Human rights and children of prisoners

At the Joint Committee on Human Rights meeting on 13thMarch 2019, Edward Argar MP, Under Secretary at the Ministry of Justice with responsibility for women in the criminal justice system, and Nadhim Zahawi MP, Under Secretary at the Department of Education, with responsibility for Children and Families, attended. They were present to respond to questions from the Committee in the final oral evidence hearing for the inquiry into the right to family life for children whose mothers is imprisoned.

This post will provide a summary of key points made, but the full proceedings can be watched here.

The first question was about data collection.

No one knows how many children have a mother in prison.  Let me just repeat that. No one knows who these children are, who is looking after them, where they live, how they feel, whether they are doing ok. No one knows how many women in prison are suffering anguish every day because they are not with their children and they maybe don’t even know where their children are. (In a survey done around 2006/7 it was found that out of 1400 women in HMP Holloway 42 did not know who was looking after their children.)

Harriet Harman, Chair of the JCHR, explained to the witnesses why this data matters.

 ‘Isn’t is important to know how many women in prison have children because:

  1. You need to know in policy terms so that you know what’s going on
  2. You and those working in prison neeed to know that that mother is separated from her children, and you need to know that that child is separated from their mother?’

HH suggested it should be mandatory to ask women on arrival at prison about their children, and that information should be collected.

There was, as was expected, plenty of obfuscatory comment from the witnesses, blaming the lack of data on women who they say don’t want to give this information. They said that even if the question is asked they might not get the info. HH pointedly remarked that if they don’t ask the question they will certainly not get the information. Eventually EA accepted that it would be right for the MOJ to know via an annual census how many women in prison are mothers of dependent children. NZ said the way forward was to improve data sharing between agencies, although didn’t say who should have responsibility for finding out the information in the first place.

HH solved the problem for him by suggesting that if the prison asks they can pass it on to social services and that will deal with it very easily.

Next question was about women experiencing delay between sentencing and being allowed to telephone their children or find out where their children are. Again, this was blamed on women not being willing to engage with social services in advance, (see Lina’s evidence for a counter narrative) but they did accept that they should ‘facilitate telephone contact as soon as possible’.

Baroness Hamwee moved the questions on to sentencing.

Should a child’s interests be the paramount consideration in their mother’s sentencing hearing?

EA immediately said he didn’t think so and relied on the evidence of Holroyde LJ to the JCHR who said that judges have a number of factors to consider.

Yes said the Committee, but when would a child’s welfare not be paramount?

HH spelled it out ’We’re asking you shouldn’t there be a different criteria for sentencing decisions when children will be impacted, and shouldn’t it be the same as the family court that the child’s best interests are the paramount consideration of the court? What is the justification for not making the child’s interests paramount?’

This question above is the reason I wrote my PhD thesis. I was trying to get an answer to that question. I wanted sentencers and policy makers to start to see that differentiated treatment of children in different court forums is potentially discriminatory.

EA responded saying that there will be considerations when the offence is seriousness or imprisonment is necessary for public protection.  This is of course a very good point.

HH suggested a construct whereby the child’s interests are paramount except for when public safety requires imprisonment.

At that point Lord Woolf raised an important point:

‘Knowledge of children’s existence is critical. A judge no matter how good he is can only start taking it into account if he knows about it. Unless we start off with making it absolutely critical that judges know that they’ve got to insist on finding out about children the process won’t start.’

Lord Woolf is absolutely right. Judges need to know two things – firstly what their duty is as sentencers to consider the child’s welfare, and secondly what the impact of the sentence on the child will be.

EA and NZ responded saying that statutory guidance (Working Together) says that probation staff should notify the local authority if they are in contact with a primary carer of children who is being sentenced. EA said the challenge is the consistency in Pre Sentence Reports, the women’s willingness to talk about their children.

He then said that there was some anecdotal evidence that judges don’t take these things into account.

(That ‘anecdotal evidence’ is my 277 page thesis which employed rigrorous mixed methods data collection and analysis to explore the way Crown Court judges think about children in sentencing.)

He went on to say that the PRT report, ‘What about me?’ suggests it’s the court’s duty to make sure it knows about the children. Said this was an ‘interesting angle’.

It’s not an interesting angle – it’s a principle established by the case of R v Bishop  [2011] WL 84407.

The witnesses were asked if the forthcoming Farmer Review on women’s family ties would add anything that would help judges get family information at sentencing. My understanding is that the Farmer Review does not touch upon sentencing at all. I may be wrong, but as it’s not published yet I can’t be sure.

The next question was about Child Impact Statements – would they be useful for courts.

One of the witnesses said that probation are trialling a new PSR checklist regarding children, which I think is the list I created for the film for probation staff which covers all the vital information a court should know about a child. Great to hear it’s in use.

EA then said that he agreed with Holroyde LJ that judges have a very clear view of the child’s voice and what they think and that he found Holroyde LJ’s evidence powerful.

I would love to know upon what basis EA has formed that view. In all the robust, empirical research which has been done on this issue in the past three years, no one has found that children ‘have a voice’ in maternal sentencing proceedings. The opposite is in fact true. (See the work of Dr Natalie Booth, Lucy Baldwin & Rona Epstein, Prison Reform Trust, and myself).

