Family rights on The Rock

Incarceration devastates families, but as LPC competition winner Emma Krijnen-Kemp reports, pro bono work is fast becoming the key to preserving the maternal rights of imprisoned women

Rikers Island, a 17-acre strip of land in New York’s East River, once belonged to a Dutch settler before being sold, in 1884, to the city authorities. It is easy to see the long bridge leading to the island, but unless you are in handcuffs it is rather difficult to gain access to it. Often referred to as ’The Rock’, the island was converted into a jail and is now reputed to be the largest penal colony in the world. It was once home to troubled Sex Pistols front man Sid Vicious, and today the press is beset with stories of the island’s violence and scandals.

Many of the prisoners on Rikers Island are on remand, either not granted or unable to afford bail. Others are serving sentences of a year or less, or are awaiting transfer to other prisons. The City of New York Department of Correction estimates the island’s daily population at more than 20,000. Among these prisoners are mothers who are desperately trying to hold on to their parental responsibilities. The reality of ’island life’ means that many of the mothers do not see their children and in the worst cases maternal ties are completely severed. For these women, pro bono legal support has become a family lifeline.

The Incarcerated Mothers Law Project was set up by the Volunteers of Legal Service (Vols). Vols itself was established in 1984 following cutbacks in New York’s legal aid services. Forty-three law firms currently pledge a minimum of 30 hours per lawyer per year, which last year led to the outstanding delivery of over one million hours of free legal services.

Through the project, pro bono lawyers meet directly with mothers at Rikers Island, as well as in two other state medium-security prisons where the project also operates. They provide one-to-one legal advice on custody and visitation matters. They also present group sessions to ensure that the mothers understand and ­appreciate basic family law concepts and the importance of remaining in touch with their children.

There are many reasons why family ties are lost while a mother is in prison. Some mothers feel ashamed about their situation and do not want their children to visit them in an oppressive environment. For others, family difficulties, stigma and transportation issues may restrict visitation. Where children are placed with the authorities, visitation is usually deemed to be impractical and not a priority.

Ellen Rosenberg, Vols family law coordinator, notes: “For mothers with children in foster care, there are strict requirements and time frames for ­reunification and the failure to meet these standards could result in termination of parental rights and eventual adoption of the child.”

In 1999, under the Adoption and Safe Families Act, foster care agencies became legally obliged to file for the termination of the parental rights where a child has been in foster care for 15 out of the past 22 months. From an incarcerated mother’s point of view, this act becomes the sword that may sever her parental responsibility. In fact it is a double-edged sword as the
act holds some limited exceptions which may allow properly ’documented’ and ’compelling reasons’ as to why the termination would not be in the best interests of the child. However, tackling the complexities of family law requires significant and dedicated advocacy.

Dolly Mirchandani, partner in the global energy and infrastructure group and pro bono partner at Freshfields Bruckhaus Deringer, has participated in the Vols ­Incarcerated Mothers project. Initially, ­Mirchandani was intrigued by the nature of Rikers Island and felt compelled to tackle what she described as “a heartbreaking situation”.

“Often incarcerated mothers are unaware that if they lose contact with the family, then after a period of time they can lose their parental rights,” she explains.

The volunteer lawyers undergo a training programme before beginning pro bono work at Rikers. The lawyers also have access to a specialist family law consultant during their visits, which usually occur on a monthly basis. The bulk of pro bono work involves negotiating with family members or foster carers to ensure visits, locating children within the care system, preparing for court hearings, liaising with the mother’s court appointed counsel, explaining legal documents and initiating legal proceedings to order visits between a mother and her children. At the same time, many of the mothers try to progress things by attending parenting skills workshops as well as basic skills tuition, which is also facilitated by pro bono law students from Columbia University.

Vols and other organisations engaging with prisons are keen to highlight the ­growing body of research emphasising the importance of maintaining family ­relationships while the mother is in prison. There is evidence to show that mothers who stay in contact with their children are ­actually less likely to reoffend. Mirchandani is certain that the mothers benefit from the pro bono project.

“It’s very much preventative and the extent can be very far-reaching,” she says.

Mirchandani views the women at Rikers Island as having been removed from the system. A primary feature of her pro bono role is about bringing the system back to
the women.

Vols reports that the project has made a major difference to the maternal rights of American women in prison. Sara Effron, Vols assistant director notes: “In 2008, 152 mothers in jail or prison received individual legal counseling from pro bono lawyers in the Vols Incarcerated Mothers Law Project. A total of 347 individual legal visits with mothers were conducted by lawyer.”

Several of the mothers gave feedback to Vols: “No one in my life has ever thought enough of me to stick it out with me, and because of your dedication I’ve learned patience and self-control.”

Another mother said: “I would like to express my appreciation… for assisting me in locating my family… We are working on rebuilding our relationship.”

Rosenberg also points out the benefits pro bono lawyers gain from their participation. “For the attorneys working with these women, it’s gratifying to help incarcerated mothers maintain or re-establish ­connections with their children while they’re in jail or prison and help them better understand their legal rights, remedies and obligations as parents. Assisting a woman to arrange for visitation with her children, or helping her to find children previously lost to her makes a major difference.”

She adds: “Our clients are very ­appreciative of what we do. We know that our efforts can lead to helping a mother remain in her child’s life while she is ­incarcerated and planning for reunification upon her release.”

Rosenberg wants to encourage more pro bono lawyers to get involved. “Participating in a project such as this affords a unique opportunity to use your legal expertise and skills to make a meaningful difference in the lives of mothers and children who have been separated from one another. There is much stigma and many false stereotypes that surround women who are incarcerated, both in the community generally and in the legal system. Involvement and advocacy on behalf of incarcerated mothers can change their course for the better and provide you with intensive and practical family law experience and personal satisfaction.”

This is echoed by Clarissa O’Callaghan, head of pro bono at Freshfields in the UK. She explains: “Projects supporting disadvantaged children are one of Freshfields’ pro bono priorities. Pro bono provides an opportunity to give back to society while developing professional skills, as well as being a fantastic way to get involved in the key issues of the day.”

Here in the UK, the female prison ­population has nearly doubled in the past decade. The majority of female prisoners are serving first-time convictions, usually for theft or receiving stolen goods.

Home Office research indicates that 66 per cent of these women prisoners have young children and that nearly 18,000 children are affected by their mothers’ incarceration. Last year, the Ministry of Justice (MoJ) together with Department for Children, Schools and Families produced a framework to support families engaged with the criminal justice system. The framework’s first principle states that prisoners will have the opportunity to maintain and develop appropriate family and community ties. Although the Government recognises that support is required to enable families to remain connected during incarceration, there will undoubtedly be a reliance on goodwill to provide that support.

As the MoJ’s framework develops, there will be a greater need for pro bono lawyers. Collaborative projects, similar to the Incarcerated Mothers Law Project at Rikers Island, certainly highlight the strength of bringing the legal and voluntary sector together and provide an example of how such projects could work here. For law students, this signals a wealth ofopportunity to make a valuable and lasting difference for individual families, for the wider community, and for themselves as future lawyers.

This is an edited version of the LPC-winning article by Emma Krijnen-Kemp