The right to family life: children whose mothers are in prison Contents


52.Our starting premise is that the best way to safeguard the rights of children is not to send mothers to prison in the first place. However, we recognise that in certain cases the need to protect the public may result in a custodial sentence for mothers. For their children, the right to respect for family life must continue to be upheld and every step taken to ensure that they are able to maintain positive relationships with their mothers.

Entering custody

53.The lack of preparations made for the care of dependent children when a mother is at risk of being given a custodial sentence has been identified as a particular problem.83 Lina told us she had not expected to be sent to prison and so had not made arrangements to have her children collected from school on the day of her sentencing:

“My probation officer guided me throughout the whole process and said that I would not get a custodial sentence. My solicitor also said that I would not get a custodial sentence because it was my first offence; I would be put on a community service order. The court was aware that I had three children in three different schools. The day of the hearing, I dropped my children off at the three different schools and parked my car up on a two-hour slot in front of the courtroom. Within 15 minutes, the judge made a decision to sentence me to three years to make an example out of me, and I went down the stairs.”84

54.Similarly, Georgia had not been prepared and her mother’s sentence came as a shock to her:

“[ … ] Around a week or two beforehand, I had gone to her trial with her and listened to all the prosecutors, which was very daunting. We had not been under the impression at all that she was going to go, because they put it for a pre-sentence report so she could explain that she had me and my brother at home and there was no one to look after us. We had it in our head that she was not going.”85

55.It is wholly unacceptable that courts can sentence mothers to immediate imprisonment without ensuring their children are cared for. Being separated by imprisonment is a traumatic experience for children and their mothers; when it happens without warning or preparation the trauma is increased. Where possible, the court should give advance notice that it is considering a custodial sentence, so that care arrangements can be made. If it does impose a custodial sentence it must be satisfied that there are arrangements in place for the child of the offender, and, if necessary, defer the sentence to allow such arrangements to be made.

Care arrangements

56.There is a serious lack of up to date information about what happens to children when their mother (or other primary carer) is sent to prison. Figures in the Corston Report, published in 2007, state that around:

57.Georgia explained how she and her brother received no support from social services when her mother was in prison:

“When I was 15, [my mum] got sent to prison for a fighting offence, which was really unexpected. I lived at home with my brother, who was 16. A friend of the family made a referral to social services. They said because we had family around the area, not living with us, we did not meet the criteria to receive help from social services. I was left with all the responsibilities of going shopping, running a house, everything really, at the age of 15.”87

58.Other witnesses confirmed that Georgia’s experience was not unusual. Stuart Harrington from the National Information Centre on Children of Offenders, run by Barnardos, told us “Elder siblings in particular taking on that parental role is unfortunately all too common.”88 Lucy Baldwin from De Montfort University highlighted the experiences of three young people, interviewed for her research who left full time education to care for younger siblings, when their mothers went to prison. None of the three returned to full time education, although two of them had previously aspired to go to university.89

The role of children’s services

59.There is no specific legislation addressing the needs of children of prisoners. Although this group can fall within the definition of ‘children in need’ as set out in section 17 of the Children Act 198990 the evidence is that they only rarely receive support from local authority children’s services.91

60.The ‘Working Together’ statutory guidance applies to all organisations and agencies who have functions relating to children and sets out the statutory requirements to assess and provide services for ‘children in need’.92 In its written evidence to this inquiry the Ministry of Justice notes:

“While there is no requirement to focus on children with a parent in custody, the statutory guidance, Working Together to Safeguard Children (2018) advises practitioners to consider the support needs of children including those with a parent in custody.”93

61.However, closer examination of this guidance reveals that this advice is only directed to the probation service.94 The list of groups of children that all agencies are recommended to consider as possible beneficiaries of ‘early help’95 does not include children of prisoners.96 Children of prisoners are also invisible in the Department for Education’s regular statistical report on the characteristics of children in need.97 It is therefore unsurprising that this group are not prioritised at local authority level. Neither the Association of Directors of Children’s Services nor the Local Government Association felt able to provide either written or oral evidence to this inquiry when invited to do so.

62.When we discussed this with Parliamentary Under Secretary of State for Children and Families, Nadhim Zahawi MP he argued that “automatic assessment by children’s social care for all children of prisoners” was not the right way forward. He said that “… it would be wrong to assume that every child of an adult going to prison needs to be assessed because their needs may vary. They may not have any needs at all.” He was also concerned that routine assessment would be disruptive and stigmatising for children.98

63.We agree that children’s services involvement may not be necessary in every case where a mother goes to prison. However, we are very concerned that gaps in the current statutory framework mean that children like Georgia, who should be considered as potential ‘children in need’, are being left with no support and expected to fend for themselves. The “Working Together” guidance does not clearly direct professionals to consider whether these children may qualify as children in need. It is essential that “Working Together” be amended to make it clear that children of prisoners should be regarded as ‘children in need’ and should be assessed where appropriate.

