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QUEEN v. SECRETARY OF STATE FOR HEALTH EX PARTE M. L. [2000] EWHC Admin 397 (11th October, 2000)
Case No: CO/4858/1999
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 11 October 2000
B e f o r e :
THE HON MR JUSTICE SCOTT BAKER
|
THE
QUEEN
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v -
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SECRETARY
OF STATE FOR HEALTH
EX PARTE M. L.
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- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr Richard Gordon QC & Fenella Morris(instructed by Peter Edwards
& Co for the Applicant)
Mr Philip Sales (instructed by The Department of Health for the
Respondent)
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright
MR JUSTICE SCOTT BAKER:
The Applicant is a patient at Rampton Hospital. He seeks to challenge Health
Service Circular HSC 1999/160 dated 23 July 1999 which sets out Directions and
Guidance for visits by children to patients in high security hospitals namely
Ashworth, Broadmoor and Rampton. Patients in these hospitals suffer from
mental disorders and need to be treated and cared for in conditions of special
security because of their dangerous, violent or criminal tendencies.
The statement of Jennifer Anne Gray sets out in detail the background to this
challenge and the circumstances leading to the promulgation of the circular.
Section 4 of the National Health Service Act 1977 requires the Secretary of
State for Health to provide special hospitals for detained mentally disordered
patients. There are three such hospitals of which Rampton, with which this
case is directly concerned, has a catchment area that comprises Yorkshire and
parts of eastern and central England. It has an average patient population of
around 450. Patients are housed in high security wards and the average stay is
7½ years, although some patients remain a good deal longer. Over half of
the patients are classified as having a mental illness and of these about one
third are classified as having a psychopathic disorder. Some 70% of patients
are mentally disordered offenders admitted to Rampton on the authority of the
courts or from prison at the direction of the Home Secretary. Those admitted
to Rampton require the highest levels of care and security because of the grave
danger they present to the public, such that they cannot safely be contained
within the security of a regional secure unit.
At the end of 1997 work began to ensure that each of the three special
hospitals developed a comprehensive child welfare policy which included child
protection matters and addressed agreed principles relative to children
visiting patients. Numerous interested parties were consulted and a
comprehensive survey was undertaken of current policies and practices on the
existing child welfare policies and procedures in each of the hospitals.
Eventually three over arching principles for the child protection guidance were
agreed:
(i) the child's welfare is paramount and takes primacy over the interests of
any and all adults
(ii) the child's welfare should be safeguarded and promoted by all staff within
the hospital;
(iii) a child's contact with family members should be supported whenever it is
in the child's best interests.
Throughout the consultation process the overriding concern was to develop
guidance to safeguard and promote the welfare of children.
In September 1998 specific concerns arose about children visiting known child
abusers in special hospitals. As a result, a letter was sent stating that with
immediate effect a child could only visit these hospitals if the patient
concerned was the child's parent or had parental responsibility for the child
or was the grandparent or sibling of the child (the interim measure). The
letter stated further guidance would follow.
The report of the Fallon Enquiry was published in January 1999 and its findings
were taken into account in finalising the draft directions and guidance. In
May 1999 formal consultations took place with the three hospitals concerned and
other interested parties. The final Directions and Guidance were issued on 23
July 1999 in the form of HSC 1999/160 to take effect from 1 September 1999.
Meanwhile similar work was being undertaken to develop guidance for visits by
children to patients in medium secure units and other psychiatric units. This
was issued in October 1999 as HSC 1999/222 but is of no direct relevance in the
present case.
The Applicant was convicted of the murder of an elderly man in 1980 and
sentenced to life imprisonment. He was moved from HMP Dartmoor to Rampton on
23 February 1996 and is currently detained there under Sections 37 and 41 of
the Mental Health Act 1983. He has been diagnosed as suffering from
personality disorder.
HSC 1999/160 and the interim arrangement made in 1998 were made under the
powers conferred on the Secretary of State for Health by Section 17 of the
National Health Service Act 1977 as amended.
HSC 1999/160 goes into considerable detail. It is to be found at pages 21-44 of
the bundle of documents. The summary at the beginning of the circular provides
that:
"From 1 September 1999, a hospital may not allow a child to visit any
patient in the hospital unless the hospital authority has approved the
child's visit in accordance with the directions in part A of this circular and
in particular is satisfied that the visit is in the child's best
interests. The only exception to this is where there is a contact order made
under the Children Act 1989 which specifies that the child may visit the
patient in the special hospital. In such cases, visits should be allowed
except where there are concerns about the patient's mental state at the time of
the proposed visit such that the nominated officer decides the visit would not
be in the child's best interests.
