The UK has the highest rate of female imprisonment in the European Union as at March 2004, and the steepest rate of increase.¹ It was estimated in March 2003 that 32 000 children per year (age under 16 years) are separated from their mother due to her imprisonment,² a figure which includes 2880 children under 18 months of age. There is currently a facility for only 90 children under 18 months old to remain with their mother in prison at present in England and Wales, although by spring 2005 the capacity will have increased to 114.³ The budget for the Prison Medical Service was transferred to the NHS from the Home Office on 1 April 2003 with a plan to transfer service delivery and management by 2008.⁴ As this offers an opportunity to reconfigure commissioning and services for children (approximately 0.2% of the child population of the UK) affected by maternal imprisonment, especially children who may suffer from being separated from their imprisoned mothers, we wish to initiate a discussion among colleagues in paediatrics, general psychiatry, child psychiatry, and psychology, regarding issues pertaining to children with imprisoned mothers. We wish to revisit the review of “babies behind bars” of 1992⁵ and explore the statistical trends, demographic influences, and service implications, and examine the implications of set age limits for the residence of children in prison mother and baby units (MBUs).⁶

IMPRISONED MOTHERS IN ENGLAND AND WALES

The number of women remanded in custody or receiving custodial sentences in England and Wales is increasing. In 1993 the point prevalence of women in prison was 1580, and in March 2004 it was 4589, an increase of nearly 300% in 11 years,⁷ and the highest rate in the European Union as it stood at March 2004. The much higher current male prison population (nearly 70 000) rose by less than 30% over the same period.

Two thirds of women in prison are mothers of children under the age of 16 years.⁸ The majority of the mothers are aged 18–34 (87%) and on average each woman has 2.1 children, 30% of the children being under 5 years of age. During 2001 (the most recent year of full published statistics), 15 876 women were imprisoned, who were mothers of 31 752 children. The most recent research from 1997⁹ suggests that three quarters of the children were living with their mother before the offence for which she was imprisoned, and most of these children (85%) had never been separated from their mother before her incarceration. Half of all women prisoners are held at least 50 miles from home, and a quarter are more than 100 miles away, with the result that only half of mothers are visited by their children in prison.

OFFENCES AND SENTENCES

Only 31% of women remanded in custody receive a custodial sentence, although courts are increasingly likely to use custodial penalties for women⁷ (men are still much more likely to receive custodial sentences). Of all convicted women receiving a custodial sentence (15 876 women during 2001), 61% (9684 in 2001) received a sentence of less than six months; 18% (2858 in 2001) were sentenced to between 7 and 59 months, and 21% (3334 in 2001) received a sentence of 5 years or more. Over one third of the women were convicted of drug offences (compared to 15% of male prisoners), and 30% of these women were foreign nationals⁸ being used as “drug mules”; that is, pregnant women sent by drug barons to smuggle drugs in the belief that pregnancy makes a woman less likely to be detected. These women receive long, deterrent sentences (up to 10 years) and usually have no relatives or friends in this country who can look after their children, when born.

PRISON MOTHER AND BABY UNITS IN ENGLAND AND WALES

For over 100 years in the UK, mothers have been allowed to keep their babies with them in prison, but no formal arrangements were made until the early 1980s.⁶ At present in the UK there are five women’s prisons with mother and baby units (one in an open and four in closed prisons), and two more are due to open³ (see table 1⇓). There is current capacity for 90 children, and by 2005 there will be capacity for 114. Despite this increase it is possible that with the rising prison population a child under 18 months of age could be separated from its imprisoned mother purely due to a lack of capacity in mother and baby units. This could be in direct contravention of the child’s right to family life under Article 8 of the Human Rights Act (HRA) 1998,¹⁰ although the limitations of the HRA would need to be determined by a court.

REVIEW COMMITTEE RECOMMENDATIONS 1999

A Review Committee of the Prison Service 1999 regarding young children in prison with their mothers made over 60 recommendations.⁶ The stated overarching principle is that “the best interest of the child is the primary consideration”, although because of conflicting issues such as prison discipline, the interest of the child is not expressly paramount. The report recommended that the Prison Service take responsibility for child protection and other responsibilities with regard to child development and general wellbeing relating to recent UK legislation.¹¹ It also recommended that planning for the child’s departure from prison (in ideal circumstances, at the same time as the mother) should start on admission, and, if the mother’s sentence was a long one, the child should stay in only long enough to be breast fed and/or for other arrangements to be made for long term care.

