In September 2019, a baby died when a mother gave birth overnight in her prison cell-alone (BBC, 2019). Multiple investigations were launched and coverage of the tragedy revealed a raft of other deeply concerning incidents (The Guardian, 2019). Despite a shocking lack of data on pregnancy, birth and early motherhood in custody, we discovered that around one in 10 incarcerated women were likely to give birth in their cell or on the way to hospital (Davies et al, 2020). This evidence added even more weight to the Joint Committee on Human Rights' report (2019) on the risks to human rights represented through the imprisonment of pregnant women and new mothers.
While we wait for the prisons and probation ombudsman's report into the baby's death, the COVID-19 pandemic has augmented the risks faced by women and babies yet further. By announcing the prioritisation of pregnant women and mothers with babies in prison for early release back in March, the government sent a clear signal about the vulnerability of these groups during the pandemic and the need to take steps to protect their safety and well-being.
Yet two months on, only 22 (The Guardian, 2020) have been released under the scheme; just six pregnant women and 16 mothers with babies (Barnes, 2020). Many more remain inside prison walls, locked in their cells for more than 23 hours a day with no visits from family, friends or their usual support services.
This cannot continue. So at Birth Companions, we have set out a number of key calls on the Ministry of Justice and Her Majesty's Prison and Probation Service (HMPPS) at this crucial point in the pandemic response.
Urgent releases
The government recently announced that consideration should be given to how prison restrictions may cautiously be rolled back over coming weeks and months (Ministry of Justice, 2020). While restrictions remain in place, the programme of early release for pregnant women and new mothers should not be abandoned but extended with creative and coordinated use of resources to ensure that every woman who can be moved into the community safely is supported to do so as quickly as possible. While we work to prevent a second wave of infection, this approach holds benefits for all as overcrowded prisons have been recognised as sites for potentially ‘explosive outbreaks’ (O'Moore, 2020) of the virus.
These early releases should include mothers with responsibility for children under the age of two in the community. When judges sentenced these mothers to prison they did so with the expectation that they would, where appropriate, have contact with that child throughout their custody; have the opportunity to hand out expressed breast milk if they were breastfeeding; and perhaps qualify for Release on Temporary License allowing them to go home for a days at a time to maintain their vital bond.
Children under two are unable to benefit from phone calls, letters and emails and may struggle with video communication. The impact of separation on mothers and children during this crucial developmental period is likely to be extremely damaging (HM Chief Inspector of Prisons, 2020).
Coordinated, specialist support
NHS England recently commissioned Birth Companions to provide specialist support to pregnant women and mothers being released during the pandemic. This work includes focused efforts to ensure women are connected to local maternity services and other support in the community. We are aware that in many areas of the country the specialist midwifery services that provide the most appropriate support for these women have been affected, as midwives and resources are diverted to meet the additional pressures brought by COVID-19.
We are concerned that the risks posed by the difficult and complex situations women are released into are not being adequately addressed by HMPPS. For example, women being released as planned are only being given the standard discharge grant of £46 and not the increased grant being provided to those released under COVID-19 related schemes who receive £80. There is wide recognition that the standard discharge grant does not meet the needs of women on release in ‘normal’ circumstances, let alone in a situation where they need to access a range of services via costly phone calls and mobile data; where they will face inflated food costs; and risks associated with taking public transport.
The work we have done during the pandemic to support women released from prison at the end of their custody has shown that their needs are no less urgent than those of the few released early. All women should be given adequate through-the-gate support and ongoing help in the community to ensure they and their children are safe and have the resources they need.
Keeping women and babies safe
The death in HMP Bronzefield last autumn highlighted what so many of us have been campaigning about for years: that prisons are inherently unsafe for pregnant women. Our frontline experience in prisons across England tells us that despite the efforts of many prison and healthcare teams, the system itself creates insurmountable barriers to the safety and well-being of these women and their babies. Prisons have a drug problem: pregnant women may inhale Spice or Buscopan second hand. Prisons are secure: ambulances and medics take longer to access women and longer to get them to hospital. Prisons are cold: any baby born in a cold cell will be at risk.
Now those risks have been exacerbated by the institution of a regime of near-complete isolation. Keeping women locked up in a prison cell for more than 23 hours a day, with no access to family visits or many of the peer and professional support services they rely on for both mental and physical health needs, is not a solution to the problem COVID-19 poses in our already broken prison system.
These measures are very likely to augment existing risks to women and babies' health and well-being, and could represent a threat to their human rights to life, to protection from inhuman or degrading treatment and to family life.
Sentencing
Pregnant women and new mothers are still being sent to prison during the COVID-19 crisis, including mothers recalled to custody for minor breaches of their license conditions and forced to leave their babies in the community.
Now, more than ever, it is imperative that sentencers follow the established guidance on mitigating factors relating to sole or primary care of a dependent relative. Sentencing Council guidance states that the impact of a sentence on dependents should lead to consideration as to whether the sentence could be suspended, and where the defendant is a pregnant woman, the relevant considerations should include the effect of imprisonment on the woman's health and any effect on the unborn child. Clearly, the regime in place in prisons across the estate at the current time and until restrictions are lifted completely, should set the threshold for custody – whether for women on remand or after sentencing – higher than ever.
Summary
Most women entering prison to serve a sentence (80%) have committed a non-violent offence (Halliday, 2020). More women are sent to prison to serve a sentence for theft than for violence against the person, robbery, sexual offences, fraud, drugs and motoring offences combined (Halliday, 2019). And the proportion of women serving very short prison sentences has risen sharply: in 1993, only a third of custodial sentences given to women were for less than six months; in 2018, it was nearly double this (62%) (Halliday, 2019).
Coordinated releases and an end to custodial sentencing in all but the most exceptional of cases provide the answers to minimising the risk to mothers and babies in the pandemic situation, as they did before the pandemic, and as they will continue to after this current public health crisis passes. We cannot wait for another tragic headline, another death, before we make these changes.
We hope the government will maintain its commitment to the supported release of as many pregnant women and mothers of young children as possible, as set out two months ago, and will use this opportunity to deliver a sustained, significant reduction in the number of women sentenced to prison as set out in the ‘Female offender strategy’ (Ministry of Justice, 2018) two years ago. It's the only way to bring an end to this country's shocking record of inadequate care and tragic outcomes for pregnant women, new mothers and their children in our prisons.