Relevant jurisprudence

The 2007 South African Constitutional Court Case S v M, is a landmark case in the sentencing of parents, establishing a principal for the consideration of the child’s best interests when sentencing a primary caregiver. A mother of three was originally sentenced to four years’ imprisonment, but after due consideration of the personal circumstances of the accused and the interests of the community—and specifically the best interest of her three children—the court instead sentenced the appellant to a non-custodial sentence of house arrest, community service and a suspended sentence of four years.

Though this case took place in South Africa, the implications are far-reaching, and have been seized upon as a model of good practice for the functioning of European judiciaries as well. In 2012, the UN Human Rights Council adopted a resolution calling upon states to emphasise non-custodial measures when sentencing primary caregivers.

The decision in S v M remains the standard bearer for cases on the sentencing of primary caregivers. See Chapter 2 the COPE publication ‘Keeping children in mind: Moving from ‘child-blind’ to child-friendly justice during a parent’s criminal sentencing’ for a full analysis.

Read the full judgment here.

See also: European Journal of Parental Imprisonment, Winter 2015.

In England and Wales, precedent set in the 2001 cases R (on the application of Stokes) v Gwent Magistrates Court and R (on the application of P and Q) v Secretary of State for the Home Department highlighted that courts should perform a ‘balancing exercise’ in sentencing to weigh interference with a child’s right to family life against the seriousness of the offence. The ruling in the 2011 case R v Bishop, subsequently affirmed in R v Petherick (2012), upheld that criminal courts should take the domestic circumstances of a defendant into account, particularly where ‘the family life of others, especially children, will be affected’, and that courts should accordingly seek information on the likely effects of a custodial sentence on children and balance these effects with the need to punish the offender.

In 2018, Brazil’s Supreme Federal Court ruled by majority vote to grant habeus corpus to remand detainees who are pregnant women, mothers and teenagers responsible for children under the age of twelve or women and teenagers responsible for people with disabilities.

The High Court of Malawi has judged on two occasions, in both Dickson and Another v Republic (2007) and Alasani v Republic (2015), that the defendants of each case, both mothers of young children, should be released on bail as opposed to being detained with their infants. A similar ruling was made in Fiji’s High Court, where an application of UNCRC Articles 3 and 9 in Devi v The State (2003) led the court to find that the care of dependents is a relevant consideration in bail decisions.

The European Court of Human Rights has considered issues related to children whose parents are or are alleged to be in conflict with the criminal law under Articles 3 and 8 of the European Convention on Human Rights (ECHR).

Article 3:

            No-one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 8

            1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

            2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Specifically the Court has found that:

• when an arrest is taking place where children are known to be or likely to be present, there is a positive duty on the authorities to plan accordingly;
• when both parents are arrested/detained, there is a duty to take steps to see that any children present have someone to care for them;
• conditions and healthcare in detention/prison must be appropriate for any baby who is living in prison with the mother;
• prohibition of or restrictions on contact between children and their imprisoned parent is an interference with the child’s right to family life, but may be justified in accordance with the provisions of Article 8.  This covers visits (including imprisonment so far from the family that visits are impractical) but may also include unjustified restrictions on direct contacts and on the use of the family’s own language in person over the telephone or in letters
• conditions for visits in prison must not be inhuman or degrading
• failure to consider return of child to the custody of an acquitted parent in a timely fashion

(a) Violent arrest in front of child

In the case of A v. Russia, A’s father was arrested in front of her outside her school.  The Court found that “the interests of the applicant, who was nine years old at the time, were not taken into consideration at any stage in the planning and carrying out of the authorities’ operation against her father. This was a violation of the State’s positive substantive obligation under Article 3, and also of its procedural limb as no effective investigation had been carried out.

Previously, in Gutsanovi v. Bulgaria, the Court had found that the possible presence of children, whose young age makes them psychologically vulnerable, at the scene of an arrest is a factor to be taken into consideration in planning and carrying out the operation.  In that case the Court found that the fact that the police operation had taken place at the family home in the early hours of the morning and had involved special agents wearing masks had served to heighten the feelings of fear and anxiety experienced by the children who had witnessed their father’s arrest, to the extent that the treatment to which they had been subjected exceeded the threshold of severity required for Article 3 to apply, amounting to degrading treatment.