In the case of patients convicted of murder or manslaughter or an offence
listed in Schedule 1 to the Sex Offenders Act 1997 or who have been found unfit
to be tried, or not guilty by reason of insanity, in respect of a charge of
murder or manslaughter or a Schedule 1 offence, the child must be in the
permitted categories of relationship as set out in paragraph 2(2)(b) of the
Directions. If the child does not satisfy the relationship criteria, the
hospital must refuse the request for a visit."
"Child" is defined as a person under the age of 18.
Paragraph 2 of the Circular is headed Visits. Paragraph 2 (1) provides
that a hospital authority is not to permit a patient to be visited by a child
except in accordance with the Directions.
The permitted categories in paragraph 2 (2)(b) are where the patient:
(i) is the parent or relative of that child;
(ii) has parental responsibility for that child; or
(iii) was cohabiting with the parent of the child immediately prior to his
detention under the Mental Health Act 1983 and the child was treated as a
member of his household.
Paragraph 2(3) defines parent as meaning the mother or father, the
adoptive mother or father or the stepmother or stepfather of the child and
relative as meaning a grandparent, brother, sister, uncle or aunt or
cousin related to the child by blood (including half blood) or marriage. The
definitions are, therefore, quite wide.
There is an exclusion in paragraph 2 (4) which says that sub paragraph (2)
does not apply where an order has been made under the Children Act 1989 that
the child may visit the patient in the special hospital. Nevertheless, any
such visit still has to comply with paragraph 2(1); it is not removed
altogether from the ambit of the Directions.
Paragraph 3 sets out in detail the procedure for dealing with requests for
visits. This includes nomination by the hospital authority of a senior manager
to oversee the process. The nominated officer must arrange for the patient's
clinical team to carry out an assessment of whether a visit is appropriate and,
if it is, to make the necessary arrangements for the visit to take place safely
(sub paragraph (4)). Under sub paragraph (5) the nominated officer must refuse
the request if after the assessment he is satisfied it would not be appropriate
for the child to visit the patient. In any other case he then has to seek the
advice of the relevant social services authority whether it is in the best
interests of the child to visit the patient. He has to send a copy of the
assessment with the request for advice.
By sub paragraph (6) when he receives the advice he has to decide whether to
approve the visit and by sub paragraph (7) he may not approve the visit where
the advice is that the visit is not or may not be in the best interests of the
child.
By sub paragraph (11) where a patient is a schedule 1 offender or has a
conviction for murder or manslaughter and the child is not within the permitted
categories under paragraph 2(b) the above provisions do not apply and the
nominated officer must refuse the request. This, however, is subject to sub
paragraph (14) which provides that the nominated officer must allow the visit
to take place where an order under the Children Act 1989 specifies that the
child may visit the patient in the special hospital.
There is an overriding provision that the nominated officer may refuse to allow
a visit if there are concerns about the patient's mental state at the time of
the proposed visit.
It is not necessary for the purposes of this judgment to make specific
reference to any of the other provisions in the circular.
It is said that while he was in prison the Applicant was allowed visits by his
nieces and nephews and these visits continued after he moved to Rampton until
September 1998 when the interim measure was brought in. He has not seen them
since and contact has been broken for the last two years. He has made two
applications under 1999/160 but still awaits risk assessment by the clinical
team. Any unreasonable delay in that regard cannot be laid at the door of
Secretary of State and does not go to the lawfulness of the circular with which
this case is concerned. As will become apparent, it is necssary to examine the
evidence of his relationship with his nephews and nieces with some care and I
shall return to this in a moment.
Mr Richard Gordon QC, for the Applicant makes five main submissions which he
summarises as follows.
(i) The policy in the circular assimilates schedule 1 offenders with those
convicted of murder or manslaughter. It is disproportionate and illogical in
terms of policy and objective to treat the two categories in the same way.
(ii) The policy discriminates, for no sensible reason as regards the welfare
of children, between serving prisoners and detained patients. This is an
irrationality that is intrinsic to the entire scheme.
(iii) The policy breaks up family life contrary to Article 8 of the European
Convention on Human Rights (ECHR).
