Alternative Law Journal
Recent research in South Australia indicates that the distinctive circumstances of women with dependent children are not adequately recognised by current procedures in the criminal legal system. The findings of this research, documented in the report Taken In, suggest that women with dependent children struggle to negotiate two essentially distinct (and gendered) systems (the criminal legal and the social welfare systems). Recognition of women’s obligations as the carers of children through the better coordination of services and in the provision of adequate training and resources for personnel could improve the experiences of women and their children. Some of the research from the Taken In project is reported in this article. In particular, experiences of police arrest practices are discussed in order to illustrate how inadequate and inconsistent practices can result in women and their children being subject to unjust, extraneous and even illegal treatment.
For women who have dependent children, concern about care arrangements can be an overwhelming distraction that effectively detracts from their ability to negotiate criminal legal processes. It was clear from the interviews conducted during the Taken In project that women who are able to make secure private arrangements for their children (for instance by relying on family or friends) have an easier experience of the arrest to sentencing process — and even of imprisonment. For most of the women interviewed, however, negotiating for the care of their children was a persistent concern that began from the moment of arrest. Toni’s experience is demonstrative.
Toni found that poorly integrated criminal legal and social welfare services exacerbated her already precarious life. Found asleep with her daughter in a public toilet late one night, she was not cooperative with police, nor with the workers from the emergency social welfare service, Crisis Care, when they were called in to take care of the child. At the time they suggested a ‘voluntary parental order’ (legally allowing them to act on her behalf in arranging care for her daughter). However, she had no idea what a ‘voluntary order’ entailed and persistently refused to agree that her daughter be taken into care. The Crisis Care workers arranged for a temporary custody order — deeming her lack of cooperation and her uncertain custody status sufficient risk to the child. The technical legal status of the order was not at all clear to Toni, however. She only perceived that her daughter had been taken from her. After she was released by the police, the perceived loss of her daughter threw her life into crisis — her drug use increased and she became involved in criminal activity. At the time of the interview she was serving a six-month prison sentence and her daughter was subject to a twelve-month care and protection order. She believed that her situation had been caused by the removal of her daughter in the first instance. In this case, Toni’s anxiety about her child and the sense of challenge she experienced to their mother–daughter relationship gave her the impression that police and welfare interventions were arbitrary and punitive. Toni believed that the authorities were asserting control over every aspect of her life.
This story, and others collected in the course of the research, indicate a rudimentary provision of services between the criminal legal and the social welfare systems. Essentially, many of the problems that confront women who have dependants arise because they have to negotiate two, essentially distinct, systems. These systems reflect gendered assumptions about the masculine nature of criminal activity and the feminine labour of child rearing. In simple terms, these two systems are structured with the qualities of a gendered client group in mind.
It has been demonstrated that the legal institutions and practices that have been established to deal with criminal behaviour have traditionally assumed that it is a male individual whom we must control. Ngaire Naffine argues that having equated criminal activity with an anti-social variant of male identity, female criminals become an ‘aberrant group, even when compared with an aberrant group’. This gender bias has implications for the laws that regulate criminal behaviours and the institutions and practices that enforce these laws. As Regina Graycar and Jenny Morgan observe, even the categories that define different aspects of the law are constructed around male experiences. Close examination of the categories used in the enforcement of law indicates a differential impact of categories of offence and sentencing when experienced by women. The research from the Taken In project indicates a differential impact also occurs when women are first taken into the criminal legal system — at the moment of arrest. A key difficulty for women with children is that from this point they must negotiate between two essentially distinct systems — the criminal legal and the social welfare systems. They cannot opt out of either.
As an enduring social obligation which affects women’s everyday lives, the unpaid labour of women (as carers of children among other roles) is a factor which is inadequately recognised in planning services and providing resources by both the social welfare system and the criminal legal system. The private welfare system, informally established through women’s unpaid labour in the domestic sphere, is regarded as a given, and the negotiation of care arrangements for children is an obligation that women with children cannot avoid. In emergencies, including when people are arrested or imprisoned, most women rely on the private assistance of extended family or friends for support. Where private arrangements fail, however, women are limited in the options available to them. From the perspective of women who are trying to negotiate their position in the criminal and welfare systems, there is little support to be found in the public welfare sector. As Toni’s story illustrated, there can be poor understanding and considerable anxiety about the support provided by social welfare services. The dilemma is that procedures used in the criminal legal system can intensify the risks to women and their children by failing to adequately recognise their circumstances and by failing to plan effective interventions. The Taken In research found instances in South Australia where women were subject to unjust, extraneous and even illegal treatment by police because South Australia Police (SAPOL) do not have a strategic plan, trained personnel, or adequate resources to deal with the situation.
