Yesterday the Prison Reform Trust published a discussion paper on the sentencing of mothers, which I co-authored with Rebecca Nadin and Jenny Earle of the Prison Reform Trust. The paper includes a review of case law, alongside research evidence gathered from groups of women in prison and women who had been given non-custodial sentences. Consultation took place with key individuals and organisations, members of the judiciary, and legal policy stakeholders. The paper’s proposals are intended to provide a starting point for discussion and action in order to reduce the number of children separated from their mothers through imprisonment. 

My DPhil research explores the impact on children of maternal imprisonment and the place of children’s rights within the adult sentencing process. I’ve interviewed children whose mothers are incarcerated and those who care for them in their absence. I’ve also interviewed members of the crown court judiciary and former senior members of the judiciary in order to understand the sentencing process and the place of dependents within the sentencing calculus.

Since 2012, when I began my doctoral studies, there has been increasing awareness that although women only make up 5% of the prison population in England and Wales, the damage caused to their dependents is significant and cannot be ignored. Over 9,000 women were received into prison last year, most of them for non-violent offences. An estimated 17,240 children, including many under five years of age, are separated from their mothers by imprisonment. Only 5% of children with a mother in prison are able to stay in the family home, and only 9% are cared for by their fathers. By contrast, most children with an imprisoned father remain with their mother. The paper focuses on mothers because they’re most likely to be caring for dependent children, but the proposals would apply to men as well as women where they have sole or primary care responsibilities.

On BBC Radio 4’s Law in Action programme on 24 November 2015, Juliet Lyon of the Prison Reform Trust spoke to Joshua Rozenberg about the paper and the proposals for more robust and consistent non-custodial sentencing alternatives. Mary O’Hara, writing in The Guardian on the same day, drew comparisons with the United States, arguing:

On both sides of the Atlantic, too many women end up in prison and too many children are deprived of their primary carer for significant periods of time. Moves that seek to change this for good must be welcomed and supported.

It’s not just the media who are putting this issue on the agenda. The 2015 Conservative election manifesto promised to explore ‘how new technology may enable more women with young children to serve their sentence in the community.’ The March Budget 2015 committed to ‘designing a more integrated, multi-agency approach to divert female offenders convicted of petty, non-violent offences from custody where appropriate.’ For the first time, there is a statutory obligation (in Section 10 of the Offender Rehabilitation Act 2014) to identify and address women’s needs in arrangements for the supervision and rehabilitation of offenders. This should include childcare and parenting support―otherwise women may be unable to comply with the terms of a community supervision order.

The paper provides in depth discussion and analysis of the issues and is available here, but the proposals for reform are set out below. It’s a discussion paper so please leave your comments here or email Jenny Earle.

  1. The Government should review the sentencing framework to ensure appropriate recognition of and provision for an offender's sole or primary care responsibilities, in relation to both custodial and non-custodial sentencing.
  2. The Government’s Advisory Board on Female Offenders should review arrangements in the criminal justice system for women with primary or sole care responsibilities in light of s.10 Offender Rehabilitation Act 2014, and ensure a whole of government approach to improving outcomes for mothers and their children, including coordinated and consistent funding streams for women’s services and interventions.
  3. Sentencing Guidelines should be strengthened by the addition of an ‘Overarching Principle’ setting out the court’s duty to investigate sole or primary caring responsibilities of defendants and to take these responsibilities into account in sentencing decisions. This would reflect the Court of Appeal decision in R v Petherick.
  4. Courts should establish mechanisms to ensure the provision of sufficient information to sentencers where the offender has primary caring responsibilities, including a requirement for a full written pre-sentence report and a local directory of women’s services and interventions.
  5. When imposing non-custodial sentences, sentencers must inquire about and consider a woman’s family responsibilities and ensure ‘rehabilitation activity requirements’ are achievable within those constraints.
  6. Judges, district judges and magistrates should be obliged to consider community sentences for offenders with primary care responsibilities, and in cases when imprisonment is an option should consider a deferred or suspended sentence. If an immediate term of imprisonment is imposed, written reasons should be given for their decision.
  7. Training bodies, including the Judicial College, the Law Society and the Bar Council, should ensure sufficient emphasis in both induction training and continuing education on the balancing exercise to be undertaken when sentencing an offender with sole or primary care responsibilities.
  8. The Equal Treatment Bench Book should be revised to include evidence about the differential impact of imprisonment on women and men, to reinforce its message that gender should not be disregarded in sentencing decisions.
  9. The Sentencing Council should undertake or support targeted research and consultation with magistrates and judges on how sole and primary caring responsibilities are and should be taken into account in court, as well as monitoring sentencing practice and outcomes in this area more closely.