Similarly, in Stoyanov and Others v. Bulgaria the violent arrest of the father in a dawn raid on the family home by hooded and armed men, who had taken no account of the likely presence of family members, including the two daughters aged 10 and 4 years, amounted to degrading treatment under Article 3 in relation to the minor children who witnessed the event (as well as the adults).

(b) Arrest of parents leaving child without adult care/supervision

In Ioan Pop and others v Romania a 12 year old who witnessed the arrest of his parents was left unattended for several hours without the authorities taking measures to ensure an adult would look after him while the parents were held in police custody (left under the oversight of the villagers), the Court found to be a violation of Article 3 (degrading treatment).  In the more recent case of Hadzhieva v. Bulgaria the Court found a violation of Article 8 (right to family life) of a 14-year old both of whose parents were arrested at home when she was also present.  The police were, therefore, aware of her existence at the time of the arrest, had checked her age, had not enabled her parents to make arrangements for her nor notified the relevant authorities.  The Court found that the authorities failed to comply with their positive obligation under Article 8 to act in order to ensure that the applicant, a minor left without parental care, was protected and provided for in her parents’ absence. Two days later, her mother indicated that there was someone to look after the girl when she was asked about this in court, from which point the European Court ruled that there was no further (or continuing) violation (although it appeared that in fact no arrangement for her care had been made and the authorities had taken no steps to verify the situation).

In the case of Korneykova and Korneykov v Ukraine (2016) the Court found violations of Article 3 (inhuman and degrading treatment) in respect of the shackling of a pregnant woman prisoner while suffering labour pains and immediately after delivery, and that the cumulative effect of malnutrition of the mother, inadequate sanitary and hygiene arrangements for her and her newborn son, as well as insufficient outdoor walks, must have been of such an intensity as to induce in her physical suffering and mental anguish amounting to her and her child’s inhuman and degrading treatment. In addition the Court pointed out the authorities’ obligation to provide adequate medical supervision and care for the newborn staying with his mother in a detention facility for almost six months, starting from the fourth day of his life, since as a newborn, he was particularly vulnerable and required close medical monitoring by a specialist. Under the applicable regulations of the Ministry of Public Health, he was supposed to be examined by a paediatrician every week during the first month of his life and every month thereafter but was not. Having particular regard to his young age, the Court considered that adequate health-care standards were not met and therefore also found a violation of Article 3 in this respect.

(a) Not permitted or able to visit because of distance

The Court has given considerable attention to prisoners’ maintenance of contact with their family, including through visits.  In Piechowicz v Poland it set out its general principles on this matter as well as applying them to the specific case. The prisoner was under a special ‘dangerous prisoner’ regime.  Amongst his complaints was restrictions on visits by his 2-3 year old son. 

(a) Principles deriving from the Court’s case-law

212. Detention, likewise any other measure depriving a person of his liberty, entails inherent limitations on his private and family life.  However, it is an essential part of a detainee’s right to respect for family life that the authorities enable him or, if need be, assist him in maintaining contact with his close family.  Such restrictions as limitations put on the number of family visits, supervision of those visits and, if so justified by the nature of the offence, subjection – as happened in the present case – of a detainee to a special prison regime or special visit arrangements constitute an interference with his rights under Article 8 but are not, by themselves, in breach of that provision.  Nevertheless, any restriction of that kind must be applied “in accordance with the law”, must pursue one or more legitimate aims listed in paragraph 2 and, in addition, must be justified as being “necessary in a democratic society”.

The Court went on to explain that the expression “in accordance with the law” not only necessitates compliance with domestic law, but also relates to the quality of that law.  Consequently, domestic law must indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities so as to ensure to individuals the minimum degree of protection to which they are entitled under the rule of law in a democratic society.

As to the criterion “necessary in a democratic society”, the Court reiterated that the notion of “necessity” for the purposes of Article 8 means that the interference must correspond to a pressing social need, and, in particular, must remain proportionate to the legitimate aim pursued.  Assessing whether an interference was “necessary” the Court will take into account the margin of appreciation left to the State authorities but it is a duty of the respondent State to demonstrate the existence of the pressing social need behind the interference.

(b) Turning to the specific case of the applicant’s son:

Whether the interference pursued a “legitimate aim” and was “necessary in a democratic society”. The Court notes that the authorities’ refusals of visit permissions for the applicant’s son were prompted by “the child’s interest and the possibility of obtaining additional evidence or new facts from [the applicant]”.  While the latter ground seems to have no relevance for denying contact with the applicant’s child, who obviously had nothing to do with the proceedings against the applicant, the reliance on “the child’s interest” can be considered to fall within “the protection of the rights … of others” within the meaning of Article 8 § 2. 

