Issue 45 May 2009 - Children of Prisoners: Sharing Good Practice
On June 24, 2009, Scotland's Commissioner for Children and Young People will host a lecture by Justice Albie Sachs of the South African Constitutional Court regarding the rights of the children of prisoners. Following the Constitutional Court's landmark judgment in S v M1, Justice Sachs will describe a new approach to the sentencing of parents which takes account of the impact imprisonment may have on their children. Justice Sachs is a world-renowned advocate for human rights and we are honoured that he will be visiting Scotland to share his experience on issues affecting a group of children who have so often been overlooked in the past.
About SCCYP
The office of Scotland's Commissioner for Children and Young People ("SCCYP") was created by the Commissioner for Children and Young People (Scotland) Act 2003. The Commissioner's general role is to promote and safeguard the rights of children and young people up to the age of 18 (or 21 if they have been in care). More specifically, the Commissioner must promote awareness and understanding of the rights of children; review law, policy and practice with a view to assessing their adequacy and effectiveness in relation to children's rights; and promote best practice by service providers. The Commissioner must also encourage the involvement of children and young people in his work, particularly those children who do not have other adequate means by which they can make their views known. The 2003 Act states that, in carrying out his role, the Commissioner must have regard to the United Nations Convention on the Rights of the Child ("UNCRC'').
Children of Prisoners
The exact number of children in Scotland affected by imprisonment of a parent is unknown although estimates have put the figure at 13,500 or even 16,000.2 Many feel this is an underestimate, particularly given recent growth in the prison population. More is known about how children are affected. As well as the emotional loss of contact with a parent or significant carer, children may suffer from financial disadvantage (caused by, e.g. loss of wages, changes in benefits or costs associated with prison visits). Some children may have to move home either because of problems within the community (such as the victim of the offence living locally) or the family's need to be closer to the prison or to wider family networks. Imprisonment of a parent may also result in the loss of a carefree childhood, with the child experiencing shame, stigma and stress. Media coverage may be particularly traumatic and children may experience bullying as a result of their parent's actions. Visiting a parent in prison may also be particularly stressful. Some children may also take on additional caring responsibility for younger siblings. It is important to note, however, that for some children, the imprisonment of a parent may also be a relief.
Not Seen. Not Heard. Not Guilty.
In February 2008, SCCYP published the report "Not Seen. Not Heard. Not Guilty. The Rights and Status of the Children of Prisoners in Scotland."3 This report was significant in drawing attention to an often forgotten and marginalised group of children. It came as a shock to many to learn that there are a similar number of children affected by imprisonment of a parent in Scotland as there are children looked after by local authorities. And yet, while looked after children are rightly the focus of much social and political concern, often the rights and needs of the children of prisoners are not only unmet, but unseen. Indeed, in the report, SCCYP argues that the children of prisoners are the invisible victims of crime and of our penal system.
The report explores the rights and status of the children of prisoners in Scotland at all stages of the process; beginning when the parent is arrested, through the decision to imprison, the period of imprisonment and, finally, the decision to release. It notes that little regard is had to the rights of children when decisions are made regarding an offending parent, whether it is a sentencing decision or decisions about family contact while the parent is in prison. While offenders give up their rights to liberty upon imprisonment, their children certainly do not give up their rights to know their parent and maintain contact with them. The purpose of imprisonment is to punish the offender, not their child or family.
The report concludes with recommendations aimed at promoting respect for the rights of children of prisoners. These recommendations are addressed to all those whose work has an impact on them, including the Scottish Parliament, Scottish Ministers, the Scottish Prison Service, Community Justice Authorities and Chief Constables.
