At an International Women’s Day event at Garden Court Chambers last month, barrister Maya Sikand launched her research paper, ‘Lost Spaces: Is the current procedure for women prisoners to gain a place in a prison Mother & Baby Unit (MBU) fair and accessible?’
There are MBUs in six women’s prisons in England and Wales, which allow some women prisoners to live in prison with their baby up until the age of around 18 months. In order to gain a place in an MBU there is an admissions process culminating in a board meeting. MBUs provide a vital facility, particularly bearing in mind the extreme seriousness of separating a mother from her young child. MBUs have not been the subject of significant study to date, and Ms Sikand’s report is the first work of its kind.
Background to the research: the WB case and issues arising
The research was originally motivated by a case in which I instructed Ms Sikand on behalf of a female prisoner known as WB.
WB had been remanded in custody when around four months pregnant, having never been in prison before. She had a limited command of English and was entirely unfamiliar with relevant legal processes. When she was told about the existence of the MBU on her arrival, she made it clear that she wanted to be moved there before her baby was born, yet her application was not considered until three weeks before her due date. She was refused a place for reasons apparently relating to concerns about her previous parenting of her older child and the offence for which she was on remand (in respect of which she was subsequently acquitted), and her baby was removed from her 48 hours after she gave birth. A cursory internal appeal prepared on her behalf was not determined until after the baby had been born and removed. As the appeal was rejected, WB brought judicial review proceedings which were ultimately successful, based both on domestic public law grounds and on a failure to comply with Article 8 of the European Commission of Human Rights, the right to private and family life.
The judicial review proceedings are noted in the research paper to have exposed the difference between policies in this area and the practical realities. Unfairness arose from a number of aspects of the case, including a failure to provide the dossier of papers for the board meeting deciding on admission to the MBU until 15 minutes before the hearing or to carry out a pre-birth parenting assessment, as well as the late determination of the appeal. The High Court judge that ruled on WB’s case emphasised the importance of such processes taking place as early as possible in the pregnancy.
Issues of fairness and accessibility
After completion of WB’s case, Maya Sikand decided to explore further the issues around fairness and accessibility of MBU places that it had highlighted. The research was supported by the Griffin Society, an organisation whose purpose is to ‘sponsor research to bring about change in how women and girls are dealt with in the criminal justice system.’ Crucially, the research focussed on the perception of the process by the women prisoners and ex-prisoners who are its subject as opposed to simply those of state bodies and other organisations. The research centred on semi-structured interviews with female prisoners and ex-prisoners, addressing their impressions of the admissions process, including the role of social workers, also touching on the issue of whether changes to the process were desirable. In addition, interviews were undertaken with MBU staff with regards to the functioning of the admissions process and its fairness and accessibility.
Findings and recommendations
Based on the interviews, the research makes the following key findings:
- A custodial sentence was usually unexpected for women given a place in the MBU such that women had not made provision for their babies. The majority of women interviewed for the study were in custody for the first time and had either no previous convictions or convictions of a relatively minor nature. This suggested that those with previous custodial sentences were likely to be excluded.
- On arrival in prison, information was not shared consistently regarding the MBUs’ existence and benefits, or how they could be accessed. For example, one woman imagined that she would simply be locked in her cell with her baby and was surprised when she saw the unit for the first time. The provision of information about MBUs was particularly lacking when women had babies who were in the community, as opposed to being pregnant on their arrival in prison. For those women that do apply, no meaningful participation in the application process is facilitated.
- Decisions on applications to the MBU are taken by a board. After applying for an MBU place, there was a significant delay before the MBU board was held, leading this to take place very late in the pregnancy. In one case, the board meeting took place by telephone while the applicant was in hospital between contractions. The late board hearing caused great distress and uncertainty, such that some felt certain it had contributed to premature births. One interviewee commented, ‘I used to have nightmares that I was going to miscarry…. How I just didn’t end up having a nervous breakdown I have no idea.’ Many interviewees proposed as improvements a speedier process and an early board meeting.
- Women did not receive sufficient warning about the date of the board meeting, with all but one only being notified of it on the same day or the day before. Disclosure of documentation on which the board would rely was provided either 15 minutes before the meeting or not at all, with one exception, despite guidance that this should usually be circulated 48 hours in advance. A process which sets out the exact criteria, time frame for applications, details of decision makers and evidence to be reviewed, and a target time frame for the decision to be made and conveyed is therefore recommended.
- The social worker had a highly influential role in deciding whether an MBU place would be offered, although it was rare for the individual to actually attend the board meeting. MBU managers varied as to whether they would still accept the recommendation without the social worker’s presence. Many of the prisoner interviewees viewed this influence as unfair.
- Prisoners tended to be unaware of their right to appeal against the board’s findings, with only two of 16 interviewees having been informed of this.
Finally, the research records the considerable benefits that can arise from a place in a Mother and Baby Units, with all 15 women accepted onto a unit expressing deep gratitude for this and describing it as having turned their lives around. One said, ‘…Let me tell you I’m never coming back to prison again and I’m so sure…. I have a life now, like a normal life and I know what it’s like now and that’s not for me anymore.’
In order to improve access to MBUs, the report makes a number of specific recommendations, namely:
- Requiring liaison between MBU managers and those outside the prison in the criminal justice system, to ensure they are properly understood, and introducing agreements between MBUs and social services regarding mutual expectations.
- Requiring the screening interview on entry to prison to include specific questions about any babies in the community and to be provided with the leaflet about MBUs prepared by NOMS (the National Offender Management Service).
- Promoting the positive aspects of MBUs within the prison estate and allowing visits for and / or the provision of photographs to prospective entrants.
- Making the disclosure of dossiers 48 hours in advance of board meetings mandatory, and holding board meetings significantly earlier and by week 30 at the latest, unless impossible because of the woman’s arrival in custody.
- Requiring recording on a national basis of reasons that applications are not progressed.
- Urgently reconfiguring the appeals procedure so that it is fair and in accordance with due process.
- Commissioning further research exploring the reasons women do not apply to MBUs and factors that result in rejection of unsuccessful applications.
This is a vital piece of research bearing in mind both the highly constructive role that MBUs can play and the worrying signs that many women are being unfairly denied opportunities to live in them. It is to be hoped that NOMS will take its recommendations seriously with a view to creating a fairer and more consistent approach in which less women suffer unnecessary separation from their babies while in custody.
Natalie Sedacca is a PhD Candidate in the UCL Faculty of Laws writing on behalf Hodge Jones & Allen.