This briefing paper for sentencers, probation staff, advocates is also available on the Judicial College Learning Management System, the NPS intranet, and Crimeline.
It is important that judicial office holders, judges and magistrates, remind themselves when sentencing an individual who is a carer for a dependant child that that is a factor that they must very much bear in mind. It may not result in the imposition of a non-custodial sentence. It may ultimately only result in a reduction in an inevitable custodial sentence but it is a factor that needs to be borne in mind…The court is concerned with administering justice generally, so that is to the victims, to the public at large, but also to the dependent children of that individual. Director of Training for Courts, Judicial College, in ‘Safeguarding Children when Sentencing Mothers: Information for Sentencers’ Film
The effective administration of justice requires that legal representatives, probation officers and sentencers all understand their obligations to ensure the full and proper consideration of child dependents prior to any sentencing decision. In order to support a more consistent and cohesive approach to the safeguarding of children, who through no fault of their own are impacted by the criminal justice system, a series of short films and briefing papers have been produced for sentencing professionals to highlight the key difficulties faced by children who lose their mothers to imprisonment, the impacts of imprisonment on unborn children of pregnant mothers and the obligations on the courts to consider these factors. This briefing provides an overview of the ways in which sentencers can ensure that children are properly safeguarded in adult sentencing proceedings.
Research evidence on the experiences of children whose mother is imprisoned
In England and Wales between 200,000 and 300,000 children are separated from their parent by imprisonment each year (Kincaid et al, 2019; Williams et al., 2012). This equates to 24 in every 1000 children.
17,000 children are separated from their mother by imprisonment each year (Kincaid et al, 2019; Wilkes-Wiffen, 2011).
When a mother is sent to prison 95 per cent of children have to move home (Caddle and Crisp, 1997) and only nine per cent are cared for by their fathers (Corston, 2007: 20). This contrasts with the situation when fathers are imprisoned when most children remain with their mothers in their home (Boswell and Wedge, 2002).
Do children suffer harm when their mother (primary carer) is sent to prison?
Upwards of 17,000 children each year in England and Wales are affected when their mother is imprisoned. These children are particularly vulnerable as they often experience the loss of their sole or primary carer. This contrasts with the situation when fathers are imprisoned when most children remain with their mothers in their home. 95% of children whose mother goes to prison have to leave their family home, and their education, family relationships, health, and well-being are impacted.
Although the impacts begin at the point of imprisonment, often beginning when women are held on remand awaiting trial, they do not end with the mother’s release. The instability these children face in childhood affects their future life chances: they have an increased risk of suffering from mental illness and related health problems and an increased likelihood that they will be not in education, employment or training in later life. They are more likely than their peers to die before the age of 65 (van de Weijer, S.G.A., Smallbone, H.S. & Bouwman, V. J Dev, 2018)
The impacts are wide reaching and affect every area of children’s lives:
Change of carer, change of home, change of school
Potential separation from brothers or sisters
Disrupted education – there may not be school places available where they move to. They might find it hard to study.
Relational changes affecting future stability
Increased poverty
Social isolation: stigma and shame
Behavioural problems – ‘confounding grief’ (Minson, 2017)
Diminished future outcomes – increased likelihood of criminal offending, mental health problems, drug/ alcohol addiction (Hirschi, 1969; Fox and Benson, 2000; Green and Scholes, 2004; Murray and Farrington, 2008)
For more information see the book ‘Maternal Sentencing and the Rights of the Child’ (Minson, 2020)and ‘The impact of maternal imprisonment upon a child’s wellbeing and their relationship with their mother’https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3067653
The impacts on other family members who care for the children
When their mother is imprisoned many children move into overcrowded housing with carers who struggle to meet their needs and who have not been consulted about taking on the care of the children. Those who take on their care are often ill equipped to do so and are not supported in any way by the state, despite the cost to a household of caring for extra children. Family members take in children rather than see them go into state care, but often lack even the most basic bedding and clothing for them. Inevitably such carers’ health and wellbeing is also damaged, and many leave employment to care for the children, pushing them further into poverty. The result of this disruption and lack of resourcing is stress and strain which increases the risk of poorer outcomes for children.
