Report of the Joint Committee on Human Rights

Today, 9th September, the Parliamentary Joint Committee on Human Rights (JCHR)  published the report of their enquiry into ‘The right to family life: children whose mothers are in prison’

Below is a summary of the report and the recommendations. The full report can be accessed here. 

The enquiry began with a call for written evidence in September 2018 and there were 22 written submissions to the Committee. Between February and April 2019 there were four oral evidence hearings at which they heard from witnesses including children and families affected by maternal imprisonment, academics, representatives of NGOs, the chairman of the Sentencing Council and Government ministers.

The scale of the issues

• On 1 February 2019 there were 3,797 women in prison in England and Wales
• 8,106 women entered prison in the year to June 2018 on remand or to serve a sentence
• 82% have committed a non-violent offence
• In 2018, 62% of women in prison were sentenced to custodial sentences of less than 6 months
• Women given custodial sentences are almost twice as likely as men to have no previous convictions

It is unknown how many of these women are mothers and how many children are affected by maternal imprisonment each year.

Our starting premise is that the best way to safeguard the rights of children is not to send mothers to prison in the first place. However, we recognise that in certain cases the need to protect the public may result in a custodial sentence for mothers. For their children, the right to respect for family life must continue to be upheld and every step taken to ensure that they are able to maintain positive relationships with their mothers (paragraph 52)

The JCHR make recommendations to the Government in four key areas:

1. Data collection
2. Sentencing
3. Support for children whose mothers go to prison
4. Pregnancy and maternity

1. Data Collection

The JCHR submitted a Freedom of Information request to all the prisons holding women in the UK to ask how many women, held at 1^stFebruary 2019,  had children under the age of 18. They were not provided with the information and were advised that ‘Whilst the information did exist it was not collated centrally and it would therefore be disproportionately costly to provide it.’

The lack of reliable quantitative data on the number of children whose mothers are in prison and the number of mothers in prison is unacceptable  (paragraph 34)

The JCHR recommend that the following data should be collected: the number of mothers in prison; the number of children whose mothers are in prison; the number of women who are pregnant and give birth in prison. The report sets out why such data collection is necessary:

1. Without this knowledge at aggregated level it is impossible to design strategic policies or to evaluate their effectiveness
2. Prison authorities need to know that an individual mother is separated from her children
3. It is important that sentencers and other relevant authorities including schools can be made aware that child is separated from mother

During the enquiry it was suggested by witnesses that the reason data isn’t collected is because women are reluctant to disclose information about their children. The challenge made to the veracity of this assumption in oral evidence was noted by the JCHR and they have not accepted that reasoning as an excuse for the Ministry of Justice not to collect data.

On data collection they make the following recommendations:

• Mandatory data collection and publication must be urgently prioritised by the Ministry of Justice. This should include asking all women entering prison whether they have dependent children and what age they are. This information should then be verified by cross-referencing with child benefit data.
• Carrying out an annual census in prison in which women are asked whether they have dependent children and what ages they are.
• Collating and publishing this data

 

2. Sentencing

There is a consensus that the criminal justice system’s current approach to women who offend is not working well… We support the Government’s objective of reducing the number of women in custody, especially on short-term sentences and increasing the proportion of women managed in the community successfully. (paragraph 35)

The Committee considered Sentencing Guidelines, case law, statute and international rights conventions and heard evidence from witnesses including the Chair of the Sentencing Council. They were concerned that although case law sets out in principle that children should be considered when a primary carer is being sentenced, the existing Guidelines do not go far enough to ensure that happens, nor do sentencers always have sufficient information to properly make that assessment. They were concerned by the decrease in the use of Pre Sentence Reports which provide such information to the court.

Judges can only fulfil their obligation to weigh the Article 8 rights of a child when sentencing if they know that the child exists. At the moment there is no guarantee they will have that information. (paragraph 46)

To shift entrenched practice and protect children’s rights to family life, the sentencing framework needs to give greater visibility to the welfare of the child. (paragraph 51)

On sentencing they make the following recommendations:

• A Judge (or magistrate) must not sentence the primary carer of a dependent child without having a Pre Sentence Report which will contain sufficient information to enable them to assess the impact of the sentence on the child.
• The National Probation Service should cross-check with HMRC whether a woman is in receipt of child benefit
• To comply with obligations under the Human Rights Act the Judge must make every effort to understand the potential impact of a custodial sentence on children. This could include hearing from the child, if appropriate. Judges should state how they have taken such concerns into account in their sentencing remarks.
• A statutory duty (and not just a Sentencing Guideline) should be introduced to require that the welfare of the child must be at the forefront of the judge’s mind and the impact of sentencing on children must be a distinct consideration to which full weight must be given by the courts.
• The court should give advance notice when considering a custodial sentence so that care arrangements can be made. If it does impose custody it must be satisfied there are arrangements in place for the child, and if necessary defer sentence to allow such arrangements to be made.

