Recognising the harms: the Sentencing Council's mitigating factor relating to pregnancy, child birth and the post-natal period

The case of Bassaragh v R [2024] EWCA Crim 20 in January 2024 saw the Court of Appeal quash the prison sentence of a pregnant woman so that she could give birth safely. This case is hailed as a landmark by campaigners.1 Furthermore the case was followed by the announcement of an additional mitigating factor 'pregnancy, childbirth and post-natal care' which provides guidance for courts when sentencing pregnant offenders and new mothers.2 This mitigating factor came into effect on 1April 2024. Later that year the Secretary of State for Justice, Shabana Mahmood MP announced the creation of the Women's Justice Board which will explore alternatives to imprisonment for women generally, focusing on community based sentences and rehabilitation. The overall aim is to decrease the number of women being sent to prison and with an ultimate ambition of virtually eliminating the need for women's prisons altogether. In the meantime although there are a limited number of Mother and Baby Units in prisons in England and Wales, concerns surround the adequacy and safety of these units.

This article sets out firstly the problem of a lack of adequate provision in prisons for pregnant mothers and their babies; secondly to review the Bassaragh v R case; thirdly to consider the Sentencing Council's new mitigating factor followed lastly by an evaluation of its likely impact.

This article will be of direct interest to family law practitioners. The archaic way in which pregnant women have been imprisoned is changing as criminal law looks to join the enlightened realms which family law already occupies. Sending pregnant women or new mothers to prison in only the most exceptional circumstances will mean that as a consequence the family courts may likely see a significant reduction in applications made in relation to such babies and children. The impact on the family care system is significant especially where there are no family members to take on the caring responsibilities. Many arrangements are made informally and for those members who take on the care with no legal guardianship there is no financial help. Depending on the circumstances the intervention of the court may be required. In private law proceedings there is currently a need for a child arrangement order for residence/contact and in public law proceedings, an interim care order, a special guardianship order or an application for adoption may follow.