Pregnant Women and Unborn Children
Imprisoning a pregnant woman puts her unborn child at risk for the following reasons:
Many women in prison have high risk pregnancies and if they were pregnant in the community they would have extra midwife and obstetric appointments to monitor the baby’s wellbeing and growth. Recent research has found that pregnant women in prison miss as many as 1 in 4 outpatient appointments during their pregnancy, and it is unlikely that they receive the higher levels of care required.
Many pregnant women in prison suffer from toxic stress whilst in prison and this carries risks to their unborn child, as (particularly in the third trimester) the cortisol can cross the placenta, and babies who are exposed to these raised levels of cortisol may suffer from learning difficulties and ADHD which will affect them for the rest of their lives.
Recent research has found that 1 in 10 pregnant women in prison give birth to their baby either in their cell or in an ambulance on the way to prison. This contrasts with 0.4% of the general population who unexpectedly give birth before arriving at hospital. There are no midwives or doctors on duty in prisons overnight and so women going into labour risk inappropriate assessments.
Some sentencers remain under the misconception that every pregnant woman in prison will be on a Mother and Baby Unit (MBU), and her child will therefore not ‘suffer’ any harm from her imprisonment. This is incorrect as very few women keep their babies on MBUs and even if a woman is given a place on an MBU it is unlikely to be until after the baby is born with the consequence that the unborn baby does not necessarily get the care it needs for healthy development whilst the mother remains part of the main prison population. Although pregnant women are supposed to be given extra nutrition and other supports for pregnancy these are not consistently provided across the prison estate.
(Abbott et al, 2020, Davies et al, 2020)
Parameters for Sentencing
Sentencing Guidelines
Sentencing Guidelines set out clearly how a sentencer should consider dependent children in all sentencing decisions. The ‘General Guideline: Overarching Principles’ (effective from 1st October 2019) contains an ‘expanded explanation’ of the mitigating factor ‘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. See also the Imposition of community and custodial sentences guideline .
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 and whether the sentence can be suspended.
For more serious offences where a substantial period of custody is appropriate, this factor will carry less weight.
When imposing a community sentence on an offender with primary caring responsibilities the effect on dependants must be considered in determining suitable requirements.
In addition when sentencing an offender who is pregnant relevant considerations may include: i) any effect of the sentence on the health of the offender and ii) any effect of the sentence on the unborn child.
The court should ensure that it has all relevant information about dependent children before deciding on sentence.
When an immediate custodial sentence is necessary, the court must consider whether proper arrangements have been made for the care of any dependent children and if necessary consider adjourning sentence for this to be done.
Useful information can be found in the Equal Treatment Bench Book (see in particular Chapter 6 paragraphs 94-100)’.
General Guideline: Overarching Principles (Sentencing Council, 2019) https://www.sentencingcouncil.org.uk/overarching-guides/magistrates-court/item/general-guideline-overarching-principles/#Step%202%20Aggravating%20and%20mitigating%20factors
‘The Imposition of Community and Custodial Sentences: Definitive Guideline’ (Sentencing Council, 2017) also provides guidance on considering the impact of custodial sentences on dependants:
‘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.’
Factors indicating that it may be appropriate to suspend a custodial sentence include that immediate custody will result in significant harmful impact upon others’
These guidelines mean that a defendant who has dependent children may be given a different sentence to that which they might be given if they did not have dependent children. The sentence may be different in substance or in length. This is proper sentencing behaviour.
