This week, the 30th anniversary of the UN Convention on the Rights of the Child and it seems fitting that I’ve spent my week travelling in England and to Northern Ireland to talk about the rights of children whose mothers or primary carers are sentenced and imprisoned. I’ve spoken to 3rd sector organisations, civil servants, sentencers, probation staff, public prosecutors and academics. I’ve been talking about children’s rights under Article 2 to have protection from the state from discrimination or punishment which they face because of the status or activities of their parents, Articles 3 & 12 which say that children’s best interests should be considered and their voices should be heard in all matters concerning them, and Article 20 which gives children separated from their parents the right to special assistance from the state.
It’s been a good year for progress on these issues in England and Wales as the Joint Committee on Human Rights (JCHR) undertook their enquiry into the right to family life of children whose mothers are in prison and published a comprehensive report and recommendations, the Sentencing Council published a new sentencing guideline setting out in detail what a sentencer should think about when sentencing a ‘sole or primary carer of dependent children’, and the National Probation Service issued new guidance to court probation officers proposing that in any case involving a primary care of dependents they should ask the court for an adjournment in order to find out how the children would be cared for if a custodial sentence were to be imposed, and to understand how a custodial sentence would impact the child. Next week I’m travelling to Scotland to work in collaboration with Community Justice Scotland to make films to provide information on sentencing mothers to sentencers, advocates and criminal justice social workers.
But it’s not all been good.
A newborn baby died in HMP Bronzefield, born to a mother who was in prison on remand (that is untried and unconvicted of the offence she was charged with). And hours before the parliament was suspended for the pre-election period, the government responded to the JCHR report and recommendations in a way which suggests they don’t really understand what children’s rights have to do with the way in which we sentence and imprison mothers.
The government have accepted some of the recommendations of the JCHR, but not many. They pay lip service to the importance of some of the ideas but frame it in terms of the mothers and not the children, and public protection and reducing reoffending, rather than the rights and wellbeing of children. The opening paragraph of the introduction sets the tone:
‘We acknowledge the importance of upholding the Article 8 rights of prisoners and their children – not only for the offender and their family, but for the beneficial impacts research has shown family ties have on reoffending rates. As well as the clear moral imperative , there is therefore also a strong public protection value to supporting the exercise of these rights, which can keep the wider public safer by reducing crime.’
They say they are committed to collecting data on how many women in prison have dependent children – it was shocking to all of my audiences this week that we have no idea how many children have their primary carer in prison nor what the care arrangement is for those children – but the government response doesn’t seem to recognise the reasons for collecting that data. They talk about it in prison operational terms, and fail to see that the reason we need to collect this information is so that children are not left fending for themselves, taking care of siblings, dropping out of school, and suffering from mental health problems, because their mother has been sent to prison, and no one has thought to check if they are ok.
They say that it may be difficult to collect data because of the risks to ‘vulnerable people’. I’m really unclear as to which vulnerable people they are referring to, but I think that a child left at home alone without anyone knowing about them is more vulnerable than a child with whom support services are engaging to ensure that they have heating, food and the ability to continue in education.
The government response references the Farmer Review and the Female Offender Strategy and suggests that if they implement the recommendations from that review & the FOS then the issue of children and their rights will be covered, but there is a fundamental flaw in that approach. Neither the Farmer Review nor the FOS are child centred. In both, children and families are instrumentalised as a tool for desistance, as a crime reduction measure. I had hoped that a JCHR enquiry focussed on children’s rights would mean that in the midst of the Government enthusiasm for ‘using’ families, the counterweight of child rights would ensure that each child is given the support they need not just to survive but to thrive. Despite the Government recognition that parental imprisonment is an Adverse Childhood Experience (ACE) with severely detrimental effects for children lasting into adulthood, and even bringing about premature death (van de Weijer, S.G.A., Smallbone, H.S. & Bouwman, V. J 2018) the section on ‘support for children’ provides no clear plan for support, rather it explains that these children are less vulnerable than children in state care (I would argue that it’s incorrect to make this generalised assumption) and therefore there should be no financial support for their care. They argue that because not every child with a parent in prison will need extra support, there will be no automatic assessment of any child with a parent in prison. It suggests that families ask their local authorities for help, but as the JCHR were told, when families do that, they are told there is no help available. Unless and until there is a statutory obligation on local authorities to assess children of prisoners for support under Section 17 of the Children Act 1989, these children will be left without the support they need.
The section on supporting children in education reads as though it has been cut and pasted from a generic department of education report, and provides no specific plan for engaging with children whose parent is in prison.
Of the four areas highlighted by the JCHR report – data collection, sentencing, support for children whose mother is imprisoned, and pregnancy and maternity, the area in which the recommendations seem to have been accepted is pregnancy and maternity. I think this is because of the tragic, horrific, and avoidable death of the newborn baby in Bronzefield, and the media focus on the issue of pregnancy in prison. It is absolutely right that this should be the focus of urgent attention and change, but do we need a child to die outside of prison before the same attention will be paid to the 17,000 children it is currently estimated have had their mother taken away from them as the result of imprisonment? I hope not.
The response is disappointing and has failed to engage with the fact that children have rights and currently their rights are being disregarded when their primary carers are sentenced and taken away from them because of imprisonment. This is not good enough.
When we have a new government in place we must collectively hold them to account for their failure to provide the same support to children whose mothers go to prison as they do for children separated from their parents in the family courts. Children whose mothers go to prison are not worth less and should be provided with all the support they need, as should those who take care of them in their parents’ absence.
It would be easy to become downhearted about the systemic inertia and the continuing institutional blind spot which fails to recognise the duty of care which the state owes to these children, but I hold on to the words of Rachel Brett from the Quaker United Nations Office, now retired, but formerly a long time activist and academic who worked for the recognition of the rights of children of prisoners. I asked Rachel a few years ago how she managed to keep pursuing justice for children when governments and policy makers so often seemed to be disinterested in engaging with the issues. This was her reply:
‘Think of working for change on this issue like a game of snakes and ladders. Each day you don’t know if you will hit a snake or a ladder, but the only way you ever have a chance of winning the game is to stay on the board… so stay on the board ’
30 years and one week ago we didn’t have a globally ratified convention on children’s rights. 7 years ago in England and Wales no one was talking about the rights of children affected by maternal imprisonment. This year there has been a cross party parliamentary inquiry; dependent children are mentioned in Sentencing Guidelines.
Change is taking place. It is slow and sometimes feels like we’re not making much progress, but we must stay on the board because every child matters.
[The featured photo is a poster designed by UNICEF]