Opening options

In 2001 Lord Phillips MR described the 'balancing exercise' to be carried out when a mother is convicted of an imprisonable offence '“ weighing the article 8 rights of the child against the seriousness of the offence.

In R (on the application of P and Q) v Secretary of State for the Home Department [2001] EWCA Civ 1151, he said: 'It goes without saying that since 2 October 2000 sentencing courts have been public authorities within the meaning of section 6 of the Human Rights Act.

'If the passing of a custodial sentence involves the separation of a mother from her very young child (or, indeed, from any of her children) the sentencing court is bound by section 6(1) to carry out the balancing exercise'¦ before deciding that the seriousness of the offence justifies the separation of mother and child.

'If the court does not have sufficient information about the likely consequences of the compulsory separation, it must, in compliance with its obligations... ask for more.'

The following year Joanne Mills, a lone parent of two children aged 11 and 14, was sentenced to eight months' imprisonment for two offences of obtaining services by deception. Her appeal against sentence succeeded.

In R v Joanne Mills [2002] EWCA Crim 26, Lord Woolf of Barnes said: 'With a mother who is the sole support of two young children, as is the case here, the judge has to bear in mind the consequences to those children if the sole carer is sent to prison.'

The principles of both P and Q and R v Mills hold good today. It is clear that sentencers should:

a) obtain information on whether the defendant has young/dependent children. 'If the court does not have sufficient information about the likely consequences of the compulsory separation, it must, in compliance with its obligations... ask for more'; and

b) balance the article 8 rights of any such children against the seriousness of the criminal offence when sentencing mothers.

Defending lawyers should remind sentencers of these requirements.

Short sentences, rising numbers

11,044 women entered prison in the UK in 2009. About half were on remand, spending an average of four to six weeks in prison.

Following trial, 61 per cent of women sentenced to custody received sentences of six months or less; 27 per cent were sentenced to three months or less. 148 fine defaulters were imprisoned. This suggests that a significant number of women are imprisoned for relatively minor offences.

'The majority of women in prison are young and have dependent children. More than 60 per cent are mothers and 45 per cent had children living with them when they were imprisoned' '“ Justice for Women: the need for reform, report of the Committee on Women's Imprisonment chaired by Professor Dorothy Wedderburn, Prison Reform Trust, 2000.

The last ten years have seen a dramatic rise in the numbers of women in prison from an average of 1,560 in 1993 to around 4,463 in June 2006. An all-time high of 4,672 was reached in May 2004. Between 1995 and 2005 the women's prison population increased at a rate nearly three times higher than men's.

Each year about 8,000 children have their living arrangements disrupted and more than 17,700 children are separated from their mothers by imprisonment. Only 25 per cent of children of women prisoners live with their biological or current fathers.

Only five per cent of children of imprisoned mothers are able to stay in their own homes during their mother's absence (see 'Think of the children', Solicitors Journal 149/15, 15 April 2005).

Damaging effects

Research is needed on whether the balancing exercise as set out in P and Q is carried out when mothers who are caring for a dependent child are convicted of an imprisonable offence or remanded in custody.

The long-term effects of imprisonment are far reaching in the case of women. Imprisonment can cause huge disruption and long-lasting detrimental effects on children when the mother is the sole carer. When the mother goes to prison children may lose their home and may have to be put into care. Children's rights and needs must be considered by the sentencing courts '“ that is both common sense and good law.

It is of course true that the courts are required to pass sentence when crimes have been committed. But imprisonment is not the only option: imprisonment should always be a last resort. Rehabilitation in the community can and should take the place of custodial punishment for the vast majority of female offenders who are non-violent and present no danger to society.