Sentencing mothers with dependent children, pregnant and post-natal offenders
The court should normally adjourn the case for a pre-sentence report before sentencing a mother with dependent children or a pregnant or post-natal offender or to ensure that a sentence is compatible with their support needs and childcare responsibilities, and so they can access routine healthcare and maternity appointments.
When sentencing a mother with dependent children, pregnant or post-natal offender, courts should consider that the available evidence suggests:
- Female offenders are more likely to be sole or primary carers than male offenders. When mothers with dependent children are sentenced to custody, only a very small percentage of those children remain in their own home. Dependent children may be at risk of going into care or being separated from siblings, and can be adversely impacted by having to adjust to new homes, new carers, and new educational establishments. There is an emotional impact for those children that may result in shame, stigma, anger, grief and behavioural changes. Those children consequently have an increased likelihood of committing criminal offences, mental health problems, substance misuse and other social issues.
- Prison is a high-risk environment for pregnant offenders. The impact of custody on a pregnant or postnatal offender (has given birth in the previous 12 months) is likely to be harmful to the physical and mental health of both the mother and the child, including by separation, especially in the first two years of life. Operational constraints interact with the needs of pregnant and postnatal offenders and unborn and newly born babies and pose inherent barriers to accessing medical assistance, items necessary for care and specialist maternity care. Female offenders in custody are likely to have complex health needs, including a need for specialist trauma services, which may increase the risks associated with pregnancy for both the offender and the child.
- Women from an ethnic minority background suffer from greater risks during pregnancy, childbirth and to their postnatal health than white women. These risks should be taken into account when deciding whether to impose a custodial sentence for a pregnant or post-natal offender.
A custodial sentence may become disproportionate to achieving the purposes of sentencing where there would be an impact on an offender’s pregnancy or dependent children, including an unborn child. Courts should avoid the possibility of an offender navigating the risks associated with pregnancy, birth and the postnatal period (up to 12 months after birth) in custody unless the imposition of a custodial sentence is unavoidable (see below: Imposition of custodial sentences (section 8)).
For offences that carry a mandatory minimum custodial sentence, pregnancy and the postnatal period may contribute to ‘exceptional circumstances’ that could justify not imposing the statutory minimum sentence.
Whether a pregnancy is planned or not can be of no concern to a sentencing judge whose focus must be on the risks to mother and baby of pregnancy and birth in custody.
Courts should be aware that access to a place in a prison Mother & Baby Unit (MBU) is not automatic. Even if a place is available, the duration of the placement cannot be guaranteed.