The legal system can strip innocent children of their home and carer – sometimes, in cases like Arthur Labinjo-Hughes, with tragic effect
Alice spent two years on bail. She was 21, a single parent with a full-time job, a privately rented flat. During the trial, she took her four year old daughter to nursery in the morning and picked her up at the end of the day. When the jury returned a guilty verdict, Alice’s lawyer told her the case would be adjourned for a pre-sentence report so that the sentencer could understand her personal circumstances, including that she was the sole carer for a young child.
The Judge took a different view. Seemingly annoyed by the delay in bringing the case to court – the result of a stretched system and nothing to do with Alice – he declared, “this case has gone on long enough” and sentenced her to immediate imprisonment. Within minutes Alice was in the cells. Her house keys were in her handbag but she wasn’t allowed to give them to the friend who’d come to court with her. When Alice’s mother collected her granddaughter from nursery later that day, the little girl had nothing but the clothes she was wearing and an empty lunchbox.
In September this year, , the ombudsman’s report into the death of Baby A at HMP Bronzefield in September 2019, provided a horrifying account of the experiences of an eighteen-year-old woman who had not been found guilty of an offence, but was in prison on remand for a first time robbery. She gave birth to her baby alone in a cell, passing out and waking up to find her newborn not breathing.
The report concluded that staff weren’t aware that the teenager was due to give birth imminently, and found that information sharing between Bronzefield and health agencies had been poor. The woman was later given bail, but the remand cost her baby its life.
When a mother with child dependents is sentenced the court is not required to consider the child. Even when they do think about the children, research I conducted has found that judges make misinformed assumptions about the consequences for children.
In contrast, when children are separated from their parent in the family courts, the child’s best interests are the paramount consideration under Section 1 of the Children Act 1989 and the child is represented by lawyers and a guardian. If the child is separated from their parents, the state provides alternative carers.
This differentiated treatment of children represents an institutional and institutionalised blind spot and cannot be justified. It is in breach of the UK’s commitment under the United Nations Convention on the Rights of the Child 1989. Under Article 2, the state must ensure that children are protected against all forms of discrimination or punishment they face on the basis of the status or activities of their parents.
This week the report stage of the Police, Crime, Sentencing and Courts Bill will commence, and the House of Lords is expected to debate amendments which would bring an end to the duality of treatment of children. These would require courts at bail and sentencing hearings to inquire about child dependents, ask for a pre-sentence report, and consider the best interests of the child in any decision.
In debate it has been said that courts are already required to do these things. This is a misunderstanding.
There is case law, which says courts should consider the impact of a sentence on dependent children, and a sentencing guideline from 2019 which sets out how the courts can do so. But, neither create a mandatory requirement to consider the best interests of children or the impacts of sentence upon them.
When I undertook research I found that many judges are not aware oft the case law or guidelines, nor do they understand the harms caused to children by maternal imprisonment.
One judge I interviewed told me that he never worried about sending pregnant women or women with babies to prison, as “the Holloway prison Mother and Baby Unit is the best in the world”. I told him it had shut down more than a year ago.
Children lose their home and carer, experience disrupted education, separation from siblings and increased poverty. They face an increased risk of mental and physical health problems and are more likely to die before the age of 65 than their peers.
Parental imprisonment is recognised as one of the ten “adverse childhood experiences” which contribute to long-term health and social problems. Research evidence suggests that children fend for themselves or are passed around family and friends. It is thought that around 90 per cent of children whose mothers go to prison have to leave their home. Arthur Labinjo-Hughes, the six-year-old schoolboy killed in Solihull in June last year after months of abuse by his step-mother and father, was one such child.
The sentencing guidelines state that a court should not sentence a mother to imprisonment if the harms to dependents would render a proportionate sentence disproportionate. The first step to achieving this is for every court to check if the person before the court is the primary carer for children, and to make proper enquiries about the impact of any remand or sentence upon those children.
Including the proposed amendments in the Police, Crime, sentencing and Courts Bill isn’t about special treatment for women. It is about fair and just treatment for children, like Alice’s daughter, who desperately need to be more than just an afterthought.
This piece first appeared in The Telegraph on Wednesday 9th December 2021
The research and thinking behind this piece can be found in my book Maternal Sentencing and the Rights of the Child Half price until the end of December with code HOLIDAY21