Introduction to Children’s Rights

(From: Jan C.M. Willems (ed.), Developmental and Autonomy Rights of Children: Empowering Children, Caregivers and Communities, Intersentia: Antwerp/Oxford/New York, 2002, pp. 191-207 (90-5095-224-0; www.intersentia.com) read the full text here.

Children of prisoners in general do not enjoy any special rights. Children’s needs are not considered when a parent is sent to prison. When this happens the child’s life might be turned upside down. Although they have done nothing wrong, they are punished too. Whether people who are arrested or stand trial are parents or not is not a big issue in criminal law. Also, given prison inmates’ legal position, their family ties are scarcely recognised. For the public at large, prisoners in the first place are lawbreakers. It is difficult to picture them as mothers and fathers who might want to care for their children. So, the children are in a way double victims: they miss their imprisoned parent and they are confronted with stigma, social rejection and shame. This is not always the case, an exception, for example, is the child of the political prisoner, his or her parent is seen as a hero one should be proud of. However the number of political prisoners is very small relative to the larger prison population. 1

Children of imprisoned parents are not easy to classify as a group. Their situations differ in various countries and across cultures. 2

If there is, also in an international perspective, any attention on the topic, it has been concentrated on imprisoned mothers with babies. It is important to realise that most involved children are older. And most of the imprisoned parents are fathers. Worldwide, women are a small minority of the prison population, most of the time only about 5%. The gender issue has to be taken into account, most of the imprisoned mothers being (former) primary caretakers and very often single mothers. There are a large number of ethnic minorities in the custodial population, particularly among women prisoners.. In England, for example, in Holloway, the biggest prison for women in Western Europe, 50% of prisoners are young black women, although the population outside is 5% . 3 The children of imprisoned mothers often are split up and sometimes even left ‘home alone.’ Children of imprisoned fathers most of the time stay at home with their mothers, but in difficult and often poor circumstances. 4

Complicating factors such as migration problems, parents who are addicted to drugs or alcohol, or parents who are violent or abusive are often present. These problems may occur more often in the lives of children of imprisoned parents than ‘normally,’ but they certainly do not occur per definition. It is very important to take that into account and judge each situation accordingly.

Legally the position of children of imprisoned parents is quite opposite to, for example, the children of divorced parents, although from the perspective of the child in both cases he or she has nothing to do with the cause of separation. In family law, however, family life and the bond between parents and children is protected to a large extent. I believe in criminal law the state interference in family life (by arresting and punishing the parent) obliges the state to create provisions and facilities to limit the damage of this interference and of the separation it causes. To put it in a positive way, the authorities must respect the family and private life of parents and children, even if a parent has committed a criminal offence. Principles of proportionality and subsidiarity must play a role in all decisions at each stage of the criminal process, given their great implications for family life. Relevant factors to be considered are the actual care and the interests of the child, and apart from these, of course, the gravity of the offence and the general safety of society.

The legal base of this accountability of the state can be found in several human rights treaties, and in the framework of the Convention on the Rights of the Child (CRC), especially in Articles 3, 9 and 12. Article 3(1) reads:

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.

Article 9 commits to ‘ensure that a child shall not be separated from his or her parents against their will.’ According to Article 12, children should be free to express their views in all matters affecting them, and those views should be ‘given due weight in accordance with the age and maturity of the child.’ The underlying idea is that children have a right to be heard and to have their views taken seriously, including their views on any judicial or administrative proceedings affecting them. In case of criminal charges against a parent, the state has to operate within (at first sight) conflicting obligations. In view of the best interests of the child, the state, the parents and the child (Trias pedagogica) seem to have a common interest in the development of institutions, facilities and services for the care of children (Article 18(2) CRC). The Convention on the Rights of the Child in general, and in specific, article, obligates states to support parents in the caring and raising of their children by making adequate provisions. Within the framework of the CRC, children of imprisoned parents must not be discriminated against because of the status of their parent (Article 2), and their own culture must be respected (Article 30). It is not yet clear whether and to what extent parents and children may directly invoke these treaty provisions before national courts. Treaty provisions that have direct effect, such as Article 8 of the European Convention on Human Rights (ECHR), may be tightened with the aid of provisions in the Convention on the Rights of the Child and the Convention on the Elimination of Discrimination Against Women (CEDAW). 5The authorities have a duty (positive obligation, see Article 8 ECHR) to optimise care relations. In fact, a case of a former imprisoned mother was in this respect an important event in the case law in Article 8 of the European Court on Human Rights. 6

