Sentencing mothers: Lynne Shirley and pupil Anisa Kebbati consider key resources when representing women with dependent children

Introduction

Statistics show that over half (55%) of women prisoners are mothers and approximately 17,000 children are affected each year by maternal imprisonment. Sentencing mothers can be a complex task, so it is important that we approach the task of sentencing carefully. 

How can we do that? This article, by Lynne Shirley and Anisa Kebbati, sets out a range of resources available to advocates to ensure that not only the needs of the mother are taken into consideration, but also the needs of her dependent children.

Below is an example of a recent case which demonstrates how sentencing mothers can be multifaceted.  

Death by careless driving case:

A mother of two having suffered the loss of her one-month-old baby and being a victim of domestic abuse, took an overdose of her prescribed medication. Although she had no intention of taking her own life, or that of her children, she drove her car and collided with a vehicle, causing someone to die. There was no evidence to suggest that she was speeding or was distracted. She has a history of trauma, mental health and is the primary carer of two young children, one of whom has severe learning disabilities.

As well as being mothers, many women face a range of difficulties such as mental health illnesses, self-harm, trauma, substance misuse, are victims of domestic violence, neurodivergence and more. These underlying issues are commonly linked to their offending behaviour and should be taken into account for mitigation.

Thinking about sentence

Sentencing a mother will automatically engage Article 8 right to family life and it is vital that the impact of immediate custody on her dependent children is taken into consideration. This consideration needs to be balanced carefully against the gravity of the offence.

The Equal Treatment Bench Book specifically states “it is not sufficient to say that the offender should have considered the impact on the children before committing the offence. The court has an independent responsibility to consider the dependants’ rights.” (Chapter 6 paragraph 121)

Relevant case law:

Case law has developed to recognise that having dependent children is an important factor to take into consideration at sentencing. The below authorities established the following principles:

• The court must be able to justify the separation of a mother from her child – R (P&Q) v Secretary of State for the Home Department [2001] EWCA Civ 1151 at para 79

• Where someone has caring responsibilities for “young children” they should only be given a custodial sentence “if that is absolutely necessary” – R v Evelyn Arinze [2010] EWCA Crim 1638

• Where the separation of dependents will be “devastating” this can be a “powerful” mitigating factor – R v McClue [2010] EWCA Crim 311

• The court had a duty to ensure it received all appropriate and relevant information about any dependent children before passing a sentence – R v Bishop [2011] EWCA Crim 1446

• A dependent child’s best interests are a “distinct consideration to which full weight should be given” – R v Petherick [2012] EWCA Crim 2214 at para 19

• Where custody is inevitable, the impact on dependents or the family unit may provide grounds for reducing the length of sentence – Cheeseman [2020] EWCA Crim 749

But despite these established principles, cases still find themselves in the Court of Appeal…

• A sentence of 28 months’ imprisonment was quashed and substituted for a sentence of 14 months’ imprisonment suspended. There was significant delay between the offence and charge. Foster had three children, one with autism, was their primary carer and suffered from severe mental health – R v Carla Foster [2023] EWCA Crim 1196

• The impact of immediate imprisonment on dependent children is a “powerful factor” which can justify suspending a custodial sentence – R v Tamang [2024] EWCA Crim 62 at para 23

• Suspending a sentence may be just and proportionate when considering the interests of dependent children and the impact of custody – R v Williamson [2024] EWCA Crim 91

• If a child is at risk of being placed into foster care, this should be taken into consideration – R v Byrne [2024] EWCA Crim 801 at para 35

It is therefore paramount that practitioners stay up to date with the most recent case law and guidance in this area.

Pre-sentence reports

The Imposition Guidelines make clear under Section 3 for requesting PSRs that when sentencing a “sole or primary carer” the Court should have “all relevant information” about any dependent children.

Where a PSR has been ordered, it is likely that Probation will gather as much information as possible about the mother and any dependents. However, if not addressed in the PSR, the following factors should be explored with a mother who is to be sentenced:

• Who can look after any dependent children should the mother be imprisoned and have they confirmed that they have the means to do so?
• Will a change of caregiver have an impact on education, access to healthcare, other relationships (such as siblings) due to change of location?
• Any relevant medical/mental health history regarding any dependents

Sentencing Guidelines

The Sentencing Council in 2019 made being a “primary or sole carer for dependent children” a mitigating factor. The Sentencing Council have listed guidance on how sentencers should consider this mitigating factor.

In April 2024, the Sentencing Council established a new mitigating factor “pregnancy, childbirth and post-natal care”. In support of that established mitigating factor, it is welcomed news that the revised Imposition Guidelines (release date to be confirmed), intend to list pregnancy or post-natal care under Section 3 for requesting a PSR. It provides the various factors that should be taken into account when sentencing pregnant or post-natal women.

Sentencing Note

It is likely that before the case is called on the Judge would have already considered any Sentencing Note submitted in advance. Therefore, preparing a Sentencing Note, whilst time-consuming, is a helpful tool, particularly when there is a lot of information for the Judge to consider.

Useful resources

In preparing mitigation, there are a range of helpful resources to support the guidance provided by the Sentencing Council and existing case law:

• Equal Treatment Bench Book (Chapter 6 paragraphs 119 to 125)
• Prison Trust – A Child Impact Assessment toolkit
• Doughty Street toolkit
• The working paper from the Howard League ‘Mothers in prison: The sentencing of mothers and the right of the child’
• Why focus on reducing women’s imprisonment? England and Wales Fact Sheet August 2022, Prison Reform Trust
• Any future publications/reports by The Women’s Justice Board (launched in January 2025 by the Lord Chancellor)

 About the authors

Lynne Shirley was called to the bar in 2002. She is ranked as ‘Leading Junior’ Tier 2 in The Legal 500 2025.  Lynne is instructed in serious and complex cases involving sexual offences, drugs and fraud. She has particular expertise in dealing with vulnerable defendants and witnesses.

Anisa Kebbati commenced her pupillage in Chambers in October 2024 and is now able to accept instructions.

To instruct Lynne or Anisa, please contact the clerks on 020 7404 1881 or via email here.