"), the relevant local authority for New Hall. The same afternoon Ms Hodgson contacted the social services department at Wakefield, made a referral regarding Lia-Jade and asked if they could provide representation at a Separation Board. It was left that Wakefield would get back to Ms Hodgson. Later the same afternoon confirmation arrived that Claire's appeal would be heard on 5 September 2003, so it was arranged that the Separation Board would meet on 9 September 2003.

Having heard nothing from Wakefield, Ms Hodgson telephoned the social services department on 8 September 2003. She was told that they had no record of her referral (although the person who took the call remembered doing so) so she "gave … all the details again". Wakefield "confirmed that someone would attend the Separation Board".

The Separation Board convened the following day (9 September 2003) at 2pm. The "someone" from Wakefield turned out to be Ms B, who arrived accompanied by a trainee social worker, Mr W. Ms B's own evidence is that she first became involved with Lia-Jade on 9 September 2003 – the very day of the meeting!

This is profoundly disturbing. And I am not the only one who is concerned. Ms Hodgson is equally concerned and has filed some disturbing evidence. Referring to my decision in R (Howard League for Penal Reform) v Secretary of State for the Home Department [2002] EWHC 2497 (Admin) , [2003] 1 FLR 484 , she says:

She continues:

I must return to the implications of this in due course.

The meeting on 9 September 2003

The meeting, as I have said, was chaired by Mr Milner. Claire was present, together with her father, G, her mother, C, and Lia-Jade. The Prison Service was represented by Ms Hodgson and Ms Walton. Kaye Vollans, the nursery nurse, and Mr O, the mother and baby officer, were also present. Wakefield was represented by Ms B and Mr W.

The minutes of the meeting, prepared by Ms Hodgson, extend to more than 6 pages. They require to be read in full. Here I set out only the most salient passages:

It will be noted that on no fewer than three occasions it was recorded that the purpose of the meeting was to decide what was in Lia-Jade's best interests and that Ms B was present in order to represent Lia-Jade and to ensure that a decision was made in her best interests. It also needs to be recorded that the decision, although said to be by a majority, was in fact the main consensus view, the only opposition coming from Claire and her parents.

The account of events in the minutes is supplemented by Mr Milner, who in his witness statement records the "good evidence of how well [Claire's] parents looked after the child during her stays with them and how she appeared to have developed visibly after each stay with her grandparents", how "the contrast between this and the possible effects on the child of her remaining on the MBU were pointed out during the discussion", how "it was noted that, should the child stay on the MBU, there was a possibility of delayed development due to lack of stimulation in a closed environment, however child-friendly that environment was set up to be" and how "the danger of institutionalisation, where children could develop routines and patterns of behaviour which mimicked the Prison environment, was also noted."

The actual decision was for separation on 10 October 2003. As I have already explained the decision was upheld by Ms Banks, who took the formal decision on behalf of the Secretary of State on 11 September 2003. The present proceedings, as I have said, were commenced on 7 October 2003.

On 17 November 2003 Claire applied for a transfer to one of the MBUs that caters for babies over 9 months old. That request has not been granted. Mr Wise took me through Claire's prison record sheets. They show her to have been, and to be, a well-behaved, polite and cooperative prisoner who with only rare exceptions has given prison staff absolutely no problems. Nonetheless the fact remains that she has not yet qualified for transfer to an open prison. Following the hearing of her appeal on 5 September 2003 a sentence planning report was prepared by Ms Norris on 8 September 2003. Claire was assessed as not yet ready for open conditions, though suitable for semi-open conditions at New Hall. There she remains. I was told that her next sentence plan review and a review of whether she could be reallocated to an open prison were both fixed for 4 February 2004. In fact in the very last day or two Claire has, I am informed, been assessed as suitable for open conditions. Her parole eligibility date, as I have said is 13 March 2005, though it is, of course, as Ms Norris points out by no mean certain that she will be released then.

The involvement of social services

I have already summarised Wakefield's involvement in the matter down to 9 September 2003. Ms B, as I have said, first became involved with Lia-Jade on the day of the meeting. The minutes of the meeting on 9 September 2003 were sent to Ms B, but she never sought to challenge their accuracy.

However, on 13 October 2003 she completed and signed an assessment of Lia-Jade for the purposes of section 47 of the Children Act 1989 in which she said:

Now as the Official Solicitor rightly comments, one of the pillars upon which the meeting on 9 September 2003 reached its decision was the view expressed by Ms B. Yet her view as recorded in the minutes appears to be in stark conflict with her view as set out, scarcely a month later, in the section 47 assessment. That prompted the Official Solicitor to write to Ms B. Her response is to be found in her witness statement dated 10 December 2003. The crucial paragraphs read as follows:

Ms Hodgson's response to what Ms B says is pointed:

Some at least of these points, as it seems to me, are plainly well made.

The expert evidence

Dr Black has not interviewed Claire, nor seen Lia-Jade, but she has watched the BBC tape and she has seen all the relevant papers. She has made a witness statement. In relation to the BBC tape she makes the following comments, with which I agree:

Her opinion was, and is, that it was in Lia-Jade's best interests to be separated at 9 months. She was, however,

She expressed her reasons as follows:

That was all before Professor Hill had reported. He had the benefit, not afforded to Dr Black, of seeing Lia-Jade with Claire in New Hall and of visiting her grandmother at her home. On the other hand, it appears that he does not have Dr Black's by now very extensive knowledge and experience of MBUs and of what they can and cannot offer. Nor at the time he produced his report had he seen Dr Black's witness statement or, it would seem, with the possible exception of the law reports, any of the documents and papers whose contents I have summarised in paragraphs [54]-[81] above.

Professor Hill's report runs to something over 7 pages. Again, it requires to be read in full and again I confine myself to setting out the most important passages. He begins with some 'comments on the case for early separation':

Turning to what he calls 'key issues in the planning for Lia-Jade' he says:

Addressing the impact on Lia-Jade were she to be separated from Claire at the conclusion of the present proceedings he says:

He adds that it is his "clear view" that separation at the end of these proceedings "is not in the best interests of the child."

