Restrictions on leave for jailed mothers are unlawful, High Court rules

Government policy on restricting childcare resettlement leave (CRL) for jailed mothers is unlawful, the High Court has ruled.

CRL allows prisoners who have sole caring responsibility for children under 16 to spend up to three days at home every two months.

The court heard in R (on the application of MP) v Secretary of State for Justice and R (on the application of P) v the Governor of HMP Downview and the Secretary of State for Justice [2012] EWHC 214 (QB), that the two women involved were imprisoned for serious drugs offences.

MP, who has three children aged from four to 13, was sentenced to ten years for conspiracy to import cocaine. P, who is sole carer of a 15-year-old girl, was sentenced to 14 years for importation of cocaine.

Mrs Justice Lang said that, in the cases of both women, an 'inflexible policy in relation to CRL was routinely applied, which did not involve consideration of the merits of individual cases and did not permit of any exceptions. This was unlawful.'

She said the justice secretary had misinterpreted current policy on the grant of CRL by 'taking the view that CRL was only ever intended to be available to prisoners who were in the final stages of their custodial term'.

Lang J also said he had failed to have regard to article 8 of the ECHR and article 3(1) of the UN Convention on the Rights of the Child, which states that the best interests of the child should be a 'primary consideration' in any action taken by a public authority involving them.

She said the justice secretary 'fettered his discretion by applying a blanket policy without considering the individual circumstances of prisoners'.

Lang J said she did not believe it would be 'unduly onerous' for prisons to have proper regard to individual applications for CRL.

'The 2010 statistics show that there were 3,421 female prisoners. Nearly 2,000 of these are serving short sentences and so will be eligible for CRL very early in their sentence in any event.

'Only those prisoners who have sole care of a child under 16 are eligible to apply, which further reduces the number of applications to be considered.'

Lang J ordered that the decisions refusing CRL to the two women were unlawful and should be quashed, and should be reconsidered by a different decision maker as soon as possible.

Camilla Pandolfini, legal caseworker at the Prisoners' Advice Service, acted for MP and P.

She said the government had created the CRL problem 'inadvertently' in 2009, when it reclassified 'semi-open' prisons as 'closed'.

Pandolfini said jailing parents could have 'devastating consequences' on children and lead to their criminalisation.

'The children of both these women are suffering and the impact on them could be ameliorated in some way by CRL,' she said. 'CRL is quite different to prison visits, where the children have to go through security.'

Pandolfini said the government had announced during the High Court trial that it would be carrying out a policy review within three months.

'I hope a better balancing exercise will come out of this and prisons will have regard to article 8 rights,' she said.

'It is well established that prisoners do not lose their human rights just by being prisoners'.