Ireland: adverse motherhood experience

Ashling Tobin. Nearly 5,000 children experience parental imprisonment every day in Ireland. Almost 10,000 children are affected each year. Imprisonment of either parent is always challenging for children. However, maternal imprisonment can be hugely devastating to children, affecting many aspects of their lives. The impact of maternal imprisonment varies from child to child and can affect children of all ages. Many of these consequences will carry over into adulthood.

The imprisonment of a household member is often cited as one of ten adverse childhood experiences (ACEs). It impacts children’s long-term health and wellbeing, their school attainment and later life experiences. Parental imprisonment is associated to increased risks of exposure to other ACEs. Research suggests that the deprivation of parental care due to imprisonment is more detrimental than other forms of parental loss and separation. In many cases, children already face material hardship and social disadvantage, and the maternal imprisonment only exacerbates the situation. They often already face the same issues that brought mothers into conflict with the law, including poverty, family breakdown, violence, and substance misuse. Deep trauma often arises from being separated from their mother, with feelings of stigmatisation, isolation, and confounding grief. Custody and supervision of these children is often a challenge. When they are not placed in care, they rely on their grandparents to become their primary care givers. This separation creates difficulties for imprisoned mothers who want to maintain mother-child bonds.

Some children remain with their mother in prison, which can have both positive and negative consequences. Our study found that allowing infants to stay with their mother in prison can promote bonding and reduce recidivism. On the other hand, living in prison may impact children’s physical and cognitive development and poses a risk to their physical (safety)¹. The study highlighted that the impact of imprisonment can be even more severe for specific groups: this is the case for people from minority ethnic backgrounds, foreign national women, sole caregivers, women with mental health problems and those in pre-trial detention.

Irish Travellers, for instance, are strongly over-represented in the Irish prison system. They make up for 7.3% of the prison population despite representing only 0.7% of the general population. This is particularly pronounced among Traveller women, who make up 14.4% of the female prison population. Past research has indicated that many Traveller women have been imprisoned for minor first-time offences such as driving without a licence, shoplifting and offences linked to addiction. The impact of imprisonment from a motherhood perspective is potentially more significant for Traveller women and their children insofar as they are more likely than the general female population to have a greater number of children and at a younger age. Concerns have been raised about the problems Traveller women face on release from prison when attempting to reconnect with their children who are in care, with additional trauma of separation when children are cared for by people outside the Traveller community.

AT. It is difficult to give a definitive answer to this question. Ireland does not have formal sentencing guidelines¹, but sentencing courts are guided by constitutional principles as well as guidelines set by case law. One of the core principles followed in Irish sentencing practice is that of proportionality and the courts have made clear that a sentence must be appropriate to the personal circumstances of the individual. It is therefore likely that Irish courts take maternity into account when sentencing and some media reports suggest that maternity responsibilities are a factor that judges may consider. That said, the lack of comprehensive sentencing data in Ireland makes it very difficult to determine with certainty the extent to which motherhood is considered in sentencing. IPRT is keen to see this major gap in knowledge addressed.

The IPRT study looks in detail at the role that pre-sentence reports² can play in identifying family circumstances and the impact of imprisonment on children for the sentencing judge. However, it is clear that – as it stands – there is no formal mechanism in Ireland for the voice of defendants’ children to be heard during the criminal justice process. Similarly, there is no clear or established space within which the best interests of a defendant’s child are considered during the sentencing process.

There are various non-custodial sentences that a court might impose on adults convicted of a criminal offence including fines, probation, community service, conditional or absolute discharge, curfew and exclusion orders and restriction on movement orders. Given the lack of available data, it is difficult to ascertain how these non-custodial measures are specifically applied to women at the time of their conviction. IPRT notes, however, the commitment of the Probation Service and Irish Prison Service to develop women-specific community service and community return options. Examples of work in this area include the implementation of two female specific programmes for community service orders and/or supervision orders.

The legal framework also provides for three types of suspended sentences, namely a suspended sentence, part suspended or deferred sentence. Personal mitigating circumstances are an important factor in deciding whether a sentence should be suspended. Family circumstances, in particular pregnant women or women with dependent children, have been mentioned by the Irish Law Reform Commission as one of the factors that may be taken into account in deciding whether to suspend a sentence.

In August 2022, the Irish Department of Justice published a review of Policy Options for Prison and Penal Reform with an associated Priority Penal Policy Action Plan. The review calls for the expansion of non-custodial measures with an emphasis on community-based sanctions and a move away from short custodial sentences of less than 12 months. The review does not specifically address the issue of mothers in prison but it recommends the development of ‘diversity sensitive approaches’ to offenders including the Traveller community and other marginalised groups. The action further seeks to explore the feasibility of a structured rehabilitation response for women.

AT. We have identified many recommendations relating to sentencing and the promotion of non-custodial measures. For example, we believe there is a need for increased monitoring of pre-sentence reports and court decisions. This will help determine the extent to which children are considered in probation assessments and the extent to which judges currently consider the best interests of the child when remanding or sentencing a mother. ‘Child impact assessments’ should be incorporated into the Probation Service’s pre-sentence reports and judges should be required to consider these assessments when sentencing mothers.
To this end, future sentencing guidelines should include the requirement that the best interests of the child and the impact of imprisonment on them be considered when a mother is remanded or sentenced to imprisonment. In addition, judges and other relevant criminal justice officials should be offered training on the impact of imprisonment on mothers for judges. Finally, the range of sentencing options for women should be reviewed and expanded, with an emphasis on gender responsive community-based approaches.