2Visits and the right to family life
Impact of the suspension of visits
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Grandmother caring for her five grandchildren whose mother is in prison: “My daughter was coming home on ROTL [Release on Temporary Licence] every two weeks for five days, but we have not seen her for three and a half months now since lockdown, not even her face. This is affecting the children in a bad way, especially the youngest, aged six. He has nightmares and cries so much. We all just need to see her.”5 We heard evidence from a grandmother caring for her one-year-old grandson whose daughter (the baby’s mother) is prison. The mother was re-called to prison just before the Covid-19 pandemic took hold and the baby was able to visit her just once before prison visits were suspended: “A week passed before I was able to visit my daughter with her baby son to prison. There was a small delay when he first lay eyes on her after so long and then he burst in to tears on recognizing who she was [ … ] his tears were those of recognition of someone he loved deeply who was missing but now found. They told of the deep attachment that he had for his mum and one, which was undoubtedly still needed. [ … ] We had another visit booked for the following week but this was cancelled along with every other prison visit in the UK. [ … ] The ongoing separation from her young son has been by far the most harrowing and distressing part of her recall [ … ] it is a sentence that no mother should have to endure let alone her child.”6 |
The right to family life
5.Article 8 of the European Convention on Human Rights (ECHR) provides for the right to respect for private and family life. When a mother is detained in prison her rights under Article 8 ECHR, and those of her children, are engaged. Being sent to prison entails inherent limitations on private and family life. However, 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”.7 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.8 It has also made clear that blanket bans on visiting are contrary to Convention rights; states must ensure that restrictions on visiting rights are justified in each individual case.9
6.Due to Covid-19, all visits to prisons in England and Wales have been suspended since March 2020.10 The Minster of State, Lucy Frazer QC MP told us that there is currently no date set for the resumption of prison visiting, although she did seek to assure us that this would be a priority when the country reaches stage 3 of alert. On 8 June, the date of the evidence session, the alert level was 4. On 19 June, the alert level was reduced from 4 to 3, and we therefore urge the Minister now to make resumption of prison visiting a priority in line with her assurance.11 The Equality and Human Rights Commission (EHRC) has called on the Government to publish its plans and timetable for reinstating face-to-face visits across the women’s estate.12
7.In the context of the pandemic the State has a positive obligation pursuant to Article 2 ECHR to take appropriate steps to protect the lives of both prisoners and staff working in prisons.13 Given this, a greater degree of interference with the Article 8 right to family life is likely to be proportionate at this time and may justify some restrictions on visiting to prevent the spread of the virus. However, this does not extend to the imposition of a blanket ban on all visits, as is currently in place. The Government must conduct an assessment to balance the competing individual and public interests and to take into account the circumstances of each individual case. In our view, the imposition of blanket bans across the entire estate risks violating the Article 8 rights of prisoners and their families.
Alternative means of family contact
8.The Minister sought to assure us that the Government has taken steps to provide alternative ways for prisoners to keep in contact with their families at this time. This has included: the provision of 900 extra telephone handsets for those in prisons without in-cell telephony; an increase in phone credit for prisoners by £5 a week; and the expedited roll-out of technology to allow mothers to have virtual visits with their children, at least once a month.14
9.Despite these welcome moves, none of the children we heard evidence from or about had yet been able to benefit from a virtual visit with their mother. The grandmother of the one-year-old told us that she believed a video call would help her grandson to remember who his mother is and reignite the bond between them, but that the prison her daughter is held in did not yet have the technology to facilitate this.15 The EHRC told us that they are concerned that video-visits are not yet in place across the women’s estate.16 Their evidence noted that where video-visits are possible, they are available on average once a month.17
10.It was clear from the evidence we heard, that for children, talking on the phone, is rarely a good substitute for visits. The 10-year-old whose evidence we heard told us “Mum phones every day. I cannot explain how it makes me feel. It makes me feel sad and confused.”18
Conclusion
11.The current lack of meaningful contact between mothers in prison and their dependent children due to the suspension of visits to prison risks breaching both groups’ right to private and family life. The Government must not impose blanket restrictions on visiting rights. In order to comply with Article 8 ECHR, they must ensure that any restriction on visiting rights is necessary and proportionate in each individual case. Children must be allowed to visit their mothers in prison on a socially distanced basis, where it is safe for them to do so.
7 Horych v Poland (Application no. 13621/08), April 2012 para 131
8 Horych v Poland (Application no. 13621/08), April 2012 para 123
9 Khoroshenko v Russia [2015] ECHR 637 at paragraph 126, Trosin v Ukraine [2012] ECHR Application No. 39758/05.
10 Prison visits cancelled, Ministry of Justice press release, 24 March 2020
13 For a positive obligation under Article 2 to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals. This test is clearly met in the context of the current pandemic.
Published: 3 July 2020