The entry of women who have dependent children into the criminal legal system can be taken as an indicator of a range of potential crises — at the personal, the familial and the systemic level. This indicator should be taken as the basis to consider and plan appropriate services which would assist women who are struggling to deal with their position in relation to gender distinctive systems. In the absence of such planning, dealing with offenders with dependent children is a vague area of police practice with the strategies used in any given case reflecting the decision-making processes of the individual arresting police officer.
Discussions with SAPOL personnel (undertaken as part of the Taken In research) indicated that the police recognise that the dependent children of offenders can present an occasional procedural problem. Police understand the need to ensure that arrangements for the care of children have been made when their principal carer was taken into custody, but they do not see this as a significant problem. Currently, there are no SAPOL policies, standing orders or instructions detailing the appropriate course of action to be taken by police officers when arresting an individual who has dependent children. (Contrast this with the official instruction that advises officers about the appropriate course of action when dealing with an offender with a pet!).
In an informal sense, there is some ‘common-sense’ consistency in policing practice confirmed by police personnel interviewed for the research. The issue is understood in the context of a ‘duty of care’ which extends to the offender’s children. A police officer arresting a woman who has a dependent child will attempt to quickly make contact with the woman’s partner; another family member; a friend; and (as a last resort) welfare services (in South Australia, these services are provided by Family and Youth Services (FAYS)). In other words, police assume the availability of care in the private and public welfare systems. From the perspective of police personnel these procedures work well enough and procedural flexibility allows them to work around the limited resources provided by the police department to deal with the specific situation.
One officer described a scenario where procedural flexibility helped satisfy the need for enforcement and the duty of care. A patrol responded to a dispute between neighbours that culminated in one woman being arrested. Her children were in the house. The dilemma in terms of everyday police practice was twofold. They could not remove the woman until the father of the children (who had been contacted but lived some distance away) arrived. They also had an obligation to the woman, now that they had arrested her, to take her directly to a police station for charging. In this case, the solution was to call another patrol car to remain at the house until the father arrived. However, this strategy was feasible only because it was a quiet night and there happened to be adequate personnel.
As this case demonstrates, patrol officers are sometimes caught between two competing obligations — their obligation to proceed with formal arrest procedures and their duty of care to the woman’s dependent children. However, because the problem is not recognised as a strategic planning issue, and no formal instructions are provided, there are no resources provided to deal with dependent children. This can place individual police officers in a difficult situation and/or open the possibility that poor judgments will be made.
The lack of facilities to deal with children reinforces the need for procedural flexibility by requiring police officers to adapt their practice according to the specific resources available. Police personnel acknowledged that without adequate resources, it would be difficult to write a coherent policy that accommodated the inadequate facilities available at individual police stations. For instance, the process used at the Port Augusta Police Station has to include strategies to ensure that ‘children are not stranded’ and strategies to deal with transient families. However, the strategies used to deal with these circumstances highlight an informal reliance on the social welfare system, including: assigning a woman police officer to care for the children; or drawing on resources and services from the broader community. These options recognise the potential risk to children that can arise when carers are arrested, but they also reinforce assumptions about women’s labour — in this case, even police women’s job descriptions are assumed to incorporate this skill. Women’s labour is used to fill the gap in services and conceal the lack of institutional planning to deal with these situations at a more formal level.