He identifies as "the most advantageous outcome" Lia-Jade remaining with her mother until March 2005, if Claire were to be released from prison then,

In conclusion he comments on the possibility that Claire might not be released until January 2006:

Dr Lansdown's response to Professor Hill's report is summarised by Mr Montgomery-Pott (Dr Lansdown has not himself filed any evidence):

Professor Hill then produced an addendum report. By now he had seen a substantial amount of further material: in addition to Dr Black's witness statement, the Report of the working group, the Prison Service's Response and Action Plan , PSO 4801, the paper by Dr Black and Dr Lansdown and some, but not all, of the minutes of the Steering Group and the Policy Group. In his addendum report he dealt first of all with what he called 'the general case':

He then turned to consider the present case:

I do not know whether Dr Lansdown has seen Professor Hill's addendum report or, if he has, what his views on it are. Dr Black's response to Professor Hill's report and addendum report are conveyed to me by Mr Montgomery-Pott, who says this:

Mr Montgomery-Pott asked Dr Black to comment on Professor Hill's suggestion to continue in effect the shared care arrangement between Claire and her parents:

He continues, in a passage to which Miss Foster has drawn particular attention, with these observations:

Mr Montgomery-Pott expresses his own conclusion as follows:

I take that to be the considered view, in effect, of the Secretary of State.

Last, but by no means least, I draw attention to the evidence – the expert evidence, I stress – of Ms Adams Young. She has worked in prisons since 1976 and has spent 14 years working with women prisoners in a variety of prisons. Her operational experience of MBUs goes back to 1989. She has had operational and policy responsibility since January 2002 for all mothers and their children held in MBUs, a role which has involved intensive casework relating to contentious issues on MBUs. She has been closely involved with the work of both the Steering Group and the Policy Group and has for some time been responsible for and been working on the preparation of the new PSO. Quite plainly, in my judgment, her opinions are entitled to great respect. In her witness statement she says:

She concludes that

The truth of that observation will, I think, be borne in on anyone who has watched the BBC tape, as I have.

The challenge to the decision-making process

Mr Wise and Miss Foster challenge the Secretary of State's decision on a number of grounds relating to the manner in which the decision was arrived at. Some are general. Some are raised specifically on behalf of either Claire or Lia-Jade. I shall consider them in turn.

Miss Foster suggests that there "may be" questions as to the fairness and impartiality of the decision-making process given that, as she submits, it is, in the light of his associations with and appointment by the Prison Service, very difficult to describe Mr Milner as independent in the sense in which a lay person would understand the term. I disagree. In my judgment, no fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that Mr Milner was biased. He was and is an independent person of high professional standing. His independence is not compromised by the fact that he was, and remains, a member of the Policy Group.

Next it was suggested that decision-making by majority was an inappropriate approach. Indeed, Miss Foster came close at times to hinting that the views of Ms B as Lia-Jade's representative should have had preponderating (or even possibly decisive) influence. I do not agree. The views of the child's representative are important, and it may usually be unwise to depart from them, but they cannot be determinative. If views differ, it may well be appropriate for the decision to reflect that of the majority, though it must of course be borne in mind that the ultimate decision is that of the Secretary of State and that, in the final analysis, the outcome of a meeting such as that which was held on 9 September 2003 can only inform, not determine, his decision. In any event the point does not really arise here for, as I have already pointed out, everyone at the meeting, with the sole exception of Claire and her parents, was of the same view.

The final complaint relates to Ms Hodgson's statement that "research showed that it was best to separate a baby sooner rather than later and that 6 months was deemed to be the most appropriate time". It is said that this bald statement was lacking in particularity, detail and attribution, and that there was in fact no such research, or at least no research supporting Ms Hodgson's assertion. So, it is said, the crucial information given to Claire – and to Ms B – was inadequate and erroneous. The entire discussion proceeded, and the ultimate decision was taken, so it is said, on the erroneous premise that there was research to back up Ms Hodgson's assertion that "it was best to separate a baby sooner rather than later" when in fact, so it is said, there was not. Moreover, complaint is made that questions Claire asked were dealt with inadequately.

I do not think there is any substance in this complaint. At the end of the day the key complaint really comes down to this, that Ms Hodgson should not have used the word "research" but should instead have referred to "expert opinion" or some such phrase. That might have been more accurate, but this minor misdescription (for that in my judgment is all that it was) cannot possibly invalidate either the discussion or the decision. There is nothing, in my judgment, to show that any proper questions that Claire raised were not answered appropriately. No doubt, if she had wanted further information about the so-called research she could have asked; and there is nothing whatever to show that, if she had, she would have received anything other than entirely appropriate answers.

So much for the general grounds of challenge.

In relation to Claire the complaint relates to her involvement, or rather, as Mr Wise would have it, her inadequate involvement, in the meeting on 9 September 2003. The manner of the decision-making, it is said, failed to accord Claire adequate support and representation; she had no opportunity to participate on a fully informed basis and there was no-one there to represent her. According to Miss Foster, Claire should at all times have had available to her an informed individual who was "on her side" and could tell her story, for her interests are separate from those of her child and her situation is one of some vulnerability as a prisoner. Miss Foster accepted that Claire's personal officer, PO Rhodes, would have sufficed for this purpose: there is, she accepts, no need for a legally qualified or social work qualified person. But she submits that it is "wholly unacceptable" that Ms Rhodes was not present. Moreover, says Miss Foster, Claire should have been given adequate (say 7 days) warning of an impending decision meeting, the intended participants and the agenda, purpose and structure of the meeting and should have been given an opportunity to seek to be represented by a friend or legally qualified or other independent person if so desired. Related to this is the complaint that there was no opportunity to make representations to the ultimate decision-maker, Ms Banks. (I note in passing that neither of these complaints was made in the pleadings; as Ms Richards says, they were raised with little warning at a comparatively late stage.)

