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The imprisonment of mothers harms the interests of their children

29 Jul 2018

Today’s is a guest blog from Rona Epstein, research fellow at Coventry Law School. For several years she has been researching the reasons why women are imprisoned. She has highlighted the imprisonment of women for non-payment of council tax and how the sentencing of mothers violates human rights.

‘If you had three wishes what would they be?’

‘My mum to come back, my mum to come back, my mum to come back’ (Caleb, 7 years old).

This quote is from Shona Minson’s recent research on the effect on children of their mother’s imprisonment. When mothers go to prison the suffering caused to their children may be intense, and the effects long lasting. Lucy Baldwin and I also interviewed mothers for our research on short sentences:

My middle one started wetting the bed when I went to prison [he was 4 at the time] – it’s stopping now – but he still gets anxious if I leave him. The baby, I think, feels different about me – I just don’t feel as close to her – but maybe that’s my guilt. The oldest one won’t talk about it but I know she was bullied because I went to prison. When I came out of prison I thought life would go back to normal. … But I don’t think things will ever be the same again. I have a distance with my eldest I can’t seem to get over. My son still wets the bed and he was dry before I went to prison. He is an anxious soul now and again. I know it affected him badly and he had nightmares about his dad disappearing too. My eldest was bullied at school… The school are keeping an eye on Mary to make sure it’s all stopped now but I think she is just really embarrassed and ashamed of me actually, which obviously makes me feel beyond guilty. I have so much to make up [to my children]. They shouldn’t have suffered because of what I did – I think that’s wrong. There were other ways to punish me and that be fair enough, I deserved it, but I don’t think they had to be punished too. I just don’t think that was fair. I hate myself for what happened really. Can’t change it though, can I?

The United Nations Convention on the Rights of the Child (CRC) intended to secure specific children’s rights, was adopted in 1989 and entered into force in 1990. Article 3 (1) of the CRC states: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

The principle of the best interests of the child plays a role if a parent is imprisoned, which infringes upon the right of the child to parental care. The UN Committee on the Rights of the Child has indicated that the best interests of the child of a defendant or an imprisoned parent must be considered carefully and independently by ‘competent professionals and taken into account in all decisions related to detention, including pre-trial detention and sentencing, and decisions concerning the placement of the child’.

The European Convention (ECHR) 1950: the crux of the United Nations CRC is the principle of the best interests of the child. The ECHR, on the other hand, protects the child’s interests through the right to respect for a private and family life (Article 8).   

The UK Supreme Court: Lady Justice Hale cited the need to consider the best interests of the child in a Supreme Court case in 2011 concerning deportation of a mother of young children.  She said: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. (ZH (Tanzania)  (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2011] UKSC 4.) 

P and Q: In 2001 the Court of Appeal decided 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.

Lord Justice Phillips stated that imprisoning a parent interferes with the rights of the child. In sentencing a mother 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).

These principles were confirmed in 2012 by Lord Justice Hughes: ‘First, the sentencing of a defendant inevitably engages not only her own article 8 family life but also that of her family and that includes (but is not limited to) any dependent child or children.’  (R v Petherick [2012] EWCA Crim 2214.)

Research on sentencing: My research explored to what extent, if at all, the required balancing exercise, as set out by Lord Justice Phillips in the case of P and Q, takes place in the English sentencing courts and whether the courts are complying with the Human Rights Act in this respect. The research covered 75 cases of the imposition of custody (suspended and immediate) on mothers who care for a dependent child. (R. Epstein (2012) Mothers in Prison: The Sentencing of Mothers and the Rights of the Child)

In the sentencing remarks studied there was no evidence of any specific consideration of the Article 8 rights of the child. There was wide variation in the extent to which the care of dependent children appeared to be considered in sentencing, with the stress on the welfare of children rather than on the child’s rights. In some cases, the court made no mention at all of the accused’s children.  In other cases the courts alluded to the trauma and misery caused to the children, but blamed the defendant, did not consider the rights of the children and did not appear to impose an alternative or reduced sentence.  In some cases the court considered the welfare of the children and ordered a suspended term of imprisonment. In only a few Court of Appeal cases did the judges acknowledge the plight of the child and reduce the sentence length. However, even in the Court of Appeal, specific reference was not made to the Article 8 rights of the child. This does not mean that sentencers are silent on the matter of defendants’ dependent children.  The care of children has long been regarded as a mitigating factor.  Sentencing guidelines state that ‘for offenders on the cusp of custody, imprisonment should not be imposed when there would be an impact on defendants which would make a custodial sentence disproportionate to achieving the aims of sentencing.’  Reporting on this research, I called for training for all sentencers in how to conduct the ‘balancing exercise’.

Shona Minson’s training materials for lawyers and judges are now in use and the Lord Chancellor recently said that women should not be sent to prison unless they have committed a serious crime. Can significant change be on the way?