Information sharing

64.Children cannot receive help if those who are responsible for providing that help do not know that a child has a parent in prison. Parliamentary Under Secretary of State for Children and Families, Nadhim Zahawi MP highlighted that the statutory “Working Together” guidance requires that probation services should ask all offenders at the earliest opportunity whether they live with, have caring responsibilities for, are in regular contact with, or are seeking contact with children. Where this applies, a check should be made with the local authority children’s services at the earliest opportunity as to whether the child is known to them and, if they are, the nature of their involvement.

65.This requirement does not appear to create an obligation to inform local authority children’s services when a mother (or other primary carer) has received a custodial sentence (as opposed to when one is being considered). Further, this guidance is only directed at probation staff and does not include prison staff. The “Working Together” Guidance should be amended to make it explicit that probation and prison staff are under a duty to inform the relevant local authority children’s services whenever they become aware that a prisoner has children.


66.If a mother is sent to prison her child’s education may well be disrupted. If the child must move from their family home as a result, they may no longer be able to attend the same school. However, there is no requirement that they are given priority for school places, so such children may spend significant periods of time out of education if there are no places available in the area which they move to.99 In other cases, such as Georgia’s, children may drop out of education altogether.

67.Due to the lack of a reliable mechanism for informing schools when a mother with a dependent child is sent to prison and the fact that it is not something families always share voluntarily, because of perceived shame and stigma, schools often do not know when pupils are in this situation.100 This means that they are unable to provide effective support to children who may experience bullying, struggle academically and/or develop behavioural problems.

68.Even when schools are aware that a pupil’s mother is in prison they are not always supportive. For example, Witness B told us that she had problems with her behaviour at school but instead of being sympathetic, the school’s approach was to punish her without attempting to understand why she was struggling.101

69.Witness B’s reaction to her mother’s imprisonment is not unusual. 75% of those supported by the charity Children Heard and Seen reported a negative impact on their child’s behaviour at home and at school. These included increases in anger, aggression and threatening behaviour, poor attendance, sadness (missing the parent) and self-harm including dropping out altogether.102

70.It is welcome that the Keeping Children Safe in Education guidance published by the DfE in 2018 now includes a reference to children of prisoners and signposts school staff to the National Information Centre on Children of Offenders website.103 This is an important step forward. We urge the Department for Education to consider issuing more extensive tailored guidance for schools on how to support children whose mothers are in prison and providing relevant training for teachers and school staff.

Support for kinship carers

71.There is little support for those caring for children whose mothers are in prison.104 For example, Lucy Baldwin told us:

“Once a mother has been sentenced to custody or remanded, there is very little support for children, or the carers who may have taken in the children unexpectedly (often grandparents). Many children are then forced further into poverty as they move in with families, most already on limited incomes, grandparents may have to take early retirement or give up a salaried position to take on the care of children.”105

72.This is borne out by the experience of Witness A, who looked after her grandchildren when their mother was in prison:

“I have no legal guardianship of Witness B and [xxx]. It is a family decision that they stay with us. Therefore, I get no help at all. We get no financial help. The only support that I got from social services was right at the beginning. They said, “The children are safe”, and suddenly backed off. Children Heard and Seen has been the support for me and the children. [ … ] It is okay saying that I am their grandparent, and I would not have it any other way. Another decision would never have been made. They were coming to me, end of, but it affected my life a lot.”106

73.Kinship carers who step in to care for children when their mothers go to prison should be entitled to financial and practical support. This should include an allowance to cover the costs of raising a child.

Contact between children and mothers during a prison sentence

74.The European Court of Human Rights (ECtHR) has found that the State has positive obligations under Article 8 to “enable and assist a detainee in maintaining contact with his [or her] close family”.107 In the case of Horych v Poland the Court held that unnecessary or disproportionate restrictions on visiting rights and inappropriate conditions may violate Article 8 ECHR.108

75.In practice there are several barriers to maintaining contact between children and their mothers during their time in prison. In the 2017 Baldwin and Epstein study one woman whose children visited only once explained some of these problems:

“My family wanted to bring my kids but it was too far. My sister tried to get help but it just didn’t happen, she said it was too complicated. [ … ] I couldn’t cope with seeing them, and it was too expensive anyway. [ … ] They were difficult to contact, I didn’t have much funds, no letters.”109

76.The cost of travel to prisons for face to face visits was frequently mentioned during our inquiry. This is often exacerbated by the fact that many women are placed in prisons far away from where they live. (See Annex).

77.Witness A told us:

“Because my husband and I work and we are not on benefits, we are entitled to no help in getting the children to visit her. We could only do it once because it was a lot of money for the train fare [ … ]. Even when you get to [ … ], they do not tell you, but it is then £10 for a taxi to get to [the prison], because it is in the middle of nowhere.”110

78.The Government runs the Assisted Prison Visits Scheme which provides help with travel costs for close relatives or partners to visit prisoners. However, it is only available to those in receipt of certain benefits or on a low income. As Witness A’s case illustrates, this means that many kinship carers who are working and therefore not eligible for help with the costs of visiting cannot afford to take children to visit their mothers. Mothers should, wherever possible and practicable, be placed in prisons close to their homes and non-means tested financial help should be made available to allow children to visit their mothers (or primary carers) in prison.