At this point I must return to the Convention. Article 8 of the Convention affords significant procedural safeguards against inappropriate interferences with the substantive rights protected by Article 8. As the Court of Appeal said in Re P&Q at para [83]:

The application of this principle in the context of care proceedings under Part IV of the Children Act 1989 is familiar: see Re M (Care: Challenging Decisions by Local Authority) [2001] 2 FLR 1300, Re L (Care: Assessment: Fair Trial) [2002] EWHC 1379 (Fam) , [2002] 2 FLR 730 , and Re G (Care: Challenge to Local Authority's Decision) [2003] EWHC 551 (Fam) , [2003] 2 FLR 42 . But as Re P&Q shows, the principle is equally applicable in the present context.

Moreover, and this is a matter of some importance in the present context, the procedural guarantees afforded by Article 8 apply as much to the child as to his or her parents. It is not just Claire who is entitled to invoke the principle referred to in Re P&Q . So too is Lia-Jade. Children are not the largely passive objects of more or less paternalistic parental or judicial – or, in the present context, Prison Service – decision-making. A child is as much entitled to the protection of the Convention – and specifically of Article 8 – as anyone else. So, in the present case, Lia-Jade is as much entitled as her mother, and in her own right, to the procedural guarantees afforded by Article 8 and recognised by the Court in W v United Kingdom and in McMichael v United Kingdom .

None of this is controversial. What is in dispute is whether, in the events which happened, Claire was able to participate fully and properly in the meeting. In my judgment she was. It would have been better, perhaps, if Ms Rhodes had been present, but her presence was not essential and her absence is not fatal. I am prepared to accept for present purposes, though I emphasise without deciding the point, that if she had wanted this Claire would have been entitled to have someone there who was "on her side" to help and assist her (cf R v Cornwall County Council ex p LH [2000] 1 FLR 236 at p 244C, Re G (Care: Challenge to Local Authority's Decision) [2003] EWHC 551 (Fam) , [2003] 2 FLR 42 , at paras [37], [45]). But the fact is that she never asked for such assistance. Her parents were there and the minutes show that both she and they participated fully in the discussion. She knew what the purpose of the meeting was and, given all that had gone before, knew what the 'official' line at the meeting was likely to be. In the circumstances she was not prejudiced by the absence of a formal agenda.

At the end of the day, the critical question as formulated by the Court in W v United Kingdom at para [64] is

To that question there can, in my judgment, be only one answer.

There is no substance in the complaint that Claire was not given the opportunity to make further representations to the ultimate decision-maker, Ms Banks. That is not a right afforded to her by the Secretary of State's policy, it is not something required by any principle of classical public law to which I have been referred, and it is not something required by Article 8.

So much for the complaints made on behalf of Claire. I turn to what, in my judgment, are the much more serious complaints raised on behalf of Lia-Jade.

Mr Wise and Miss Foster challenge the Secretary of State's decision on the ground that it was flawed because Lia-Jade's interests were not properly represented. The heart of the challenge is encapsulated in Mr Wise's assertion that Ms B was woefully unprepared to represent Lia-Jade's interests: she came onto the scene at the last minute; she had not conducted any assessment of Lia-Jade; and she was, he says, at the very least confused as to the relevant facts. She was, he says, simply not in a position to represent Lia-Jade adequately.

Mr Wise also complains that there has been no framework assessment. The closest we get to it, he says, is in the section 47 assessment prepared by Ms B, and even that was done only after the decision to separate Lia-Jade and her mother had been taken. What there should have been, it is said, was an assessment of the baby carried out by a suitably qualified and informed professional a reasonable time before the decision-making meeting was held.

In fact, says Miss Foster, Lia-Jade was represented – inadequately, she says – by a person with no knowledge of the case and its history, whose views were inadequately represented and/or recorded, who believes, as her evidence shows, that she was under a serious misapprehension as to the facts, and whose views on a true understanding of the facts were firmly opposed to the separation that she was led, on 9 September 2003, to support. In particular, it is said, Ms B appears to have been under a significant factual misapprehension as to what the true position was regarding Claire's sentence, and her informed views (as set out in the section 47 assessment) were entirely different (being against imminent separation) from those she was recorded as having expressed at the meeting. Since Ms B's role was to represent Lia-Jade's interests this demonstrates, says Miss Foster, a fundamental flaw in the fairness of the decision-making process.

Responding to Ms Hodgson's evidence, Miss Foster says that all that can be deduced from the totality of the material before the court is that Ms B was under a real confusion at the time when she was purportedly acting for Lia-Jade. The section 47 assessment she signed only a month later cannot simply be brushed aside. Miss Foster accepts that, on one view, the logic of Ms B's explanation is not easy to follow, but this, she says, cannot help the Secretary of State; rather it compounds his difficulties. What is clear at the end of the day, she says, is that the most important interests at the meeting – the interests of the child – were not adequately represented and that in consequence Lia-Jade's Article 8 rights were infringed. It cannot be said in any meaningful way that Ms B represented the interests of the baby effectively or properly.

On this point, in my judgment, Mr Wise and Miss Foster succeed, and in essence for the reasons they have put forward. In the particular circumstances of this case, and having regard to the gravity from Lia-Jade's point of view of the decision being taken about her, the fact, in my judgment, is that she was not involved in the decision-making process, seen as a whole, to a degree sufficient to provide her with the requisite protection of her interests. Her interests were not properly or adequately represented. Her interests were not properly or adequately protected.

This was a decision that turned entirely on an assessment and evaluation of Lia-Jade's best interests. As I have already observed, no operational arguments were ever deployed by the prison. This is not a case where reasons of good order and discipline within the prison came into play. The prison very properly recognised that Lia-Jade needed an independent voice to represent her interests and, entirely appropriately, turned to Wakefield for that purpose. Ms B was the person charged with that vital function. The importance of her role, and the significance of the views she expressed during the course of the meeting on 9 September 2003, were plainly recognised by the prison and would have been apparent to all those present at the meeting. After all, as I have pointed out, the minutes show that on no fewer than three occasions it was stated that the purpose of the meeting was to decide what was in Lia-Jade's best interests and that Ms B was present in order to represent Lia-Jade and to ensure that a decision was made in her best interests. Sadly, and fatally, that representation proved to be wholly inadequate.