With all due respect Holroyde LJ cannot know what the daily practice of magistrates and judges is apart from the research evidence which myself and others have produced. As far as I am aware the Sentencing Council have not conducted any research themselves to counter it.

I think perhaps HH was thinking the same thing as she responded saying:

‘Children said they were invisible. A Child Impact Assessment needs to do 2 things. 1) inform the court 2) make the child feel heard.

Moving on…

Lord Trimble asked about the support available for children whose mothers are in prison. He asked why children with a parent in prison are not mentioned under s.17 of the Children Act 1989 as ‘children in need’ in the same way that other groups of potentially vulnerable children are.

That began a long period of circular arguments from NZ which I summarise as follows. We don’t think we should classify children of prisoners as children in need, because not all of them will need support. We therefore won’t assess all children with a parent in prison because they won’t all need support. We only put support in if a child is in need.

The Committee were bothered by this. Lord Trimble, Lady Lawrence, Harriet Harman and Fiona Bruce MP all tried to get NZ to see that in order to judge whether or not a child is in need of support, they must be assessed. Lady Lawrence said ‘if all the kids are assessed you’d know which ones have needs and which don’t. If you pick a group you will miss some. These kids are asking ‘What about me?’

NZ countered this by saying that an assessment of a child’s need could be disruptive to them. He said that due to inconsistent standards in social care a child could be assessed and still not receive the right support, so therefore it was better to focus on improving social care for all children, rather than assessing the needs of this group of children.

HH asked if it was concerning to NZ that the Local Government Association and the Association of Directors of Children’s Services declined to give oral or written evidence to the hearing because ‘it wasn’t an area they knew about’.

This is another moment for pause. This is the reality of the situation. Children with a parent in prison have been utterly disregarded by statutory agencies and have not been given the support they should have. This is discriminatory under Article 2 of the UN Convention on the Rights of the Child 1989 which states that the state should protect children from discrimination that they may face as a consequence of the status or activities of their parents.

HH ‘So what you’re saying is these kids are fine so long as we don’t stigmatise them [by recognising they may be vulnerable and assessing their needs]?

This portion of questioning ended with Fiona Bruce MP: ‘There is no system here and what troubles me is that this issue was considered by Elizabeth Fry and John Bunyan and we are still discussing it. Something has to be done. The system has to be in place and it has to be improved and it has to be done urgently.’

Lord Woolf asked if the two departments represented were working together with a clear picture of the risk that could be caused by ignoring the needs of these children?  He wanted to see evidence that would show they could take the situation forward.

I was utterly dismayed that EA’s answer focused on the way that the departments were working together with children at risk of offending or being excluded from school. He talked about how Youth Offending Teams are effective in working with these children.

I wanted to shout at him – how dare you suggest that the path these children will take is into offending or exclusion. I wanted to take him to meet all the kids I’ve met who are doing their best to manage their school work and their friendships and their sports and hobbies and lives whilst dealing with the enormous upheaval of losing their mum to prison. I wanted to take him to meet all the carers working so hard to take care of these children, with absolutely no financial or other support from the state.

Youth Offending teams are not the whole answer. Early years support, CAMHS provision, extra payments to schools to support these kids, weekly payments for kin carers. These are the kind of things the departments should be talking about.

EA did say the key thing is to keep families together and not send mothers to prison, so that was good.

There were questions on the distance children have to travel to see their mothers, and the difficulties for families to fund that travel.

EA agreed that is challenging but said the Assisted Prison Visits Scheme is well used and helps families.  The reality is that the APV is extremely limited and excludes many families. Only those in receipt of benefits are entitled. Working carers who have taken on the care of children of a mother in prison often do not have money for travel and even for those on benefits full costs are not always repaid. There is a limit of one visit per fortnight and mileage is paid at 13p per mile (as opposed to 45p per mile for business rates). The cheapest transport only is allowed therefore peak time trains not allowed which can make it impossible to get to a visit on time. Taxis are only ‘considered’ if more than 20 minutes walk in one direction or over 75 years old. The route between stations and women’s prisons often has no pavements therefore it is unsuitable for children to walk regardless of distance.

The important issue of phone calls and visits for children being used as part of the incentives scheme for prisoners was raised. EA acknowledged that it was absolutely right to mention this and there needs to be consideration of how it can be used without impacting the child.

The questions then moved on to pregnancy and births in prison. The witnesses were unable to give any data about the numbers of women who give birth in prison, the number who are taken to hospital for births, the numbers separated from their baby at birth, the numbers who later are allowed their baby to come and live on a Mother and Baby Unit with them, and the number of women transported to give birth whilst handcuffed.

Their lack of information indicates that as research has found pregnant women and new mothers and babies are treated very badly within the prison system. For more on this read the work of Dr Laura Abbott and Birth Companions.

The hearing ended with HH thanking the witnesses for attending and left them with a ‘hope you will find our report compelling and useful.’

All credit to a hardworking and utterly engaged Human Rights Committee who for 90 minutes on one of the most fraught political days in Westminster, gave their full attention to children affected by maternal imprisonment.

It is time these children were given that sort of attention.

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