(iv) The Directions and Guidance offend against the principle of illegality
articulated by the House of Lords in R -v- Secretary of State for The
Home Department ex parte Simms [1999] 3 WLR 328 in that the content is
not justified by pressing social need and in any event extends well beyond the
stated objective of the welfare of the child.
(v) The policy conflicts with its own expressed objectives. Its effect is to
break contact across the board and takes no account of attachments developed in
individual cases.
Mr Philip Sales for the Secretary of State points out it is necessary from the
start to be clear what the real challenges are. The underlying challenge seems
to me to be to the irrationality of the circular. Secondly there is a
challenge that is more specific to the Applicant in that the circular is said
to sweep up those convicted of murder and manslaughter with offenders under
Schedule 1 to the Sex Offenders Act 1997. Whereas the latter category presents
an obvious potential danger to children, the same is not necessarily true of
someone convicted of murder or manslaughter. Take for example the present
Applicant who killed an 80 year old man; his offence had nothing whatever to do
with children.
I turn therefore to consider each of Mr Gordon's five submissions.
Assimilation of murder/manslaughter and Schedule 1 Offenders.
Mr Gordon says there is no logical reason for grouping those convicted of
murder or manslaughter with Schedule 1 Offenders. It is unjust and unfair to
someone in the Applicant's position. The fact that he has in the past killed an
adult does not put him in a special category of risk to children. It should be
emphasised that the consequence for this group is that its members are
ordinarily excluded from receiving visits from children other than those
falling within paragraph 2 (b). I say "ordinarily" because there is an
exception where a court has made an order under the Children Act 1989 (see
paragraphs 2(4) and 3(14)). In the Applicant's case the fact that he is
grouped with Schedule 1 Offenders and caught by paragraph 2(b) makes no
difference because the nephews and nieces from whom he wishes to have visits
are within the permitted categories of child. His position is therefore no
different from any other patient in a special hospital; he is allowed visits
but not unless they have been approved in accordance with the Directions.
Mr Gordon's argument, as I understand it, runs thus. The Directions are either
irrational or they are not and one has to look therefore beyond the facts of
this case to other patients who have murder convictions and may wish to be
visited by children outside the paragraph 2(2)(b) categories. Why should that
patient be grouped with Schedule 1 Offenders?
The statement of Ms Gray on behalf of the Secretary of State sets out in very
great detail the circumstances in which these Directions were considered
necessary and the reasoning behind the various provisions in them. I regard
this statement of considerable importance; it sets the background against which
it is crucial to consider the issues in the case. In the section of her
statement headed "applicability of directions to patients convicted of murder".
She makes a number of points. These are:
(i) Patients in the special hospitals are some of the most dangerous people in
society and those convicted of murder or manslaughter of an adult may pose a
continuing risk of serious harm to children.
(ii) It may be disturbing to a child to visit a patient known to have committed
any of these offences. In some cases the patient may have killed a parent or
other near relative of the child. Even if the child wishes to visit a patient,
the effects may be so traumatising that it is not in the child's best interest
to do so.
(iii) Patients in the special hospitals have a combination of offending
behaviour and severe mental instability. There may be a risk of violence
(although stringent security measures are put in place to minimise this). Of
wider relevance is the emotional harm the children will be at risk of
suffering, both from being disturbed by visiting someone known to have
committed terrible acts and from any hurtful or disturbing thing that the
patient may say to them or do in their presence. This risk is always present
to some degree in this class of case.
(iv) The type of conviction may often not provide all the information about the
patient's violent or abusive past history. Many of those in special hospitals
who have committed murder or manslaughter have histories of committing violent
offences and, in some cases, sexual offences, but will not necessarily have
been convicted of those offences. It is therefore considered that a visit
could normally only be justified where there is a family tie between patient
and child which may make a visit in the child's interest, despite the
inevitable risk.
(v) The grouping commended widespread support among consultees and it was
considered important to have a clear and readily understandably standard, not
least among the patients for whom fairness is of some importance in a
therapeutic environment.
The fact that it would have been perfectly possible to draw the dividing line
between those patients who are and are not to fall within the paragraph 2(2)(b)
restriction in a different place does not mean the Directions are irrational
and unlawful. In my judgment, once the circumstances have been examined it can
be seen that there is no valid ground of criticism for drawing the line where
it has been drawn.
