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Orphans of Justice: A Legal Analysis

23rd September 2009

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Executive Summary:

The legal rights of children under international law have been developing since 1919, with both regional and global treaties safeguarding their interests. Yet many of these rights, enshrined in the Convention on the Rights of the Child and other texts, are put at risk when a parent is imprisoned. The child’s rights to survival and development can be hampered both by their incarceration with an imprisoned parent and by being deprived of contact with a parent, as the forcible family separation that often accompanies imprisonment impacts on the child’s right to the care and company of their parents.

At the core of decisions relating to children, including children affected by the actual or potential imprisonment of a parent, is a determination of their best interests. This principle, which requires that the best interests of the child is a primary consideration, has been interpreted widely by States. This paper sets out to analyse the approach of courts in a variety of jurisdictions. For example, the Canadian Supreme Court has ruled that the best interests principle is not so fundamental to the dispensation of justice that it should trump all other considerations, while the South African Constitutional Court has required that the impact on children should be taken into account when sentencing offenders who care for the children. In Australia, the courts were presented with a case where both parents of three children faced a prison term. The court expressly considered the possible negative effects on the children, as well as the State’s international obligations, and ordered a conditional release for the mother. In Italy, expectant mothers and those with children under three are placed under house arrest rather than imprisoned.

Courts may have to balance children’s different rights and interests, including their basic interests (general physical, intellectual and emotional care), developmental interests (development of the child’s capacities to his or her best advantage) and autonomy interests (making social relations and personal choices), and to weigh these against the interests of society at large. The lack of legislative guidance has in many cases led to courts themselves establishing and developing substantive criteria for determination of a child’s best interests.

Millions of children worldwide are affected by having a parent in prison. This can impact on a child’s development, due to factors including the loss of contact and nurture from the imprisoned parent, the loss of income and stability, as well as the individual child’s personal response to the situation. The negative effects of parental imprisonment have led to measures to try to address the issue, notably in the African Charter on the Rights and Welfare of the Child, which states that “a non-custodial sentence will always be first considered when sentencing … mothers”. The UN draft Guidelines for the Alternative Care of Children highlight the importance of stability in care and maintaining safe and continuous attachment to primary carers.

Rules on allowing children to live in prison with an imprisoned parent vary widely between and even within States. The inappropriate environment that prisons provide for babies and small children has been noted by the Council of Europe, but in prisons that manage to maintain more child-friendly facilities and practices, the advantages of maintaining links between small children and their imprisoned mothers become more significant. However, the legal right of the child to have her or his best interests served is dependent on factors including the facilities available for the child’s stimulation and development, the attitudes of prison staff and the likely outcomes of living with alternative carers outside the prison.

Children need to be protected from harm, empowered through education and other means, and to have the company of their families. In economically poorer countries, children living in prison may be more deprived materially than those in wealthier States, with problems relating to food, healthcare, accommodation, education and recreation being reported. However, such States can also require minimum standards be met for children’s rights and welfare, as happened in India in 2006.

Fieldwork in Bolivia revealed that despite legal provisions requiring that children living in prison should have access to a guarderia (crèche-type facility) and adequate nutrition, prisons are in reality places posing severe risks to children’s rights and welfare. Three quarters of the Bolivian prison population is awaiting trial. Prisoners are allocated cells on the basis of their ability to pay, meaning that some prisoners, and any family members living with them, have to sleep outdoors or on the floors of already overcrowded cells. Cases of child malnutrition have occurred and some children living in prison have developed the anti-social behaviour of their parents and other inmates. When children attend the guarderia, they are often left unstimulated, while children attending school outside the prison have been subject to stigma, bullying and isolation. Changes to the criminal justice system have been recommended, with greater support for the Prisons Ombudsperson and an increase in the quantity and quality of defence lawyers.

The importance of the family in providing a sense of belonging, imparting life skills and values, and creating limits on behaviour is essential for the healthy development of members of that family and for society more generally. The purpose and use of prisons needs to be considered in a wider context, with rehabilitation moving from courtroom rhetoric to the core of prison policy. The interests of the child should be considered at sentencing, with more imaginative, community based and restorative justice approaches utilised and contact maintained with parents who are imprisoned (provided that this is in the child’s best interests). Applying the best interests principle in these cases could help reduce the risk of crime perpetuating from generation to generation, as well as ensure the administration of justice is served by preventing the punishment of those other than the offender. Failure to uphold the child’s best interests could result in the concept of justice becoming confused and the children made orphans of justice.

For more information, contact:

Quakers United Nations Office
E: quno2@quno.ch W: www.quno.org

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