Starting life in prison Reflections on the English and Irish contexts regarding pregnancy, birth, babies and new mothers in prison, through a children’s rights lens

Sinead O ’Malley, Lucy Baldwin and Laura Abbott

Introduction: rights in context

Children of prisoners deserve recognition; they are innocents, punished for the misdemeanours of their parents, as this extract from 14-year-old Joseph, taken from Heard and Seen (Baldwin and Raikes, 2019, p. 76), powerfully illustrates:

We are all criminals now

By association we are guilty

We can’t be good, we can't be honest

We are related to criminals

So logic tells them we are filthy

Research surrounding children of prisoners suggests they are often exposed to discrimination, bullying, economic hardship, social exclusion, shame and stigma (Murray and Farrington, 2008; Baldwin and Epstein, 2017; Beresford, 2018). Discrimination and suffering may begin before a child is even born. The intention of prison is to remove the right to liberty of the prisoner, nevertheless the rights of children and family members ought to remain intact (Martyn, 2012). This includes the rights of babies and babies in utero. Both England and Wales (hereinafter England) and the Republic of Ireland (hereinafter Ireland) ratified the United Nations Convention on the Rights of the Child (UNCRC) in 1992 making both countries party to, and bound by, their obligations under the Convention. In protecting the specific rights of babies, the UNCRC refers back to the 1959 Declaration of the Rights of the Child:

The child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.

At the national human rights level. Irish children’s rights were enshrined independently of the family in the Irish Constitution. The 31st constitutional amendment, inserted in 2015, provides the best interests of the child principle remains central in all proceedings involving children relating to family law, child care cases and adoption {Bunreacht na hÉireann (Constitution of Ireland), 1937; McCaughren and McGregor, 2018), representing the most significant reform in family law for a generation. The Children and Families Relationship Act (2015) also provides guidance to the courts on what is considered to be in the child’s best interests, proposing to promote a consistent national application of the best interest principle and bringing Ireland into line with Article 3 of the UNCRC 1989 (Children’s Rights Alliance. 2015). Likewise, the best interest principle is incorporated into domestic legislation via the Child Care Act (1991), and again in the founding legalisation of Tusia, Ireland’s Child and Family Agency {Child and Family Agency Act, 2013), responsible for the well-being and outcomes for all children in Ireland.

England has similar legislative protection for the rights and needs of children provided for via the Children Act 1989, which states that ‘the Welfare of the Child is Paramount’ as an overarching legal principle. Although in England children do not have constitutional protection like in Ireland, this legal principle considers the child’s physical and emotional needs as well as their environment, age and educational requirements. Should care proceedings be presented in court, the harm a child has suffered or is likely to suffer will be considered alongside parental ability to meet the child’s needs.

While domestic law does not provide directly for children with imprisoned parents in either jurisdiction, England and Ireland are both members of the Council of Europe (CoE) which in 2018 adopted recommendations ‘concerning children with imprisoned parents’, reaffirming ‘that children with imprisoned parents are entitled to the same rights as all children' (Recommendation CM/Rec(2018)5). Additionally, the right to family life for children of incarcerated parents is protected by Article 8 of the European Convention on Human Rights 1950 (ECHR, 2013). Irish Courts have a legal obligation to uphold the ECHR under the European Convention on Human Rights Act, 2003, activated in England through the Human Rights Act, 1998. The current legal standing on the right to family life and the best interest principle echoes Article 9 of the UNCRC which provides for the child’s right to not be separated from their parent, and therefore their incarcerated mother. Article 9 (UNCRC, 1989) is as follows:

States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.

Most female convicted offenders are sentenced to prison for nonviolent crimes, and which most often have no bearing on their ability to mother or love their child (O’Malley and Devaney, 2016b). Yet separating mothers and children has the potential for life-long harm. Galloway, Haynes and Cuthbert (2014) argue that separation via maternal incarceration is certainly in breach of the best interest principle (Article 3, UNCRC, 1989) as imprisonment disrupts the mother-child relationship and therefore increases the likelihood of potential harm to the physical, emotional and long-term health and well-being of the child. Even short periods of mother-child separation (i.e. under a month) between incarcerated mothers and their babies have been found to intensify distress and disrupt mother-child bonding experiences (Powell, Marzano and Ciclitira, 2016; Baldwin and Epstein, 2017).

