The Visibility of Children Whose Mothers are Being Sentenced for Criminal Offences in the Courts of England and Wales

Abstract

Set within a general understanding of the judicial interpretation of mitigation, and the development of sentencing guidelines, this article presents a study exploring the visibility of children within the sentencing process, and the way in which judges in the courts of England and Wales regard dependent children as a mitigating factor in sentencing. The findings, taken from the results of an analysis of sentencing transcripts from court cases in England and Wales, indicate that the visibility of children of defendants is increased at the initial sentencing hearing if the judge requests a pre-sentence report. In appellate decisions, the children have enhanced visibility as their limited impact on mitigation at first instance usually forms part of the grounds of appeal. There is, however, divergence on a case by case basis as to their impact on mitigation. In offences where a deterrent theory of punishment underpins the sentencing guidelines, the sentences have higher starting points and judges are less able to take the personal mitigation of the defendant’s dependent children into consideration. The discussion then considers the impact of these findings on the broader debates about the punitive impact of maternal imprisonment on children, issues of secondary victimisation, vulnerable populations and human rights.