Do we need another Guideline?

Last week the Sentencing Council published for consultation their plans to provide expanded explanations in offence specific guidelines in England and Wales.  Lord Justice Holroyde, the Council’s Chair, mentioned it during the oral evidence session of the Joint Committee on Human Rights Inquiry into the right to family life for children whose mothers are sentenced to imprisonment, as it includes an expanded explanation of the words ‘sole or primary carer of dependent relatives’.

The newly published consultation suggests an expanded account of the words ‘sole or primary carer for dependent relatives’ which repeats the guidance used in the Imposition of Custodial and Community Sentences Definitive Guideline (2017).

‘M14. Sole or primary carer for dependent relatives.  This factor is particularly relevant where an offender is on the cusp of custody or where the suitability of a community order is being considered. For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.

It adds the following sentences:

‘Where custody is unavoidable consideration of the impact on dependants may be relevant to the length of the sentence imposed. For more serious offences where a substantial period of custody is appropriate, this factor will carry less weight. In addition when sentencing an offender who is pregnant relevant considerations may include:any effect of the sentence on the health of the offender and any effect of the sentence on the unborn child. In such situations the court should ask the Probation Service to address these issues in a PSR.’

This does not offer any sort of guarantee to children that their rights will be considered if their mother is being sentenced.

It suggests this factor of ‘sole or primary carer’ has particular relevance only in ‘cusp’ cases or community sentences. It does not say that in every case sentencers should ensure that they know whether or not there are dependent children who will be affected by a custodial sentence and that the welfare of those children is a factor which must be considered and given weight in their decision making. It does not say that in every case where the defendant is a sole or primary carer for dependent children there should be a Pre Sentence Report (PSR). There is no mechanism for the child’s voice to be heard, or their situation to be considered.

Having researched, for the past 6 years, the rights of children during their mothers’ sentencing hearings I’ve come to the conclusion that the consideration of children in sentencing hearings is inconsistent and often inadequate. Despite a mention in the Sentencing Guidelines and a number of cases that make it very clear it is the court’s responsibility to inform itself about the impact of any sentence on dependant children, this rarely happens.

I’m not going to rehearse the lack of support given to children when their mother is imprisoned, or the way that those who step in to care for them receive no financial or other help from local authorities even when they ask for it. If you want to know more read this paper or watch this evidence hearing paying particular attention to Lucy Baldwin, from De Montfort University, and Stuart Harrington from Barnardo’s.  There is plenty of clear evidence that children’s current and future life chances are severely diminished when they lose their mother to imprisonment.

It is imperative that sentencers, whether judges or magistrates, should do as much as they can to ensure that they understand those consequences, so that they can properly be balanced against all other factors in the case. As a senior judge stated in a film made for the judiciary:

‘It is important that judicial office holders, judges and magistrates, remind themselves when sentencing an individual who is a carer for a dependent child that that is a factor that they must very much bear in mind. It may not result in the imposition of a non-custodial sentence. It may ultimately only result in a reduction in an inevitable custodial sentence, but it is a factor that needs to be borne in mind… The court is concerned with administering justice generally, so that is to the victims, to the public at large, but also to the dependent children of that individual.’

The current Sentencing Guidelines do not provide that kind of clear and robust guidance, and Holroyde LJ told the JCHR that there is no need for any improved guidance from the sentencing Council.

‘I do [think that children’s rights are at the forefront of the judges’ minds], because the sentencer is directed to consider the effect of imprisonment on others. If there is a mother of children or, indeed, a father who is the sole or primary carer for children before the court, the consequence for others is clearly a factor that has to be borne in mind.’

He rejected the idea of specifically referring to the child’s best interests as a consideration for the court and suggested that it is just one of many factors to consider:

‘I have indicated that the effect on others, including children, is a topic to which the sentencer is directed to have attention. It would be appreciated, I am sure, that the sentencer has a number of considerations to bear in mind, including perhaps most obviously the effect of the crime on victims. We do not spell out in terms in our guidelines, which we like to keep pretty short and focused so far as possible, any particular approach.’

I disagree with Lord Justice Holroyde’s belief that sentencers are paying sufficient attention to the Guidelines and case law which provide guidance on the consideration of children in adult sentencing decisions.

I asked 20 Crown Court judges the question, “Do you know of any sentencing guidelines or authorities that you would follow when determining the weight that should be given to a defendant’s primary or sole caregiving status?”

• 3 said they did not believe the sentencing guidelines contained any guidance on it.
• 3 said there were no authorities on the point.
• 2 said there were authorities, but they did not need to apply them.
• 3 said they knew there were authorities and said these meant children should not be a factor that mitigated in sentence.
• 12 knew of authorities and understood they needed to balance this
• 1 judge said the welfare of the child should be at the forefront of the judge’s mind.
• 0 judges knew that the duty was on the court to get that information.
• 3 judges regarded consideration of dependent children as being contrary to justice.
• 4 said the consequences on dependent children are entirely the responsibility of the mother and, therefore, the court does not need, nor should it try, to reduce the harms that might be suffered by the children.
• 1 judge took the view that being a parent made the offender more culpable and they should receive a harsher sentence. (Minson, 2017)

I do not think that the proposed expanded explanation will ensure a consistent and right approach to children whose primary carer is sentenced. I am disappointed that the expanded explanation does not go as far as the Child Cruelty Guideline 2019 which has added ‘Consideration of Parental Responsibility’ as ‘Step 5’ in the sentencing process. In a situation where the child is quite possibly the victim of the parent’s offence, it tells the court to give particular attention to the effect a custodial sentence could have on the family life of the victim and whether this is proportionate to the seriousness of offence. I find it incongrous that, where a child may have been harmed by their parent, the courts are now given a very specific directive to consider that this could also still be harmful for the child to remove their parent, but this directive is not present in any other guideline where the child has not been harmed by their parent.

I shall be responding to the consultation. I encourage all other interested parties to do so.

Only by compelling sentencers on every occasion to go through a process of careful consideration of children’s rights and welfare will children be properly regarded and safeguarded within the sentencing process.

[The Joint Committee on Human Rights are currently holding an inquiry into the right to family life of children whose mother is in prison. They have collected written evidence and have held 3 out of an intended 4 oral evidence hearings with the final hearing taking place this Wednesday afternoon at which Edward Argar MP, Minister with responsibility for women in the Criminal Justice System at the Ministry of Justice, and Nadhim Zahawi MP, Minister with responsibility for children at the Department for Education, will give evidence to the Committee.]