Sentencing Decisions
One of the report's key recommendations is that when courts take sentencing decisions regarding a parent, the rights and interests of the children should be taken into account. At present, decisions to imprison a parent rarely take account of the potential impact on children. In some cases, Social Enquiry Reports are called for by the court and may sometimes take note of the offender's children. However, in most cases, there is no such report. A survey of criminal justice social workers carried out by SCCYP showed great variety in whether and how they took account of the needs of affected children when preparing Social Enquiry Reports. Indeed, national standards for such reports take no specific account of the needs of children, who instead fall into the category of "other factors".4
SCCYP believes that this current approach to the sentencing of parents, seen from the point of view of the child, is contrary to the European Convention on Human Rights ("ECHR") and the UNCRC. Children have the same rights as adults to respect for their private and family life under art.8 of the ECHR. The imprisonment of a parent is a prima facie interference with that right. Such interference may, however, be justified if it is in accordance with the law, necessary in the pursuit of a legitimate aim (which includes the prevention of disorder or crime and public safety) and if the interference is proportionate to the aim sought. Applying art.8 to sentencing decisions involving parents would require courts to assess the impact of sentencing options on the rights of any children affected to ensure that any interference with their rights is proportionate. It is fair to say that, at present, this balancing of the children's rights and the wider public interest is not carried out in all cases.
Children's rights are set out in more detail in the UNCRC. The UNCRC also protects the child's right to family life (art.16), as well as the child's right to benefit from the guidance of a parent (arts 5 and 14); to know and be cared for by parents (arts 7 and 8); to be separated from parents only where it is in the child's interests (art.9); and to express their views and have those views taken into account when decisions are being made that affect them (art.12). Perhaps most importantly, art.3 (1) of the UNCRC says: "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." Thus, when courts are considering sentencing options for parents that will impact on the child, the courts must take into account the child's best interests. This does not mean that the child's best interests will be the determinative factor; but the court must, at the very least, give consideration to the child's rights. To facilitate the court's consideration of the rights of affected children, SCCYP recommends that consideration be given to requiring a child impact assessment at the point of sentencing. This could take the form of a separate assessment or could form an explicit part of a Social Enquiry Report, where such a report is ordered by the court.
SCCYP does not argue that no parent should ever be imprisoned. However, we do make the case for adjusting our criminal justice system to ensure that the rights of children affected are fully taken into account and weighed in the balance when decisions are made about imprisonment. Offenders themselves have to take responsibility for the impact of their behaviour on their children, but the state should avoid adding to it insofar as this is possible.
By publishing a report on the children of prisoners, SCCYP sought to raise awareness of issues affecting them-but making the children of prisoners visible is only the beginning. SCCYP will continue to lobby for implementation of the recommendations in "Not Seen. Not Heard. Not Guilty." and will work to ensure that the children of prisoners are not just viewed as aids to their parents' rehabilitation, but also as persons in their own right. One method by which we will work to keep these issues on the agenda is by hosting a lecture by Justice Albie Sachs, in which he will discuss the rights of the children of prisoners following his landmark judgement in S v M. Writing for the Constitutional Court of South Africa, Justice Sachs echoed recommendations made by SCCYP, holding that the best interests of the child should be taken into account when sentencing a primary caregiver of young children.
Sentencing of Parents in South Africa
In S v M, the Constitutional Court of South Africa was called upon to determine the duties of a sentencing court when sentencing primary caregivers of children. The case concerned a mother ("M”) of three children aged 16, 12 and 8 who was initially sentenced to four years' imprisonment following convictions for theft and fraud. M appealed against this sentence, claiming that the sentencing court had failed to take account of her parenting role and the impact imprisonment would have on her children. In upholding M's appeal, Justice Sachs took account of the South African Constitution's provisions on children's rights as well as the UNCRC, and the role they should play in the sentencing of primary caregivers of children.
The traditional approach to sentencing adopted by courts in South Africa was to take account of the nature of the crime, the personal circumstances of the criminal and the interests of the community. However, Justice Sachs stated that the adoption of South Africa's Constitution and its reference to children's rights required a new approach to sentencing in cases involving a primary caregiver.5 Section 28 of the Constitution sets out a number of rights held by children relating to, e.g. family life, education, employment and youth justice. In the context of sentencing primary caregivers, Justice Sachs noted two provisions in particular:
- s.28(2) which provides that,"[a] child's best interests are of paramount importance in every matter concerning the child"; and - s.28 (1)(b) which states that, "every child has the right to family care or parental care, or to appropriate alternative care when removed from the family environment".
