Weighing in the balance

Introduction

Conventionally, criminal justice systems have paid little attention to children of offenders. Where they are considered, it is largely post-sentence in relation to prison visits or in the context of supporting reintegration post-release. However, at the point of sentencing, families remain sidelined, at best considered as a collateral feature of the offender. In some jurisdictions, there are indications of a shift in approach. For example, in Ireland, research relating to the impact of imprisonment on children of offenders is emerging (Breen, 2010; IPRT, 2012; Donson and Parkes, 2012; O’Malley and Devaney, 2016), while the Irish Prison Service and Irish Probation Service have both made moves to formally support families of prisoners and develop new practices to facilitate change.

This article will consider the extent to which the courts, when deciding on the punishment of an offender, give formal recognition to the impact of incarceration on an offender’s children. It will interrogate how courts might best be facilitated in acknowledging the rights of such a vulnerable and largely invisible group of children in a transparent, consistent and, above all, proportionate fashion. Current practice shows that the Irish courts regard these matters, where relevant, simply as relating to the offender in the form of mitigation. However, given the discretionary nature of the process, and a lack of engagement with a clear (children’s) rights framework, the approach is likely to be inconsistent across courts and unsupported by guidance. Finally, the question of how information can be effectively presented to the courts will be examined; this includes the use of probation officer-prepared pre-sentence reports and alternative more child rights-oriented approaches. This will shine a light on the underlying tension between offender mitigation and the adoption of a child rights-oriented approach in this area.

Sentencing and third party information

The criminal justice system’s disregard of the impact of a custodial sentence on children of offenders stems in large part from the traditional focus of the criminal law which, as Lerer notes ‘has four purposes: retribution, incapacitation, deterrence and rehabilitation. It is considered axiomatic that the needs of third persons should have no relevance in these determinations’ (Lerer, 2013: 27). The focus of the court at this stage of the process is generally described as being binary in nature, excluding third party harms other than as personal mitigation (Lerer, 2013: 44) and engaging only with two actors in the form of the State and the accused/offender (Conway et al., 2010: 222). Personal mitigation, through which children are considered as a ‘condition’ of the offender, allows the court discretion to consider whether something might alleviate the severity of a sentence. Such mitigation is either provided by the offender’s lawyer or in a more structured way by pre-sentence reports prepared by probation officers; neither lawyer nor probation officer is tasked with the responsibility of speaking for the child in this context.

In some jurisdictions such as South Africa and England and Wales, this orthodoxy has been subject to challenge with varying degrees of success. This shift, in large part operates as a result of the human rights frameworks within these jurisdictions. Nonetheless, experience from these jurisdictions illustrates that adding another element for consideration to an already complex sentencing process is challenging for both the courts and the criminal justice professionals who work within the system, including probation officers, who may be called upon to provide information concerning children and families of offenders.

Central to this complexity is the concern of the court to balance the underlying principles of sentencing and the desire to ensure equality of treatment within the decision-making process. The inclusion of additional actors, such as children of offenders, complicates this process. It also leads the courts to worry about the use of children as a ‘get out of jail free’ card for offenders who also happen to be parents. However, understanding the question of impact as a separate children’s rights component – associated with the dependent child not the offender parent – can, it is argued, alleviate some of the equality concerns. In addition, the practice of considering impact, in jurisdictions such as South Africa and England and Wales, illustrates that the very existence of dependent children does not equate to an automatic non-custodial sentence. Rather, it requires the court to consider additional elements, most often where an offender is at the custodial threshold, i.e. where the court has a variety of options available to it, one of which is imprisonment.

It is against this traditional sentencing process that core human rights requirements should be factored in which dictate that where decisions are being made which directly impact on children, the best interests of those children should be considered and their voices should be incorporated into the decision-making process. As we discuss in the next section, a decision as to whether a parent should go to prison or not is one which directly affects a child’s life and one which can have long-term implications.

The rights of children affected by parental imprisonment: A neglected reality

Children affected by parental imprisonment have been accurately described as ‘the invisible victims of crime and the penal system’ (Scharff-Smith and Gampell, 2011: 6). While the UN Convention on the Rights of the Child (UNCRC) 1989 does not make specific reference to children affected by parental imprisonment, the holistic nature of the UNCRC means that it contains ample protections for this vulnerable group of children. Indeed, the Convention’s four guiding principles, which are substantive rights themselves, must be read in tandem with each of the other provisions contained within the UNCRC. These include: non-discrimination (Article 2), the best interests principle (Article 3), the right of the child to life, survival and development (Article 6) and the right of the child to express views (Article 12). Each of these principles is central to ensuring the implementation of children’s rights including the rights of children of incarcerated parents.