There are two separate causes of concern, very real concern:

i) In the first place, Ms B seems to have been woefully unprepared for the task in hand. On her own admission she first became involved with Lia-Jade on the very day of the meeting. There is nothing to suggest that she had seen any relevant papers prior to arriving at New Hall. Her knowledge of the case – her knowledge of Lia-Jade – was confined to what she was able to glean immediately before and during the course of the meeting. I do not accept Mr Wise's submission that there should necessarily have been a framework assessment. Indeed the absence of any formal or written assessment by Ms B would not, of itself, have been fatal, highly desirable though it no doubt is that some kind of written assessment should be prepared in such cases before crucial decisions are taken. (The point is elementary: the very discipline of having to reduce one's thinking, one's analysis, one's opinion, and the reasons for one's opinion, to paper immeasurably improves the quality of what emerges.) But it was nonetheless incumbent on Ms B to familiarise herself with the detail of the case and to study the relevant papers before she arrived at the meeting. For whatever reason that never happened. (The fault appears not to have lain with Ms B, for she was not allocated to the case until the day before the meeting. She should not be made to carry the blame for what appear to be the systemic or managerial failings of others, and that is why I have not named her in this judgment.) In consequence Ms B was severely crippled, – in truth almost wholly disabled – in performing her appointed task.

ii) Secondly, and no doubt flowing in part from the fact that she came so unprepared, Ms B seems to have been confused as to some of the relevant background facts. I accept that there is validity in some of the points that were made by Ms Hodgson in response to Ms B's evidence. But making every allowance for what Ms Hodgson says it remains the fact, in my judgment, that the views attributed to Ms B in the minutes cannot safely be relied on, given her own evidence and, not least, the fact that within a month she had committed herself in writing, though without any indication that she was changing her views, to what was in truth a fundamentally different opinion.

The minutes show that Ms B took a very active part in the discussion and that she clearly expressed her support for the view that Lia-Jade should indeed be separated. Accordingly, not merely were Lia-Jade's interests not properly represented; there must be a real chance that others present at the meeting were swayed in coming to a conclusion by what Ms B as Lia-Jade's appointed representative appeared to be saying.

In my judgment the decision of the meeting cannot stand. And if the decision of the meeting cannot stand, then neither too can the subsequent formal decision taken by Ms Banks. She, after all, was not to know that Lia-Jade's representation had been so deficient.

I agree with Miss Foster's submission that the Secretary of State is fixed with this procedural inadequacy. As she rightly says, it is nothing to the point that the Prison Service did its best to get social services there. It is no answer for the Prison Service to say that it has no control over Wakefield, or that any error in the procedure that derives from the local authority is not its fault. Its failure was not to adjourn the meeting when the representation was demonstrably so inadequate. At the end of the day the issue is the integrity of the decision-making process, not the blame.

Ms Richards says that, judged in the light of all the reports and expert opinion that underlay the Secretary of State's policy, the views being expressed by Ms B at the meeting represented entirely acceptable and valid expressions of social work opinion. That may be so, but the questions remain: What did Ms B know of this child? Were the views being expressed by Ms B securely founded on a proper knowledge and understanding of the facts of this particular case? The answers are too clear to need repetition. There was a breach of Lia-Jade's Article 8 rights.

Before leaving this part of the case there is one observation I want to add. As Ms Hodgson correctly remarked, the effect of my decision in R (Howard League for Penal Reform) v Secretary of State for the Home Department [2002] EWHC 2497 (Admin) , [2003] 1 FLR 484 , is that the local authority within whose area a prison is located has a responsibility for all the children within the walls of the prison. These children fall into two categories: those children who are themselves serving sentences, usually in Young Offender Institutions ("YOIs"), the subject of my judgment in the Howard League case; and those children, like Lia-Jade in the present case, who are in prison MBUs because their mothers are serving sentences. The local authority with primary responsibility for such children is the authority local to the prison: in the present case Wakefield. That is not to say, however, that where the prisoner's home local authority has something useful to contribute – as Doncaster did here – it should not become, and be invited by the prison to become, involved. It should. But primary responsibility rests with the authority local to the prison.

I confess to being not particularly surprised when I read Ms Hodgson's account of the difficulties she has encountered in working with Wakefield "despite our best endeavours to engage them", for it reflects the impression I gained when reading the evidence I was shown in the Howard League case about the lack of involvement of many local authorities with their local YOIs. I am left with an uncomfortable impression that the system is not working as well as it might and that, in consequence, there are children both in YOIs and perhaps also in MBUs who are not receiving the support from the local authority to which it might be thought they are entitled. I am aware that active steps are being taken to remedy the institutional and organisational difficulties that were highlighted by the Howard League case. That endeavour is to be applauded. In this, as in so many other areas involving children, the key to their welfare is to be found in effective inter-agency and cross-disciplinary co-operation and co-ordination. The Prison Service and the relevant local authorities must 'work together' to secure the welfare of the children for whom the Secretary of State is responsible – whether they are in YOIs or in MBUs.

In saying this, my purpose is not to criticise the Secretary of State or the Prison Service. On the contrary, my reading of the very large volume of official material that I have had to read for the purposes of the Howard League case and now this case has left me convinced that if there deficiencies in inter-agency working between the Prison Service and local authorities the responsibility for that is not, by and large, to be laid at the door of the Prison Service. Both in the Howard League case and in the present case, if I may say so, I have been impressed by the immense care and skill with which the Prison Service, with welcomed and valued inter-disciplinary support and input, has embarked upon the process of formulating child-centred policies whose humanity and respect for the interests of the children for whom the Secretary of State is responsible is, I believe, deserving of recognition, commendation and praise.

Both the policies which regulate YOIs and the policies which regulate MBUs acknowledge the important role of the local authority. I have the impression – I hope it is wrong, but I fear it is not – that too often this is not reciprocated by the local authorities. In saying this I do not want to be critical of those local authorities, many of whom are in any event short of resources, who, because they have a YOI or MBU within their area, are faced with the no doubt unwelcome additional burden of meeting what they might be forgiven for thinking is really a national and not a local problem. After all, how many of the boys in Feltham YOI actually come from Hounslow? How many of the mothers in the MBU at New Hall actually come from Wakefield? Nor do I want to be critical of local authorities who may not have had cause to appreciate until recently the full extent of their responsibilities in relation to YOIs and MBUs. But the position is now clear. Appreciating the undue burden that falls on the comparatively small number of local authorities involved – there are, after all, only 18 YOIs and four MBUs – I do nonetheless hope that in future all the good work being done by the Prison Service will be reciprocated by the local authorities.

