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The Rights of Children of Imprisoned Parents

  • Helen CoddEmail author
Chapter
Part of the Palgrave Studies in Prisons and Penology book series (PSIPP)

Abstract

Children of imprisoned parents are being recognised increasingly as rights bearers, at least in academic and practitioner research publications. This builds on the substantial existing jurisprudential framework of prisoners’ rights and children’s rights which exists in many countries and which has evolved to include and reflect international treaties and Conventions alongside domestic legal principles.

This chapter outlines key sources of rights for children of incarcerated parents then explores two key issues which illustrate the opportunities and challenges for legislators, policy-makers and the judiciary posed by a commitment to recognising and implementing children’s rights, i.e. first, children’s rights when a court is considering imposing a custodial sentence on a parent, and, second, the specific issues raised when considering whether a child should reside with a parent in a custodial setting. In particular, the chapter will consider the significance of the United Nations Convention on the Rights of the Child (UNCRC) 1989, the European Convention on Human Rights (ECHR) 1950 and the African Charter on the Rights and Welfare of the Child 1990. The chapter concludes with a discussion of good practice in promoting and protecting the rights of children with incarcerated parents, questioning the limitations of rights-based approaches in themselves.

Bibliography

  1. Alejos, Marlene. 2005. Babies and Small Children Residing in Prisons. Geneva: The Quaker United Nations Office.Google Scholar
  2. Alston, Phillip, and John Tobin. 2005. Laying the Foundations for Children’s Rights. Florence: UNICEF Innocenti Research Centre.Google Scholar
  3. Bernstein, Nell. 2005. All Alone in the World: Children of the Incarcerated. New York: The New Press.Google Scholar
  4. Bharucha, Ruzbeh Nari. 2007. Shadows in Cages: Forgotten Women and Children in India’s Prisons. Honesdale, PA: Himalayan Institute Press.Google Scholar
  5. Boudin, Chesa. 2011. “Children of Incarcerated Parents: The Child’s Constitutional Right to the Family Relationship.” The Journal of Criminal Law & Criminology 101(1): 77–118.Google Scholar
  6. Carnelley, Marita, and Carol Anne Epstein. 2012. “Do Not Visit the Sins of the Parents Upon Their Children: Sentencing Considerations of the Primary Caregiver Should Focus on the Long-Term Best Interests of the Child.” South African Journal of Criminal Justice 25: 106–116.Google Scholar
  7. Celinska, Katarzyna, and Jane A. Siegel. 2010. “Mothers in Trouble: Coping with Actual or Pending Separation from Children due to Incarceration.” The Prison Journal 90(4): 447–474.CrossRefGoogle Scholar
  8. Codd, Helen. 2008. In the Shadow of Prison: Families: Imprisonment and Criminal Justice. Cullompton: Willan.Google Scholar
  9. Codd, Helen. 2013. “Locked In and Locked Out: Global Feminist Perspectives on Women and Imprisonment.” In Global Criminology: Crime and Victimization in the Globalized Era, edited by Karuppannan Jaishankar and Natti Ronel, 199–216. Boca Raton: CRC Press.CrossRefGoogle Scholar
  10. Donson, Fiona, and Aisling Parkes. 2016. “Weighing in the Balance: Reflections on the Sentencing Process from a Children’s Rights Perspective.” Probation Journal 63(3): 331–346.CrossRefGoogle Scholar
  11. Enroos, Rosi. 2015. “From Invisibility to Protection—Children in Prison with Their Parent in Finland.” Children & Society 29: 399–409.CrossRefGoogle Scholar
  12. Epstein, Rona. 2014. “Mothers in Prison: The Sentencing of Mothers and the Rights of the Child.” Working Paper 3/2014 (Howard League).Google Scholar
  13. Ferguson, Lucinda. 2013. “Not Merely Rights for Children but Children’s Rights: The Theory Gap and the Assumption of the Importance of Children’s Rights.” International Journal of Children’s Rights 21: 177–208.CrossRefGoogle Scholar
  14. Fortin, Jane. 2014. “Children’s Rights—Flattering to Deceive?” Child and Family Law Quarterly 26(1): 51–62.Google Scholar
  15. Henry-Lee, Aldrie. 2005. Women in Prison: The Impact of the Incarceration of Jamaican Women on Themselves and Their Families. Kingston: The Planning Institute of Jamaica Social Development and Gender Unit.Google Scholar
  16. Her Majesty’s Chief Inspector of Prison. 2016. Report on an Unannounced Inspection of HMP/YOI Parc. London: Her Majesty’s Inspectorate of Prison.Google Scholar
  17. James, Allison, and Adrian James, eds. 2004. Constructing Childhood Theory, Policy and Social Practice. Basingstoke: Palgrave Macmillan.Google Scholar
  18. Kanaboshi, Naoki, James F. Anderson, and Natalie Sira. 2017. “Constitutional Rights of Infants and Toddlers to Have Opportunities to Form Secure Attachment with Incarcerated Mothers: Importance of Prison Nurseries.” International Journal of Social Science Studies 5(2): 55–72.CrossRefGoogle Scholar
