Presentation to the Scottish Sentencing Council 6th March 2017, based on 'Who Cares? Analysing the place of children in maternal sentencing decisions in England and Wales', Minson, S. (2017), DPhil Thesis, University of Oxford
This thesis has been lodged with the Bodleian Library -
R. Condry, A. Kotova and Shona Minson, 'Social Injustice and collateral damage: The families and children of prisoners' in Jewkes, Y., Bennett, J., Crewe, B. (ed), Handbook on Prisons (Routledge 2016)
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Shona Minson, 'Sentencing and Dependents: Motherhood as Mitigation' in J Roberts (ed), Exploring Sentencing Practice in England and Wales (Palgrave Macmillan 2015)
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Shona Minson, R. Nadin and J. Earle, Sentencing of Mothers: Improving the sentencing process and outcomes for women with dependent children (Prison Reform Trust 2015)
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Shona Minson and R Condry, 'The visibility of children whose mothers are being sentenced for criminal offences in England and Wales' (2015) 32 Law in Context 28
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Shona Minson, 'Mitigating Motherhood: A study of the impact of motherhood on sentencing decisions in England and Wales' (2014) The Howard League for Penal Reform
When children face separation from their parents as a consequence of state action in the family courts, their best interests are the paramount consideration of the court and they have legal representation. Children who face separation from their mother as a consequence of sentencing proceedings in the criminal courts are neither represented nor acknowledged. The thesis analyses this differentiated treatment and explores its consequences for children, society and the state.
Explanations for the differentiated treatment are tested with reference to existing literature and original empirical research. The impact on children of imprisoned mothers is investigated to determine whether or not they suffer harm. The parameters of the state duty of care towards children are explored, to see if children of defendant mothers fall outside of it, and the way sentencing judges construct and interpret their duty towards mothers and their children within the sentencing process is examined.
This thesis establishes that without legal or moral justification, children of maternal defendants are treated without the concern given to children who face separation from their parents in the family courts. Children of defendant mothers suffer as a consequence of the ‘secondary prisonisation’, ‘secondary stigmatisation’ and ‘confounding grief’ which they experience, and the state has failed to uphold their rights under Articles 3, 12 and 20, and is in breach of its duty under Article 2 of the United Nations Convention on the Rights of the Child 1989. The guidance and mechanisms for considering their welfare exist but are not engaged with by the sentencing courts, local authorities, legislators or policy makers. This has negative consequences for children, their caregivers and wider society. The thesis concludes with consideration of the implications of these findings for the state and suggests changes to ensure equitable treatment of children of defendant mothers in England and Wales.