It remains for the Court to ascertain whether the limitations imposed on the applicant’s contact with his son were justified under Article 8 in terms of their necessity.  The Court agrees that, considering the age of the child at the relevant time, the authorities needed to ensure that he was accompanied by an adult third party who also had to be eligible for visit permission.  By the nature of things, visits from children or, more generally, minor persons in prison require special arrangements and may be subjected to particular conditions depending on their age, the possible effects on their emotional state or well-being and on the personal circumstances of a visited person.  Since the applicant was classified as a “dangerous detainee”, the authorities had to take this factor into account in deciding on the form of his contact with the son.  Some restrictions were therefore inevitable.  However, as apparently a suitable third party offered to assist the applicant’s son during visits and there was no indication that visits in prison actually had, or might have had, any adverse effects on the child, all the circumstances taken together did not justify the blanket refusal of visit permissions for some 9 months and, subsequently, for 2 months.  For that reason, the Court sees no force in the Government’s arguments as to the necessity of the restrictions.  Indeed, it finds it inconceivable that, provided that the appropriate arrangements for security were made, allowing the applicant to have contact with his infant child could upset security in prison or the proper course of the proceedings against him.  Nor does the Court find that, as the Government argued, the fact that at a later stage the ban on the family visits was lifted and regular contact resumed, could sufficiently alleviate the consequences of the earlier, strict measures.

In view of the foregoing, the Court concludes that the prolonged restrictions on the applicant’s contact with his … son were excessive and cannot be justified as “necessary in a democratic society”.  Accordingly, there has been a violation of Article 8 of the Convention.

See also the case of Kungarov v. Russia, concerning a ban on family visits following the applicant’s conviction at first instance and the impossibility to obtain a judicial review of the ban.

See also the case of Khoroshenko v. Russia, where a life-sentence prisoner spent the first ten years of detention under a strict regime, implying restrictions on visits and various surveillance measures.

See also the case of Khodorkovskiy and Lebedev v. Russia where both prisoners were held in penal colonies thousands of kilometres from their homes, and their families were therefore unable to visit them.

(b) Visiting Conditions

In Horych v. Poland the Court addressed the issue of the conditions in which the applicant, categorised as a dangerous prisoner, had received visits from his minor daughters (aged 6, 11 and 16 at the time of his arrest).  It noted that “visits from children […] in prison require special arrangements and may be subjected to specific conditions depending on their age, possible effects on their emotional state or well-being and on the personal circumstances of the person visited”.  The Court went on to say that “positive obligations of the State under Article 8, […] include a duty to secure the appropriate, as stress-free for visitors as possible, conditions for receiving visits from his children, regard being had to the practical consequences of imprisonment”. (§131)

The Court noted that, by the nature of things, visits from children or, more generally, minors in prison require special arrangements and may be subjected to specific conditions depending on their age, possible effects on their emotional state or well-being and on the personal circumstances of the person visited.  However, positive obligations of the State under Article 8, in particular an obligation to enable and assist a detainee in maintaining contact with his close family, includes a duty to secure the appropriate, as stress-free for visitors as possible, conditions for receiving visits from his children, regard being had to the practical consequences of imprisonment.  That duty is not discharged properly in situations where, as in the present case, the visits from children are organised in a manner exposing them to the view of prison cells and inmates and, as a result, to an inevitably traumatic, exceptionally stressful experience.  The Court agrees that, as the applicant said, the exposure to prison life can be shocking even for an adult and, indeed, it must have caused inordinate distress and emotional suffering for his daughters.  It further notes that, owing to the authorities’ failure to make adequate visiting arrangements, the applicant, having seen the deeply adverse effects on his daughters, had to desist from seeing them in prison.  Throughout his detention from 14 July 2004 to the end of 2008 he saw his oldest daughter twice and each of the two younger ones once.  In effect, he was deprived of any personal contact with them for several years. 

132.  In view of the foregoing, the Court concludes that the restrictions imposed by the authorities on the applicant’s visiting rights, taken together with their continued and prolonged failure to ensure proper conditions for visits from his daughters, did not strike a fair balance between the requirements of the “dangerous detainee” regime on the one hand, and the applicant’s Convention right to respect for his family life on the other.  Accordingly, there has been a violation of Article 8.