  19. Kaushik, A. Anupma. 2010. Human Rights of Women Prisoners in India: A Case Study of Varanasi District Prison. Koeln: LAP Lambert Academic Publishing.Google Scholar
  20. Kaushik, Anupma, and Kavita Sharma. 2009. “Human Rights of Women Prisoners in India: A Case Study of Jaipur Central Prison for Women.” Indian Journal of Gender Studies 16: 253–271.CrossRefGoogle Scholar
  21. Liefaard, Ton. 2015. “Rights of Children of Incarcerated Parents: Towards More Procedural Safeguards.” European Journal of Parental Incarceration 1(Spring): 13–15. Google Scholar
  22. Loureiro, T. 2010, March. Perspectives of Children and Young People with a Parent in Prison. Edinburgh: SCCYP.Google Scholar
  23. Lyon, Christina M. 2007. “Interrogating the Concentration on the UNCRC Instead of the ECHR in the Development of Children’s Rights in England?” Children & Society 21(2): 147–153.CrossRefGoogle Scholar
  24. Millar, Hayli, and Yvon Dandurand. 2018. “The Best Interests of the Child and the Sentencing of Offenders with Parental Responsibilities.” Criminal Law Forum 29(2): 227–277.CrossRefGoogle Scholar
  25. Minson, Shona, Rebecca Nadin, and Jenny Earle. 2015. Sentencing of Mothers: Improving the Sentencing Process and Outcomes for Women with Dependent Children. London: Prison Reform Trust.Google Scholar
  26. Paurus, Melanie. 2017. International Report on the Conditions of Children of Incarcerated Parents: A Study of Prison Nurseries. Minneapolis: Children of Incarcerated Caregivers.Google Scholar
  27. Posner, Eric. 2014. The Twilight of Human Rights Law. Oxford: Oxford University Press.Google Scholar
  28. Robertson, Oliver. 2007. The Impact of Parental Imprisonment on Children. Geneva: Quaker United Nations Office.Google Scholar
  29. Robertson, Oliver. 2012. Collateral Convicts: Children of Incarcerated Parents, Recommendations and Good Practice from the UN Committee on the Rights of the Child Day of General Discussion 2011. Geneva: The Quaker United Nations Office.Google Scholar
  30. Salvador Declaration on Comprehensive Strategies for Global Challenges: Crime Prevention and Criminal Justice Systems and their Development in a Changing World. 2010. United Nations.Google Scholar
  31. San Francisco Partnership for Incarcerated Parents. 2003. Children of Incarcerated Parents: A Bill of Rights. San Francisco: SFCIPP.Google Scholar
  32. Scottish Sentencing Council. 2017. “Children and the Sentencing of Parents: Report on Discussion Event with SCOTTISH Sentencing Council.” Edinburgh.Google Scholar
  33. Skelton, Ann. 2011. “‘Children of Incarcerated Parents’ at the CRC Day of General Discussion 2011.” http://www2.ohchr.org/english/bodies/crc/docs/Discussion2011_submissions/A_SKELTON_CRC_DGD_2011.pdf. Accessed 3 January 2012.
  34. Smith, Peter Scharff. 2015. “Children of Imprisoned Parents in Scandinavia: Their Problems, Treatment and the Role of Scandinavian Penal Culture.” Law in Context 32: 147–168.Google Scholar
  35. Smith, Peter Scharff, and Lucy Gampell, eds. 2011. “Children of Imprisoned Parents.” Denmark: Danish Institute for Human Rights, European Network for Children of Imprisoned Parents, University of Ulster and Bambinisenzasbarre.Google Scholar
  36. Skelton, Ann. 2015. “South Africa.” In Litigating the Rights of the Child, edited by Ton Liefaard and Jaap Doek, 13–30. Dordrecht: Springer.Google Scholar
  37. The Law Library of Congress Global Legal Research Centre. 2014. Laws on Children Residing with Parents in Prison. Washington, DC: The Law Library of Congress.Google Scholar
  38. Tibatemwa-Ekirikubinza, Lillian. 1999. Women’s Violent Crime in Uganda: More Sinned Against Than Sinning. Uganda: Fountain Publishers.Google Scholar
  39. Townhead, Laurel. 2015. Briefing Paper: Children of Incarcerated Parents—International Standards and Guidance. Geneva: Quaker United Nations Office.Google Scholar
  40. United Nations. 2010. “Rules for the Treatment of Women prisoners and Noncustodial Measures for Women Offenders.” A/C.3/65/L.5.Google Scholar
  41. United Nations Committee on the Rights of the Child. 2011. Report and Recommendations of the Day of General Discussion on “Children of Incarcerated Parents.” Geneva: UNCRC.Google Scholar
  42. United Nations Model Strategies and Practical Measures on the Elimination of Violence Against Children in the Field of Crime Prevention and Criminal Justice. n.d. E/CN.15/2014/L.12/Rev.1 of 15 May 2015, para 6(c).Google Scholar
  43. van Zyl Smit, Dirk, and Sonja Snacken. 2009. Principles of European Prison Law and Policy. Oxford: Oxford University Press.Google Scholar

Copyright information

© The Author(s) 2019

Authors and Affiliations

  1. 1.Lancashire Law SchoolUniversity of Central LancashirePrestonUK

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