Separating a baby from their mother has the potential to impinge on the child’s right to health, under Article 24 (UNCRC, 1989), and their right to development, as per Article 6 (UNCRC, 1989). Research around early attachment deficits has shown poor later life outcomes, such as poor social/emotional development and increased likelihood of addiction (Baldwin, O’Malley and Galway, 2015; O'Malley, 2020). Criminological studies indicate an association between poor childhood attachments and adult criminality, perpetuating a possible cycle of intergenerational incarceration and intergenerational trauma (Byrne, Goshin and Joestl, 2010; Cassidy, Poehlmann and Shaver, 2010). Not all children who experience separation from their imprisoned mothers will ultimately become addicted and incarcerated (Zhang and Flynn, 2019). However, overwhelming evidence supports a relationship between early disrupted attachments among the female prison population, early trauma and separation from their own mothers. Serving as a precursor for addiction and contributing towards the high substance dependencies and underlying causes for criminality among this group of women (O’Malley, 2018).

Goshin et al. (2014) examined the mental health outcomes among children who had spent up to 18 months in US prison nurseries, comparing them with babies who had been separated from their mothers. They found that separated children scored higher for anxiety and depression, compared to those who remained with their mothers who tended to show greater resilience and be less anxious. The sequence of events following the compulsory separation of a baby often leads mothers to experience an overwhelming need to replace the baby she has lost, conceiving again quickly, thus the cycle of removal and separation is repeated (Barnes, 2015; Windham Stewart, 2016). On the whole, mother and baby separation via imprisonment undermines the spirit of the UNCRC to promote the best interests of children (Article 3), to provide for the child’s rights to health (Article 24), development (Article 6) and protection from psychological harm (Article 19). It also impinges on both mother and child’s right to family life under the ECHR (Article 8). As previously argued by Driscoll (2016), to be cognisant of children’s rights, separation should only be considered as an absolute last resort for imprisoned pregnant and postpartum women and their babies.

Both Ireland and England are currently in a space of legal flux in the context of child rights. At the time of writing, the UK Conservative Government has stated an intention to ‘update’ the Human Rights Act 1998 post BREXIT with the aim of making the supreme court the ultimate arbiter of human rights matters in the UK (Conservatives, 2019, p. 48). It remains to be seen what shape this Bill will take, if it is brought forward. Any change in the area of human rights in the post BREXIT period is likely to be informed by a more punitive and less rights-based approach to prisoners. Recent examples of policy illustrate this, including the abandonment of a proposed presumption against short prison sentences of less than 12 months. In Ireland, changes in family law (Adoption [Amendment] Act 2017 and the Children and Family Relationships Act 2015), are moving towards legislation already in existence in England whereby children in foster care are now considered for adoption for the first time if in state care for at least two years. This is noteworthy as, at minimum, 20% of children with incarcerated mothers in Ireland are in foster care, which does not include relative foster care (O’Malley, 2018). These legal mechanisms that assist adoption from foster care do not consider how prison enforces mother-child separation, that mothers have no power-over the length of time they spend incarcerated and therefore separated from their child, and the context of maternal imprisonment that obstructs the mother’s ability to maintain meaningful contact with their children (O’Malley and Baldwin, 2018; O’Malley, 2020). And while such legislative change is pertinent to social work practice, there remains no social work role within the Irish prison system tasked with supporting incarcerated mothers to negotiate and manage Family Court or their relationships with their children and babies in foster care (‘Gaby’, 2015; O'Malley, 2015; O'Malley and Devaney, 2016b).

Rules and best practice

Recent concern about maternal imprisonment has seen an increasing call for children’s rights to be considered more centrally in decision making around sentencing (Epstein, 2014; Baldwin, 2015; Minson, Nadin and Earle, 2015; Donson and Parkes, 2016; O'Malley, 2020) in visitation and contact (Martyn, 2012; Ryan-Mangan, 2014; O’Malley, 2015; O’Malley and Devaney, 2016b) and in general in relation to working with pregnant women, childbirth, babies and their mothers in prison (Gill, 2013; Abbott, 2015; Baldwin, 2015; Kennedy et al., 2016; O'Malley and Devaney, 2016a, 2016b; Beresford, 2018; O'Malley, 2018).