At one time I was concerned that the Directions might absolutely exclude visits
by a child who did not fall within the categories of 2(2)(b) but nevertheless
was well acquainted with the patient, for example a godchild or a neighbour.
The answer however is that no child is absolutely excluded. There is always
the fallback of an application to the court for a contact order under Sections
8 - 10 of the Children Act 1989 (see paragraph 2(4) and 3(14) of the Directions
as mentioned above.)
Discrimination between serving prisoners and detained
patients.
Ms Gray deals with this at paragraphs 38-40 of her statement. It is trite to
say that prisons and special hospitals are different. They hold different
populations and different considerations apply. A range of measures exists to
minimise the risks that certain prisoners, particularly those convicted of, or
charged with, sexual offences against children, may present to children whilst
in prison. These are the Prison Service Instruction 41/1998 (and accompanying
Prison Service Order 4400) Prisoner Communications: Child Protection Measures.
They are exhibited in a statement and were formulated by the prison service
rather than the Department of Health. There are some differences between the
Directions and the Prison Service Instructions. These are:
(i) Prisoners convicted of or charged with murder or sexual offences where the
victim was a child can only be considered for visits from their own children
and their siblings unless, exceptionally, the governor of the prison believes
it is in the best interests of a child outside this category to visit. Whilst
the Directions give a broader definition of children who may be considered for
visits, the chief executive of a special hospital does not have discretion to
consider visits by children who fall outside the definition. In such a case a
court order must be obtained.
(ii) In the Prison Service Instructions the list of offences used to identify
prisoners who pose a potential risk to children include murder and the offences
listed in Schedule 1 of the Sex Offenders Act 1997. However, the list only
applies where the victim was a child. The Directions cover cases where the
victim was a child or an adult.
(iii) Prison governors have some discretion in deciding whether prisoners, who
are initially identified as presenting a risk to children because of their
offence, do not present an ongoing risk to children (for example murder of a 16
or 17 year old by a 19 year old in a fight). With the Directions in special
hospitals there is no such discretion. Ms Gray says the purpose of this is to
ensure clarity in applying paragraph 2(2)(b) of the Directions so that the
welfare of children is not put at risk through the poor exercise of discretion.
(iv) Prison governors have to decide whether there are other prisoners, not
convicted of or charged with any of the listed offences who nonetheless pose a
potential risk to children. Accordingly they have a discretion to prevent a
child visiting a prisoner whose conviction is neither murder nor a Schedule 1
Offence.
Whilst there are some similarities between prisoners and patients who have been
convicted of the same index offence, there is one very important difference,
the patient is in the special hospital because he suffers from mental disorder
and requires to be cared for in conditions of special security. The comparison
is not between like and like and I am unpersuaded by Mr Gordon's argument there
is an irrational discrimination between prisoners and patients.
Article 8 of the ECHR
There is an issue whether Article 8 is of direct effect and applies to this
case in domestic law prior to 2 October 2000. Mr Sales contends that it does
not; Mr Gordon argues that it does. He relies on the code of practice prepared
by the Secretary of State under Section 118 of the Mental Health Act 1983 and
the first guiding principle when applying the code that people to whom the Act
applies:
"Should receive recognition of their basic human rights under the European
Convention of Human Rights."
Mr Sales submits Section 118 has nothing whatever to do with this case. This
case is not concerned with child visits under medical supervision and the
definition of medical treatment under Section 145 makes it perfectly clear that
in cases like the present child visits do not fall within the ambit of Section
118(1)(b). Mr Gordon drew my attention in his reply to HSC 1999/222 and says
that nurses are present when visits take place and that there will have been a
clinical assessment beforehand. In the result it is unnecessary for me to
decide the point because I am entirely satisfied that there has been no breach
of Article 8. My provisional view is that Mr Sales is correct; Section 118
does not apply. This case is not concerned with the code of practice but with
Directions issued pursuant to powers given by Section 17 of the National Health
Service Act 1977.
Mr Gordon argues that regardless of whether Article 8 is of direct effect
before 2 October 2000 the Directions do not comply with it. Article 8
provides:
"Rights to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home
and his correspondence.
2. There shall be no interference by a public authority with the exercise of
this right except such as is in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety or the
economic well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the rights and
freedoms of others."