Optimum care relations are in general a prerequisite for emancipation in a broader, social sense. As Brems notes in this book: ‘Contextual interpretation is facilitated by “elastic” language in the Convention.’ 7

In individual cases I would plea for a contextual approach to prisoners families. In such an approach, state interference must be tested against the existing family life, against the interests of the child and the protection of motherhood, or as the case may be, the role of the care provider, without this resulting in negative stereotyping (see Article 5 CEDAW). In my doctoral thesis I made proposals for such a contextual approach during all stages in the criminal process in The Netherlands. 8

This also fits into at least one purpose of punishment: the rehabilitation and reintegration of the delinquent, which cannot be realised without taking into account one’s family life, like other social and economic conditions. 9Or, as was noted in a report by the Social, Health and Family Affairs Committee of the Parliamentary Assembly of the Council of Europe, ‘in view of the adverse effects of imprisonment at social and family levels, which run counter to the aims of rehabilitation and reintegration (…).’ 10

Although it is difficult to define the children of imprisoned parents as a group, in this chapter I will put forward some collective interests. But I will first focus on the meaning of the legal concept ‘the best interests of the child’ to make it feasible. Then I will describe the situation of children who could stay in prison with the mother (babies and pre-schoolers). In the following paragraph the situation of children outside the prison comes up, while one or both parents are imprisoned. Afterwards I will try to translate some collective interests of children of imprisoned parents into the P-categories of the Convention on the Rights of the Child, specifically on Provision and Participation, in a way that could be implemented on a national or local level. In the end, special attention will be paid to the founding of the European Action Research Committee on Children of Imprisoned Parents (eurochips).

Notes:

  1. R. SHAW, ‘Imprisoned fathers and the orphans of justice,’ in: R. SHAW, Prisoner’s Children; What are the Issues? Routledge, London, New York, 1992, 41-49.
  2.  There are no reliable figures about their numbers. In 1996, it was estimated that in Europe about 800,000 children were separated from their imprisoned parent each year (European Action Research Committee on Children of Imprisoned Parents, Children of Imprisoned Parents; Family Ties and Separation, Report on the situation in eight European countries, Paris, 1996, 3-8). In Brown’s study of the United Kingdom a number is mentioned of 100,000 children separated from an imprisoned father and of 8,000 separated from an imprisoned mother (K. BROWN, No-one’s Ever Asked Me; Young People with a Prisoner in the Family, Federation of Prisoners’ Families Support Groups, Young People’s Project, London, 2001, 1).
  3. S. CASALE at the Jerusalem 2000 Conference on Rehabilitation of Women Offenders: Mothers with Children (proceedings are forthcoming).
  4.  R. WOLLESWINKEL, Gevangen in moederschap; Gedetineerde vrouwen en het recht op family life, Gouda Quint, Deventer, 1997, 296-297; C. VAN NIJNATTEN, Detention and Development; Perspectives of Children of Prisoners, Forum Verlag Godesberg, Mönchengladbach, 1998, 70-71; E. CHRISTENSEN, ‘Imprisoned parents and their families: What can we do to minimise harmful effects to the children?’ Journal of Child Centred Practice 2001, 84-85.
  5. C.J. FORDER, ‘In het gezinsleven: “Different but equal”,’ in: A.W. HERINGA; J. HES; L. LIJNZAAD, Het Vrouwenverdrag: Een beeld van een verdrag …, Maklu, Antwerpen, Apeldoorn, 1994, 239-253.
  6.  ECHR 22-6-1989, Erikson v. Sweden, Series A, Vol. 156. It can be discussed whether in this case the interests of the child properly were taken into account. See for instance the five (partly) dissenting opinions.
  7. E. BREMS, ‘Children’s Rights and Universality,’ supra, Chapter 2, para. 3.
  8. R. WOLLESWINKEL, Gevangen in moederschap; Gedetineerde vrouwen en het recht op family life, Gouda Quint, Deventer, 1997, 283-331.
  9. United Nations Standard Minimum Rules for the Treatment of Prisoners (SMR), Rule 37, Rule 60, Rule 92.
  10. Report Social and Family Effects of Detention of the Social, Health and Family Affairs Committee, Parliamentary Assembly of the Council of Europe (15 May 1997, Doc. 7816), 2.

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