UK: Protecting the best interests of the child when sentencing a primary carer

18th May 2021

In March of 2021, the UK government introduced the Police, Crime, Sentencing and Courts Bill, a broad piece of legislation that if passed will make significant changes to many sections of the criminal justice system in England and Wales. In response, the Joint Committee on Human Rights, a crossbench group of members of both houses of Parliament, submitted a series of proposed amendments to the legislation that would amplify the rights of children of parents facing custodial sentences.

Building on previous reports published in 2019 and 2020, the Joint Committee stresses the deleterious effects of parental incarceration on dependent children, the gaps in recording the familial status of women in the criminal justice system and the need for judges to factor child welfare and family cohesion into their sentencing decisions so that the UK meets its international law obligations.

The Amendments

The effects of each amendment are listed here and will be discussed further below:

1. This amendment makes clear the requirement for a sentencing judge to have a copy of a pre-sentence report considering the impact of a custodial sentence on the dependent child, when sentencing a primary carer of a child.
2. This amendment requires a sentencing judge to state how the best interests of a child were considered when sentencing a primary carer of a dependent child.
3. This amendment reflects the requirement for a sentencing judge to consider the impact of a custodial sentence on a child when sentencing a primary carer of a dependent child.
4. This amendment reflects the requirement for a judge to consider the impact of not granting bail on a child, when determining, in criminal proceedings, whether to grant bail to a primary carer of a dependent child.
5. This amendment imposes a requirement on the Secretary of State to collect and publish data on the number of prisoners who are the primary carers of a child and the number of children who have a primary carer in custody.

Human Rights Foundations

The proposed amendments are designed to vindicate the rights of the children of offenders, contained in Article 8 of the European Convention on Human Rights which protects family life. The rights of children are also contained in the UN Convention on the Rights of the Child which the UK ratified in 1991. Amendments 1-4 which would place statutory duties on sentencing judges to factor the welfare of the child of offenders into their decision-making stem from these principles of international human rights law.

However, despite language that talks about making children visible in criminal justice proceedings there is no discussion of the prospect of child or family impact statements modelled on the victim impact statements commonly used in court proceedings. The amendments imply a reliance on pre-sentence reports to communicate the familial situation of offenders. (For a discussion on the potential impact of child impact statements in an Irish context see Donson, 2015.)

Hidden Children

Given the emphasis on the best interests of the child and the concern for amplifying the voice of children in decision making which affects them, the Committee expressed significant concern for the ways in which children are “hidden” by the workings of the criminal justice system. The Committee’s 2019 inquiry highlighted that: “women entering the prison system were not always routinely asked if they had dependent children, and that the prison record system did not require that a prisoner’s children were recorded, despite the intention that this information should be recorded”. These gaps in data collection impair efforts to support children and families impacted by incarceration. This is the basis for the statutory duty that the Joint Committee wishes to impose on the Secretary of State through Amendment 5.

Women Offenders in British Criminal Justice Policy

This report recounts the social and psychological impacts of parental incarceration which strain family bonds and often entrench existing deprivation and social exclusion fuelling recidivism and multi-generational offending. It is in this context that the Joint Committee expressed its unease about government plans to create 500 extra spaces for female prisoners.

Conclusion

The intervention of the Joint Committee is welcome. Placing statutory duties on sentencing judges to consider the welfare of children and mandating the Secretary of State collect accurate information about the number of prisoners and children impacted by parental incarceration would do much to centre children in the criminal justice process and assist the UK in vindicating the rights of prisoners and their children. However, the role of the child could potentially be amplified.

Read more on the UK Parliament website here.