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Sentencing of mothers causing children ‘irreparable harm’, report claims

11 September 2019

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The welfare of dependent children should be at the forefront of a judge’s mind when sending mothers to prison, according to a new parliamentary committee report.

The Joint Committee on Human Rights report, The right to family life: children whose mothers are in prison, says children are suffering “irreparable harm” when their mothers are jailed and the government needs to move swiftly to prevent this.

An estimated 17,000 children each year are being harmed when their mothers are sent to prison, the report says, despite sentencing guidelines advising judges to consider primary caring responsibilities when passing sentences.

“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,” says the report.

To address these issues, the committee made a number of key recommendations, including barring judges from sentencing mothers or other primary carers unless a pre-sentence report, containing sufficient information to assess the impact of the sentence on the child, is available at the sentencing hearing.

It calls for judges to make every effort to understand the potential impact of a custodial sentence on dependent children when sentencing a mother, including hearing from the child if appropriate.

Judges should be required to state how they have taken such concerns into account in their sentencing remarks.

To ensure the existing case law is routinely applied - which currently it is not - the report says, a duty should be introduced requiring 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.

Whenever a mother is sent to prison, it says, their child’s right to respect for family life should be upheld and every possible and practicable step taken to ensure they are able to maintain positive relationships with their mothers.

The report calls for the framework for safeguarding and promoting the welfare of children to be revised so that greater attention is paid to the needs of children and their families when mothers go to prison; for kinship carers who care for children when mothers are jailed to be given financial and practical support; for mothers where possible to be placed in prisons close to their homes; and that contact should usually be based on a child’s right to respect for family life rather than on a mother’s behaviour in prison.

Mandatory data collection and publication 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 must be urgently prioritised by the Ministry of Justice, the report adds, because “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”.

John Bache, chair of the Magistrates’ Association, commented: “We support the need for sentencers to have detailed information about whether the individual before them has children, and if they do, what the impact of imposing custody would have on those children.

"Sentencers must ensure any sentence is proportionate, taking into account the impact on any children.

“We agree magistrates, unless there are exceptional circumstances, should not be sentencing people to immediate custody (including decisions following a breach of a suspended sentence order) without a pre-sentence report, especially if there are dependent children.”

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Crime Police & Prisons Family