Rona Epstein, Honorary Research Fellow at Coventry University, argues that when it comes to balancing off the human rights of the child and the seriousness of the mother's offence the rights of the child should come first.
There are about 4,000 women in prison. Two thirds are mothers of children under 18; about a third are lone parents. Nearly 18,000 children are separated from their mothers each year when women are sent to prison. Just five per cent of children whose mothers are in custody are able to remain in their own home. Leaving home, changing school, and being separated from mothers can be very difficult, and in many cases traumatic, for children.
The rights of the child
In 2001, three judges in the Court of Appeal looked at the harm which may be done to children when a mother who is a child's main carer is sent to prison. The case concerned two mothers whose children were in a prison Mother and Baby unit. The judgment said that all sentencers, judges and magistrates, must bear in mind that the Human Rights Act 1998 obliges all public bodies, including the courts, to comply with the European Convention on Human Rights (ECHR). Article 8 of the ECHR states that everyone has the right to respect for private and family life. Sending a mother to prison will interfere with the rights of the child. So judges must conduct a 'balancing exercise', weighing the rights of the child against the seriousness of the mother's crime.
In prison on remand
Recent data show that on 30 June 2013 there were 3,853 women in prison. Of these, 604 women were on remand, accounting for 16% of the female prison population.
Mothers imprisoned on remand are a considerable group, they are not yet convicted of any crime: when it comes to a trial many of them will be found not guilty, or given a non-custodial sentence or cautioned. Their children's rights have not been considered in the decision to remand in custody and this is wrong — legally, morally, socially.
My research (jointly funded by Coventry University and The Oakdale Trust and with assistance from Women in Prison) aimed to explore to what extent, if at all, the required balancing exercise is being carried out. The research covered 75 cases of imprisonment (suspended or immediate) of mothers who care for a dependent child. I analysed the sentencing remarks of Crown Court judges, the reports of the Court of Appeal and the files of magistrates.
This study has found that the courts did not appear to have considered the Article 8 rights of the children. The rights of the child were not referred to in any of the 75 cases. In seven cases the court did not mention the children at all. In some cases imprisonment was suspended: perhaps in these cases the welfare of the children was considered.
In a few rare cases where the imprisonment of a mother had caused great suffering to young children, a sentence of imprisonment was appealed, and the Court of Appeal reduced the sentence or suspended it. The vast majority of mothers in prison, especially those on short term sentences, will have no opportunity to appeal.
We need a new approach
The law says that when sentencing a mother with a dependent child, the sentencer must acquire information about the dependent children, and must then weigh the Article 8 rights of the children against the seriousness of the offence. In the most serious cases the balance will come down on the side of custody. But in some instances the court will suspend imprisonment or impose a community order rather than a custodial punishment. The vast majority of women are imprisoned for less serious offences and receive short sentences. The rights of the child have been sidelined for too long. The balancing exercise should now take centre stage.