In European Prisoners’ Children Week, Nancy Loucks considers how the rights of the child are overlooked in the adult-oriented criminal justice machinery
Every day in Scotland, 7,600 children have a parent in prison. That’s about 27,000 children in the course of a year, more than double the number of children who will experience a parent’s divorce in that time.
Children of prisoners suffer the consequences of the parent’s offence without being guilty of it. They experience a family member’s imprisonment as a bereavement. Their response includes “acting out” or becoming withdrawn, deterioration in performance at school, being bullied or becoming the bully, and increased risk of substance misuse. They suffer serious mental-health issues at three times the rate of other children and are at higher risk of offending and of ending up in prison themselves. These children can find themselves isolated and unsupported.
The Scottish Parliament Cross-Party Group (CPG) on Children & Families Affected by Imprisonment, convened by Mary Fee MSP, in May raised concerns about these children at the United Nations Universal Periodic Review (UPR) of the United Kingdom. Each member nation’s human rights record is reviewed on a four-yearly cycle by its fellow member states. In the UPR process, other member states flag up issues of concern to which the country under review must respond.
Together (Scottish Alliance for Children’s Rights), Families Outside and Scotland’s Commissioner for Children and Young People drafted a briefing on behalf of the CPG and requested other governments to ask the UK: “What steps have been taken by the UK and devolved governments to improve support for children with parents in prison, as stipulated by the UN Committee on the Rights of the Child in its most recent concluding observations on the UK?”
The briefing focused on three areas where the rights of the children should be explicitly considered:
Child Impact Assessments The child’s interests should be represented in decisions about custody and release. Even if the child’s best interests are outweighed in an individual case, for example, where the parent’s offence is so grave that the judge has no choice but to imprison, a child impact assessment would provide essential information to ensure that the child is cared for and supported appropriately.
There is a key role for solicitors here in flagging up such information to the court. The information may or may not affect the judge’s sentencing decision but it fulfils a duty of care to the child under the Children (Scotland) Act, something that the adult-focused criminal justice process tends to overlook.
Prison Visitors’ Centres These are specific venues at or near prisons where families can go for support and information. They ought to offer the most effective places for engaging with families of prisoners. However, the availability of centres varies greatly in number and quality across the UK and devolved governments, with Scotland offering particularly limited access.
Right not privilege The UN Convention on the Rights of the Child seeks to secure the right for every child to know and maintain a meaningful relationship with both parents, except where this is not in the child’s best interest.
Where a child’s parent is in prison, visits should be treated as the right of the child, rather than a privilege of the prisoner that can be withdrawn as a disciplinary measure.
The Bangkok Rules on the treatment of women who offend, approved by the UN in October 2010, make that principle explicit. Both domestic and international reports raise concerns about the practice of prisons in this regard, and the UK and devolved governments need to ensure that this key principle is respected and promoted more effectively in reality.
On 24 May at the UPR assembly in Geneva, Germany and Slovenia agreed to support the briefing and posed the question of what steps the UK and devolved governments had taken to support children with a parent in prison. The UK government decided last Tuesday whether it would accept the recommendation, but won’t until September publish which recommendations across the whole UPR it will accept. That then commits the government to review its progress on these matters in four years’ time.
The children of prisoners are innocent and should be respected and treated as such. As Justice Albie Sachs summarised in his landmark decision on this issue in the South African Constitutional Court: “If a child is to be constitutionally imagined as an individual with a distinctive personality, and not merely as a miniature adult waiting to reach full size, he or she cannot be treated as a mere extension of his or her parents, umbilically destined to sink or swim with them … The sins and traumas of fathers and mothers should not be visited on their children.” Justice Albie Sachs, S v M (2007)
• Professor Nancy Loucks is chief executive of Families Outside