The rising global prison population and a gradual shift in recognising children as individual right-holders when a parent encounters the criminal justice system have underscored the importance of evaluating children’s rights within this context. My dissertation assessed to what extent children’s rights are protected when a parent or primary caregiver is sentenced to prison and whether the current practices in England and Wales, and Norway align with the European human rights standards concerning the respect of children’s rights during parental sentencing and imprisonment.

Children affected by parental imprisonment face challenges that often go unseen within the criminal justice systems of various countries. Two jurisdictions, England and Wales, and Norway grapple with protecting the rights of these children while navigating complex legal frameworks, societal perceptions, and practical implementation issues.

Despite lacking precise data on the number of affected children, it is evident that they remain invisible within the criminal justice systems, emphasising the urgency to protect their rights. International frameworks like the European Convention on Human Rights (ECHR) and the United Nations Convention on the Rights of the Child (UNCRC) outline children’s rights concerning parental imprisonment. However, practical implementation and access to effective legal remedies fall short nationally and internationally.

Examining the legal frameworks in these jurisdictions reveals a complex reality. England and Wales acknowledge caring responsibilities as mitigating factors in sentencing guidelines, showcasing commendable effort. However, sentencing decisions often lack explicit evaluation of dependent children’s best interests, reflecting a systemic gap in practical application. On the other hand, Norway has constitutionalised the child’s best interest and the right to family life, emphasising children’s rights formally. Still, it faces similar challenges in protecting these rights effectively during parental sentencing and imprisonment.

Children’s rights are protected formally in both jurisdictions and on the international level; however, the protection of their rights appears to be largely symbolic since there is a lack of legal protection concerning the explicit evaluation of children’s rights and effective remedies. International and national recognition of children’s rights within the context of parental imprisonment does not equal adequate protection of children in practice. Drawing from existing research and the case law, my analysis demonstrates that, despite distinct mitigation factors being recognised in sentencing guidelines and constitutionalising children’s rights, the interests and rights of dependent children remain primarily absent from court deliberations. Indeed, the impact of parental imprisonment is often directly or indirectly overlooked in judgments and practices, leaving children invisible.

Both jurisdictions struggle with balancing penal objectives with safeguarding children’s rights. The reluctance to explore alternative sentencing options, the decline in the use of community orders, and the impact of parental imprisonment on children, particularly maternal imprisonment, underscore systemic gaps. Norway’s introduction of Children’s Officers demonstrates recognition of children’s challenges, but the widespread use of isolation in prisons and recent reports from women’s prisons remain a significant concern.

Comparing England and Wales, and Norway reveals both commendable practices and critical shortcomings. Each jurisdiction shows examples of good practices – like the pilot project involving social workers in English prisons and Children’s Officers in Norwegian prisons, who are responsible for visitation and information provided to children of those in prison. However, challenges persist, such as the reluctance to use non-custodial sentences, lack of knowledge about the impact of parental imprisonment and the risk of fragmentation in the support to children due to the third sector providing most of the existing support for children of those in prison in England and Wales.

My dissertation argued that the symbiotic harms of parental imprisonment (Condry & Minson, 2021) necessitate a re-examination of the state’s justification for punishment. There is a pressing need to enhance visitation conditions and arrangements, integrate children’s best interests during sentencing, and prioritise non-custodial sentences where suitable. While children’s rights are recognised formally at both national and international levels, their practical protection remains symbolic mainly, leaving children of those in prison invisible within legal and societal considerations and practices.

Children’s invisibility in both jurisdictions emerges due to multifaceted factors – a fragmented understanding of their needs, resource constraints, and inadequate mechanisms for ensuring their rights. The disconnect between legal aspirations and practical realities highlights the urgency of addressing this issue. Failing to account for these children’s unique experiences perpetuates their marginalisation in the criminal justice system and beyond.

Reference

Condry, R., & Minson, S. (2021). Conceptualizing the effects of imprisonment on families: Collateral consequences, secondary punishment, or symbiotic harms? Theoretical Criminology, 25(4), 540-558

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