The United Nations Convention on the Rights of the Child 1989 Article 2 states that every child should be protected from discrimination or punishment, including that which they suffer because ‘of the status or activities of their parents’. The Human Rights Act 1998 gives them a right to family life under Article 8, and under Article 14, a right to enjoy rights without discrimination.
Research conducted in England and Wales (Minson, 2020) found that children whose primary caring mothers are sentenced to imprisonment suffer procedural discrimination and their rights under the UNCRC Article 3 – for their best interests to be a primary consideration in any proceedings concerning them; Article 12 – their right to be heard in any proceedings concerning them, and Article 20 – the right to special protection and assistance from the state if separated from their parents, are not upheld. The consequences of parental imprisonment for children are both wide ranging and long term, extending far beyond the length of the sentence itself.
Although we don’t know how many women in prison are mothers to children under the age of 18, it is thought to be between 50 and 60%. Many of these women will be a party to family court proceedings which were ongoing prior to their imprisonment or were initiated as a consequence of their imprisonment. In the course of these proceedings, decisions are made about the care arrangements for children, and these will often be determinative of the children’s future trajectories. It is in the best interests of a child if their mother is able to fully participate in those proceedings. Therefore, if a sentence of imprisonment prevents a mother from participation in proceedings, it follows that her child is the subject of further ‘discrimination as a consequence of the status of their parent’ contrary to Article 2 of the UNCRC.
Every person has a right to a fair trial under Article 6 of the Human Rights Act, and this extends to both civil and criminal proceedings. There are four elements which should be present in a fair trial, and the research focuses on the presence of the participation rights; the right to adversarial proceedings and ‘equality of arms’. The Family Procedure Rules 2010 have an overriding objective of dealing with cases justly, expeditiously and fairly, ‘ensuring that parties are on an equal footing’, making it clear that the family courts intend to provide all parties with a ‘fair trial’.
Shona Minson undertook an empirical study exploring the ability of mothers in prison to participate in court proceedings concerning their children in the family courts of England and Wales. Data was collected from the case files of prison based social workers working in two women’s prisons, and from interviews with the social workers and interviews with judges of the Family Court in England and Wales.
The report provides an in-depth analysis of the systemic barriers that hinder imprisoned mothers from participating effectively in family proceedings, thus undermining the principles of fairness and equality that are fundamental to the justice system.
The report makes recommendations across four areas where collaborative change is necessary to address the current barriers to participation in family court proceedings for mothers in prison. Improved practice will ensure that the best interests of children are served in family proceedings involving imprisoned parents.