Principles established by Case Law on the sentencing of parents
- The criminal sentencing of a parent engages the Article 8 right to respect for family life of both the parent and the child. Any interference by the state with this right must be in response to a pressing social need, in pursuit of a legitimate aim, and in proportion to that aim. The more serious the intervention the more compelling the justification must be – the act of separating a mother from a very young child is very serious. R(on the application of P and Q) v Secretary of State for the Home Department [2001] EWCA Civ 1151 paragraphs 78 and 87
- The welfare of the child should be at the forefront of the judge’s mind. ZH (Tanzania) (FC) Appellant v Secretary of State for the Home Department [2011]UKSC4 paragraphs 25 and 26
- There is no standard or normative adjustment for dependent children but their best interests are a ‘distinct consideration to which full weight must be given’. R v Petherick [2012] EWCA Crim 2214 paragraph 19
- In a case which is on the threshold between a custodial and non-custodial or suspended sentence a child can tip the scales and a proportionate sentence can become disproportionate. R v Petherick [2012] EWCA Crim 2214 paragraph 22
- It may be appropriate to suspend a custodial sentence when the person being sentenced is the parent of dependent children. R v Modhwadia [2017] EWCA Crim 501
- It is the court’s duty to make sure that it has all relevant information about dependent children before deciding on an appropriate sentence. R v Bishop [2011] WL 84407 Court of Appeal
The rights of children whose parents are before the court for sentence
The rights of children are set out in the Human Rights Act 1998 and the United Nations Convention on the Rights of the Child 1989 and they are:
The right to private and family life (Article 8: Human Rights Act, 1998)
The right not to be discriminated against or punished because of anything their parent has done (Article 2: United Nations Convention on the Rights of the Child, 1989)
The right for their best interests to be a primary consideration of any court taking an action concerning them (Article 3: United Nations Convention on the Rights of the Child, 1989)
The rights for their views to be considered (Article 12: United Nations Convention on the Rights of the Child, 1989)
The right to be provided special protection and assistance by the state if temporarily deprived of his or her family environment (Article 20: United Nations Convention on the Rights of the Child, 1989)
International rules on the treatment of women prisoners to which the UK is a signatory
Non-custodial sentences are preferable for women with dependent children, (unless the offence is serious or violent or the woman represents a continuing danger). Even then, a custodial sentence should only be given after considering the best interests of the child, and ensuring that appropriate provision has been made for the child (United Nations, ‘the Bangkok Rules’, 2010)
The information the court should have about dependent children prior to sentencing
The case of R v Bishop [2011] WL 84407 and the General Guideline: Overarching Principles 2019) above, established that it is the duty of the court to ensure that it has all relevant information about dependent children before deciding on sentence. To sentence a parent to custody without having ascertained the whereabouts of and plans for the care of that child is a safeguarding issue, and denies a child their right not to be discriminated against because of the status or activities of their parents under Article 2 of the United Nations Convention on the Rights of the Child (1989).
The following checklist provides a helpful guide to ensure the court has full information before them. Court Probation Officers are in the best place to provide this information and proceedings can be adjourned to enable them to prepare a Pre-Sentence Report.
Care provider/ Change of home
Who will take care of the child if the mother is imprisoned?
Has this person been asked about taking on the care of the child?
Do they have space in their home?
Will they take all the children, or will siblings be separated?
Do they have the means to support another child?
Are they in good health?
Will they lose their employment if they take on child care?
Do the rest of their family – partner, children also agree to taking in the children?
Education
Will the child continue at their current school or nursery, or will the change of carer necessitate a change in school due to distance?
Are there school places in the area they are moving too?
Is the child or children at a crucial stage taking public examinations (age 14 -18)?
Health
Do the children have particular health or emotional needs?
Will the alternative carer be able to adequately meet those needs?
Is the mother pregnant?
Mother/ child relationship
Will the child be able to visit their mother if she is imprisoned? (50% of mothers in prison receive no visits from their children as women are held an average of 60 miles away from their homes and carers do not always have the financial means to make visits. Although some transport costs can be claimed back, not all can and for a family already struggling to make ends meet visits may be impossible.)
Even when a custodial sentence is necessary, sentencers must consider whether proper arrangements have been made for the care of any dependent children.
