Why the rights of the children should come first when jail is considered for the parents

Published on Sunday 4 January 2009 18:39

A CENTRAL tenet of the UN Convention on the Rights of the Child, which gained cross-party support in a recent debate at Holyrood, is that "in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration".

Unfortunately, the application of this very laudable principle is not as effective as it could be within Scotland's criminal justice system. As the Children's Commissioner put it recently, the children of offenders often end up as "innocent victims" of sentencing policy in Scotland.

Each year, thousands of children suffer from a parent or guardian being imprisoned. A Scottish Prison Service (SPS) report in 2002 revealed that there are around 13,500 children in Scotland with a parent in prison. Since then Scotland's prison population has increased by almost 20 per cent – a corresponding rise in affected children would bring today's figure to over 16,000.

Further research by Action for Prisoners' Families found that each year fewer children experience their parents' divorce than those who experience the imprisonment of a parent – a terrifying statistic.

Children of prisoners have about three times the risk of developing mental health problems compared to their peers and experience higher levels of social and financial disadvantage. They are also more likely to end up with substance abuse problems and, ultimately, be jailed themselves. For society as a whole, the social and financial cost of dealing with these consequences in future years is huge.

It is for these reasons that I submitted a proposal to the government's recent consultation on sentencing guidelines and a Scottish Sentencing Council suggesting a specific Child Impact Assessment should be carried out whenever an offender has caring responsibilities for children or other dependents. The current method used to assess the wider impact of a sentencing decision, Social Enquiry Reports (SERs), is very limited in terms of consideration of children.

At the heart of this proposal is the belief that the interests of the child are paramount. If put into practice, it could mean that petty offenders who are primary care givers could be punished in the community as opposed to being given a short-term prison sentence. This would avoid families being split up and children being taken into care. On the other hand, a court may well decide that a custodial sentence is in fact in the best interests of any children involved and will act accordingly. Either way, it is vital that explicit consideration is given to what is best for the child when sentencing takes place.

The true measure of a country's greatness is how well it treats its most vulnerable and weakest in society. Scotland should do everything in its power to minimise the unintended consequences of punishing children for someone else's crimes.

I would not suggest that custodial sentences should never be an option for those who have children; instead, we must work towards ensuring a more reflective balance is achieved between what's right for the child and an appropriate punishment for an offender.

The new year seems an appropriate time to kick-start this important debate.