The Joint Committee on Human Rights published a report on 9 September 2019 considering the right to family life pertaining to children whose mothers are in prison.
Human Rights Act 1998
Article 8 of the Human Rights Act 1998 protects your right to respect for your private life, your family life, your home and your correspondence. Family life refers to the right to enjoy family relationships without the interference of the government, which includes the right to live with your family and, where this is not possible, the right to regular contact with your family.
The report cites that 17,000 children each year are separated from their mothers when their mothers are sent to prison. The vast majority of those cases, the report states, are for non-violent offences.
The report highlights that the court often lacks adequate information about whether a defendant has children and the impact a prison sentence will have on their children. Harriet Harman, who chairs the committee notes that the right of a child to family life is currently only given ‘lip service’ and ‘the harmful effects of a mother going to prison start at sentencing and continue for years, even after the mother is released’. This relates to data collected by the committee which indicates that children whose mothers are sent to prison are more likely than their peers to have future problems including increased criminal offending, substance addiction and mental health problems.
The report recommends that:
- When sentencing an offender the judge must make reasonable inquiries to establish whether the offender is the primary carer of a child, and if the offender is a primary carer, the judge must not sentence unless a pre-sentence report is available at the sentencing hearing, unless the circumstances are exceptional;
- judges must ensure that they have sufficient information about the likely consequences of separation of the child from the primary carer, including hearing from the child if appropriate. Judges should state how they have taken this information into account in their sentencing remarks; and
- the impact of sentencing on children must be a distinct consideration to which full weight must be given by the courts. This duty, which reflects existing case law, should be given statutory force.
Benefit of legal representation
The findings of the report highlight yet again the benefit of being legally represented in court proceedings. The family background for any defendant is extremely important information which should be presented to the judge and taken into consideration as part of the judge’s determination when passing sentence. Of particular importance is the impact on a defendant’s children which the court should be informed on. Your legal representative can ensure that a judge is provided with sufficient information that will guide them when passing sentence and ensure the judge is fully aware of the impact not solely on a defendant, but also their immediate family. Moreover, your representative will seek to ensure that the information supplied is weighted correctly, in line with the relevant sentencing guidelines. The importance of this can be the difference between a prison sentence or a lesser sentence.
If you are being investigated for or have been charged with a criminal offence, it is imperative that you seek specialist advice from a criminal defence solicitor to discuss your options. Should you require the assistance from our specialist team of criminal defence solicitors call us on 01616 966 229.