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I've often commented that courts sometimes seem on the verge of making motherhood a virtual get-out-of-jail-free card.  That in fact has been the specific rationale offered by certain jurists like Canada's justice Brownstone for refusing to enforce visitation orders.  After all, we don't want the children to be without their mom.  And it seems fairly routine for an attorney to argue that, since his/her client has children at home, she shouldn't pay the price for her criminal wrongdoing. But so far, those arguments don't work very well, at least in criminal courts.  All that may be changing though in the United Kingdom where this case recently came to light (Daily Mail, 5/28/11).  That may be remarkable, but what's more so is the fact that the beneficiary in the linked-to article isn't a mother but a father. He's Wayne Bishop and he's the sole caregiver for his five children.  He's not employed and on the dole, so he's understandably strapped for cash.  Where the mother of his children is and why she doesn't pay child support is not mentioned in the article. Whatever the case, he and a friend apparently decided to burglarize a club, but only made off with some chocolate.  The sticky-fingered crew were apprehended a few blocks from the scene of the crime, arrested and duly convicted of burglary and reckless driving.  He was sentenced to eight months in prison, but served only one.  Why?  He's got kids, that's why. I'm not making that up.  It seems that the UK passed the Human Rights Act in 1998 which was to give effect to the European Convention on Human Rights.  Article Eight of the Convention reads as follows:
Article 8 – Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Now, alert readers will have noticed that the prohibition on governmental interference with family life is limited.  Governmental actions that are otherwise "in accordance with the law and... necessary... for the prevention of crime,... or for the protection of the rights and freedoms of others," are still OK. Those rather obvious exceptions to the right to family life would seem to be sufficient to keep Bishop in jail for the balance of his sentence, but no.
At the Appeal Court, Mr Justice Maddison and Mr Justice Sweeney agreed that imprisoning Bishop was not in the ‘best interests" of his children, and ordered the sentence to be suspended instead. The court was told that Bishop was the sole carer of his children, aged between six and 13, for five nights a week. Since he was jailed, the children have been cared for by his sister during the week and their mother, Bishop"s ex-partner Tracey York, 30, at weekends. The court heard the sister, a single parent, was already responsible for seven children and lived seven miles from the schools attended by her nieces and nephews. Mr Justice Sweeney suggested it was hardly in the children"s best interests for their father to be out committing burglary and asked who had been looking after them at that time. But he and Mr Justice Maddison together concluded that the judge who jailed Bishop at Nottingham Crown Court had not paid enough attention to the effect that imprisonment would have on  his children. Mr Justice Maddison said: ‘It is important that criminals should not think that children can provide some sort of licence to commit offences with impunity. ‘All of that said, however, we have to be aware of the highly unsatisfactory and difficult situation faced by the children and those now doing their best to look after them."
For his part, Bishop has pronounced himself a "lucky boy." Now, I strongly suspect that the judges aren't truly issuing a get-out-of-jail-free card to all convicts with children.  My guess is that the relatively trivial nature of the offense plus the fact that Bishop was the sole caregiver for the children, plus the unsatisfactory nature of the substitute parenting arrangement all played big roles in springing him from jail. I also strongly suspect that that type of reasoning will, in the future, be used almost exclusively for the benefit of mothers.  They are, after all, more likely than fathers to be the sole caregivers for children. Why Bishop is the children's only parent, I don't know.  But I do know that family courts in the UK are renowned for marginalizing fathers in the lives of their children in every imaginable way.  For the most part, that takes the form of unequal custody awards coupled with their refusal to enforce visitation, but there are plenty of others. So when we couple that behavior by family courts with what looks to be the future of sentencing in criminal courts, a more complete picture begins to take shape.  In short, family courts create 'sole caregivers' and criminal courts turn a blind eye to their wrongdoing as long as they have inadequate back-up parenting plans and commit relatively minor offenses.  It's a sort of perfect, self-contained system brought to you courtesy of some of the looniest laws imaginable. Thanks to Malcolm for the heads-up.

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