In the metropolitan area, the options differ but once again police anticipate the assistance of private or public welfare services. Where a woman is likely to be kept in custody for a significant period of time, police will facilitate alternative, private arrangements by providing ‘unlimited’ access to a telephone. The officer-in-charge at the Adelaide Watchhouse, when interviewed for the research, emphasised that there were no facilities for the care of children and added ‘we’re not a crèche’. The predominant concern in this strategy is to minimise potential responsibility rather than manage the multi-faceted risks to women and their children through coordinating services. Within this strategy concern for children’s welfare and for the peace of mind of the offender will not be prioritised. Rather, the situation of offenders with children is recognised more as an impediment to ‘real’ police business. There is a clear opportunity to integrate support services before risks are realised at this point by placing the emphasis on crisis support rather than police liability. This emphasis reflects the limited alternatives available to individual police officers in the absence of planned guidelines and adequate resources.
Even when outside welfare services are called in, the emphasis on eliminating liability persists. Discussion with Crisis Care workers during the research confirmed that need for their service is often related to police resources rather than substantive welfare concerns or tangible risks. They perceive that there are a number of variables that affect police officers’ responses to the dependent children of offenders and the circumstances under which FAYS will be called on by police to assist. These include:
• how busy it is and how many patrols are out at the time;
• how the child or children behave; and
• the subjective judgment of individual police officers.
To the extent that police strategies are driven by liability and resource considerations rather than considerations about managing complex, multi-faceted risks, responses of individual police officers can be inadequate, inappropriate or unjust.
It is the gap in planning and resources which opens the way for risks to be realised. Women and their children experience inconsistent, sometimes illegal, treatment by police. Women interviewed for the Taken In research reported that their children had been subjected to illegal search or interview by police officers. Aboriginal women reported being placed in custody with children or their children being left unsupervised. Other women reported that their children were targeted by the police as a way of putting them under pressure as offenders. In other cases, where children had become an impediment to policing, they were placed in foster care or left with an inappropriate carer against the women’s wishes. For instance, a child was assaulted by the person she was left with after the police arrested her mother (the offender’s partner, but not the father of the child). This provides a stark illustration of how wide the gap between criminal legal and social welfare systems can become and how easily children can become casualties. As currently structured, neither the police nor FAYS were technically responsible for the welfare of the child. However, the police officers involved could have recognised the potential risk if the services of trained personnel were available to confirm whether the arrangements were adequate and secure. As it stands, police perceive that they have fulfilled their obligation once they have made adequate temporary arrangements for the care of the offender’s children. This, in itself, raises serious questions about how a ‘duty of care’ is constituted in police practice.
Apart from the limited resources that are available to police to cope with the situation of women who have dependent children, the other factor that influences policing procedures is the nature of the offence. After arrest, offenders are taken to the nearest police station, charged and then bailed (if appropriate) or searched and placed in cells. The factors affecting bail include: the gravity of the offence; the likelihood that the offender will abscond or offend again; and, whether the offender has failed to comply previously. In general, the bail assessment process is about the consideration of risk — to the general public, to the legal process, and to self.
At times when police are not too busy, and the children are relatively well behaved, individual police officers may opt to resolve the situation by processing bail applications quickly or arranging for the matter to go before a magistrate as soon as possible. On one occasion reported during the Taken In research, when a woman and her male partner were arrested the issue about the care of their children was resolved by processing her and letting her out on bail before her partner. The informality of this strategy means that women who have dependent children may experience different treatment because of the resources and personnel available at the time of arrest. And it is not clear that this strategy does not run counter to police obligations to process all offenders through the arrest stage as quickly as possible. Furthermore, procedural flexibility has the potential to exacerbate other problematic areas of policing practice. For instance, Aboriginal people are often treated differently by police and are more likely to be kept in police custody.
Aboriginal women, interviewed during the project, reported personal experience and knowledge of others being detained in police custody with a child. This particular experience of the arrest process (where children are illegally kept in custody cells) was reported only by Aboriginal women. A number of the recommendations made after the Royal Commission into Aboriginal Deaths in Custody related to the problems experienced by Aboriginal people in gaining police bail. It may be the case that a similar institutional logic is being applied in the reported cases of women kept in custody with their children. That is, there is every indication that the criteria used to assess police bail impacts differentially and unjustly on Aboriginal people and that different criteria or procedures need to be introduced to deal with this problem. Procedural flexibility in this context can intensify the risks.