The European Prison Rules (CoE, 2006) stipulate provisions required for dealing with pregnancy, childbirth and facilities for children in prison. The Irish Prison Service has adopted an approach informed by the European Prison Rules as set out in the Irish Prison Service Annual Report 2018 (IPS, 2018). Rule 36 asserts that where a parent’s imprisonment is unavoidable, infants should be supported to stay with them in prison for as long as it is determined in the child’s best interest. However, in cases where separation must occur then 'the parental authority of the mother, if it has not been removed, should be recognised’ (CoE, 2006, p. 61). Rule 36 states that in cases where a baby can remain with their mother, special accommodation should be set aside including a nursery with trained staff to care for the infant while the parent participates in other activities. Therefore, additional harm and punishment ought not to be an inevitable consequence for the babies of imprisoned mothers if such human rights instruments are robustly considered.

England and Ireland are also subject to the United Nations (UN) ‘Bangkok Rules’ on Women Offenders and Prisoners (UN, 2010). The Bangkok Rules are the first set of standards geared specifically towards the needs of women offenders, covering a range of issues including those for pregnant women, breastfeeding mothers, women during labour and childbirth, and mothers and babies in prison. While the only policy document on women offenders jointly published by the Irish Prison Service and the Irish Probation Service does not specifically refer to the Bangkok Rules (PS and IPS 2014), the Irish Prison Service Annual Report 2018 (IPS, 2018) does seek to implement recommendations put forward in the statutory reports of the Inspector of Prison. However, the Bangkok Rules are specifically addressed by the Department of Health and Social Care in the report Gender Specific Standards to Improve Health and WeUbeingfor Women in Prison in England (Public Health England, 2018). Therefore, both England and Ireland are committed in policy documents and national strategies to rights provisions which are interlinked via the various human rights standards, rules and legislative mechanisms. However, rights provision in practice are often informal and underdeveloped in nature.

The Bangkok Rules and the UNCRC work in tandem by their complementary principles. This is particularly clear in the interrelationship between Article 9 of the UNCRC, which stipulates that a child has the right to not be separated from their mother unless it is in the child’s best interest, and Rule 64 of the Bangkok Rules, which recommends that prison should be a last resort for mothers with dependent children. The premise behind Rule 64 is generally to avoid motherchild separation and prevent the effects on the child due to maternal imprisonment which are deemed to be not in the child’s best interests:

Non-custodial sentences for pregnant women and women with dependent children shall be preferred where possible and appropriate, with custodial sentences being considered when the offence is serious or violent or the women represents a continuing danger, and after taking into account the best interests of the child or children, while ensuring that appropriate provision has been made for the care of such children.

(United Nations, 2010)

Penal Reform Trust (UK) publications, such as Sentencing of Mothers (Minson, Nadin and Earle, 2015) and What About Me? (Beresford, 2018), have reinforced the need for sentencing to conform to the recommendations laid out in the Bangkok Rules in order to avoid the unnecessary separation of mothers and children. Likewise, the Irish Penal Reform Trust, in its Briefing on Women in Prison in Ireland (Martyn, 2017), highlights the need for the Irish state to meet their obligations under the Bangkok Rules and the UN Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) 1979. The Irish Prison Service and Probation Service Strategy (2014-2016), An Effective Response to Women Who Offend (PS and IPS, 2014), and England's Corston Report (2007) and Farmer Review (2019) all focus, in part at least, on the principles of avoiding custody for women offenders, in particular those with dependent children or who are pregnant, so as to avoid the need for women to give birth or mother young babies while in custody.

However, despite the various calls to apply non-custodial sentences, both England and Ireland have seen an increase in custodial sentences for women (ergo mothers) which sadly reflects the global position (O'Malley, 2020). The use of short sentences for women means that the number of women who move through the system is often more revealing than static prison population figures. In 2017 it was estimated that in Ireland 1,048 women (IPS, 2018), and in England 7,745 (PRT, 2019) women were committed to prison. This results in approximately 17,000 children in England (Kincaid, Roberts and Kane, 2019) and 4,754 children in Ireland affected by maternal imprisonment alone annually (see O’Malley, 2018, p. 310 for further comparative analysis on child stats).

 
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