The cornerstone of Mr Sales argument is that the Directions are entirely
compatible with Article 8 and a fortiori cannot therefore be characterised as
perverse and irrational. A cursory glance at Article 8(2) is enough to see
that a balancing exercise is required. The words necessary in a democratic
society flag up proportionality and the reference to the protection of
the rights and freedoms of others shows that in drafting these Directions
the Secretary of State has to weigh the interests of children on the one hand
against those of patients on the other. That it seems to me is precisely the
exercise to be carried out under domestic law regardless of the Convention.
Interestingly, it should be noted, there is no criticism of the three over
arching principles behind the Directions.
For reasons on which I shall expand in a moment, I accept Mr Sales' argument
that the Directions comply with Article 8. Whilst there appears to have been a
substantial delay in dealing with the Applicant's request for visits from his
nephews and nieces there is nothing inherent in the Directions themselves to
suggest that such a delay as has occurred will occur. The Directions set out
an entirely realistic procedure which seems to me to be perfectly capable of
being operated with due expedition. The fact, if it be the case, that it has
not been should be laid at the door of the hospital authority rather than the
Secretary of State.
There was considerable debate in argument about the ambit of family
life. Mr Sales contends that there is no presumption that family life
exists in the present type of case. It is up to the Applicant to establish as
a matter of fact that it does and he has not done so. Mr Gordon referred to a
number of authorities from which he says the following propositions can be
gleaned:
(i) The question of whether there is family life is not a narrow test
but one that is broadly applied.
(ii) A blood relationship is not essential.
(iii) Family life goes well beyond parental ties and embraces relatives such as
grandparents, uncles and aunts.
(iv) It is the exception rather than the rule that justifies treating a
relationship that would otherwise be classified as a "family relationship" as
having been extinguished.
(v) The margin of appreciation in these cases is not broad and has to be
carefully monitored.
Whilst I can accept the first three of these propositions I remain unpersuaded
about the fourth and fifth.
Marckx -v- Belgium (1979/80) 2EHRR 330 concerned the relationship
between an unmarried mother and her child. It was held that Article 8 makes no
distinction between the "legitimate" and the "illegitimate" family. The single
woman and her child is one form of the family no less than others. The Court
said at paragraph 45 of the judgment at page 348 that in its opinion "family
life" within the meaning of Article 8 includes at least the ties between near
relatives, for instance, those between grandparents and grandchildren, since
such relatives may play a considerable part in family life. However, the
context of Article 8 was different in Marckx from the present case
and more importantly there was not as here any conflict of convention rights.
There is a tension in the present case between the rights of the child and the
rights of the patient. In my judgment where, as here, there are conflicting
rights there is necessarily a wider margin of appreciation for the member state
in interpreting how the provision of the Article should be applied.
Keegan -v- Ireland (1994) 18 EHRR 342 concerned the placement for
adoption of a child by the mother without the father's knowledge or consent.
Although this accorded with Irish law and pursued the legitimate aim of
protecting the rights and freedoms of the child, the interference thereby
created with family life was not necessary in a democratic society and there
was a violation of Article 8. The placement jeopardised the father's ties with
the child and set in motion a process which put him at a significant
disadvantage in his contest with the prospective adopters for the custody of
the child. It was emphasised in the judgment that "family" in Article 8 was
not confined solely to marriage based relationships and could encompass other
de facto ties where the parties are living together outside marriage. There
thus exists a bond amounting to family life even if at the time of his or her
birth the parents are no longer cohabiting or if their relationship has then
ended.
Boughanemi -v- France (1996) 22 EHRR 228 involved a Tunisian who
had lived in France since 1968 but was deported in 1988 after a number of
criminal convictions. He returned to France and lived illegally with a French
woman whose child he formally recognised in April 1994. His parents, brothers
and sisters were legally resident in France. He was deported again in 1994.
It was held that there was no violation of Article 8. The Court did however
say that a finding that the Applicant had no private and family life in France
was not justified. The Court said at paragraph 35 on page 245:
"The concept of family life on which Article 8 is based embraces, even where
there is no co-habitation, the tie between a parent and his or her child,
regardless of whether or not the latter is legitimate."
Again the focus was on the immediate family and again there was no question of
conflicting convention rights.
None of the authorities persuades me that it is necessarily the case that the
relationship between an uncle or an aunt with a nephew or a niece amounts to
family life within the meaning of Article 8. Family life it seems to me, is an
elastic concept that depends very much on the facts of the individual case. In
some cases the existence of family life will be immediately obvious; in others
the reverse will be true. But the onus of establishing family life in each
case is in my judgment on the Applicant.