Most (46) of the 62 recommendations were accepted by the Prison Service,¹² including the increase in provision of MBU places, application and admission, child care planning and reviews, drug free conditions, crèche facilities, parenting support, and family and community contact. Relevant prison staff undertake specialist training, and there must be a designated Mother and Baby Liaison Officer (Prison or Probation Officer) in all women’s prisons. A further 11 recommendations were identified “for further consideration” and four were rejected.

PLANNING ADMISSION TO AN MBU

All remanded and imprisoned women who are pregnant or mothers of children under 18 months old are entitled to apply for a place at an MBU. The designated MBU liaison officer at each women’s prison has the duty of making eligible inmates aware of MBU facilities.¹³ An application from a mother is considered at an admissions board with an independent chair, which receives reports from probation, social services, and the woman’s current prison, and makes a recommendation based on the best interests of the child, but also taking into account the length of the mother’s sentence and whether there is a vacancy. The prison governor makes the final decision, although the mother has a right of appeal to the Head of the Women’s Estate. The woman must be drug free and agree to stay off drugs, with the exception of a methadone withdrawal programme. The mother must agree to be of good behaviour and must be able to look after the baby herself.

PRISON POLICY AND QUALITY OF LIFE FOR THE CHILD ON THE MBU

It is policy for imprisoned pregnant women to be transferred to hospital to give birth (to ensure appropriate medical care and to avoid place of birth on the birth certificate being a prison).^14,15 On the MBU, to avoid children being locked in cells, the mother must agree to remain voluntarily in the cell for the required periods (cooperation is a prerequisite for admission and continuation at the MBU). MBUs are segregated from other areas of the prison, with washing and cooking facilities and play areas so that normal activities of daily living can be pursued between mother and child. The mother agrees to remain drug free. Crèche facilities are provided during the day so that the mother may work or attend education or other courses designed to reduce future re-offending behaviour. Breast feeding is encouraged as is appropriate child care, feeding, hygiene, interaction, and play. Healthy eating, non-smoking, and visits from the Health Visitor are promoted. The child may leave the prison (be taken out for day care) if this is arranged locally, to give the child as much opportunity as possible for a normal range of interactions and community experiences. Women’s prisons may have more relaxed and extended visiting than other prisons. Regulations promote and finance visits by Looked After children to their mothers in prison, and mothers may have three-monthly home visits to see children. However, the 2001 Inspection Review identified that a number of significant areas affecting child visiting were still not fully achieved in many prisons, including family visiting facilities, day visits for children, family contact development officers, and a reduction in the four week waiting time that a woman must wait before assessment for eligibility for a child visit.¹⁴

DISCHARGE FROM THE MBU

Ideally, the child would leave the MBU at the same time as the mother, at the end of sentence, thus avoiding the trauma of separation. Discharge planning is an intrinsic part of the admission decision,¹² and there may be some situations where separation is better performed early than late. If the mother has a long sentence, the inevitable separation at around the age of 18 months when the child has to leave prison, may be more traumatic for the child than separation around the time of birth and placement in foster care with regular contact visits to the mother in prison. Three recent judicial decisions inform this subject. A recent judgement¹⁶ held that before a young baby can be separated from its prisoner mother, the decision maker must consider the baby’s right to respect for his family life, and determine whether such interference with such right is proportionate. This followed the case of a child, AD, who was excluded from an MBU following the mother’s misbehaviour and was placed by the mother in the care of a friend (a former prisoner, who looked after the child in an exemplary fashion). At the time, AD was still being breast fed by CD. The court held that no proper consideration had been given as to whether the separation was in AD’s best interests. Despite the quashing of the exclusion order from the MBU, mother and baby were not reunited.

