Analysing the impact of being a sole or primary carer for dependent relatives on the sentencing of women in the Crown Court, England and Wales

Most quantitative sentencing research treats women and men as a homogeneous group leading to gaps in the literature regarding women’s experiences of sentencing procedures. This is problematic given the vast array of known harms that result from incarcerating women, particularly those with caring responsibilities for children. This exploratory article shares the findings from a quantitative study which considers the sentencing of women, with a particular focus on the ‘sole or primary carer for dependent relatives’ mitigation when applied to mothers. Using data from the Crown Court Sentencing Survey 2011–2015, a sample of 18,314 women defendants was derived and investigated using descriptive, bivariate and regression analysis to explore the relationship between the ‘caring’ mitigation and non-custodial sentences. The findings suggest that when the mitigation is applied to sentences of women who are carers of dependents, it does not have a strong enough relationship with non-custodial sentences. This article provides hitherto unknown statistical data and highlights the need for further research

Sentencing Women in the Transformed Probation Landscape

In 2013 the government promised that new reforms would ‘deliver better outcomes for women offenders’ (Ministry of Justice, 2013b, p.16). This was a bold statement and a laudable ambition. However, this strategy – called and aimed at Transforming Rehabilitation - will only be successful if sentencers are aware of (and support) the options that new providers put in place to achieve its goals. This chapter considers current levels of awareness of the new reforms among magistrates. Highlighting reservations about the suitability of community provision, and a lack of awareness about developments under Transforming Rehabilitation, it emphasises the lack of information that magistrates receive on this issue. Supplementing the findings of a recent research project conducted with 168 magistrates (see Birkett, 2016), this chapter provides a post-Transforming Rehabilitation ‘update’, drawing on 24 semi-structured interviews and a survey of 86 magistrates sitting across England and Wales. As such, it places particular focus on developments that followed the implementation of the Offender Rehabilitation Act 2014, the legislative measures underpinning the government’s flagship Transforming Rehabilitation policy agenda

Prisoners’ Families’ Research: Developments, Debates and Directions

After many years of relative obscurity, research on prisoners’ families has gained significant momentum. It has expanded from case-oriented descriptive analyses of family experiences to longitudinal studies of child and family development and even macro analyses of the effects on communities in societies of mass incarceration. Now the field engages multi-disciplinary and international interest although it arguably still remains on the periphery of mainstream criminological, psychological and sociological research agendas. This chapter discusses developments in prisoners’ families’ research and its positioning in academia and practice. It does not aim to provide an all-encompassing review of the literature rather it will offer some reflections on how and why the field has developed as it has and on its future directions. The chapter is divided into three parts. The first discusses reasons for the historically small body of research on prisoners’ families and for the growth in research interest over the past two decades. The second analyses patterns and shifts in the focus of research studies and considers how the field has been shaped by intersecting disciplinary interests of psychology, sociology, criminology and socio-legal studies. The final part reflects on substantive and ethical issues that are likely to shape the direction of prisoners’ families’ research in the future

Who cares? Analysing the place of children in maternal sentencing decisions in England and Wales

When children face separation from their parents as a consequence of state action in the family courts, their best interests are the paramount consideration of the court and they have legal representation. Children who face separation from their mother as a consequence of sentencing proceedings in the criminal courts are neither represented nor acknowledged. The thesis analyses this differentiated treatment and explores its consequences for children, society and the state. Explanations for the differentiated treatment are tested with reference to existing literature and original empirical research. The impact on children of imprisoned mothers is investigated to determine whether or not they suffer harm. The parameters of the state duty of care towards children are explored, to see if children of defendant mothers fall outside of it, and the way sentencing judges construct and interpret their duty towards mothers and their children within the sentencing process is examined. This thesis establishes that without legal or moral justification, children of maternal defendants are treated without the concern given to children who face separation from their parents in the family courts. Children of defendant mothers suffer as a consequence of the 'secondary prisonisation', 'secondary stigmatisation' and 'confounding grief' which they experience, and the state has failed to uphold their rights under Articles 3, 12 and 20, and is in breach of its duty under Article 2 of the United Nations Convention on the Rights of the Child 1989. The guidance and mechanisms for considering their welfare exist but are not engaged with by the sentencing courts, local authorities, legislators or policy makers. This has negative consequences for children, their caregivers and wider society. The thesis concludes with consideration of the implications of these findings for the state and suggests changes to ensure equitable treatment of children of defendant mothers in England and Wales.</p