Accordingly it is important to look at the evidence in the present case. The
Applicant's complaint relates to nephews and nieces who are the children of two
of his sisters. The position is as follows. The two sisters, T and K, each
have six children. The Applicant is godfather to three in each family. Whilst
in Rampton up until September 1998 he was visited by K and some of her
children. T has not and will not visit Rampton with her children because it
would cause difficulties between her and her husband. Until 1995, when he was
in prison, he was permitted as a Category C prisoner visits from his child
relatives. He used to be transferred from Lewes Prison to Guernsey for ten
weeks at a time. This happened on about six occasions. When in Guernsey there
would be four or five visits a week. These would either be from relatives to
the prison or the Applicant would go from the prison to the homes of his
relatives and members of the prison staff would accompany him. It is said that
his last stay in Guernsey prison lasted seven months because his mother was
very ill at the time. There were almost daily visits to the hospital or his
sisters house and no restriction on contact with nephews and nieces. No
information is provided about the age of K's children or the extent to which
the Applicant has had contact with them over the years. There is minimal
evidence about his relationship with them. T's children are not relevant to
the application because there is no question of their going to Rampton.
Mr Sales submits that it is important not to equate the mere existence of a
relationship with family life. Generally, the protection of family life under
Article 8 involves cohabiting dependants, such as parents and their dependant,
minor children. Whether it extends to other relationships depends on the
circumstances of the particular case see App No 10375/83, S & S -v-
United Kingdom 10 December 1984 DR40, 196. I remain unpersuaded that
the relationship under consideration can be classified as family life.
The next issue is whether if there is an interference with family life the
Directions go beyond what is necessary in a democratic society. There is in my
judgment no doubt about the legitimacy of the objective pursued by the
Directions namely the protection of children. The Directions are in the
interests of public safety and also for the protection of the rights
and freedoms of others i.e. children who might otherwise be put at
risk. The Directions are a response to a pressing social need as identified in
the course of the Government's consultation process. In my judgment the
Directions are not disproportionate to the aims sought to be achieved. In the
application of the proportionality test (i.e. striking a balance between the
rights of the individual and the needs of society) the authorities of a
contracting state are accorded a margin of appreciation in determinating what
is necessary in a democratic society. In domestic law they are accorded a
discretionary area of judgment. See Lord Hope in R -v- DPP Ex Parte
Kebiline [1999] 3WLR 972, 993. The discretionary area of judgment will
be wider where the convention itself requires a balance to be struck. Lord
Hope said at 994C:
"It will be easier for such an area of judgment to be recognised where the
convention itself requires a balance to be struck, much less so where the right
is stated in terms which are unqualified. It will be easier for it to be
recognised where the issues involve questions of social or economic policy,
much less so where the rights are of high constitutional importance or are of a
kind where the courts are especially well placed to assess the need for
protection."
In the present case the convention requires a balance to be struck between the
rights of children and the rights of patients and accordingly the Secretary of
State enjoys a wide margin of discretion in determining what measures are
appropriate. This Court should hesitate before interfering, not least where it
is clear that the Directions have followed an extensive consultation exercise
with experts and interested bodies. There is a further point on which it is
unnecessary for me to dwell. In striking the balance, points out Mr Sales,
there can be no doubt that it is the rights of children that are the more
important, involving as they do rights to physical integrity, the opportunity
to develop their personalities free from harmful influences and to be free from
serious harm.
On the evidence before the Court I am unable to accept that family life is
established with which the Directions will interfere. If I am wrong about that
I am satisfied that directions are "necessary in a democratic society". The
Secretary of State has to achieve a difficult balance between the interests of
patients and the interests of children. Article 8 entitles him to do this and
in my judgment he has done so. There has been no breach of Article 8; its
provisions have been met.
The principle of illegality articulated in Ex parte
Simms
I have already touched on the objective of the Directions and the pressing
social need to protect children visiting patients in special hospitals. In my
judgment the content of the Directions does not exceed what is necessary. I
confess I have had some difficulty in following how Mr Gordon is assisted by
R -v- Secretary of State for the Home Department ex parte Simms
[1999] 3 WLR 328. That case was concerned with the construction of prison
rules. See Lord Steyn at p 340.
Conflict between the policy and its expressed objective.