The challenge to the decision on the merits

Mr Wise challenges the Secretary of State's decision on the ground that it was contrary both to the Prison Service's own policy and to Article 8. There was, he says, insufficiently compelling evidence to show that the proposed separation was in Lia-Jade's best interests and, whatever the position may have been in September 2003, it would not, he says, be in her best interests to separate her now, given Professor Hill's evidence. The evidence relied upon to support the Secretary of State's decision was, he says, at best equivocal. Moreover, he submits, this was not a case where separation was inevitable. On the contrary, he says, there was "a very real prospect" that Claire would fall into that exceptional category of prisoners referred to in Re P&Q who can keep their babies beyond the normal 18 month time limit. In support of that perhaps rather surprising assertion he points to her exemplary progress in prison, to the strength of her relationship with Lia-Jade, and to the fact that everything points to be her being a good mother.

Mr Wise places understandable emphasis upon the fact that Professor Hill is the only specialist who has seen Lia-Jade and Claire. He has also talked to the staff in the MBU at New Hall and visited the maternal grandmother at her home. So his conclusions derived from his observations must be respected. Evidence of a general nature cannot 'trump' this first-hand expert evidence. Dr Black, in contrast, has seen neither Claire nor Li-Jade (though she has viewed the BBC tape) and her conclusions, says Mr Wise, are based on general principles rather than being rooted in the needs of this particular child.

Mr Wise submits that I should prefer Professor Hill's view to Dr Black's for two main reasons. First, Professor Hill has seen Lia-Jade together with her mother; Dr Black has not. The best interests of a child, says Mr Wise, can only be properly determined by reference to the child herself. Professor Hill demonstrates in his report that from his observations there is a strong and secure attachment between Claire and Lia-Jade and presents what Mr Wise says are compelling reasons for deepening that attachment and enhancing the baby's long-term resilience by ensuring that mother and baby are not separated but stay together. Dr Black, in contrast, it is said, not having seen the baby is unable to report on the attachment of this mother and baby, the secure base that the baby has developed or the possible effects of this proposed separation.

Secondly, he emphasises Professor Hill's view that the materials and expert opinions relied on by the Secretary of State "do not deal adequately with the issue of maximising the long-term development of Lia-Jade." Mr Wise criticises Dr Black's approach for what is said to be its "scant mention of attachment, the key issue when considering separation of a mother and her baby" and for what he says is her failure to address the potential problems of reattachment, identified by Professor Hill, should there be a separation at this stage.

Professor Hill, says Mr Wise, presents an "overwhelming" case against separation at this stage. He points to Professor Hill's unequivocal view that it would not be in Lia-Jade's best interests to be separated from her mother at this time. Accordingly, says Mr Wise, on the evidence there can be little doubt that Lia-Jade's best interests lie in remaining with her mother for the foreseeable future, and I should so declare.

Miss Foster asserts that there is compelling, perhaps overwhelming, evidence that Lia-Jade's best interests are other than has been decided by the Secretary of State. That is not just Claire's view: it is, she says, also the view of Professor Hill.

She says that the Secretary of State's decision, and his maintenance of the same stance in the face of Professor Hill's evidence, ignores the fact, as she would have it, that for this particular child not only were the chances of going to an open prison very high, where what she calls the last few months over 18 months could be "easily accommodated", but 20 months was in any event, she says, accepted years ago as a possible upper limit in the 18 months MBUs. She goes so far as to assert that separation from the mother might not happen at all if in fact the latter course were pursued.

In any event, it is said that the decision was also flawed because there was no proper consideration of the relative balance where the effect of the separation is to entail a longer time apart than would be the case if a later separation took place (here, probable separation of 17 months if early departure, probable separation of 8 months if later departure). And even if there was any such consideration the actual decision, according to Miss Foster, was disproportionate.

Moreover, and whatever may have been the position previously, Miss Foster says that it is "impossible" for the Secretary of State to maintain his defence of the original decision in the light of Dr Black's admission (see paragraph [147] above) that whereas, when the decision was initially taken, "the case for separation was clear", it is now merely "preferable". That, she says, given the importance of a decision such as this, is plainly insufficient to meet the demanding test under Article 8. The argument might suffice to meet classic public law tests but it is not defensible in Article 8 terms because it is not proportionate. Moreover, she says, Dr Black's analysis of the case is partly founded on the risk that Claire may re-offend after she is released and thus again find herself separated from Lia-Jade, a suggestion, according to Miss Foster, that fails to take account of the facts – seemingly ignored by Dr Black – that Claire is a model prisoner who has given up drugs, who is seen not merely by her parents but also by the judges in the Court of Appeal as being a different person than had appeared at trial, in short who gives every impression of having turned her life around.

This being an Article 8 case, where, as I have said, the task for the court is a Daly type review, calling for "intense and anxious scrutiny on an objective basis", it is not enough, says Miss Foster, for the Secretary of State to say that his decision is supportable by some evidence. It is not enough for him to point to the fact that his decision is supported by two eminent experts, particularly where it might be thought that Dr Black and Dr Lansdown both come, as it were, "from the same stable". The "intense and anxious scrutiny" demanded by Article 8 both of the Secretary of State and, now, of the court, requires proper and detailed consideration of what Miss Foster says is the "vast body" of what appear to be opposing views relied upon by Professor Hill.

Ms Richards on instructions made it clear that the Secretary of State stands by his initial decision, having reviewed it carefully in the light of all the evidence and other materials now to hand. His reasons for doing so, she says, are to be found in Mr Montgomery-Pott's evidence, the most important parts of which I have already set out. The Secretary of State has carefully considered Professor Hill's reports, as well as the views of the Official Solicitor. He accepts that there are other views that may legitimately be held, but remains of the opinion, nonetheless, that the correct decision was reached at the meeting on 9 September 2003.