In another case, the mother appealed to allow her child to stay longer than 18 months, as her child was displaying separation anxiety. Judicial Review¹⁷ held that the Prison Service had the right to determine when a child should leave a prison MBU, but should exercise flexibility about the upper age limit rather than operating a strict policy of separating the child from the mother at 18 months of age. The most recent case¹⁸ confirms that the best interests of the child require early permanency planning on entry to the MBU, and that early separation may be reasonable in the light of present knowledge.

DISCUSSION

It can be anticipated that 18 months might be the most difficult age for a child to separate from its primary carer, but what, if any, would be an appropriate change to the current upper limit? The Review Committee⁶ decided to make no recommendations for change as it felt that any changes proposed should be evidence based. The limited research is inconclusive. The only major study of the development of children of imprisoned mothers¹⁹ showed no evidence of severe and general effects on babies due to either prison institutionalisation or separation from the imprisoned mother. The author’s commentary suggested that the outcome for the child depended on a range of factors, including the substitute care offered, and the initial mother-child relationship. Caddle gives examples form other countries of alternatives to MBU provision, including occasional residential stays with mother in prison for older children, three weeks’ leave per year for mothers, delayed custody, or community sentences.²⁰ The Review Committee recommended that further research was urgently needed to establish the experience of children in MBUs, any possible optimum upper age limit for a child to be resident, and to determine what the implications were for older children of remaining in a prison environment. The Director-General asked the Women’s Policy Unit of HM Prison Service in 2000 to assess the feasibility of a pilot study at HMP Ashkam Grange MBU to explore the possibility of increasing the upper age limit. The Prison Service reports that the “assessment concluded that there were serious ethical difficulties in the proposal and a high financial cost and that the first priority should be to improve the assessment processes in MBUs”.

Clearly, a sound evidence base for this decision about the upper age limit is urgently needed. In the meantime, while empirical evidence is awaited, there is a need for professionals to debate the issue from the theoretical standpoints of attachment, separation, and substitute care. Is it better for a child to live with the mother in prison, and visit the community, or live in the community with family, friends, or foster carers and visit the mother in prison? If separation must occur, what is the least damaging age?

From the point of health care service delivery in the UK, professionals have a window of opportunity to influence the future shape of health services for prisons, during this period of transfer of services to the NHS.

The Royal College of Paediatrics and Child Health (RCPCH) should take a lead in the UK and engage Child and Adolescent Mental Health Services (CAMHS), General Practice, and Community Nursing in this debate and in promoting practice standards for health care and development for children in MBUs, which could be disseminated via the National Service Frameworks for Children’s Services in the UK. Clear statements of development and health care aims based around the evidence of Health for all children²¹ would allow effective commissioning of services by Primary Care Trusts (PCTs) (England) and Local Health Boards (LHBs) (Wales) in this transitional period where services are being transferred into the NHS. An improvement in health care for all inmates is greatly needed, but the needs of small children with incarcerated mothers is a particularly pressing issue.

Undoubtedly we need to seek effective alternatives to prison, especially for this group of offenders, and the British government has made a start in this direction, with tagging and community sentencing. As yet, no provision is made for the young children of male prisoners who are their single handed carers, but the interests of children may drive the development of such provision. Opening of more MBUs in a greater geographical spread may enable those mothers who have supportive family to draw on them, and to arrange more satisfactory separation planning to occur.

A further possibility if the age range were to be extended is that children over the age of 18 months might be looked after during the day by child minders in the community, returning to their mothers at night. This would replicate the pattern that is found in many families where both parents are working, and would give the mothers in prison the chance to be with their children at the all important times of getting up and going to bed.

Alternative solutions may be necessary for foreign national prisoners who do not have supportive families in this country and often fear that their children will be victimised by the drug barons for their (the mother’s) “failure” if they are returned to their own country.

CONCLUSIONS

We are pleased that it is now policy for a care plan which identifies the ongoing needs and possible separation strategy to be agreed at the time of admission of any child to an MBU. However, professional debate and research is needed to increase the evidence base for policy making on the upper age limit for a child to remain in an MBU.

With the imminent transfer of the prison health service to the NHS, the RCPCH should take a lead role in coordinating advice to Primary Care Trusts (England) and Local Health Boards (Wales) so that they can commission effective surveillance and health care for this group of children in the locations of MBUs at women’s prisons.