CRIMINALS could be spared jail if they are a parent, Scotland's new children's tsar said today.
Children's Commissioner Tam Baillie said judges should consider the impact of prison on an offender's children before deciding whether to lock them up.
Sheriffs and judges should have a statutory obligation to take the human rights of an accused's children into account, said Mr Baillie.
And the existence of children could "tip the balance" in cases where there is a close decision between a custodial and community sentence.
He said he hopes the forthcoming Criminal Justice Bill will include an amendment, with children's rights added as a factor which must be taken into consideration along with previous convictions.
He has reportedly met with justice secretary Kenny MacAskill to discuss the matter.
Mr Baillie told The Herald newspaper today: "The bill has a list of factors which have to be taken into account before sentencing, such as previous convictions, and I think there is the potential to add this to that list.
"It is not that it determines the sentence, but in cases where there is a close decision between custody and community, it might be the thing which tips the balance."
He added: "There still has to be the administration of justice but it would help in future if there was more information fed to the courts at the time of sentencing about the impact it will have on children – in particular where the decision is on a knife edge."
The role of the Children's Commissioner is to ensure Scotland fulfils its obligations under the United Nations Convention on the Rights of the Child.
Richard Baker MSP, Labour's justice spokesman said: "Justice needs to be fair to both accused persons and victims.
"Convicted criminals should be dealt with on the basis of the crimes. Judges already will take into account various issues as part of their sentencing deliberations including on some occasions family circumstances.
"Let's remember that many offenders that are sent to prison have previously been subject to fines and community sentences.
"Judges are best placed to make assessments on sentencing as they have both the facts of the case and the background reports into the individuals concerned."
A Scottish Government spokesman said: "The Scottish Government is committed to providing support to children and families who have a family member in prison and has made clear its commitment to promoting and supporting the rights of all children in Scotland as a key strand of our activity to improve outcomes for all.
"Our Criminal Justice & Licensing (Scotland) Bill already contains a statement of the purposes and principles of sentencing.
"Courts are required to have regard to these statutory provisions when making sentencing decisions.
"Included in the principles of sentencing is consideration of any information before the court about the particular circumstances of the offender, including the offender's family situation."
He said that the Bill also contains provisions to establish a Sentencing Council, which will prepare and publish guidelines relating to the sentencing of offenders.