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Russell Webster

Russell Webster

Criminal Justice & substance misuse expert and author of this blog.

The rights of children whose mothers are in prison

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Joint Committee on Human Rights argues that we should do everything we can to respect the right to family life of children whose mothers are sent to prison.

Yesterday (9 September 2019), the Joint Committee for Human Rights published a hard-hitting new report: The Right to Family Life: children whose mothers are in prison.

The report’s headline recommendation is that when a judge is considering sending a primary carer, which is usually a mother, to prison, the child’s right to respect for family life should be a central concern. Too frequently this is not the case. As a result, tens of thousands of children each year are being harmed when their mothers are sent to prison, the vast majority for non-violent offences. Georgia, who was 15 when her mother went to prison, spoke for all these
children when she told the Commitee:

‘I know my mum did wrong and deserved a punishment, but [ … ] we took a bigger punishment’.

The harmful effects of a mother going to prison begin as soon as a mother is sentenced, are felt throughout her sentence and continue for many years after she is released. To address this, the Committee make proposals for fundamental reform in four key areas:

Data Collection

The estimates of the number of children whose mothers go to prison each year range from 2,544 to 17,240. There is a complete lack of reliable quantitative data on the number of mothers in prison, the number of children whose mothers are in prison and the number of women who are pregnant and give birth in prison. Without improved data collection, collation and publication it is both impossible to fully understand the scale and nature of this issue and to properly address it. Mandatory data collection and publication must be urgently prioritised by the Ministry of Justice.

Sentencing

Despite sentencing guidelines which advise judges to consider primary caring responsibilities when passing sentences, an estimated 17,000 children each year are being harmed when their mothers are sent to prison. Children feel invisible in the sentencing process and in many cases, they are indeed disregarded. All too often, the court does not have adequate information about whether a defendant has children and what the impact of a custodial sentence would be on them. To address these issues, the Committee makes the following key recommendations:

  • that if an offender is the mother or other primary carer of a child, the judge must not sentence, other than in exceptional circumstances, unless a presentence report, containing sufficient information to assess the impact of the sentence on the child, is available at the sentencing hearing;
  • when sentencing an offender who has dependent children judges must make every effort to understand the potential impact of a custodial sentence on those 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.; and
  • to ensure that the existing case law is routinely applied, which currently it is not, a duty 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.

 

Support for children whose mothers go to prison

Whenever a mother is sent to prison their child’s right to respect for family life should be upheld and every possible and practicable step taken to ensure that they are able to maintain positive relationships with their mothers. To this end the Committee’s recommendations include:

  • that the Department for Education, working closely with the Ministry of Justice, must revise the framework for safeguarding and promoting the welfare of children so that much greater attention is paid to the needs of children and their families when mothers go to prison;
  • that kinship carers who step in to care for children when their mothers go to prison should be entitled to financial and practical support; 
  • that mothers should, wherever possible and practicable, be placed in prisons close to their homes and non-means tested financial help should be made available to allow children to visit their mothers (or primary carers) in prison; and
  • that contact should (other than in exceptional circumstances) be based on a child’s right to respect for family life rather than premised on their mother’s behaviour in prison.

Pregnancy and maternity

Separating a baby from its mother is a serious interference with the right to family life. If a baby is born during the mother’s sentence, they should both be discharged from hospital directly to a Mother and Baby Unit (MBU) other than in exceptional circumstances; and when a mother with a baby is sent to prison, the sentence should only in exceptional circumstances start before a place is secured in an MBU.

The Committee announces an expectation of the Government acting swiftly in each of these areas in order:

“to prevent another generation of children suffering the irreparable harm caused when mothers go to prison.”
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