14 May 2020
An estimated 600 pregnant women are held in prisons in England and Wales each year, and about 100 babies are born inside.
On 27 September 2019, a woman held in HMP Bronzefield on remand gave birth alone in her cell. When prison staff visited the woman’s cell in the morning the baby had died. Following this tragic event a number of investigations were set up, including:
- Internal investigation at HMP Bronzefield
- Internal Sodexo review
- Joint investigation between the Prison Service and HMP Bronzefield
- NHS Clinical Review
- Police Major Crimes Investigation
- Police Safeguarding investigation
- Surrey Social Services Rapid Response Review
Not one of these inquiries has, as part of its remit, to ask the question: why was this woman on remand in prison? Nor to enquire why the other pregnant women – about 50 at any one time – are incarcerated. On remand, on sentence, on recall – should a pregnant woman be in prison?
Accessing the basics
The Independent recently reported that Miranda Davies, a senior fellow at the Nuffield Trust said: ‘We know from our research that even before the Covid-19 outbreak, pregnant women in prison faced significant risks. Our analysis showed that in 2017-18 roughly one in ten pregnant women gave birth either in their prison cell or en route to hospital, raising questions about their ability to access the right care.’
Laura Abbott’s research into the experiences of pregnant women in Britain’s prisons found that women experienced frustration and stress which impacted upon their emotional wellbeing. Pregnant women reported being unable to access basic comfort, adequate nutrition and fresh air. The fear of potential separation from their baby was an underlying stress.
Indeed, 50 per cent of women separated soon after birth, however, the ‘not knowing’ was especially difficult as women found it difficult to bond or let go of their unborn. Where physical pain exists, little comfort is offered as women are left ‘begging’ for a softer mattress or ‘crying’ for pain relief to ease the normal discomforts of pregnancy. Bodily suffering is heightened by their being unable to satiate the normal cravings or ease normal pregnancy discomforts. The hunger that the women would feel often caused distress and suffering.
She summarises her findings as revealing: (a) ‘institutional thoughtlessness’, whereby prison life continues with little thought for those with unique physical needs, such as pregnant women; and (b) ‘institutional ignominy’ where the women experience ‘shaming’ as a result of institutional practices which entail their being displayed in public and characterised with institutional symbols of imprisonment.
What about the rights of the child?
In 2012, I raised the issue of the rights of the child (European Convention on Human Rights, Article 8) when a parent is at risk of incarceration. Those rights should be protected, as made clear in a landmark Court of Appeal case, R (on the application of P and Q) v Secretary of State for the Home Department 2001. Every sentencing court should conduct a balancing exercise, weighing the child’s rights to parental care against the seriousness of the alleged or proven offence: my research covering 75 cases of maternal sentencing in England and Wales found that this was not taking place.
In 2017, Shona Minson’s research, Who cares? Analysing the place of children in maternal sentencing decisions in England and Wales, analysed the differentiated treatment by the courts of children faced with separation from their parents. She compared the approach of the family courts, where the best interests of the child are the paramount consideration of the court and they have legal representation, with proceedings in the criminal courts which may result in the imprisonment of a parent where children are neither represented nor acknowledged.
In January 2018 Shona launched training materials which she had developed together with the Prison Reform Trust, and produced films for legal advocates, the judiciary and the public, explaining the rights of the child when a parent is at risk of imprisonment either on remand or on sentence and how they should be protected in the criminal courts.
These materials were to be used in the training of magistrates and judges. This should have led to all sentencers balancing the rights to parental care of any child potentially affected by a sentencing decision against the seriousness of the offence or alleged offence.
However, a shocking case shows how entrenched are practices and attitudes. Several months after the introduction of these materials, HHJ Stephen John heard the case of R v Myers. Natasha Myers, mother of a three year old and a 14 year old, was accused of taking prohibited items into a prison on a visit to her partner. She was sentenced to 18 months in prison.
The judge appeared to take no account of the rights or welfare of her dependent children. ‘Instead he unilaterally revoked the mother’s bail part way through the hearing (a decision which the Court of Appeal called ‘questionable’), meaning that instead of leaving court at the end of the day with her 14 year old who was present at court, the mother was removed from the court to the cells.
This caused enormous distress to both mother and child, and the child became emotional in the court. The next morning prior to the trial re-starting the judge made the child apologise to him for her behaviour and then warned her that any further emotional responses (even a facial movement) would result in her being taken to the cells. The Court of Appeal found in favour of Myers and her conviction was set aside although she had already spent almost five months in prison.
Women on licence recall now make up eight per cent of women in custody. The dominant factor for recall is failure to keep in touch with the supervising officer, rather than direct risk of re-offending. In a recent study made by the Prison Reform Trust, of 24 women who had been recalled, three of these were pregnant at time of recall and one stated that failure to attend one appointment had been due to a hospital visit for a pregnancy scan. This woman stated she was recalled and separated from her daughter the day after she gave birth. The rising number of women recalled to prison). It is important to investigate the process of recall with regard to pregnant women.
Why are pregnant women in prison? The need for research
Since very few women commit violent offences or present a serious risk to the public, we need research on why women are pregnant in prison. Almost half of first receptions in the female prison estate are for unconvicted women, making 15 per cent of the women on remand. We must ask why pregnant women are remanded in to custody.
New sentencing guidelines came into force from 1 October 2019 which include an expanded explanation for the mitigating factor ‘sole or primary carer for dependent relatives’ and includes the instruction that ‘when the defendant is a pregnant woman the relevant considerations should include the effect of a sentence of imprisonment on the women’s health and any effect of the sentence on the unborn child’.
Again, we need research to explore whether there has been real change, and whether these guidelines are in fact being followed.
Rona Epstein is an Honorary Research Fellow, Coventry Law School. She has recently been awarded funding by The Oakdale Trust to carry out research on the imprisonment of pregnant women.