Mothers and Fathers in Prison

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You may have seen our earlier posts around the enforcement of contact orders?

This is an additional post in support of those and this one deals with the consequences of breaching a child arrangements order, or, as they were previously known; a contact order.

In highly intractable cases the court can make the child who is the subject of the proceedings a party to the case, with their own representative in court, as well as a guardian. That will ensure that the child’s wishes and feelings are fully heard and properly investigated.

 

The Government recognise, of course, the potential for parental alienation to continue after an order setting child arrangements has been made. A parent who has attempted during the proceedings to alienate the child against the other parent and failed may then seek to frustrate the operation of the order. The court has a general power when making a child arrangements order to direct CAFCASS to monitor compliance with the order and report to the court. A parent may also apply to the court to vary or revoke the order.

 

Where there is wilful breach of a child arrangements order, the court has powers to deal with that. It may require the person in breach to undertake unpaid work or to pay financial compensation—for example, when a parent has spent money to come to see a child. It is a contempt of court not to follow a court order, and the available punishments include fines and imprisonment, but the court must consider the reason for the breach and the child’s welfare when deciding whether enforcement action is necessary to secure the other parent’s involvement in the child’s life.

 

Oliver Heald, The Minister of State, Ministry of Justice

In response Tim Loughton (at the time the MP for East Worthing and Shoreham) asked the following question:

The Minister is being very generous in giving way. I do want to have another go because he is making some very good points. To come back to the available penalties, he mentioned imprisonment.

 

Well, of course, that would fail the welfare checklist for the child in the Children Act 1989 in the vast majority of cases because it is not in the best interests of that child for his or her parent to go to jail.

 

I do not expect him to do this now, but could he provide us with some figures as to the number of occasions on which meaningful penalties have been brought against somebody who is a serial frustrator of contact—that form of parental alienation? How many cases of transfer of residency of a child have there been? I think he will find, notwithstanding his single case, that the actual number is miniscule. That is the nuclear option and the deterrent, but it is not used.

Oliver Heald resumed his speech during which he included the following statements:

I am always happy to discuss these matters with my hon. Friend, who is very knowledgeable in the area of children’s protection and who takes a particular interest in a range of social and caring matters concerning children. I am more than happy to look at what information is available for him.

 

I am sure the House will agree that the welfare of the child, including any concerns the court may have about safety, must always come before the wishes of the adult parties.

The point of these transcripts is that they address the question of imprisonment of a parent within the family courts, and as we can see, the MPs make the point that it is difficult to imprison a parent because of the Welfare of the Child taking paramountcy.

Consequences within Criminal Courts for parents

It is interesting to compare the attitudes of the Judiciary and MPs on the imprisonment of parents within the Family Courts and compare this to the statistics within the Criminal Court systems:

Somebody recently made a FOI request to the Ministry of Justice as follows:

“Please provide the following statistics:

  • Male prisoners over the age of 18
  • Female prisoners over the age of 18
  • Male prisoners, over the age of 18, who you have recorded as being fathers of children
  • Female prisoners, over the age of 18, who you have recorded as being mothers of children”

The MoJ responded as follows:

The centrally recorded information held by the MoJ as part of the Offender Personal Details\Personal Summary\Number of Children data indicates that as at 31 August 2017, the following numbers of prisoners claimed to be parents of children:

 

  • Male Parents: 37,162

 

  • Female Parents: 2,404

 

Note that the data above are entered onto the database as a text field and this field is not mandatory or validated and so answers vary from say 3, Three, Nil, Not stated,zero,0 so any answer that indicates a number or an affirmative for the number of children we have interpreted as a ‘Yes’.

 

Some women do commit offences that merit a custodial sentence, including some mothers with babies. However, women prisoners who are pregnant or who have children under the age of 18 months can apply for a place on a Mother and Baby Unit

 

From this we can see that in the criminal system, mothers and fathers are regularly sent to prison.

The MoJ also provided a spreadsheet in their response in which they say that:

Table 1.1 shows the prison population by type of custody, age group and sex as at 30 June 2016 to as at 30 June 2017 (latest currently available).

 

In light of this we examined the figures that the MoJ publish on court cases and outcomes within the criminal courts.

To accomplish this, we obtained a copy of their offence codes as these are the key to understanding the rest of the data.

We specifically looked at offences that would have bearing on issues raised within intractable contact cases, especially around emotional and physical abuse of a child. The table below shows this offence code as 01103:

Cruelty to or neglect of children
11 Cruelty to or Neglect of Children TEW 01102 Neglecting to provide for apprentice or servant
TEW 01103 Cruelty to or neglect of children

We also looked for the offence codes for child abduction by a parent and for abandoning a child under 2 years which you can see are 01301 and 01200-1299 respectively.

