The rights of children with incarcerated parents
States have obligations towards children separated from a parent; yet, criminal justice processes often breach these rights (Scharff Smith and Gampbell, 2011). Of particular significance is the UNCRC 1989. The core UNCRC right involved is that of the child to maintain regular contact with their parent, so long as this accords with their best interests (Article 9.3). Other rights of direct relevance include the right to be consulted with and listened to (Article 12), not to be subject to discrimination (Article 2) and to have their ‘best interests' prioritised (Article 3). Article 8 of the European Convention on Human Rights (ECHR) and Fundamental Freedoms 1950, which protects the right to private and family life, is also significant. This has resulted in European case law, although this is mainly related to prisoners' rights with few cases regarding the restriction of children’s contact with imprisoned parents (Lagoutte, 2011).
In the UK, case law has established that when sentencing a parent, courts “should consider a child’s right to family life” (Condry et al., 2016, pp. 636-637; see also Chapter 10 of this volume, p. 168). In practice, however, alternative sentencing options need to be used with "greater frequency and flexibility than is currently the norm” (Condry et al., 2016, pp. 636-637).
Internationally, a variety of initiatives have been developed to support children with parents in prison, improve their experience of visits and enhance contact with their incarcerated parent (see Scharff Smith and Gampell, 2011; IPRT, 2012; COPE, 2014). However, these are often limited in scope and access, patchy in implementation and vulnerable to insecure funding (Convery et al., 2011). A significant development for the rights of children with a parent in prison was the adoption by the Council of Europe (CoE) of a Recommendation on Children with Imprisoned Parents, issued as policy guidance to member states in the spring of 2018 (CoE, 2018). This guidance includes recommendations that the interests and dignity of children should be taken into account by police when making an arrest (principle 8), information should be gathered on children whenever a parent is imprisoned (principle 5), children’s interests should be considered when custodial remand or sentence are being considered (principles 8 and 10), prison staff should be appropriately trained (principle 7) and individuals should be enabled to make arrangements for children’s care prior to being imprisoned (principle 12). In terms of visits and contact, the guidance recommends the consideration of children's best interests when deciding where to place a prisoner (principles 3, 4 and 16), the provision of weekly child-friendly visits and visiting times which do not interfere with children’s schooling (principles 17 and 18), the provision of play areas (principle 20), the protection of children’s dignity throughout the visiting process (principles 21
and 23) and the use of technology to facilitate contact between children and their imprisoned parent (principle 25). The guidance also considers the role of the media, noting the importance of protecting the privacy of children with imprisoned parents, and avoiding stigmatisation (principles 55 and 56).
