Faculty of law blogs / UNIVERSITY OF OXFORD

The rights of children whose parents are in prison during the Covid-19 pandemic

‘I'm 10 years old. Mum has been away for 18 months. We didn't go to see her because she was coming home every 2 weeks for 5 days until the virus. We haven't seen her or Dad for 3 and a half months. Not even her face. Mum phones every day I can't explain how it makes me feel. It makes me feel sad and confused.’

‘I miss my Mum.  I want to hug her and I miss her so much’

This month sees the annual European campaign 'Not my crime, still my sentence' focusing on the children across Europe who have a parent in prison. This campaign organised by Children of Prisoners Europe is an attempt to counter the invisibility of this group of children.


Time to read

5 Minutes

It is the 11th week since prisons in England and Wales stopped social visits. It is at least 11 weeks since any of the 300,000 children with a parent in prison have seen their parent. It’s 11 weeks since the 711 children who themselves are held in detention have seen anyone outside of the prison (it is of note that of those children 1 in 3 is on remand and black children make up a disproportionate percentage of the total imprisoned population).  It is 11 weeks since the estimated 70 pregnant women in prison have been visited by anyone. It is 11 weeks since the 13 children in mother and baby units in prisons have seen any family members outside of the prison.

On the 2nd June HMPPS published the Covid-19: National Framework for Prison Regimes and Services setting out 'how we will take decisions about easing corona virus-related restrictions in prisons'. It sets out the ways in which regimes may be changed but it gives no timings.  It is widely accepted that the spread of corona virus in prisons has been limited by the severe regime that has been imposed in prisons (many prisoners experiencing 23 or  23 ½  hour lockups each day). This regime has been necessary because the numbers in the prisons are such that education, association, work and visits can't take place in a safe way with social distancing. From the outset the government has been urged to reduce prison numbers, as so many other countries have done, but a decision has been made not to do so.

It is at this point that the decision to maintain prison numbers will become increasingly problematic for many reasons but not least because of the inability of prisons to safely manage visits for children with their parents. Andrea Albutt the Chair of the Prison Governors' Association said at a seminar organised by the University of Cambridge,  that the prison service cannot safely provide visits in overcrowded prisons.

Prisoners and their families want visits with each other but until the prison population is reduced this will remain a dangerous and in many places impossible task. These difficulties are the result of a criminal justice system which has overused prisons, and a government  determined to look tough on crime and unwilling to reduce the prison population. Those circumstances do not negate the fact that children have a right to family life (Article 8 of the Human Rights Act 1998); a right that has currently been removed from children with a parent in prison, with insufficient resource applied by the government to mitigate or reduce that loss.

Two weeks ago video visits were promised by HMPPS,  and 20 prisons out of 117 now have the facility to offer video calls to prisoners. 97 prisons do not have the facility to offer video calls. At the same time video visits were announced The Nuffield Family Justice Observatory published a rapid evidence review on 'The effects of digital contact on children's well-being: evidence from public and private law contexts' (Lyer et al) .  Local authorities in England and Wales remain obligated to allow looked-after children (that is children not living with their birth families, and in the statutory care of the local authority) 'reasonable contact' with their birth families during the current Covid-19 lockdown. The rapid evidence review of 16 publicly available studies from the UK and international literature was undertaken to 'understand how digital technologies can be managed to maintain contact while prioritising children's best interests' . The key findings were:

  • Digital contact is more immediate, less formal, and can help facilitate relationships
  • It can be difficult for carers and professionals to set boundaries and supervise digital contact
  • Digital contact can help to overcome physical distance between children and their birth families.
  • Digital contact should be used to enhance rather than replace face-to-face contact
  • Appropriate forms of digital contact depend on the child's age and experience

The study highlights what could amount to discriminatory practice against children whose parent is in prison. My previous work on the sentencing of mothers contrasted the approach of the family courts to separation of children from their parents with the way criminal courts consider children when separating them from their parents. In the family courts the child's best interests are the paramount consideration of the court, but in the criminal courts the protective legislation, the Children Act, does not apply.  It is a breach of Article 2 of the United Nations Convention on the Rights of the Child (1989) for the state to fail to protect a child from discrimination or punishment which they face as a consequence of the status or activities of their parents, and the lack of concern for children in sentencing practice constituted such a breach.

The current lack of contact between children and their parent in prison is also a breach of that duty. Many parents in prison have very good relationships with their children and were part of that child's daily life before imprisonment. There are not parenting concerns, unlike the situation the Nuffield report considers where a child has been removed from their birth family because of parent's inability to safely or appropriately care for their child.  In the latter situation the local authority continues to be obliged to ensure children removed in that situation are maintaining contact digitally, if not in person throughout lockdown, whereas no child can have face to face contact with their parent in prison for an indeterminate, and currently unknown, period. This demonstrates the lack of equity for the 300,000 children currently affected by parental imprisonment in England and Wales. As with the children in the Nuffield study, these children need carefully supported and good contacts with their parents. Digital contact should be used to enhance face to face contacts; it should not be the pinnacle of contact, experienced by only a tiny proportion of children during this time.  

I'm currently collecting data from adults, parents, grandparents, step-parents, who are looking after a child who has a parent in prison. I've done this by way of an online anonymous survey  and through interviews. I’m learning that children with a parent in prison are not only coping with the challenges of lockdown, the closing of schools (and now the partial re-opening), the withdrawal of many support services, the isolation and the fear, or reality for some, of becoming ill with corona virus, but also without any warning, they have been deprived of meaningful relationship with their parent.  It is important that we listen to them and to their parents, so I'm ending with an account from a mum, written specially for this blog.

‘The impact this has had on my children is something that I will as a mum never forget.  The hurt my children deal with daily, the questions they ask, 'when can I see my dad?', 'will my dad get covid?',  'will my dad be ok mum?'.  I can't answer. Not one of them.  As a mum I feel helpless listening to my children cry, holding them at night when they want to be held by their dad.  They kiss his picture every night not knowing when they will get their next real kiss or cuddle. My disabled boy is continuing to lose weight fast, not wanting to eat, can't express how he feels. All he says is 'Dad, my Dad'. It's heartbreaking. If my boy losses his fight he will have been without contact for 10 weeks without him touching or seeing daddy's face.  How can this be right? He should be able to touch and smell his daddy and know he's not left him. My children feel like they are serving the sentence. Why are my children being put though this, why are they being punished for their dad's mistake?  Something needs to happen before my children suffer any more. My children are going to end up with mental health issues if it's up to this government, a government that does not care about children whose parents are in prison.  Shouldn't we be showing these children we care before these children are the next one's in prison down to being let down and ending up with mental health issues?’ Leanne