Seeing children's suffering: feminist legal methods, sentencing decisions and incarcerating mothers who offend
University of Western Australia Centre for Women's Studies
Faculty of Education and Arts
School of Arts and Humanities
In 1992, Helena Kennedy QC criticised British officials’ indifference to children’s suffering when sentencing a mother to prison:
in our Family Courts the philosophy is that the child comes first in any dispute. Children need their parents, and only in the most extreme circumstances do we break that bond. Yet in the criminal courts officials wash their hands of responsibility by saying that if her children suffer it is the criminal woman who is to blame. (1992, p. 79)
The assumption behind Kennedy’s position promoting the child comes first principle is that criminal law courts should consider offenders’ parenting responsibilities when deciding to incarcerate a mother who has “bonded” with her dependent child. My immediate response to Kennedy’s concern is to query whether her criticism applies twenty years later to officials in Australian criminal courts. Do sentencing judges strive to preserve “that bond” or, to use Abramowicz’s (2012, p. 320) phrase, “the bonding process”? My task in this paper, then, is to clarify how that bond is dealt with for a small group of female offenders in Australian criminal law courts. In so doing, I emphasise elements of a feminist legal method."