Article 8 Rights of Prisoners and their Children

Together we are Forbes


17 December, 2019

Lucy Harris

On 5 November 2019, the Ministry of Justice published the Government's Response to the Joint Committee on Human Rights, Twenty-Second Report of Session 2017-19, The right to family life: Children whose mothers are in prison.

The Report highlights the difficulties in adequately supporting mothers in prison and their children and relatives. It acknowledges the importance of upholding the Article 8 rights of prisoners and their children.


The guideline on the Imposition of Community and Custodial Sentences applies in all cases where the court is considering imposing a custodial sentence and this states:

'For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing'.

There will be cases so serious that they pass the custody threshold, given the range of factors that judges must already take into account in sentencing, not least existing case law and guidance provided to the judiciary. The Government does not believe that those sentencing offenders should be subject to a further explicit statutory obligation to consider the welfare of offenders' children when sentencing.

The Government's vision is for fewer women to be in custody and for more women to be overseen in the community. Existing sentencing guidelines provide for mitigation for primary carers and list 'the impact on others' as a factor to be taken into account when considering whether to suspend a sentence.

The Government agrees with the Committee's conclusion that it is vital that high quality pre-sentence reports, which confirm a woman's status as carer, are made available to sentencers. Yet there is a noted decline in the use of pre-sentence reports, which potentially limits the opportunity for those sentencing women to be made aware of the potential impact of custody on their dependents.

It is important that defendants facing a custodial sentence are made aware at an early stage of this potential, so they can make caring arrangements for this eventuality. Where a primary carer has dependents, but has been unable to make caring arrangements prior to being placed in custody, practice is mixed. There may be the opportunity to make childcare arrangements from court custody suites after sentence; however, there is not yet a specific requirement for this to be supported. The Government will be reviewing guidance across custody suites to ensure this process is formalised and consistent.

Supporting the Child

In 'Working Together to Safeguard Children', it is clear that anyone who has concerns about a child's welfare should make a referral to the local authority. The local authority and its social workers will then determine whether the child is in need (section 17, Children Act 1989), or is suffering or is likely to suffer significant harm (section 47, Children Act 1989).

Every assessment by a social worker should reflect a child's needs within their family and community context, which would include taking account of a parent being in prison.

It is not believed that a prescriptive approach - such as regarding all children of prisoners as 'children in need' - is appropriate or right. In order to promote consistent consideration of children's vulnerability, the Government will look to strengthen the guidance in Working Together to Safeguard Children at the next opportunity. It has stated that it intends to look at current arrangements for information sharing between probation, prison staff and schools, when a child's primary carer goes to prison, to consider whether any improvements can be made.

The Government response underlines that children of prisoners cared for by their relatives are entitled to support under section 17 of the Children Act 1989 and advocates that each local authority should publish local policy in relation to supporting children living with family and friends in general.

Keeping Children Safe in Education offers statutory guidance and is clear that school staff should consider the additional needs of children with parents in prison. It is acknowledged that a parent going to prison can impact on a child's learning, behaviour, mental health and wellbeing - but that support should be based on the needs of the child, not solely the characteristic of having a parent in prison.

Supporting Parents

Supporting parents who are in custody to have meaningful, fulfilling contact with their children is critical to maintaining family ties, and the Government acknowledges that distance from home can be a challenge for maintaining these ties.

Her Majesty's Prison and Probation Service endeavours to ensure that prisoners are accommodated as close as possible to their communities and families. This is not always possible and in the female estate, this is even more challenging, as the smaller population means there are significantly fewer establishments more widely spread. The Government are looking into how technology (in-cell Telephony Project) may improve the maintenance of family ties in other ways.

Prison Rules 1999 require Governors to actively encourage those in custody to maintain outside contacts and meaningful family ties. Since April 2018, all prison Governors have been required to produce local strategies setting out how they will support prisoners to improve the level of engagement with their friends and families, and the Help with Prison Visits Scheme provides financial support for families on low income. Changes to the scheme rules and eligibility criteria for financial assistance were piloted in autumn 2019 with the intention to improve the uptake of visits for children of primary carers. The changes are being evaluated currently.

Acknowledging the importance of the environment for visits to the experiences of children, the Farmer Review for Women recommends that;

  • a physical space is provided where women can spend private time with family members,
  • that Child Resettlement Leave is expanded to include primary carer status (NB this change has already been made),
  • that Release on Temporary Licence should be used more widely, so women can continue to have contact with their family and undertake caring responsibilities,
  • that a social worker post be introduced into prisons to ensure that parents feel supported to maintain relationships with their children.

These recommendations have been accepted by the Ministry of Justice who are considering how these can best be taken forward.

Pregnancy and Maternity

A perinatal pathway is currently being developed for women prisoners who are either pregnant or who have given birth and are caring for their new born babies whilst serving a custodial sentence. It is expected to be launched in 2020.

The pathway is intended to provide clarity for all agencies involved in the maternity care of perinatal women in custody, to support an increased awareness around the needs and services for these women, and outlines how access to equivalent care can and should be delivered within a custodial setting.

Dedicated midwifery services will be available and personnel will work closely with local hospital midwifery services. Birth plans will be developed at the earliest opportunity and where there are any additional complexities around health needs; there will be a multi-disciplinary approach in ensuring patient care is consistent and appropriate.

Forbes Comment

It is important that in every case where a mother with a dependent child is at risk of a custodial sentence, the sentencing courts acquire information about the dependent(s) and perform a balancing exercise of the article 8 rights against the seriousness of the offence. In order for this exercise to be performed appropriately, courts must be provided with sufficient information on child(ren) which are likely to be affected by a mother's imprisonment, including the distance between home and the prison and who would be the primary carer.

In order to protect children who may be impacted by the imprisonment of a mother, key agencies including the prison service and schools must work together and share information so an informed decision can be made about the fate of an affected child.

To promote Article 8, contact between family members must be supported and meaningful. Work must be continually done and processes continually reviewed to ensure that both physical and non-physical contact is as beneficial for the prisoner and the dependents as possible.

Lastly, there is a focus on ensuring that the treatment and care a pregnant woman and their baby receives in custody is on par with that a pregnant woman and their baby who are not in custody would receive.

The recommendations aim to have extensive benefits for the prison and probation systems, the mothers or mothers to be and their dependants.

For more information contact Lucy Harris in our Insurance department via email or phone on 01254 222443. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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