Orphans of Justice. In search of the best interests of the child when a parent is imprisoned: Legal Analyses

Submitted by crinadmin on

"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 first part of this publication focuses on the legal rights of children and the international legal framework; defines the interests of the child, the role of the judiciary in assessing the best interests principle, while the second part analyses the effects of imprisonment of the child's right to development. It touches upon the issues of primary prisonisation, looks at the European perspectives of primary prisonisation, analyses the situation of children of imprisoned parents in developing countries and draws general recommendations for developing countries.

In its concluding remarks the author observes that "During sentencing the child’s best interests must be considered and more imaginative, community based, restorative justice approaches should be utilised in place of prison terms. Where these alternatives are not an option, if the child’s best interests dictate regular contact with the parent, then all must be done to facilitate such contact in accordance with Article 9 of the CRC. This contact must be assured in a child-centred way, always cognisant of the effects and risks to all the child’s rights including, in particular, the child’s right to development.

In applying the best interests principle, the courts engage in a balancing act, weighing up the competing rights and interests of children of offenders with those of society at large. However, it is submitted that by considering the best interests of the child and promoting, protecting and fulfilling the rights of the child, the best interests of society are also served. As we have seen, applying the best interests principle may reduce the risk of crime perpetuating from generation to generation. More fundamentally, if judicial sentencing extends beyond its intended recipients to the children of offenders, the administration of justice is compromised. 

 

Owner: Jean Tomkinpdf: http://www.crin.org/docs/Orphans of Justice.pdf

Articles: 
Article 3: Best interests of the child
Organisation: 
Quakers United Nations Office
Attachment Link: 
http://www.crin.org/docs/Orphans of Justice.pdf
Link : 
http://www.crin.org/docs/Orphans%20of%20Justice.pdf

Countries

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