(c) Physical separation of detainee from visiting family members

In Kurkowski v. Poland, the Court observes that it had already held in similar Polish cases that Article 217 § 1 of the Code of Execution of Criminal Sentences did not indicate with reasonable clarity the scope and manner of the exercise of any discretion conferred on the relevant authorities to restrict visiting rights. In consequence, the Court has held that an unreasoned refusal to grant permission for visits was not in “accordance with the law” and found a breach of Article 8 on account of the arbitrariness of the interference.  For these reasons the Court concludes that the refusal of the family visit in the present case was not in accordance with the law. On that account it is not necessary to ascertain whether the other conditions imposed by Article 8 § 2 have been complied with.  There has accordingly been a violation of Article 8 of the Convention.  Furthermore, on three occasions the prisoner was separated from his family by a Perspex partition. The Court considers that this amounted to “interference” with the applicant’s rights guaranteed by Article 8 and observes that the contested measure was applied under Article 217 § 2 of the Code of Execution of Criminal Sentences. This provision, as applicable at the material time, gave the relevant authority (prosecutor or court) the power to determine the manner in which they were to be conducted. The Court also notes that, pursuant to the rule contained in that provision, visitors are not allowed to have direct physical contact with the person detained on remand. The Court is consequently satisfied that the interference was “in accordance with the law”.  The Court further considers that the impugned measures can be considered as having been taken in pursuance of “the prevention of disorder and crime”, which is a legitimate aim under Article 8.  It remains for the Court to ascertain whether a fair balance was struck between the competing public and private interests involved having regard to the legitimate aim relied on.

(d) Use of own language

In Mozer v. The Republic of Moldova and Russia where a Moldovan national belonging to the German ethnic minority was detained in the self-proclaimed “Moldavian Republic of Transdniestria”.  After initial refusals to allow his mother to visit, after six months a visit was authorised, but the applicant and his mother had to talk to each other in the presence of a prison guard. They were not allowed to speak their own language (German) and were made to speak Russian or risk the guard calling off the visit. 195. Similarly, the Court finds it unacceptable in principle that a prison guard was present during family visits. It is clear that the guard was there specifically in order to monitor what the family discussed, given that they were at risk of having the visit cancelled if they did not speak a language he understood. Again, no explanation has been given as to why the visits had to be monitored so closely.  The Court therefore finds that, regardless of whether there was a legal basis for the interference with the applicant’s rights, the restriction on prison visits from his parents did not comply with the other conditions set out in Article 8 § 2 of the Convention.  Although neither of these cases specifically refer to children, it is clear that such language restrictions could have particularly severe consequences for them in maintaining contact with their imprisoned parent in person or by phone or letter.

In Nusret Kaya and Others v. Turkey the Court observed that the possibility for a prisoner to communicate orally on the telephone in his mother tongue constitutes a specific aspect not only of his right to respect for his correspondence but above all of his right to respect for his family life, within the meaning of Article 8 § 1.  In the present case the Court would point out that the matter in issue relates not to the applicants’ linguistic freedom as such but to their right to maintain meaningful contact with their families.  It therefore examined the conditions to which the applicants’ telephone conversations were subjected, under the Rules in force at the relevant time, and held that they were not compatible with the requirements of the second paragraph of Article 8.

(e) Rights of the child when both parents are in prison

In  Namık Yüksel, the European Court of Human Rights issued its ruling on a unique case concerning restrictions on contact between an imprisoned father and his son.

The young child was residing with his mother, who was serving a sentence in the same prison facility as the father. The applicant (the father) claimed that the authorities had failed to take the necessary measures to allow face-to-face meetings with his child, which he contended violated his right to family life under Article 8 of the European Convention on Human Rights. He further stated that restrictions on time spent with his son had prevented the child from developing physically, intellectually and emotionally. The prison administration had allowed the applicant and his child to have physical contact during weekly visits, and that both parents could meet together with the child once a month, taking account of the child’s best interests in these decisions, not only the wishes of the father. The Court ruled that authorities had not breached the applicant’s right to family life, having taken all necessary measures to facilitate contact between father and child. Children of Prisoners Europe (COPE) considers this case significant for the following reasons:

• The best interests of the child were prioritised by the Court when assessing whether the State fulfilled its obligations to facilitate contact between the applicant and his son, drawing and building on a precedent set by Deltuva v Lithuania and other cases.