Abandoning children under two years
12 Abandoning Child aged under Two Years TEW 01200-01299 Abandoning child aged under two years
Abduction of children
13 Child Abduction TEW 01301 Abduction of a child by parent
TEW 01302 Abduction of a child by other persons

We also looked up the codes used for harassment offences and these can be seen below as 00829, 00830, and 00831:

8.08 Breach of the conditions of an injunction against harassment TEW 00829 Breach of the conditions of an injunction against harassment
8.09 Other harassment – Putting people in fear of violence TEW 00830 Other harassment – putting people in fear of violence
8.10 Breach of a restraining order TEW 00831 Breach of a restraining order

Where you see a TEW code next to an offence code this means:

In English criminal law a hybrid offence is called a “triable-either-way offence” (TEW) and can be heard at either the Magistrates’ Court or Crown Court. The decision as to which court will hear the case is determined at a Mode of Trial hearing.

 

The magistrates decide if the case is suitable to be heard in the Magistrates’ Court. If they decide that the case is either too serious or too complex, they can send the case to the Crown Court in which case the defendant has no say in the matter. If the magistrates decide that the case is suitable to be heard by the magistrates then the defendant is asked for consent to do so.

 

The defendant can then either consent to be tried by the magistrates or opt for trial by jury at the Crown Court provided that they have pleaded not guilty. If they have pleaded guilty then they have no say in the matter – thus there is no way for a defendant to agree to plead guilty in exchange for having a case dealt with by magistrates.

Once we had the codes then it was just a question of locating the sentencing data which we were able to do quite quickly.

One of the interesting data sets we found was on the re-offending rates between males and females previously convicted or sentenced for cruelty to or neglect of children.

Here’s a brief summary in terms of numbers:

Sex Offence Description Number of offenders Shoplifting Cruelty to or neglect of children Common assault Drug offences (indictable) Truancy (parent failing to secure attendance of child)
Female Shoplifting 17,216 15,315 531 6,596 7,513 111
Cruelty to or neglect of children 483 102 52 99 62 6
Common assault 7,804 2,254 138 3,639 1,077 25
Drug offences (indictable) 3,742 1,749 77 1,119 1,944 26
Truancy (parent failing to secure attendance of child) 196 34 1 28 19 38
Male Shoplifting 47,797 42,314 252 24,043 30,919 37
Cruelty to or neglect of children 305 57 11 98 71 1
Common assault 44,279 11,660 150 21,887 14,296 15
Drug offences (indictable) 43,980 13,868 101 15,142 31,099 18
Truancy (parent failing to secure attendance of child) 69 12 16 9 9
Unknown Shoplifting 80 42 10 9
Cruelty to or neglect of children 5 1
Common assault 147 14 41 17 1
Drug offences (indictable) 79 13 11 33
Truancy (parent failing to secure attendance of child) 19 1

and this one shows percentages:

Sex Offence Description Number of offenders Shoplifting Cruelty to or neglect of children Common assault Drug offences (indictable) Truancy (parent failing to secure attendance of child)
Female Shoplifting 17,216 89.0% 3.1% 38.3% 43.6% 0.6%
Cruelty to or neglect of children 483 21.1% 10.8% 20.5% 12.8% 1.2%
Common assault 7,804 28.9% 1.8% 46.6% 13.8% 0.3%
Drug offences (indictable) 3,742 46.7% 2.1% 29.9% 52.0% 0.7%
Truancy (parent failing to secure attendance of child) 196 17.3% * 14.3% 9.7% 19.4%
Male Shoplifting 47,797 88.5% 0.5% 50.3% 64.7% 0.1%
Cruelty to or neglect of children 305 18.7% 3.6% 32.1% 23.3% *
Common assault 44,279 26.3% 0.3% 49.4% 32.3% 0.0%
Drug offences (indictable) 43,980 31.5% 0.2% 34.4% 70.7% 0.0%
Truancy (parent failing to secure attendance of child) 69 17.4% * 23.2% 13.0% 13.0%
Unknown Shoplifting 80 52.5% * 12.5% 11.3% *
Cruelty to or neglect of children 5 * * * * *
Common assault 147 9.5% * 27.9% 11.6% *
Drug offences (indictable) 79 16.5% * 13.9% 41.8% *
Truancy (parent failing to secure attendance of child) 19 * * * * *

It may be easier for you to see the data in the attached PDF here than to try and squeeze it onto this page:

 

The original source files are listed below for you to review:

In summary

Whilst the family courts may be hesitant to imprison parents, the criminal courts certainly aren’t as hesitant, and indeed many parents are being imprisoned for offences every day regardless of the regard for the welfare of the children in their care. It could be said that the seriousness of the crime, or at least the seriousness with which we as a society view the crime, dictates in some way our expectations for how severe or lenient we wish the courts to be on our behalf.

That said, we were quite shocked to see the re-offending rates for females when it comes to child abuse and neglect. From the statistics available it could be concluded that females, for some reason, are much more likely to have been convicted for a previous similar offence – yet it is the males who are imprisoned more.

Is there a correlation or a causation at play here, and how does that fit with the debate now occurring around Parental Alienation being a form of child abuse?

As always; tweet your comments or leave them in the box below:

 

In a Family Law system designed for combative parents there is no real allowance for the views of children and any understanding of how Family Law ultimately impacts on children most of all.

We speak for the children in Family Law so that, finally, the children have a voice.

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