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Probation, human rights, article 8, judicial review

The probation service was not subject to the child law regime when making a licence condition restricting contact between a prisoner and his…

R (on the application of H) v National Probation Service – QBD, Mr Justice Kerr, 16 December 2015


The probation service was not subject to the child law regime when making a licence condition restricting contact between a prisoner released on licence and his children.


The claimant had been imprisoned for distributing a terrorist publication. He was released on licence with no restrictions on contact with his children. The probation service became concerned about the risk of the children being radicalised; it, therefore, imposed a condition restricting all contact pending an assessment. The condition was later amended to allow unsupervised contact.

The claimant argued there was a comprehensive and detailed legislative regime for the safeguarding of children's welfare under which, save for certain limited exceptions, there had to be judicial authorisation of any separation of children from their parents. He submitted that the probation service’s decision was unlawful and in breach of his right to family life under Article 8 of the European Convention. He, therefore, applied for permission to bring a judicial review.


Mr Justice Kerr, refusing permission, held that the probation service was not directly bound by the requirement under the Children Act 2004 s.11 to make arrangements to safeguard and promote the welfare of children. There was nothing to suggest that the full array of measures in the child law regime should be applied to the setting of licence conditions. The management of an offender was the responsibility of the probation service, not a local authority, and that the primary responsibility was to promote rehabilitation, and to ensure that conditions were in place to enable that to happen and to protect the public. 

Further, the margin of appreciation in cases that engaged national security concerns was considerable. The legislative aim was to protect the public from the risk of radicalisation and a short separation of children from their father was not a disproportionate means for achieving that aim; radicalisation could lead to irreparable harm, not just to the children, but to the public.


The judge concluded that the issue of contact was part of the management of the offender and his risk to the public rather than a child law issue per se. This is important given, for example, the onerous legal obligations that fall on a local authority in child care matters. The issue of national security and wider public interest loomed large here when looking at justification and proportionality under Article 8.

For advice or assistance on any of the matters raised, please contact:

  • Peter Wake, Partner on 0151 242 6866 or email
  • Kate Riley, Solicitor on 0151 242 6868 or email

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