She submits that the Secretary of State was, and remains, entitled to approach this as a case where separation of the mother and baby at some time during the mother's sentence was almost inevitable, in truth inevitable. Having regard to the decision of the Court of Appeal in Re P&Q , that view, she says, cannot be characterised as unreasonable, or as offending against the principle of proportionality, or as unlawful on any other ground.

She says that the Secretary of State's decision that Claire and Lia-Jade should separate earlier than 18 months was carefully taken. It was informed by the advice given to the Steering Group and the Policy Group by two eminent consultants as to the possible advantages of earlier separation in such cases (particularly where, as here, excellent care is available from alternative care-givers within the wider family). It reflected the views and experience of those who know Claire and Lia-Jade. It also reflected the views and experience of those who work with mothers and babies within the prison environment and who are familiar with the limitations of that environment and of even the best organised MBU. The decision also had the benefit of social work expertise and input, not merely from Ms B but also, and importantly and quite independently, from Mr Milner.

As Ms Richards points out, with the sole exception of Claire and her parents everyone at the meeting on 9 September 2003 was in favour of an early separation: Mr Milner, Ms Hodgson, Ms Walton, Ms Vollans and Ms B. So also was the health visitor at the earlier meeting on 5 June 2003. Indeed, so too on the earlier occasion were both Claire and her parents. And that decision has subsequently received the endorsement of both Dr Black and Dr Lansdown.

Ms Richards accepts that this is an arena where there is scope for differing opinions. She properly accepts Professor Hill as holding an entirely valid opinion, albeit one that Dr Black disagrees with. But she submits that neither the possibility of, nor even the existence of, such differing opinions renders the Secretary of State's decision unlawful or in breach of either Claire's or Lia-Jade's human rights. In this connection she points to the observations of Moses J in R (Ala) v Secretary of State for the Home Department [2003] EWHC 521 (Admin) at para [44], expressly approved by the Court of Appeal in Edore v Secretary of State for the Home Department [2003] EWCA Civ 716 , [2003] 1 WLR 2979 , at para [20], setting out the principle applicable in cases "where the essential facts are not in doubt or dispute":

Indeed, as she points out, Professor Hill identified as "the most advantageous outcome" Lia-Jade remaining with her mother in prison (albeit with "regular periods staying with her grandparents") until March 2005 – when Lia-Jade will be 2 years and 2 months old – and was prepared to contemplate her remaining with her mother in prison even until January 2006. She submits that, consistently with Re P&Q , the Secretary of State is plainly entitled to reject such a stance on policy grounds, there being, as she would have it, nothing exceptional about the present case and, therefore, no basis for saying that Lia-Jade should stay in prison beyond the normal upper age limit of 18 months.

Finally, and appropriately, Ms Richards points to what Claire and her family are recorded as saying on the BBC tape. Perhaps not surprisingly, in circumstances which they must all find deeply upsetting and difficult and where, as we have seen, their stance changed markedly between the meeting on 5 June 2003 and that on 9 September 2003, they come over on the BBC tape as being in many ways ambivalent and undecided. I need not go through this in detail but at one point the reporter says

The family's response is interesting:

And a little later:

Moreover, as Ms Richards points out, at the very end of the tape we hear a letter that Claire wrote on 21 September 2003 – after the Separation Care Plan Meeting on 9 September 2003 – in which she says:

Despite everything pressed on me by Mr Wise and Miss Foster, I would not have been prepared to quash the Secretary of State's decision if the only challenge had been to the merits. In the event the point does not arise, because the decision has to be quashed on other grounds, and since the matter will now have to go back for reconsideration it is probably better that I say as little as possible. I ought nonetheless to make a few points. That said, the ultimate decision is, of course, for the Secretary of State.

The first is this. I agree with Ms Richards that the Secretary of State was perfectly entitled to conclude that, in the light of his policy and the decision of the Court of Appeal in Re P&Q , separation of Claire and Lia-Jade at some point during Claire's sentence was almost inevitable, or even in truth inevitable. In this connection I again draw attention to what was said in Re P&Q at para [109]. The Secretary of State was plainly entitled to take the view that this was not an exceptional case, and that for Lia-Jade to remain in a MBU until after her second birthday was consistent neither with his policy nor with her best interests.

Secondly, the Secretary of State was plainly entitled to have regard to and to place considerable weight upon the fact that there would be excellent care available for Lia-Jade in the wider family if she was separated from her mother. The choice here was not, as in some of these cases, between care of the child by its mother in prison and its care in the community by a foster-carer: the choice here was between Lia-Jade being cared for by Claire in prison or by her grandparents in their more than adequate home.

Thirdly, in the light of all the materials to which I have already referred, taken in conjunction with the reports that had been received both by the meeting on 5 June 2003 and by the meeting on 9 September 2003 as to the benefits that Lia-Jade was apparently deriving from her experience of life on the 'outside' (see paragraphs [115], [124] and [126] above), the Secretary of State was fully entitled to pay particular attention to the views expressed at the latter meeting by a number of professionals as to the desirability of Lia-Jade being able to live in a "normal" environment. That was, it appears, a view clearly expressed not merely by Ms B (for what that was worth) but also by Ms Hodgson and Ms Vollans. Moreover, as we have seen, it was also the view, albeit subsequently expressed, of Dr Black. It had also been the view expressed on earlier occasions by both Claire and her parents. In the light of Botta v Italy this was clearly a most important factor.

Fourthly, I reject the submission that the Secretary of State's decision failed adequately to take into account the issues of attachment, reattachment and Lia-Jade's long-term development to which Mr Wise in particular has drawn attention. Those are all matters which are prominent in the materials which underpin the policy and its application (see, for example, paragraphs 10.3.4 and 10.21 of the Report of the working group and the paper prepared by Dr Black and Dr Lansdown) and there is, in my judgment, no basis for saying that these were not recognised and given appropriate weight by the Secretary of State. They were also addressed by Dr Black and Dr Lansdown in the opinions they gave after the event, materials that the Secretary of State was entitled to have regard to when invited, in effect, to reconsider his earlier decision.

