Human Rights and the Government’s response to COVID-19: children whose mothers are in prison Contents

3Early and temporary release

10-year-old child whose mother is in prison:

“I am 10 years old and Mum has been away for 18 months. We did not go to see her because she was coming home every two weeks for five days until the virus. We have not seen her or Dad for three and a half months, not even her face. Mum phones every day. I cannot explain how it makes me feel. It makes me feel sad and confused.”19

Grandmother of one-year-old child whose mother was re-called to prison:

“With regards to other behaviour changes, just after her recall and the one visit we had, he would crawl purposefully from room to room in our house whining and making what I can only describe as calling noises. I could not ask him if he was looking for mummy but there was no question in mind that he was.”20

12.In March and April 2020, as part of its suite of measures to help prisons cope with the Covid-19 pandemic, the Ministry of Justice made a series of announcements and legal changes regarding the early release of prisoners. Prior to the Covid-19 pandemic, the Lord Chancellor and Secretary of State for Justice already had the power to release a fixed-term prisoner on licence, if he was satisfied that there were exceptional circumstances which justified the prisoner’s release on compassionate grounds.21 On 31 March 2020, the Government announced that mothers and babies in Mother and Baby Units, and pregnant prisoners would be temporarily released from prison, subject to being assessed as not posing a high risk of harm to the public, under these powers.22

13.On 4 April 2020, the Government then announced that prisoners within two months of their release date would also be temporarily released, subject to a risk assessment.23 On 6 April 2020, a statutory instrument was laid,24 which amended the Prisons Rules 1999 and the Young Offender Institution Rules 2000 to allow for the early release of prisoners due to Covid-19, with effect from 7 April. The rules were amended to include a new rule on “Coronavirus Restricted Temporary Release”. The new rules specify which prisoners may be released: those serving a standard determinate sentence, with an automatic release date and no Parole Board involvement; or those committed to custody in default of payment of a sum adjudged to be paid by a conviction, or for contempt of court.25 The Secretary of State must be satisfied that the temporary release is for the purpose of preventing, protecting against, delaying or otherwise controlling the incidence of Coronavirus, or for the facilitation of the most appropriate deployment of personnel and resources in prisons.26 Not all prisoners are eligible for early release under this scheme; some categories of prisoner, such as those who have committed violent or sexual offences, are excluded. However, we note that only 12% of women in prison have been sentenced for violent offences against the person.27

14.Despite these measures, at the date of the evidence session, only 16 women from Mother and Baby Units and six pregnant women had been released.28 The Minister was unable to tell us how many children were separated from their mother by their mother’s imprisonment,29 so we are unable to know how many women could potentially have been released so far. On 29 June, we received an update from the Ministry of Justice, confirming that:

a)23 women who are pregnant or residing in Mother and Baby Units have been released under the Release on Temporary Licence Policy;30

b)Less than five women who are medically vulnerable have been released under the Release on Temporary Licence Policy; and

c)Seven women who are within two months of their release date have been released under the End of Custody Temporary Release scheme.31

15.In the last Parliament the Committee, during its inquiry into The right to family life: children whose mothers are in prison, raised concerns that the courts do not have the right information to sentence appropriately,32 and that children can often feel invisible in the sentencing process:

“This is the thing I always think about, and I think back to it quite a lot. I know my mum did wrong and deserved a punishment, but if you were to stand my mum up in that box with me and my brother, and someone turned around and said, “Do you sentence these three?”, would the judge look at it differently?”33

16.In the cases of mothers sentenced to prison before the outbreak of the pandemic, the judge may have had in mind that her child can visit her in prison. Furthermore, her children will have also understood that they are able to visit their mother in prison, and in some cases, will have been used to regular contact with their mother.

17.The Minister for Prisons and Probation told us that:

I know that [the Early Release scheme] has not produced the number of releases that people had hoped for, but it is one part of our overall strategy on managing Covid within our prisons. In addition to releasing people, we have temporary accommodation coming into a number of prisons to increase our headroom, some of which are in the female estate. The scheme is not our only strategy for managing the prison population.34

18.However, this strategy merely appears to address one single issue, that of space within prisons to enable appropriate distancing and quarantine during the pandemic, and does not address wider, and no less important issues, such as ensuring that the right to family life is upheld during the pandemic. These measures are impacting on a generation of children, who were already suffering from their mothers being sent to prison and are now suffering further by being unable to visit their mothers.

19.The Government must immediately and as announced temporarily release from prison all remaining pregnant women and those in Mother and Baby Units, and all mothers with dependent children and who are within two months of their release date who have been appropriately risk assessed, to ensure those mothers can be with their children while opportunity for physical contact is limited during these unprecedented times. The Government should consider extending its current policy to temporarily release prisoners who are pregnant or in Mother and Baby Units to all mothers of dependent children where the mothers have been individually risk-assessed as posing no, or low, risk to public safety.

20 Q38 [Anonymous Grandmother of one-year-old]

22 “Pregnant prisoners to be temporarily released from custody”,Gov.UK, 31 March 2020

23 “Measures announced to protect NHS from coronavirus risk in prisons”, Gov.UK, 4 April 2020; “Pregnant prisoners to be temporarily released from custody”,, 31 March 2020

24 Prison and Young Offender Institution (Coronavirus)(Amendment) Rules 2020 (SI 2020/400)

28 Q42 [Lucy Frazer MP]

29 Q45 [Lucy Frazer MP and Jo Farrar]

30 17 of these women were in Mother and Baby Units, each with one child.

31 Information from the Ministry of Justice

32 HC (2017–19) 1610, paras 42–44

33 Oral evidence taken on 13 February 2019, HC (2017–19) 1610, Q6 [Georgia]

34 Q42 [Lucy Frazer MP]

Published: 3 July 2020