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

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.