I am unable to detect any conflict between the policy and its expressed
objectives. Mr Gordon's argument is that the Directions wreck contact across
the board and do not take account of the attachment that has arisen in
individual case. But in reality what happens is that there is a vetting
procedure to look at the circumstances of each case before a visit is approved
or otherwise. It is only in what is likely to be a small minority of cases
where the relationship falls outside paragraph 2 (2)(b) that visits will not be
permitted. If there are special circumstances in which the patient has good
reason for being visited by a child who is not within the permitted category
relationship the remedy is to apply to the Court for an order under the
Children Act 1989.
Conclusion
In my judgment Mr Sales is correct, this application is in reality a
rationality challenge. The Directions do not breach Article 8 of the ECHR.
The Secretary of State has had to conduct a balancing exercise between the
rights and interests of children on the one hand and patients on the other.
The Directions are the result of wide consultation with those having knowledge
and experience in the relevant field; they are carefully structured and build
in the necessary safeguards. There is no basis whatever for concluding they
are unlawful. Accordingly this application fails.
- - - - - - - - - -
MR JUSTICE SCOTT BAKER: For the reasons given in the judgment that has been
handed down, this application is dismissed.
Miss Morris, I have been told this case has been listed in the name of
the applicant and there is a question as to whether it should be reported under
initials.
MISS MORRIS: My Lord, my memory is that this Court did make a reporting
restriction at the beginning of the substantive hearing, because certainly
after the permission hearing there were some very unfortunate reports in the
press where the relevant family lived. My memory is that your Lordship did
issue reporting restrictions really in order to protect them as much as anyone.
In those circumstances, because of some of the materials in the judgment, I
would ask that that be continued.
MR JUSTICE SCOTT BAKER: Yes, I shall continue that order, then. I think it was
listed as in the name of the applicant on the last occasion, was it not?
MISS MORRIS: It was listed and an oral application was made at the beginning of
the hearing. That is my memory of what happened.
MR JUSTICE SCOTT BAKER: It should be reported in such a way that the individual
family cannot be identified.
MISS MORRIS: My Lord, I am grateful.
I do make an application for permission to appeal. The original
application was made essentially on two grounds: (1) irrationality and (2)
under the Convention. In particular I make my application for permission to
appeal in relation to the Convention point. The central issue is whether the
family life to which these patients are entitled is breached by the policy.
But ancillary to that is whether there is an article 14 issue of discrimination
and that is because of the difference between the prison policy and the policy
which pertains to those that are in special hospitals.
It is the applicant's case that there is nothing inherently more
dangerous or more risky to children by being a patient in a special hospital
than there is, for instance, in being a category A prisoner.
MR JUSTICE SCOTT BAKER: I did deal with that of course. You do not agree with
the answers.
MISS MORRIS: And in those circumstances, we say in particular that the public
interest is engaged, and we would ask for permission to appeal.
MR JUSTICE SCOTT BAKER: Well, I had better see what Miss McCafferty has to
say.
MCCAFFERTY: My Lord, the respondent resists the application for permission to
appeal. The Convention points were aired and aired thoroughly before your
Lordship and a good half of your Lordship's judgment deals with the Convention
points. In particular, as your Lordship has mentioned, you did indeed deal
with that and the judgment said that it does not involve a comparison of like
with like as regards the position of special hospitals and prison. It is the
respondent's submission that the judgment given has dealt with all the issues
comprehensively and conclusively and that permission should be refused.
MR JUSTICE SCOTT BAKER: I do not think a Convention point really does arise in
this case as you appreciate from the judgment. I think it is really a
rationality issue. So I am afraid your application is refused. You will have
to go to the other route.
MISS MCCAFFERTY: My Lord, the respondent would like an order for its costs.
MISS MORRIS: My Lord, I cannot resist that, save to say that the applicant is
legally aided and I would ask for an order in the usual terms.
MR JUSTICE SCOTT BAKER: You can have your costs. I can never remember what the
usual terms are.
MISS MORRIS: No, they change all the time.
MR JUSTICE SCOTT BAKER: Not to be enforced without permission? No, here we
are. The determination of the applicant's liability for the payment of such
costs be postponed pending further application.
MISS MORRIS: I am grateful. May I also have a legal aid taxation?
MR JUSTICE SCOTT BAKER: The certificate has been filed?
MISS MORRIS: Yes, my Lord. Miss Morris, I am very grateful to you and both
sides for your helpful arguments in this case.
© 2000 Crown Copyright
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