A 2005 study found that 66% of imprisoned women are mothers of children under the age of 18. Twenty-two per cent have children under the age of five (Liebling, A. and Maruna, S. The effects of imprisonment (Willan, 2006)). More recently the Ministry of Justice has estimated that between 24% and 31% of all women offenders have one or more child dependants. It has been calculated that 17,240 children were separated from their mothers by imprisonment in 2010 (Wilks-Wiffen, S. Voice of a child (Howard League for Penal Reform, 2011)).
The effects on children
There is increasing awareness of the effects on children of separation from their mothers in prison. It is not easy to investigate the damage that is done to vulnerable children by the incarceration of parents. That the damage is significant has been shown by the research of Joseph Murray and his associates (Murray, J. et al, “Children’s Antisocial Behavior, Mental Health, Drug Use and Educational Performance After Parental Incarceration” (Psychological Bulletin, 2012, Vol 138 no 2, pp 175–210)).
Recently Isla Masson’s research has provided examples of women sent to prison who lost their accommodation as a result, even though imprisonment was brief, with dreadful consequences for the mother’s care of her children (Masson, I. (2014) “The Long-Term Impact of Short Periods of Imprisonment on Mothers”, PhD Thesis, King’s College London (pp 149–150))
The multinational EU-funded study Children of prisoners: interventions and mitigations to strengthen mental health on the mental health of children of prisoners across four European countries found that a majority of children reported negative effects of the imprisonment of a parent (Robertson, O (2015) “Child rights: some long-term perspectives”, in European Journal of Parental Imprisonment: An evolving child rights agenda, Spring 2015)
My research on the sentencing of mothers found that separation from their mother while she is in prison, even for a short period, may cause great suffering and profound damage to children (Epstein, R “Mothers in Prison”, Coventry Law Journal, December 2012, Special Issue: Research Report).
The damage done to the affected children is considerable, it’s long lasting and for those many children whose mothers are sentenced to short periods for low-level offences, it could and should be avoided by a less punitive, more coherent and intelligent sentencing policy.
When a court is considering a custodial sentence for a mother, this decision engages the rights of the child (Epstein, R “What about the children?“, Centre for Crime and Justice Studies (2014)).
The court must balance the potential impact on the child against the seriousness of the offence and the need to punish the offender. If the court has insufficient information about the children it must ask for more information (R (on the application of P and Q) v Secretary of State for the Home Department  EWCA Civ 1151; R v Bishop  EWCA Crim 1446, para 9).
The Court of Appeal decision in R v Rosie Lee Petherick  EWCA Crim 2214, a leading authority, again underlines the importance of the balancing exercise.
Many women are in prison on remand—40% of women entering prison in any 12 month period are unconvicted. The Howard League has reported that 71 % of women remanded by Magistrates’ Courts and 41% remanded by Crown Courts do not go on to receive a custodial sentence (“Revealed: the wasted millions on needless remand”, Howard League (2014)).
What should be done?
The barrister Kristiina Reed in her article “Children of prisoners: ‘orphans of justice’?” made practical suggestions on how the rights of the child could be protected in criminal courts considering custody for mothers (Family Law, 44, January 2014, pp 69-74).
The recent discussion paper, Reducing Women’s Imprisonment: Sentencing of Mothers (Prison Reform Trust (2015)), makes recommendations on how the rights of the child could be protected in the criminal courts. Judges, district judges and magistrates should be obliged to consider non-custodial sentences for offenders with primary care responsibilities, and in cases when imprisonment is an option should consider a community order, deferred or suspended sentence. If an immediate term of imprisonment is imposed, written reasons should be given for their decision.
Furthermore, 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
The penalty of imprisonment is overused in our society, with heavy costs for us all. Imprisonment should not be used for low-level offending. Most women are sentenced to short terms for less serious offences, many are in prison on remand, many have breached community orders, the original offence being non-imprisonable. The incarceration of mothers causes long lasting damage to children, harm which is avoidable. Remand in custody should be very rarely used. And the rights and welfare of affected children should be formally protected in our criminal justice system at all levels.
Rona Epstein is a research assistant in Coventry Law School (R.Epstein@coventry.ac.uk)