This book brings to life the experiences of children affected by maternal imprisonment, and provides unique, in-depth analysis of judicial thinking on this issue. It explores the experiences of children whose mothers are sentenced to imprisonment in England and Wales and contrasts their state-sanctioned separation from their mothers in the criminal courts (where the court may not even be aware of the existence of a child) to the state-sanctioned separation of children from their parents in the family courts, where the child has legal representation and their best interests are the court¿s paramount consideration. Drawing on detailed empirical research with children, caregivers, and Crown Court judiciary, Maternal Sentencing and the Rights of the Child brings together relevant literature on law, criminology, and human rights to provide insight into the reasons for the differentiated treatment and its implications for children, their caregivers, and wider society.

Shona Minson is British Academy Post-Doctoral Fellow at the Centre for Criminology, University of Oxford, UK. She was awarded the Economic and Social Research Council's Early Career Outstanding Impact Award 2019. Her work Motherhood as Mitigation published by The Howard League for Penal Reform won the John Sunley Prize 2013. Formerly a criminal and family barrister her work focuses on the rights of children whose parents are in conflict with the law. 

Acknowledgements 

Contents

Chapter 1: Introduction 

Aims and Structure 

Part I: The Foundations 

Chapter 2: The invisibility of women and their children in the criminal justice system 

State separation of children from their parents

- The family court practice

- The criminal court practice

Children of imprisoned parents: Introduction

Women in prison in England and Wales

- Women in prison 1995 -2006

- Women in prison 2007 -2019 

- Increasing visibility and numbers

The impacts of parental imprisonment on children 

Describing the Harms 

- The doctrine of double effect

- Defendant responsibility 

- Collateral damage or collateral consequences

- Punishment Drift

Reconceptualising the harms 

- Secondary prisonisation of children and caregivers

- Secondary Stigmatisation of children and caregivers

Conclusion

Chapter 3: Methodological Choices and Challenges

Research Design

Methodological Choices

- Mixed methods design

- Triangulation of data 

- Direct engagement with children

Procedural and Practice Ethics

Methodological Challenges

- Access

- Power dynamics

- Bias and reflexivity 

The research participants

- Families in which child(ren) and caregivers were interviewed

- Families in which only child(ren) were interviewed

- Families in which only the caregiver was interviewed

- Family in which the child(ren) only completed the questionnaire

Part II: Explanations for the differentiated treatment of children of defendant mothers

Chapter 4:  Explanation 1: Children are not adversely impacted when their mother is imprisoned 

Introduction 

Overview of international research findings

Understanding the impacts

Secondary Prisonisation

- The changes children experience as a consequence of their mother's physical removal 

  - Physical separation 

- Change of caregiver

- Changes to home

- Changes to education

      -  The changes children experience in their relationship with their mother 

- Maintaining a relationship 

- Maintaining a relationship through visits

- Maintaining a relationship through letters and phone calls 

- The changed dynamic of the mother and child relationship 

Secondary Stigmatisation

Confounding Grief: children's emotional and behavioural responses 

- Grief

- Anger and physical aggression

- Sleep problems and regressive behaviours

- Problems at school 

- Anger at authority 

Conclusion 

Chapter 5: Explanation 2: The state duty of care does not extend to children of defendant mothers 

Statutory obligations towards children in England and Wales 

The welfare of the child 

- The Children Act 1989

- The Threshold Criteria 

- Post-1989 developments 

Non-statutory obligations towards children in England and Wales 

Children's rights and state initiated separation of a child from their parent

- Family court proceedings: during the court proceedings 

- Family court proceedings: after separation from their parent 

- Criminal court proceedings: during the court proceedings

- Criminal court proceedings: after separation from their parent

Conclusion 

Chapter 6: Explanation 3: Sentencers are not permitted, or are unable, to consider the welfare of children of defendant mothers

Sentencing practice in England and Wales 

Sentencing Guidelines and authorities 

Judicial awareness of Sentencing Guidelines and authorities

Judicial understanding of the impact of maternal imprisonment 

Assumptions affecting judicial decision making 

- The age of the child

- The mother and child relationship 

- The child's socio economic status

- Kinship care

Conclusion 

Chapter 7: Other reasons for the differentiated treatment of children 

Introduction

Constructions of children within the courts

Separation of the courts: labelling and secondary stigmatisation of children

The invisibility of women and misunderstood notions of gender equality and fairness

Conclusion

Part III: The implications of the differentiated treatment of children whose mothers are sentenced in the criminal courts

Chapter 8: Implications for wider society  

Introduction

The impact on caregivers who provide care for the children of imprisoned mothers

Selection of caregivers

- Health 

- Dependents

- Spouses and partners

- Changes to work and finance

- Personal cost 

The influence of the caregiver relationship 

The impact of maternal imprisonment on a child's life chances

Conclusion 

Chapter 9: Implications for the state

Punishment or punishing? 

Collateral Consequences

Constructions and justifications of third party harms 

The way forward 

- A change in penological thinking

- A change in the use of imprisonment

- A change in the state's response: mtigating harms and residual obligations

- An example of change: South Africa  

Conclusion

Chapter 10: Where are we now? 

Reflections on change 2011-2019

Legal Education

Human Rights 

Sentencing Guidelines in England and Wales

Policy implications of the research

Relevance of the findings beyond children of defendant mothers 

Conclusion