79.Several of the women in the Baldwin and Epstein study also described how visits, when they did occur, were traumatic and stressful for both their children and themselves. One commented:

“It was awful anyway. I wasn’t allowed out of my seat. I wasn’t allowed them on my knee. It’s cruel, why punish them if it’s me that’s done wrong.”111

80.Our attention has been drawn to a number of examples of good practice. for example, the Visiting Mum scheme at HMP Eastwood Park facilitates visits in which mothers can move about freely and interact with their children.112

81.Positive steps are being taken as a result of the first Farmer Review to improve the situation. The Women’s Policy Framework introduced by the Ministry of Justice requires that prisons should have a ‘Family and Significant Other Strategy’ in place which sets out how they aim to help women maintain family relationships, including with their children. The Ministry of Justice has also devolved the budget for family services to governors of all public-sector prisons, enabling them to deliver tailored family services.113

82.Stuart Harrington from the National Centre for Children of Offenders told us that these efforts are bearing fruit:

“It genuinely is an improving picture within prisons. This is particularly true in the female estate - the idea that family and the importance of family is at the forefront of any decision that the prison makes.”114

83.The Farmer Review for Women, published in June 2019 makes a number of further recommendations. Some of the key proposals are:

84.It is essential that good practice is replicated across the women’s prison estate so that all children separated from mothers who are in prison can maintain positive and regular contact with them. We welcome the recommendations in the Farmer Review for Women. The Government must implement them as soon as possible.

Visits and phone calls as a privilege

85.It was brought to our attention that visits of a child to their mother in prison can be restricted under the Incentives and Earned Privileges scheme which is used to manage prisoners’ behaviour. This means that children’s ability to contact their parent depends on their parent’s behaviour in prison, rather than the children’s right to respect for family life. Witness B told us that when her mother was not able to phone her because she had lost privileges: “It is like we are getting punished for her choices.”116

86.In his first report Lord Farmer addressed this issue. He drew a distinction between extended visits, which he said should not be linked to behaviour and additional short visits which he says might be, at the Governor’s discretion. This position has now been adopted in the Family Policy Framework published by the Ministry of Justice in January 2019.

87.Stuart Harrington from the National Information Centre for Children of Offenders set out why this position is problematic from a human rights perspective:

“We appreciate that Prison Governors have now been given instructions that for special, extended or ‘family’ visits, a prisoner’s attendance will not be based on their status in the Incentives and Earned Privileges Scheme. However, for routine social visits, the number of visits that a prisoner is given is still governed by the scheme. This is contrary to the right to family life of the child, as it treats family contact as a prisoner’s privilege rather than a child’s right. [ … ] We no longer punish prisoners by restricting their diet to bread and water nor should we by restricting their contact with their families.”117

88.A child’s visits to their mother in prison should be premised on their right to respect for family life rather than on a parent’s behaviour in prison. Only in the most exceptional circumstances should visits between children and their mothers be restricted.

83 See for example Lucy Baldwin (CMP0007)

84 Q1 [Lina]

85 Q2 [Georgia]

86 Home Office, The Corston Report March 2007

87 Q1 [Georgia]

88 Q33 [Stuart Harrington]

89 Q33 [Lucy Baldwin]

90 A child in need is defined under the Children Act 1989 as a child who is unlikely to achieve or maintain a reasonable level of health or development, or whose health and development is likely to be significantly or further impaired, without the provision of services; or a child who is disabled.

91 Dr Shona Minson (CMP0010)

93 Ministry of Justice (CMP0014)

95 ‘Early help’ is an informal assessment of need prior to statutory assessment under s.17

97 Department for Education, Characteristics of children in need: 2017 to 2018, October 2018

98 Qq52–53 [Nadhim Zahawi MP]

99 Dr Shona Minson (CMP0010)

100 Children Heard and Seen (CMP0018)

101 Q14 [Witness B]

102 Children Heard and Seen (CMP0018)

103 Department for Education, Keeping children safe in education, September 2018

104 Grandparents Plus (CMP0023)

105 Lucy Baldwin (CMP0007)

106 Q11 [Witness A]

107 Horych v Poland (Application no. 13621/08), April 2012 para 131

108 Horych v Poland (Application no. 13621/08), April 2012 para 123

109 Lucy Baldwin and Rona Epstein, Short but not sweet, July 2017, p. 35

110 Q11 [Witness A]

111 Lucy Baldwin and Rona Epstein, Short but not sweet, July 2017, p. 36

112 Ministry of Justice (CMP0014)

113 Ministry of Justice (CMP0014)

114 Q30 [Stuart Harrington]

116 Q15 [Witness B]

117 Barnardo’s CAPO Engagement Service & NICCO (CMP0020)

Published: 9 September 2019