Finally, the fact that Professor Hill has seen Claire and Lia-Jade and visited the family home, whilst Dr Black and Dr Lansdown have not, has to be kept in a proper perspective. It is a fact, and an important fact, but it is far from being determinative. Dr Black, after all, has been able to study what is in many ways the very illuminating BBC tape.

At the end of the day, as I have said, my task is to subject the Secretary of State's decision, and the evidence and expert opinion underlying it, to "intense and anxious scrutiny on an objective basis", and that is what I have done. Recognising that the intensity of the required judicial scrutiny must reflect the gravity of the decision under review, and acknowledging that the decision here is one of the utmost gravity for both Claire and Lia-Jade, I remain, nonetheless, wholly unpersuaded by Mr Wise's and Miss Foster's submissions on the point.

Be that all as it may, the procedural defects which unhappily infected the meeting on 9 September 2003 vitiate all that has followed. Who is to know what view the meeting would have taken, who is to know what view the Secretary of State would have taken, had Ms B been properly briefed, if the opinions she was recorded as having expressed had not been affected in part by her seeming misunderstandings, and if she had then expressed the views which she subsequently set out in her section 47 assessment? I cannot say. The matter will have to be reconsidered.

Conclusion

For these reasons I have concluded that the Secretary of State's decision must be quashed. The matter will have to be reconsidered. That must be done as soon as possible. This time, steps must be taken to ensure that Lia-Jade's interests are properly represented.

The BBC and publicity

In accordance with the usual practice of the Family Division in cases involving children, these proceedings have been heard in chambers. But without opposition from any of the parties (including, I emphasise, the Official Solicitor in his capacity as Lia-Jade's litigation friend) I acceded to an application by the BBC that it be permitted to attend the hearing. I would have extended the same facility to any other organ of the media. After all, cases of this kind can be and are heard in the Administrative Court, where hearings take place in public.

The present case plainly raises matters of genuine public interest, as does the film that the BBC is proposing to broadcast. It is, as it seems to me, very much in the public interest that, however familiar they may be to those professionally involved in such matters, issues as important as those which the present case exemplifies should be brought to wider public attention. The more the public knows about what goes on in our prisons – the good as well as the bad – the better. I am therefore giving this judgment in public. There is no point in concealing the parties' names: Claire's name, like Lia-Jade's, is frequently referred to in the soundtrack of the BBC tape. Save to the extent that I have concealed names by the use of initial letters, there is therefore no objection to those who have been named in this judgment being identified in public.

Some parting observations

Before parting with the case there are certain additional observations I wish to make which will, I hope, be of assistance for the future.

The first and most important is this. I hope that this will prove to be the last occasion in relation to a case of this kind when the court is asked to consider the nature of its role or is taken again through the minutiae of the Secretary of State's policy. The function of the court is plain enough and the legality of the policy is clearly established. I draw attention to, and would respectfully endorse, what the Court of Appeal said in Re P&Q at para [119]:

There was a certain amount of debate before me as to whether cases of this kind ought to be brought by way of applications for judicial review in the Administrative Court or by way of free-standing Human Rights Act claims in the Family Division. There are, as Ms Richards pointed out, various practical and procedural differences between Human Rights Act applications brought under CPR Part 8 and judicial review applications brought under CPR Part 54. Applications brought under CPR Part 54 require permission and are subject to a shorter time limit than claims under CPR Part 8. In practice there is less scope for oral evidence and cross-examination in applications under CPR Part 54 than in claims under CPR Part 8. I note in this connection what Moses J said in R (BP) v Secretary of State for the Home Department [2003] EWHC 1963 (Admin) , a case where proceedings were brought under CPR Part 54 by a child detained in a YOI alleging breaches of Articles 3 and 8 of the Convention (see at para [42]):

On the other hand, as Ms Richards observes, experience suggests that such cases are likely to be listed more quickly in the Administrative Court than in the Family Division. As against all this, at the end of the day, as I have already pointed out, the substantive principles to be applied are precisely the same irrespective of the form of procedure adopted and the court in which the proceedings are brought.

Ms Richards suggested, nonetheless, that such applications ought to be brought by way of judicial review, referring me in this connection to the observations of Lord Nicholls of Birkenhead in In re S (Minors) (Care Order: Implementation of Care Plan), In re W (Minors) (Care Order: Adequacy of Care Plan) [2002] UKHL 10 , [2002] 2 AC 291 , at para [62]:

I think, with respect, that Ms Richards reads too much into what Lord Nicholls was there saying. I remind myself of what the Court of Appeal had earlier said in Re P&Q at para [120]:

That last comment, of course, reflects the fact that section 31 of the Supreme Court Act 1981 and CPR Part 54.2 provide respectively that the judicial review procedure "shall" and "must" be used where the relief claimed includes an order of certiorari (a quashing order) or an order of mandamus (a mandatory order).

In my judgment it remains the position that cases of this kind can be brought in either court and by means of either procedure. But I emphasise that, whichever form of procedure is adopted, and whichever court the proceedings are commenced in, it is highly desirable that such cases should, if at all possible, always be heard by a judge of the High Court who is both assigned to the Family Division and a nominated judge of the Administrative Court. It is also imperative that such cases should be heard, in whatever court, as swiftly as possible. I remind all concerned that the standard mandated by the Court is "exceptional diligence": see Johansen v Norway (1996) 23 EHRR 33 at para [88] and Hoppe v Germany [2003] 1 FLR 384 at para [54].

One advantage of procedure under CPR Part 54 is that the claim is required to be properly particularised, identifying the decision or action under challenge, the grounds upon which the challenge is made and the relief sought, and that every defendant has to file an Acknowledgement of Service and, more important, detailed grounds for contesting the claim, before the papers are ever considered by a judge. This procedure means that the issues in the case are clearly identified well before any substantive hearing. If they are not, the judge who has to consider whether or not to grant permission to apply can give appropriate directions. Procedure under CPR Part 8 is less regulated and this can mean – as it did in the present case – that the matter comes to a substantive hearing with the issues being identified for the first time in the parties' skeleton arguments or even later.