Aboriginal women also reported cases where children had been left unattended after their carer had been arrested. The treatment of Aboriginal women who have dependent children is particularly striking in its extreme — from being kept in custody with children, to being arrested without adequate care for children being arranged. In these cases, the flexibility exercised by police only serves to exacerbate existing policing problems, by giving scope for racial discrimination in police practice. The lack of formal procedures is a particularly high-risk strategy in this context and provides a pertinent example of how prejudice on the part of individual police officers can realise the risks to children, the treatment of women and to the integrity of the system.
If everyday policing practice is to accommodate the different circumstances of all offenders and the risks are to be managed rather than ignored, there is a clear need for strategic planning, clear formal guidelines, and the provision of adequate resources. This need extends beyond the examples of policing practice mentioned here to have repercussions for all sectors of the criminal legal system. The risks that arise when women who have dependent children enter the criminal legal system must be recognised as requiring coordinated planning within and between the legal and social welfare systems. In the case of police practice, the absence of formal instructions suggests that the risks of abuse to women and their children are not understood at the senior operational level. The institutional risk is that this cultivates a climate of uncertainty for individual police officers in conducting their duty. Further, however, the research from the Taken In project suggests that early interventions would have potential benefits that extend right through the criminal legal system. For women offenders, coordinated services would provide support and direction in preparing for the trial and the possibility of incarceration. For children, outcomes would also be improved. For instance, recent research indicates that the risks to children from familial proximity to the criminal legal system may include a future of anti-social and criminal behaviour. So, there are also broad social benefits to be anticipated from better planning and early interventions. For individual police officers, the need to ‘make do’ with limited resources would be reduced and with it the likelihood that poor or prejudicial judgments would form the basis of the ‘commonsense’ management of women offenders and their children from the moment of arrest.
Ultimately, however, there is a simple equity issue to be tackled here. Women will continue to experience illegal and unjust treatment at all stages of the criminal legal system until procedures that can accommodate and support their social obligations as care-givers are established.
[*] Sandra Lilburn is Senior Research Associate, Women’s Studies Department, Flinders University of South Australia.Research for this article was undertaken while I was the Research Officer at the Women’s Legal Service (SA) Inc. and was funded by the Law Foundation of South Australia. I am also grateful for support from the Centre for Research for Women, Edith Cowan University during the preparation of this article.©2001 Sandra Lilburn (text)©2001 Jane Cafarella (cartoon)email: email@example.com
 Women’s Legal Service (SA) Inc., Taken In: When Women with Dependent Children are Taken into Custody: Implications for Justice and Welfare, Adelaide Institute of TAFE, Adelaide, 2000.
 Case studies used in this article are taken from the research conducted for the Taken In project. Interviews were conducted with 15 women and with representatives from key agencies in the criminal legal and social welfare sectors. See Women’s Legal Service (SA) Inc., ref 1, above
 Most of the women interviewed were or had been in the prison system. There are no official statistics relating to the numbers of women in prisons who have dependent children, but unofficial estimates from those working in the system suggest that the figure is around 70%.
 Naffine, Ngaire, Feminism & Criminology, Allen & Unwin, 1998, p.8.
 Graycar, Regina, ‘Legal Categories and Women’s Work: Explorations for a Cross-doctrinal Feminist Jurisprudence’, Women & the Law Conference, Australian Institute of Criminology, Sydney, 1991; Graycar, Regina and Morgan, Jenny, The Hidden Gender of Law, Federation Press, 1992.
 Women’s Legal Service (SA) Inc., ref. 1, above, pp.33-45.
 Walker, John and McDonald, David, The Over-Representation of Indigenous People in Custody in Australia, Australian Institute of Criminology, Canberra, Trends & Issues paper no. 47, 1995, p.2. Walker and McDonald provide 1993 statistics which indicate that the rate at which Aboriginal people in South Australia were held in Police custody was 20.9 times the rate for non-Aboriginal people.
 Royal Commission into Aboriginal Deaths in Custody, Commonwealth Government of Australia, Canberra, 1991.
 Developmental Crime Prevention Consortium, Pathways to Prevention: Developmental and Early Intervention Approaches to Crime in Australia, National Crime Prevention Unit, Canberra, 1999.