Maternal sentencing and the rights of the child

This book brings to life the experiences of children affected by maternal imprisonment, and provides unique, in-depth analysis of judicial thinking on this issue. It explores the experiences of children whose mothers are sentenced to imprisonment in England and Wales and contrasts their state-sanctioned separation from their mothers in the criminal courts (where the court may not even be aware of the existence of a child) to the state-sanctioned separation of children from their parents in the family courts, where the child has legal representation and their best interests are the court’s paramount consideration. Drawing on detailed empirical research with children, caregivers, and Crown Court judiciary, Maternal Sentencing and the Rights of the Child brings together relevant literature on law, criminology, and human rights to provide insight into the reasons for the differentiated treatment and its implications for children, their caregivers, and wider society

Mothers in prison and the family court

‘It is a long-established legal principle in England and Wales – expressed in statute case law procedure rules practice directions and guidance – that people should be able to participate effectively in the court and tribunal proceedings that directly concern them.’ (Jacobson 2020) With an increasing number of women in prison family justice proceedings will from time to time involve a mother who is in prison. This article explores ‘effective participation’ which involves not just appearance at hearings but preparedness understanding and inclusion. It is important that all those involved in the process take account of the context of the mother’s participation as it is perhaps more complex than we have previously understood it to be. In the article I raise and rebut four assumptions which may be made about mothers taking part in proceedings from prison. (1) She’s in prison: she must have committed a serious crime (2) The criminal courts must have considered the impact of a custodial sentence on her children (3) The children..

Who cares? Analysing the place of children in maternal sentencing decisions in England and Wales

When children face separation from their parents as a consequence of state action in the family courts, their best interests are the paramount consideration of the court and they have legal representation. Children who face separation from their mother as a consequence of sentencing proceedings in the criminal courts are neither represented nor acknowledged. The thesis analyses this differentiated treatment and explores its consequences for children, society and the state. Explanations for the differentiated treatment are tested with reference to existing literature and original empirical research. The impact on children of imprisoned mothers is investigated to determine whether or not they suffer harm. The parameters of the state duty of care towards children are explored, to see if children of defendant mothers fall outside of it, and the way sentencing judges construct and interpret their duty towards mothers and their children within the sentencing process is examined. This thesis establishes that without legal or moral justification, children of maternal defendants are treated without the concern given to children who face separation from their parents in the family courts. Children of defendant mothers suffer as a consequence of the 'secondary prisonisation', 'secondary stigmatisation' and 'confounding grief' which they experience, and the state has failed to uphold their rights under Articles 3, 12 and 20, and is in breach of its duty under Article 2 of the United Nations Convention on the Rights of the Child 1989. The guidance and mechanisms for considering their welfare exist but are not engaged with by the sentencing courts, local authorities, legislators or policy makers. This has negative consequences for children, their caregivers and wider society. The thesis concludes with consideration of the implications of these findings for the state and suggests changes to ensure equitable treatment of children of defendant mothers in England and Wales.</p

What about the children? Sentencing defendants who are parents of dependent children

This article considers the duty of the courts to recognise the implications for children that flow from sentencing defendants who are parents. In 2020–22 Dr Minson presented her research at judicial education seminars organised by Te Kura Kaiwhakawa, Institute of Judicial Studies. Dr Minson’s research in England and Wales analysed the observance of children’s rights in sentencing decisions concerning their primary carers (mainly mothers). Her work explores the lack of concern for children whose primary carers are before the courts in that jurisdiction. This research provided the impetus to assess the parallel situation here in Aotearoa. This article refers to defendants who are parents, however the case law and sentencing principles are applicable to defendants who are caregivers more generally. Similarly, the sentencing principles may be considered and applied in respect of defendants who have any dependents, children or otherwise