Sentencing mothers: the rights of the child and the duties of the criminal courts

Abstract

The Human Rights Act 1998 (HRA) came into force in October 2000. Section 6 of the Act obliges all public bodies, including, of course, the courts, to comply with the European Convention on Human Rights (ECHR). Article 8 of the ECHR and Fundamental Freedoms (1950) states that everyone has the right to respect for private and family life. As imprisonment of a father or a mother entails the forcible separation of a child from its parent and therefore impacts on the Article 8 rights of the child, a sentencing court must therefore conduct a balancing exercise weighing the Article 8 rights of the child against the seriousness of the parent's offence. This article reports on the research that I have undertaken to explore to what extent, if at all, the required balancing exercise is being carried out in the English sentencing courts and whether the courts are complying with the HRA in this respect. The research covered 50 cases of the imposition of custody (suspended and immediate) on mothers who have the care of a dependent child. This article presents conclusions from this preliminary study, which principally has found that although the courts do sometimes express concern for the welfare of affected children, they do not, on the whole, refer as they should to the rights of the child at the time of sentencing a mother. Although the law regarding the rights of the child to a parent's care applies equally to a father and a mother, this article concentrates on the imprisonment of mothers; in the vast majority of cases, it is the custody of the mother that results in the loss of parental care.

Keywords:

• imprisonment of mothers
• sentencing
• criminal courts
• European Convention
• Article 8 ECHR
• parents' and children's rights

Acknowledgements

This research was funded partly by Coventry University and partly by The Oakdale Trust. I am grateful for this support, which has provided payment for the transcripts of sentencing remarks. The research reported in this article is a preliminary study. A fuller study, funded by The Oakdale Trust, is under way, which is planned to cover a further 20 cases of imprisoned mothers.

Notes

R (on the application of P and Q) v Secretary of State for the Home Department EWCA Civ 1151 (2001).

R (on the application of Amanda Aldous) v Dartford Magistrates' Court EWHC 1919 (Admin) (2011).

R v Bishop (Wayne Steven) WL 844007 (2011).

In R (on the application of Stokes) v Gwent Magistrates Court All ER (D) 125 (Jul) (2001) and R (on the application of P and Q) v Secretary of State for the Home Department EWCA Civ 1151 (2001).

http://www.judiciary.gov.uk/media/judgments/2012

http://www.womeninprison.org.uk/

Section 174 Criminal Justice Act 2003; Section 64 Legal Aid, Sentencing and Punishment of Offenders Act 2012.

http://sentencingcouncil.judiciary.gov.uk/ – these guidelines were published in March 2012 and came into force in June 2012.

R v McClue EWCA Crim 311 (2010).

Mr Justice Wyn Williams in R v Evelyn Arinze EWCA Crim 1638 (2010).

R v Shantelle Davis (EWCA Crim 594 [2010]).

R v Lisa Ann Dawson EWCA Crim 1947 (2011).

Local Government Finance Act 1992, Regulation 47 and Council Tax (Administration and Enforcement) Regulations 1992, SI 613/992.

R (on the application of Amanda Aldous) v Dartford Magistrates' Court EWHC 1919 Admin (2011).