If a defendant mother is at court with no provision for her children’s care, the harm to children can be minimised if sentence is deferred to allow proper arrangements to be made. Research has found that many women in that position do not have anyone who could take on the care of their children, and even if they do, arrangements may not have been made because they have not been able to face the reality of the likely court outcome. In such situations the probation staff can help women work through those issues to ensure that their children’s welfare is protected and can seek an adjournment to do so, in accordance with the Sentencing Council’s General Guideline: Overarching Principles (2019)
The film that accompanies this leaflet is available on the Judicial College LMS, the NPS internal learning system and Crimeline
Relevant Case law
R (On the applications of P and Q) v Secretary of State for the Home Department [2001] EWCA Civ 1151
R v Mills [2002] 2 Cr App R(S) 52
R v Bishop [2011] WL 84407 Court of Appeal
R (on the application of Amanda Aldous) v Dartford Magistrates’ Court [2011] EWHC
ZH (Tanzania)(FC) Appellant v Secretary of State for the Home Department [2011]UKSC 4
R v Petherick [2012] EWCA Crim 2214
R v Arnold [2016] EWCA Crim 1267
R v Modhwadia [2017] EWCA Crim 501
Bibliography
United Nations Convention on the Rights of the Child 1989
United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (‘the Bangkok Rules’) 2010
Unless otherwise referenced all data and discussion referred to in this briefing paper is taken from: ‘Maternal Sentencing and the Rights of the Child’, (2020), Minson, S. Hampshire: Palgrave
Abbot, L. Scott, T. Thomas, H., Weston, K. (2020) Pregnancy and childbirth in English prisons: institutional ignominy and the pains of imprisonment Sociology of Health & Illness Vol.42 Issue 3, pp 660-675
Boswell, G., Wedge, P., (2002) Imprisoned fathers and their children. London: Jessica Kingsley
Bulow, W. (2014) The Harms Beyond Imprisonment: Do we have special moral obligations towards the families and children of prisoners?. Ethical Theory and Moral Practice, 17 (4), 775-789
Caddle, D., Crisp, D. (1997) Imprisoned women and mothers: Home Office Research Study 162. London: Home Office
Corston, J. (2007) The Corston Report, A Review of women with particular vulnerabilities in the criminal justice system. London: Home Office
Davies, M., Rolewicz, L, Schlepper, L., Fagunwa, F. (2020) Locked out? Prisoners’ use of hospital care. Nuffield Trust
Epstein, R. (2012) Mothers in Prison: The Sentencing of Mothers and the Rights of their Child. Coventry Law Journal Special Issue Research Report Coventry: Coventry Law School
Fox G.L., Benson, M.L (2000) Families, Crime and Criminal Justice. Amsterdam, Oxford: JAI
Green, M., Scholes, M. (2004) Education for what? Attachment, culture and society. In Green, M., Scholes, M. (Eds.) Attachment and human survival (pp. 37–51) London: Karnac
Hirschi, T. (1969) Causes of Delinquency. New Brunswick, London: Transaction
Hodgkin, R., Newell, P., (2002) Implementation Handbook for the Convention on the Rights of the Child. New York: Unicef
Kincaid, S., Roberts, M., Kane, E. (2019) Children of Prisoners: Fixing a broken system . Crest Advisory
Minson, S., Condry, R. (2015) The visibility of children whose mothers are being sentenced for criminal offences in the courts of England and Wales. Law In Context, 32, 28-45
Minson, S., Nadin, R., Earle, J. (2015) Sentencing of mothers: Improving the sentencing process and outcomes for women with dependent children. London: Prison Reform Trust
Murray, J., Farrington, D. (2008) Effects of Parental Imprisonment on Children. In
Tonry, M. (Ed.), Crime and Justice: A review of research (vol 37.) (pp.133-206) Chicago, IL; University of Chicago Press
van de Weijer, S.G.A., Smallbone, H.S. & Bouwman, V. J Dev (2018) Parental Imprisonment and premature mortality in adulthood Journal of Life Course Criminology pp 1-14
Wilks-Wiffen, S. (2011) Voice of a Child. London: Howard League for Penal Reform
Williams, K., Papadopoulou, V., Booth, N. (2012) Prisoners’ Childhood and Family Backgrounds. Results from the Surveying Prisoner Crime Reduction Longitudinal Cohort Study of Prisoners Ministry of Justice Research Series 4/12. London: Ministry of Justice
This briefing paper was written by Dr Shona Minson, Centre for Criminology, University of Oxford as part of the project: Safeguarding Children when Sentencing Mothers thanks to the generous support of the Economic and Social Research Council (ESRC) via the University of Oxford’s ESRC Impact Acceleration Account (Grant Ref: ES/M500355/1) , the ESRC/ SAGE Global Outstanding Impact Award, and the support of the Prison Reform Trust Transforming Lives programme.
Shona.minson@crim.ox.ac.uk
Dr Shona Minson 