Beyond the general principles, there are a number of provisions that merit consideration in the context of sentencing. Article 9(1) points to the fact that children should not be separated from their parents except where it is necessary to ensure their best interests are protected. Furthermore, Article 9(3) highlights the fact that where children are separated from their parents, it is vital that they maintain personal and direct contact with both parents on a regular basis. These are vital considerations for any sentencing judge. The extent to which children are appropriately informed about their parent’s incarceration is another important consideration in this regard. Articles 13 and 17 protect the child’s right to information. Indeed, in order to effectively exercise their right to be heard, children must be adequately informed about the circumstances surrounding that decision.

The general principles enshrined within Articles 3 and 12 are of particular importance in the context of sentencing. Article 3 provides that ‘[i]n all actions concerning children, whether undertaken by… courts of law,…the best interests of the child shall be a primary consideration’. Thus, since a decision concerning the sentence imposed on the child’s primary caregiver is being taken by a court, this requires that the best interests of the child be balanced against any other relevant factors.

Article 12 provides that a child, once capable of forming views, has a right to express those views on all matters affecting him or her, including the incarceration of a parent, with due weight being afforded those views in accordance with the age and maturity of the child. This would suggest that the views of a child should be considered, directly or indirectly, when a decision is being made that concerns his or her parent’s freedom, a decision that will inevitably bear a significant impact on the life of the child (Boudin, 2013: 84). However, in reality, the views of children of offenders are rarely if ever considered, let alone given due weight in relation to the sentencing decision as we will discuss below.

At regional level, Article 8 of the European Convention on Human Rights (ECHR) 1950 establishes a right to private and family life, which applies to both adults and children. The provision is not absolute and any interference must be justified on the basis of interests such as public safety. However, the European Court of Human Rights has stated that the balancing of competing interests needs to include the best interests of the child (Johansen v Norway [1996] ECHR 31).

Providing information on children before the sentencing court

Recognising the fact that a court, when sentencing a parent, is in a position to negatively impact on the rights of children is an important step in changing the dynamic of the sentencing process. Once the court acknowledges the need to undertake an assessment of the rights of affected children, whether as a free-standing best interests assessment, or in relation to their right to family life, the court’s perspective alters. This does not mean that there is a presumption against the imprisonment of parents. Clearly, the rights of children must be balanced against competing elements such as punishing the offender parent, protecting society, and achieving appropriate sentencing aims.

The decision of the Constitutional Court of South Africa in the case of S v M (2008 (3) SA 232 (CC)) is particularly instructive in this regard, signalling the potential for a ‘changed mind set’ in this area. In South Africa, sentencing operates under a ‘triad consisting of the crime, the offender and the interests of society’ as set out in S v Zinn (1969 (2) SA 537 (A) 540G). The significance of the S v M decision lies in the fact that it largely reworked the sentencing framework, making space for the rights of affected children to be introduced into the decision-making process. This children’s rights focus is based on section 28 of the South African Constitution which provides that the best interests of the child are ‘of paramount importance in every matter concerning’ them. Since a sentencing decision is a matter affecting the children of an offender, the existence of such children should be included as an independent factor to be considered where more than one appropriate sentencing option is available to the judge.

In S v M, the court considered what the appropriate sentence would be for a single mother of three children who had been found guilty of fraud. The defendant was the sole caregiver and the court concluded that it would be unconstitutional for the sentencing court to impose a prison sentence upon her without first having considered the impact of the sentence on the children. Sachs J stated:

The objective is to ensure that the sentencing court is in a position adequately to balance all the varied interests involved, including those of the children placed at risk. This should become a standard preoccupation of all sentencing courts.

(S v M: para 33)

Information on M and her children was presented to the Constitutional Court through reports prepared by a curator ad litem. This mechanism allows for a representative to be appointed by the court to independently represent the best interests of the child. It has become particularly significant in the pursuit of children’s rights protections before the South African Constitutional Court (Boezaart, 2013). Justice Sachs was highly critical in the case of Christian Education South Africa v Minister of Education (2000 4 SA 757 (CC)) where a curator ad litem was not appointed in a challenge to the prohibition on corporal punishment in schools:

The children concerned were… in their late teens and capable of articulate expression. Although both the State and the parents were in a position to speak on their behalf, neither was able to speak in their name. A curator could have made sensitive enquiries so as to enable their voice or voices to be heard. Their actual experiences and opinions would not necessarily have been decisive, but they would have enriched the dialogue, and the factual and experiential foundations for the balancing exercise in this difficult matter would have been more secure. (Christian Education South Africa: para 53)

