The following information and links will assist if you would like to respond to the Sentencing Council’s Consultation on the proposed expanded Guidelines for the mitigating factor ‘sole or primary carer for dependent relatives’, which is of course relevant in cases where the defendant is the mother of dependent children
The deadline for responses is the 23rd May 2019
The information about the consultation can be found here
You can fill in the consultation online here but it is 27 pages long, so you may wish to email a shorter response to: firstname.lastname@example.org
The relevant section for comment is found at p.26 of Appendix A , M14,
It proposes the following expanded explanation:
‘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. 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 childIn such situations the court should ask the Probation Service to address these issues in a PSR.’
My own view is that it should state that a Pre Sentence Report should be required in every case where the defendant is the primary carer for dependent children or is pregnant with a child. Not just in cases where the woman is pregnant.
The other way Guidelines could be strengthened would be to include, as with the Child Cruelty Guidelines, a ‘Step 5′ in sentencing which directs the sentencer to consider the parental responsibility of a sole or primary carer’
Parental responsibilities of sole or primary carers
In the majority of child cruelty cases the offender will have parental responsibility for the victim.
When considering whether to impose custody the court should step back and review whether this sentence will be in the best interests of the victim (as well as other children in the offender’s care). This must be balanced with the seriousness of the offence and all sentencing options remain open to the court but careful consideration should be given to the effect that a custodial sentence could have on the family life of the victim and whether this is proportionate to the seriousness of the offence. This may be of particular relevance in lower culpability cases or where the offender has otherwise been a loving and capable parent/carer.
Where custody is unavoidable consideration of the impact on the offender’s children may be relevant to the length of the sentence imposed. For more serious offences where a substantial period of custody is appropriate, this consideration will carry less weight.’
Finally, I think it should align with the new guidance recently issued by the National Probation Service in March 2019, which says that an adjournment for a Pre Sentence Report is mandatory when the person at risk of custody is the primary or main carer with responsibilities for children.
‘Those with Primary / Main Caring Responsibilities: For those at risk of custody and who are primary / main carers with responsibilities for children / dependents, an adjournment [for a Pre-Sentence Report] is considered mandatory to ensure that: · The impact of a custodial sentence on dependents is considered · Care plans are developed and in place with Children’s Services or Adult Safeguarding Services.
Where children are a factor: Safeguarding Children: Our “full part” in safeguarding children and promoting their welfare, NPS guidance 2015 states: “If an offender has caring responsibility for a child, or has regular contact with a child, a system needs to be in place to check whether the child/ren is known to Children Services. Separately, check if the Police are aware of any domestic abuse concerns in the household. Any relevant information must form part of the overall assessment of the offender and his/her circumstances, including details of previous involvement if a case is closed. When checks are not completed in time for Court reports, a clear note to that effect must be recorded in the report and NDelius (case management system). It must be followed up immediately if the offender is given a form of probation supervision.” (NPS Pre-Sentence Reports: Interim Guidance on Report Formats)
If you want more information this blog explains why I think we need a Sentencing Guideline for primary carers
This recent case demonstrates why a Sentencing Guideline is needed. The parents of 4 children were sent to prison for not paying tax or VAT and the case was reported in the Bristol Post on 25th April.
When the Judge was told the couple had no one to look after their 16 year old, 7 year old and 5 year old twins, ‘Judge Horton said he was the lead judge in the south west on BAME issues, and he was surprised that there was no one else in the Chinese community in Bristol that would step in and look after the couple’s four children.
“I have never in my whole career ever come across any members of the Chinese community that don’t have lots of friends and family who would help. I do not accept that there will be no one who will be able to look after these children,” he said.
“In fact, I’ve never come across a parent who is faced with this situation and has done nothing to ensure that someone is coming to look after their children. If that really is their attitude to their children, maybe it is better that they are taken into care,” he added.
This is horrifying and a complete disregard for the realities of the situation. If you want to know more then watch this short film