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

Conclusions and recommendations


1.The lack of reliable quantitative data on the number of children whose mothers are in prison and the number of mothers in prison is unacceptable. While we welcome the proposal in the Farmer Review for Women of a Personal Circumstances File, without improved data collection, collation and publication it will continue to be impossible to fully understand the scale and nature of this issue and to properly address it. As a matter of urgency, the Government must remedy this situation by:

a)Making it mandatory to ask all woman entering prison whether they have dependent children and what their ages are. This information should then be verified by cross-referencing it with child benefit data.

b)Carrying out an annual census in prisons in which women are asked whether they have dependent children and what their ages are.

c)Collating and publishing this data. (Paragraph 34)


2.We support the Government’s objective of reducing the number of women in custody, especially on short-term sentences and increasing the proportion of women managed in the community successfully. (Paragraph 35)

3.Judges can only fulfil their obligation to weigh the Article 8 rights of a child when sentencing if they know that the child exists. At the moment there is no guarantee they will have that information. We recommend that when sentencing an offender the judge must make reasonable enquiries to establish whether the offender is the primary carer of a child. If the offender is a primary carer of a child, the judge must not sentence unless a pre-sentence report is available at the sentencing hearing, unless in exceptional circumstances. This report must contain sufficient information for the judge to make an assessment of the impact of sentencing on the child. (Paragraph 46)

4.Given that some women may be reluctant to disclose that they have dependent children, the National Probation Service should check with HM Revenue and Customs (HMRC) whether a defendant is in receipt of Child Benefit when compiling her Pre-Sentence Report. (Paragraph 47)

5.In order to comply with their obligations under the Human Rights Act, case law provides that judges must understand the potential impact of a custodial sentence on children. To this end, judges must ensure they have sufficient information about the likely consequences of separation of a child from his or her primary carer. This could include hearing from the child, if appropriate. Judges should state how they have taken this information into account in their sentencing remarks. (Paragraph 49)

6.We know from our evidence that the welfare of dependent children is not always taken into account in sentencing hearings. We have also heard forceful evidence of the damage done to a child when a mother is sent to prison. These messages are not new. To shift entrenched practice and protect children’s rights to family life, the sentencing framework needs to give greater visibility to the welfare of the child. The welfare of the child must be at the forefront of the judge’s mind. The impact of sentencing on children must be a distinct consideration to which full weight must be given by the courts. This duty, which reflects existing case law, should be given statutory force. (Paragraph 51)

7.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. (Paragraph 55)

Support for children whose mothers go to prison

8.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. (Paragraph 63)

9.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. (Paragraph 65)

10.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. 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. (Paragraph 70)

11.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. (Paragraph 73)

12.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. (Paragraph 78)

13.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. (Paragraph 84)

14.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. (Paragraph 88)

Pregnancy and maternity

15.The Women’s Policy Framework (WPF) and supporting guidance were issued in December 2018 and require that the needs of pregnant women and women who have given birth are assessed and addressed, and that pre-natal and post-natal care is available in all women’s prisons. This is a welcome commitment and we look forward to it being fully implemented across the women’s custodial estate. (Paragraph 92)

16.The evidence we have received about the experiences of these women serve to demonstrate to us that their imprisonment poses a threat to their human rights. The Government’s commitments to improving the care of pregnant women and those who give birth in prison are welcome and must be implemented swiftly. (Paragraph 95)

17.We welcome the Ministry of Justice review of mother and baby units. It should ensure that mothers are not separated from their babies simply because they have been imprisoned. The process for applying for and allocating places in Mother and Baby Units (MBUs) must be reformed. If a baby is born during the mother’s sentence, they should both be discharged from hospital directly to an MBU, other than in exceptional circumstances When a baby is born shortly before the mother’s sentence begins, the sentence should only in exceptional circumstances start before a place is secured in an MBU. (Paragraph 100)

Published: 9 September 2019