The High Court has ordered that a prison which refused a place in its mother and baby unit to a new mother must reconsider its decision. Maya Sikand acted for the prisoner. (1) R (on the application of WB) (2) W (A Child By His Litigation Friend The Official Solicitor) v Secretary of State for Justice  EWHC (Admin)
The challenge in this case was brought by a woman prisoner, WB, a Polish national who did not speak English fluently, and who was refused a place in the prison's Mother and Baby Unit (MBU) just over three weeks before her due date. The decision to refuse was ultimately that of the Prison Director but she acted on the recommendation of the MBU Board. The Board made a recommendation for refusal on the basis that a place was not in her baby's best interests, without being in possession of a parenting assessment. WB immediately appealed the decision but by the time the Secretary of State decided her appeal (negatively), her baby had been born and removed from her and placed in foster care (the family placement the MBU Board had assumed was no longer available at the time of birth). The appeal was decided nine days after she gave birth.
Her challenge was brought on three bases, the main one being that her procedural rights under Article 8, as set out in W v United Kingdom (A/121) (1988) 10 EHRR 29, had been breached. The delay in considering her application had a significant and detrimental impact on her, not least the fact that any appeal was considered long after separation had taken place. She also argued that there had been a number of other breaches of her procedural rights. The Official Solicitor, representing the baby's interests, further submitted that the prison director had failed to discharge her statutory obligations under s.11 of the Children Act 2004 to have regard to the need to safeguard and promote the welfare of children.
Mrs Justice Elisabeth Laing found there had been a breach of WB's Article 8 procedural rights and there had also been a breach of the prison director's statutory obligation under the Children Act 2004, s.11, and the Secretary of State's public law obligations in accordance with Secretary of State for Education and Science v Tameside MBC  AC 1014. She made a mandatory order that the MBU Board retake the decision within a specified timeframe after the Secretary of State for Justice had obtained the appropriate parenting assessment.
The question of damages is yet to be decided.