I am not suggesting that there should necessarily be elaborate pleadings – the days of Parke B are long behind us – but as an absolute minimum, and whether or not it formally applies to such proceedings, there should surely be at the very least the documents referred to in paragraph 3.1 of the Practice Direction (Family Proceedings: Court Bundles) [2000] 1 FLR 536, that is: a summary of the background to the hearing; a statement of the issue or issues to be determined; a summary of the order or directions sought by each party; a chronology; and skeleton arguments (with copies of all authorities relied upon). Moreover, if the case is proceeding in the Family Division under CPR Part 8 it may well be sensible to list it for directions at a very early stage, either before the trial judge or, if that is not possible, before a judge who is both a judge of the Family Division and a nominated judge of the Administrative Court.

Most unfortunately the trial bundles in the present case had been arranged in such a way as made systematic and sensible pre-reading of some of the most important materials almost impossible. Moreover, the bundles contained much duplication and a substantial mass of material that was simply not referred to at all. Responsibility for this unfortunate state of affairs must be shared between the Treasury Solicitor, whose selection and arrangement of the exhibits to the various witness statements would have benefited from more thought and planning, and the claimant's solicitor, who simply copied the Treasury Solicitor's witness statements and exhibits as they stood and inserted them in the bundle with an index so rudimentary and deficient in information as to be useless. The result was that reading the bundle from cover to cover meant that one was constantly hopping from one thing to another, and then back to the first, whilst the absence of a usable index made it impossible to plan one's reading in any more coherent fashion. More thought needs to go into the preparation of bundles in cases such as this. And, unless the material is such, and is so arranged, that one can sensibly just read the bundle from cover to cover – and that is rarely the case – it is essential that a detailed index is provided. An index which merely describes a document as "exhibit ABC1" – and the index I was initially supplied with here did not give even that information – is worse than useless. The index must contain proper descriptions of the documents. Again, experience of the application of the Practice Direction in the Family Division suggests that, whether or not it formally applies to such proceedings, the trial bundle in a case such as this should be prepared in accordance with paragraph 2.1 of the Practice Direction , that is, it should contain copies of all relevant documents in chronological order, paginated and indexed and divided into separate sections as follows: (a) applications and orders; (b) statements and affidavits; (c) experts' reports and other reports; and (d) other documents, divided into further sections as may be appropriate.

The final point relates to the use of expert evidence in cases such as this. Miss Foster points out that evidence will frequently and properly be admitted in proportionality cases because assertions may well be made (and succeed) to the effect that the balancing exercise or the indeed the analysis carried out by the decision maker was inadequate. She submits that if, as here, it is the case that only one stream of psychiatric thought (and that one stream unsupported by research or other intellectual underpinning) is preferred, evidence to show the tenuous nature of this opinion and to show the alternative view is admissible. It is, she says, inevitable in proportionality cases that evidence will be admissible on the subject matter which is the core of the decision.

I agree with Miss Foster that expert evidence of the kind she refers to is admissible and that it may on occasions appropriately be adduced in cases such as this. But I confess to some misgivings about the way in which expert evidence is now being almost routinely utilised in certain types of public law cases, particularly community care cases and cases involving either children or mentally handicapped adults. In the course of little more than a fortnight during December 2003 whilst sitting in the Administrative Court I heard three such cases. In the first, where the challenge was to a decision by the Secretary of State to return a prisoner from a mental hospital to prison, the claimant adduced expert psychiatric evidence contradicting the expert evidence on which the Secretary of State had based his decision: R (IR) v Shetty [2003] EWHC 3022 (Admin) . In the second, where the challenge was to a local authority's community care assessment, the claimant adduced both expert psychiatric and expert social work evidence, again to contradict the expert evidence on which the local authority had based its decision: R (HP and KP) v London Borough of Islington [2004] EWHC 7 (Admin) . This is the third such case. All three cases share certain features in common: (i) In each case the purpose in adducing the evidence was really to try and persuade the court that the primary decision-maker was wrong on the merits, whereas in each case the court's function was in truth confined to a Daly type review; (ii) In each case the effect of introducing the evidence was to shift the focus of the challenge from the initial decision which in theory was the subject-matter of the litigation to the subsequent actual or imputed decision not to depart from the initial decision; and (iii) In each case the expert evidence in fact had no effect on the eventual outcome of the case.

Restraint is needed, and, if I may be permitted to say so, appropriately robust judicial case management. Otherwise the evidence all too easily proliferates. In the present case the trial bundle ran to three lever-arch files. Thought needs to be given to the nature of the proceedings. And, if the proceedings involve a Daly type review rather than a full best-interests investigation, thought needs to be given to what precise point the evidence being adduced really goes to. Too often I am left with the uncomfortable feeling that evidence is being adduced, and the case is being prepared, as if it were a best interests case when in truth it is not. A most striking example of the phenomenon, and a case where the filing of expert evidence came close to escaping all control, is R (A, B, X and Y) v East Sussex CC (No 2) : see my comments at paras [14], [63] and [156]. That was a case in which, as I observed at para [158], "singularly little thought had been given to identifying precisely what the task was upon which I was supposed to be engaged." The result, if I may adapt a military metaphor, was "litigation creep", the forensic equivalent of the "mission creep" that is the bane of military planners.

The purpose of judicial review is to challenge the decision of a public authority. Unless the evidence which is permitted to be adduced in nominal pursuit of that wholly legitimate objective is appropriately regulated, judicial review can too easily become a mechanism whereby a claimant who has not even established his right to a mandatory order (order of mandamus) can in effect compel the original decision-maker to reconsider the matter afresh in the light of all the new evidence adduced in court. And that in turn can lead all too easily to a situation where the proceedings are, in effect if not in intention, being used inappropriately as a means of monitoring and regulating the performance by a public authority of its public duties and responsibilities. I refer in this context and respectfully agree with what Newman J said in R v Mayor and Burgesses of the London Borough of Hackney ex p S (unreported 13 October 2000) at paras [8] and [11] and again in R v Mayor and Burgesses of the London Borough of Hackney ex p S (No 2) [2001] EWHC Admin 228 at para [4].