Each year, around 300,000 children in England and Wales are affected by parental imprisonment. Of those, roughly 17,000 have a mother in prison. Children’s daily lives alter dramatically when a parent receives a custodial sentence.
HOW ARE CHILDREN AFFECTED?
Almost all children whose mothers are imprisoned (95 per cent) have to leave their homes (Caddle and Crisp, 1997). They often move into overcrowded housing with carers who struggle to meet their needs, have not been consulted about the care of the children, are ill-equipped to provide adequate care, and are not properly supported by the state despite the cost of caring for extra children. Carers also frequently lack the financial means to facilitate prison visits; 50 per cent of imprisoned mothers receive no visits from their children as a result of this and/or being held an average of 60 miles away from their homes.
Along with facing the loss of a valuable relationship with a parent, children also often experience separation from siblings, disruption to their education, social isolation due to the stigma and shame associated with having a parent in prison, behavioural issues and increased risk of poverty. They often face negative future outcomes such as an increased likelihood of criminal behaviour, mental health problems, and drug or alcohol addiction (see: Fox and Benson, 2000; Green and Scholes, 2004; Murray and Farrington, 2008).
WHAT CAN SENTENCERS DO?
It’s crucial that magistrates consider the impact of parental imprisonment on dependent children in every case. Keeping a child’s wellbeing in mind, suspending a custodial sentence or imposing a non-custodial sentence may be appropriate when immediate custody “will result in significant harmful impact upon others” or is “disproportionate to achieving the aims of sentencing.” For non-violent offences, non-custodial sentences are preferable for women with dependent children, under the UN Bangkok Rules.
There is a body of case law that sets out the court’s responsibilities in these circumstances, as well as the Sentencing Council’s Expanded Explanation for the mitigating factor, “sole or primary carer for dependent relatives”. It is clear that dependent children should be considered in every case, and that sentencing may rightly be adjusted to take into account the impact of it on dependent children.
In addition, the UK is a signatory to the UN Convention on the Rights of the Child, which specifies that the state must ensure that children are protected against all forms of discrimination or punishment based on their parent’s custodial status. Their best interests are to be a primary consideration of any court, their views are to be considered, and they are to be provided special protection and assistance by the state if temporarily deprived of family environment.
A TOOL FOR SENTENCERS
In conjunction with the Bar Council, Judicial College and Probation Service, I have developed a checklist to ensure that courts are aware of the potential impacts of parental imprisonment at the point of sentencing. Ultimately, the child’s welfare should always be of primary concern and remain at the forefront of magistrates’ sentencing considerations. The court must ensure that it has all relevant information about dependent children before deciding on an appropriate sentence.
CARE PROVIDER AND CHANGE OF HOME
- Who will take care of the child if the parent is imprisoned?
- Has this person been asked about taking on childcare?
- 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 childcare?
- Do the rest of the family—for example, their partner and children—also agree to taking in the children?
- 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 schools in the area they are moving to?
- Is the child at a crucial stage of taking public examinations (aged 14–18)?
- Do the children have particular health or emotional needs?
- Will the alternative carer be able to meet those needs adequately?
- Will the child be able to visit their parent if they are imprisoned?