Comment: The most significant of the above recommendations, in my opinion, is that there should be legislation which requires the welfare of the child to be in the judge’s mind when sentencing a primary carer. Such legislative protection would remove the discrimination that currently exists as a consequence of the fact that the Children Act 1989 (which states that the child’s welfare is the paramount consideration of the court in all proceedings concerning a child), only applies to proceedings within the family courts and not in the criminal courts.

It is also important to note that the report was finalised prior to an announcement from the Sentencing Council that from 1^stOctober 2019 there will be extended guidelines on the mitigating factor ‘sole or primary carer for dependent relatives’ which will go some way to meeting the JCHR’s recommendations. Further information on that Guideline can be found here.

3. Support for children whose mothers go to prison

Children cannot receive help if those who are responsible for providing that help do not know that a child has a parent in prison (paragraph 64)

During the enquiry there was a great deal of discussion with the Minister for Children and Families about whether or not children with a parent in prison should be considered as ‘children in need’ under Section 17 of the Children Act 1989. The JCHR reached this conclusion: ‘We are very concerned that gaps in the current framework mean that children like Georgia [a witness to the enquiry], who should be considered as potential ‘children in need’, are being left with no support and expected to fend for themselves.  The ‘Working Together’ guidance [Working Together to Safeguard Children (2018)] does not clearly direct professionals to consider whether these children may qualify as children in need.’  They accepted that not every child with a parent in prison will be a child in need, but it is necessary for an assessment to be made.

The JCHR also took account of the lack of support available for those who care for children whose parent is in prison, and the financial toll that such care, and any visits to the prison, have on the carer.

On support for children with a mother in prison they make the following recommendations:

• The child’s right to respect for family life should be upheld
• The Department of Education should revise the framework for safeguarding and promoting the welfare of children so that greater attention is paid to the needs of children and their families when mothers go to prison.
• There should be an explicit duty on probation and prison staff to inform the relevant local authority children’s services when they become aware that a prisoners has children.
• The Department of Education should consider issuing more tailored guidance for schools on how to support children whose mothers are in prison, providing relevant training for teachers and school staff.
• Kinship carers should be entitled to financial and practical support. This should include an allowance to cover the costs of raising a child.
• Mothers should where practicable be placed in prisons nearer to their home.
• Non-means tested financial help should be made available to allow children to visit their mothers (or primary carers) in prison.
• Contact between mother and child is based on the child’s right to respect for family life rather than the mother’s behaviour in prison.
• The Government must implement the Farmer Review recommendations as soon as possible

 

4. Pregnancy and Maternity

Imprisonment poses a threat to their [pregnant and post-natal women and babies] human rights (paragraph 95)

The JCHR heard evidence on the difficulties which pregnant and post-natal women face in prison. They were concerned that women’s dignity and rights are not being protected by current practice, and they found that it is almost always in their best interests for babies and very young children to be with their mothers during the crucial stages of early development. They found that 50% of the women who apply for a place on a Mother and Baby Unit (MBU) are given a place with their baby and the remaining 50% are separated from their babies shortly after birth. They heard that there is little support for women who are separated from their babies despite the risk this situation holds for suicide and self harm.

On pregnancy and maternity they make the following recommendations:

• The process for applying for and allocating places in Mother and Baby Units (MBUs) must be reformed
• The Women’s Policy Framework which requires that the needs of pregnant women and women who have given birth are assessed and addressed, and that pre-natal and post-natal care is available in all women’s prisons, should be implemented.
• If a baby is born during a mother’s sentence the mother and baby should be discharged from hospital to an MBU other than in exceptional circumstances
• When a mother with a baby is sent to prison only in exceptional circumstances should her sentence start before a place has been secured for her in a MBU

 

This is a comprehensive and compelling report. The Committee have taken seriously the rights and needs of children affected by maternal imprisonment. I leave the final word to the Committee

We expect the Government to act swiftly in each of these areas in order to prevent another generation of children suffering the irreparable harm caused when mothers go to prison