Justice Sachs explored the relationship between sentencing decisions and children's rights, noting that the imprisonment of a primary caregiver: "Affects children profoundly and at every level. Parenting from a distance and a lack of day-to-day physical contact places serious limitations on the parent-child relationship and may have severe negative consequences."
While noting that sentencing courts cannot always protect children from these consequences, he nonetheless stated that courts can, "pay appropriate attention to them and take reasonable steps to minimise damage." Thus, he held that, taken together, ss.28 (2) and 28(1) (b) require that special regard be had to the children's best interests when imposing a sentence on a primary caregiver. If imprisonment is being considered, courts must use the paramountcy principle in s.28 (2) to guide their decision as to which sentence to impose.
While stressing the importance of this paramountcy principle as an enforceable legal rule, Justice Sachs nonetheless noted that it is not absolute. The child's best interests may be paramount, but they do not override all other considerations. For example, they must be balanced against the state's duty to punish offenders. The objective, as described by Justice Sachs, is to ensure that the sentencing court is in a position to balance all the varied interests involved, including those of the children. He noted that this should become a, "standard preoccupation of all sentencing courts".
Applying his reasoning to the particular case before the Court, Justice Sachs held that M had been sentenced without sufficient attention being given to the impact of her imprisonment on her children as required by ss.28(2) and 28(1)(b). Rather than calling for a social work report, the only enquiry made by the original sentencing court was to ask whether M's children would be on the street if she were imprisoned. Justice Sachs found this to be inadequate. He went on to consider what would constitute a more appropriate sentence, taking account of all the facts of the case, including the impact imprisonment would have on M's children. On the one hand, he noted that M was a repeat offender, had committed offences over a period of time and during suspension of a previous sentence, and had been driven by greed rather than need. She had deceived people who trusted her.
On the other hand, Justice Sachs noted the significant amount of time that had elapsed since the offences (seven years). During this time, no further offences had been committed and, indeed, M had developed successful business activities and was committed to repaying her victims. Justice Sachs then took account of reports submitted to the Court regarding how M's children would be affected by her sentence. He noted that M is a single parent who is almost totally responsible for her children's care. Her imprisonment would be emotionally, developmentally, physically, materially, educationally and socially disadvantageous to them. If imprisoned, her business would be threatened, thus impeding her ability to maintain her children and keep up payments on her home (as well as her ability to repay her victims).
While alternative care might be available for the children, this would involve separating them, which he did not consider to be in their best interests. He thus concluded that a correctional supervision order involving community service, rather than imprisonment, was an appropriate sentence for M.
Conclusion
It is thus plain that SCCYP's recommendation that courts take account of the rights of children of offenders when making sentencing decisions is not without precedent. On behalf of the South African Constitutional Court, Justice Sachs has articulated the need to balance children's rights to family life with the wider public interest in punishing offenders. While Justice Sachs was able to draw on explicit guarantees for children's rights in the Constitution, he nonetheless noted that s.28 must be seen as responding to South Africa's international obligations under the UNCRC, stating that regard should thus be had to the principles of the UNCRC as well as s.28 itself. While courts in Scotland may not be able to draw on such explicit constitutional provisions, they should likewise have regard to the rights set out in the UNCRC. By ratifying the UNCRC, the UK has, after all, committed itself to bringing its law, policy and practice into line with the Convention. Moreover, we believe art.8 of the ECHR requires courts to weigh children's rights in the balance when sentencing parents. We hope that by inviting Justice Sachs to speak about the judgment in S v M, we in Scotland may learn more about the new South African approach to the sentencing of parents and how to make the children of offenders a visible part of sentencing practice.
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[1] [2007] ZACC 18
[2] Estimates by Families Outside (www.familiesoutside.org.uk)
[3] This report was written by Kathleen Marshall, Scotland’s first Commissioner for Children and Young People. It is available at www.sccyp.org.uk [Accessed May 12,2009]
[4] Scottish Executive, National Objectives for Social Work Services in the Criminal Justice System: Standards Social Enquiry Reports and Associated Court Services (2004)
[5] Justice Sachs defined “primary caregiver” as the person with whom the child lives and who performs every day tasks like ensuring the child is fed and looked after and that the child attends school regularly.
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