• It enhances the status of the Council of Europe’s Recommendation to Ministers CM/Rec(2018)5 concerning children with imprisoned parents, which is heavily cited as relevant international material. The Court now regularly refers to this Recommendation in cases involving children impacted by a parent’s imprisonment, further validating and solidifying it as a key international standard. 
• The case opens up prison environments to scrutiny. Despite the ruling, Namık Yüksel v Türkiye demonstrates thatsimply increasing the frequency of visits is not enough to guarantee that child-parent contact actually takes place. The Court recognised that the harsh nature of the prison’s procedures related to the visits in question (security measures, iron doors and the need to separate the child from his mother) were distressing for the child, preventing these visits from taking place more than once. This element of the case sheds light on what COPE advocates for: child-friendly prison facilities and improved procedures that promote quality family contact, systematised through child safeguarding awareness and staff training in prisons. 
• It makes a case for fathers.While fathers have a fundamental role to play in their children’s development, this case draws attention to the difficulties they can face in maintaining contact with children from prison. Legislation may provide for contact between children and imprisoned fathers but for various reasons it can be more challenging for fathers than mothers to maintain contact with children, or to receive parenting support. This could be due to inadequate facilities or cultural or social biases that attribute greater significance to mothering from prison. In this case, the Court ruled that authorities had taken all necessary measures. Despite the ruling, the nature of this case involving the imprisonment of both parents allows for a comparative perspective; it reflects a wider reality where contact between children and imprisoned mothers is often more readily facilitated than with fathers.  

• It involves the rarely considered scenario of both parents being imprisoned, a situation that the Court observes has received little attention in international material.
• The principle of subsidiarity was interpreted more broadly by the Court which chose to actively protect the best interests of the child by reviewing the national court’s decision.

In Alexandru Enache v. Romania the applicant, who had been sentenced to seven years’ imprisonment, wanted to look after his child, who was only a few months old.  However, his applications to defer his sentence were dismissed by the courts on the grounds that such a measure, which was available to convicted mothers up to their child’s first birthday, was to be interpreted strictly and that the applicant, as a man, could not request its application by analogy. The Court found that the applicant could claim to be in a similar situation to that of a female prisoner. However, referring to international law, it observed that motherhood enjoyed special protection, and held that the authorities had not breached Article 14 (non-discrimination) in conjunction with Article 8.

In Haddad v Spain following a criminal complaint filed by his wife for domestic violence, a judge issued a restraining order against the applicant, also prohibiting him from approaching his children.  Subsequently the mother who stated that she could no longer look after the children (two sons aged nine and six, and a daughter aged one and a half) and they were placed under administrative guardianship in a children’s home. The applicant was not informed of the placement.  The applicant was acquitted on the charges. The prohibition of his contacts with his children was then lifted and he soon regained custody of his two sons, but not of his daughter.  The Court found

–  At no time in the administrative proceedings had any consideration been given to (i) the young age of Mr Haddad’s daughter at the time her parents had separated, (ii) the pre-existing relationship between the child and her parents, (iii) the passage of time since the separation, or (iv) the ensuing consequences for all three children and for the child’s relationship with her brothers.

–  The account of physical ill-treatment had not been proven and had only been mentioned in the report of June 2013, which seemed to refer to the content of the complaint for domestic violence (charges on which the applicant had, in the meantime, been acquitted).

–  The courts had not observed any relational failings (a point they had failed to examine in the applicant’s case), or any concerns about the children’s health, or any material deprivations or unsatisfactory living conditions attributable to the applicant. Nor had his educational and emotional capacities been formally called into question.

The Court further noted some series failings on the part of the authorities. The administrative authorities should have considered other less radical measures than pre-adoption foster care and, in any event, should have heeded the father’s requests once the criminal proceedings against him had been terminated. The proceedings should have been surrounded by appropriate safeguards to ensure that the applicant’s rights were protected and his interests taken into account.

In the Court’s view, the competent authorities had themselves been responsible for the breakdown in contact between the applicant and his daughter (at least since the acquittal) and they had failed in their positive obligation to take measures to re-establish that contact.

Notwithstanding the respondent State’s margin of appreciation in such matters, the authorities had not made appropriate or sufficient efforts to ensure respect for the applicant’s right to live with his daughter, together with her brothers.  Therefore violation of Article 8.

Keeping children in mind: Moving from ‘child-blind’ to child-friendly justice during a parent’s criminal sentencing

Best interests of the child when sentencing a parent: Some reflections on international and regional standards and practice