Children whose parents are detained or imprisoned are an invisible and highly vulnerable group whose rights and welfare are affected at every stage of criminal proceedings against their parent.
The rights of children of incarcerated parents remain largely unacknowledged within criminal justice systems. Children fall through the cracks created by inadequate social welfare provision, lack of clarity in law and policy as to how to respond to them, and inadequate protection for children living in prisons.
It is estimated that millions of children worldwide have a parent in prison: tens of thousands are living in prison with their parent, most often their mother, and many times that number are separated.
Children are confronted with a host of challenges when a parent or caregiver is in conflict with the law.
- They have to contend with the break-up of their family and may need to be placed in alternative care where they are more vulnerable to violence, abuse, neglect and exploitation.
- Losing their primary caregiver may result in financial hardship and make it difficult to access health services and education.
- They experience discrimination and stigma as a result of their parent’s status as a suspect, defendant or convicted prisoner.
- They may end up living with their mother/ father in detention facilities.
The effect on children when a parent is sentenced to death or executed is of course even more traumatic. In some countries, children of parents sentenced to death or executed are stigmatised and abandoned by the wider family.
The 2010 UN Rules on the Treatment of Women Prisoners and Non-Custodial Sanctions for Women Offenders (the ‘Bangkok Rules’) are to date the only set of international standards which provide some safeguards for children imprisoned with their parent. While the Rules are designed for women offenders, their preliminary observations state that some Rules, including those relating to parental responsibilities, equally apply to offenders who are fathers.
The Rules stipulate that:
- non-custodial alternatives to custody should be applied wherever possible if someone facing imprisonment has sole caring responsibilities
- children must be taken into account at all stages of a parent’s contact with the criminal justice system
- the decision as to whether a child is to be separated from its mother (or father) must be based on individual assessments and the best interests of the child
- children in prison with their mother (or father) should never be treated as prisoners and their experience must be as close as possible to life for a child outside
- mothers/fathers must be allowed as many opportunities as possible to see the children who are imprisoned with them.
In 2011, the UN Committee on the Rights of the Child dedicated a General Day of Discussion in 2011 to this topic, reiterating that the best interests of children must be taken into account at all stages of the criminal justice process when a parent is facing imprisonment. In 2013, the UN Human Rights Council held a panel discussion on the human rights of children of parents sentenced to the death penalty or executed.
At the regional level, the African Charter on the Rights and Welfare of the Child (Article 30) – supported by General Comment No. 1 – is an exemplary instrument explicitly laying out a number of provisions for children of imprisoned parents. It also stresses that non-custodial sentences always need to be considered first and that alternatives to detention should be established and promoted.
What we are doing
We promote the implementation of existing standards protecting the rights of children of imprisoned parents, and advocate for more robust safeguards at the international, regional and national level.
- We raise awareness about the rights of children of incarcerated parents and the challenges they face at the level of the UN and at other international and regional forums.
- We advocate for the implementation of safeguards for children whose parent is in conflict with the law, in line with the Bangkok Rules and the Convention on the Rights of the Child. In particular, we advocate for the primacy of non-custodial alternatives for a parent who is the sole or primary caretaker, and that decisions on whether or not children are held in prison with their parent are made on a case-to case basis, taking into account the best interests of the child.
- We support the inclusion of safeguards for children of imprisoned parents in the any revision of the UN Standard Minimum Rules for the Treatment of Prisoners.
- We support the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) to promote the implementation of its first General Comment (No.1) on Article 30 of the African Charter, the first set of international guidance which explicitly provides for children of incarcerated parents.
- We produce briefings, factsheets and other material to help policy-makers and other stakeholders ensure that the rights of children are considered at every stage of criminal proceedings against their parent.