Mitigating Motherhood: Centering the Rights of Children and Mothers in Criminal Sentencing in England and Wales

Abstract

This Article examines the evolving legal and policy frameworks surrounding the sentencing of mothers and pregnant women in England and Wales, focusing on the balance between punitive justice and the rights of children. Tracing two decades of legal precedent, it highlights key milestones, including the landmark case R v. Petherick, and subsequent developments in case law and sentencing guidelines. Despite incremental progress, inconsistencies in lower courts persist, with sentencers often failing to adequately weigh the disproportionate impact of imprisonment on dependent children and pregnant women. Notable cases reveal the judiciary’s gradual recognition of the unique harms associated with maternal incarceration, underscored by catastrophic events such as infant deaths in prison that have spurred public and professional discourse. This Article underscores the necessity for legislative reforms to prioritize non-custodial sentences for mothers and pregnant women, ensuring a comprehensive assessment of family impacts in sentencing decisions. Recent appeals in 2024 illustrate a growing judicial awareness, though gaps remain in first-instance courts’ application of these principles. To safeguard children’s welfare and uphold family rights, this Article advocates for statutory presumptions against custodial sentences in these contexts, aligning justice with broader social and developmental outcomes.