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October 5, 2019

Should mothers ever be imprisoned?

This week we learned that a new born baby died in Bronzefield Prison on 27th September. There are no details, but it was reported that the mother gave birth alone in her cell. This guest blog by Rona Epstein was written before this news broke:

On 29 July 2018 Rona wrote on this blog about the harms done to children by the imprisonment of their mothers. In it she recounted how the right of the child to a family life should be taken into account when a parent is to be sentenced for a criminal offence. Rona writes:

The Human Rights Act 1998 obliges all public bodies, including courts, to comply with the rights enshrined in the European Convention on Human Rights (ECHR). Article 8 of the ECHR protects respect for private and family life. In 2001 the Court of Appeal heard a case concerning the prison rule that babies in a Mother and Baby Unit had to leave the unit at the age of 18 months.

Two mothers, P and Q, challenged the inflexible application of that rule (R (on the application of P and Q) v Secretary of State for the Home Department [2001] EWCA Civ 1151). Giving judgment, Lord Justice Phillips stated that imprisoning a parent interferes with the Article 8 rights of any child potentially affected by a parent’s imprisonment. When sentencing a parent with dependent children, the court must weigh the rights of the child against the seriousness of the offence in a ‘balancing exercise’.

Thus magistrates and judges must:

  1. acquire information about dependent children and
  2. balance the Article 8 rights of the child against the seriousness of the mother’s offence. (R (on the application of P and Q) v Secretary of State for the Home Department [2001] EWCA Civ 1151).

In 2012 I carried out research to explore to what extent, if at all, the required balancing exercise, as set out by Lord Justice Phillips, is done in courts in England and Wales. The research covered 75 cases of the imposition of custody (suspended and immediate) on mothers who care for a dependent child.

In the sentencing remarks studied there was no evidence of any specific consideration of the Article 8 rights of the child. In some cases, the court made no mention at all of the accused’s children. 

Now the Parliamentary Joint Committee on Human Rights has issued its report on children’s rights when mothers are sentenced to imprisonment. The report argues that there is an urgent need for reform.

The report says that courts often lack adequate information about whether the defendant has children, and what the impact of a prison sentence would be on them. When sentencing a mother, the judge or magistrate must make reasonable enquiries to establish whether they are the primary carer of a child. If they are, a pre-sentence report must be made available at the sentencing hearing, unless there are exceptional circumstances. Yet in one case I looked at where the defendant was a single parent, sole carer of four children aged 19, 9, 7 and 5, the judge said: ‘I am asked to adjourn sentence for a pre-sentence report. I am bound to say that I do not consider that a pre-sentence report would assist me’

The parliamentary report says sentencers must ensure they have sufficient information about the likely consequences of separation of the child from the primary carer, including hearing from the child, if appropriate. Sentencers – judges and magistrates – should state in their sentencing remarks how they have taken this information into account. The impact of sentencing on children must be a distinct consideration to which the courts give full weight. This duty, which reflects existing case law, should be given statutory force.  Committee Chair Harriet Harman MP said: ‘Judges can’t respect the human right of a child to family life if they don’t know the child exists. At the moment there is no guarantee that they have this information; there must be proper checks before sentencing’.

What does the report suggest about our sentencing practice?  Why have the courts been so reluctant to enquire from defendants whether they are parents of dependent children and, if they are, to take into account the rights of affected children?  This is despite the fact that they are required to do so by the United Nations Convention on the Rights of the Child, the European Convention on Human Rights, and the Human Rights Act. There have been clear instructions given by the senior courts to do so and there is the moral imperative to protect innocent children. Issues of gender, class, legal training and traditions, have all undoubtedly played their part in this lack of compliance with human rights law.

Rona Epstein is an Honorary Research Fellow at Coventry Law School.  R.Epstein@coventry.ac.uk