Reported cases post-S v M indicate that there has been some progress in changing the sentencing court mindset in South Africa. In S v S (2011 (7) BCLR 740 (CC)) the majority of the Constitutional Court restated the approach but restricted the S v M protection to primary carers because of the nature of section 28 of the Constitution. More broadly, Carnelley and Epstein highlight that at the lower court level the S v M guidelines have been consistently considered prior to sentencing (Carnelley and Epstein, 2012: 109). This has not always resulted in non-custodial sentences being handed down, but it has made a difference in how courts carry out their sentencing task:

it is evident that the courts have been sensitised to the interests of the children when sentencing the primary caregiver. Where the information before the court is inadequate, the court will request the necessary information and where imprisonment is inevitable, the courts ensure that the welfare of the children is looked after, including making suitable alternative arrangements, either through mobilisation of State machinery or through the family (Carnelley, 2012: 110).

Creating a space for considering child impact in sentencing in Ireland

The discussion of the S v M case is used to demonstrate the potential for courts to make space for the consideration of children’s rights in sentencing. Each jurisdiction has its own sentencing approach as well as its own (children’s) rights framework. It is acknowledged that the Sachs J judgment cannot automatically be transposed into the Irish system. The Constitutional protection afforded children’s rights which underpins S v M is much stronger in South Africa than in the Irish context. However, change is possible within the Irish legal context; it may come from the courts via a judgment or through the development of a legislative or practice change requiring consideration of impact. In the section below, the particular aspects of the Irish sentencing system that might affect possible options for change are considered.

Ireland has a largely ‘unstructured sentencing system’ (O’Malley, 2006: 53) with the courts exercising a wide discretion. Indeed any move towards the development of sentencing guidelines has been extremely limited (O’Malley, 2014b). Inconsistency in sentencing practices across the Irish courts system has been problematic (Maguire, 2010) as has a lack of consensus regarding the aims and principles framing sentencing, their relative significance and the manner in which they should be implemented (LRC, 2000: 45). The Law Reform Commission has voiced concern in relation to the operation of the custody threshold and the last resort principles in Irish sentencing practice, which it described as being ‘ill-defined and difficult to interpret’ (LRC, 2000: 46). While typically cases sitting at the cusp of custody are examined from the perspective of mitigation and aggravation, relating to the offender’s personal circumstances including risk factors and other characteristics, the custody threshold is significant in relation to the rights of affected dependants. The lack of a clearly defined and consistent approach in this regard ultimately leads to wide variations in practice that not only affects offenders, but can also have a seriously adverse impact on their children.

Another key concern from a children’s rights perspective, is the fact that the Irish sentencing system over-relies on prison as a punishment (Healy and O’Donnell, 2005; IPRT, 2009) with a high proportion of offenders being sent to prison for short sentences and a somewhat limited use of community-based sanctions (O’Hara and Rogan, 2015: 23). This may limit the court’s options where impact on dependent children may tip the balance in favour of a non-custodial sentence.

The traditional approach of the Irish criminal courts to sentencing is, however, slowly changing. Since 2014, the Court of Criminal Appeal (CCA) has been delivering sentencing decisions providing general guidance to the lower courts (O’Malley, 2014a). This is a welcome development and it is hoped it will not only ensure improved consistency in sentencing, but may result in a more transparent principled approach being developed. The recent inclusion of children’s rights within the Irish Constitution (Article 42A) and the growing recognition of the need to respond to the needs of children of prisoners in some areas, suggest that such change should be possible.

A balanced approach? Developments from England and Wales

The development of a structured balancing exercise whereby the rights of dependent children are considered at the sentencing stage has developed through the case law of England and Wales following the enactment of the Human Rights Act 1998, which incorporated Article 8 rights to family life from the ECHR into domestic law. In R v Rosie Lee Peterick ([2012] EWCA Crim 2214 at para 17), the Court of Appeal (CA) addressed the importance of Article 8 ECHR rights in the sentencing process:

Almost by definition, imprisonment interferes with, and often severely, the family life not only of the defendant but of those with whom the defendant normally lives and often with others as well. Even without the potentially heart-rending effects on children or other dependants, a family is likely to be deprived of its breadwinner, the family home not infrequently has to go, schools may have to be changed. Lives may be turned upside down by crime.

The court highlighted that it is in threshold cases, where the court is considering both custodial and non-custodial options, that the rights of dependent children make what would otherwise have been a proportionate sentence become disproportionate (Rosie Lee Peterick: para 20).

Significantly, the court distinguished between claims concerning the right to family life and the question of mitigation of sentence. As this article has noted, mitigation relates to the offender’s circumstances and is not a free-standing rights claim. In this regard, the court states that ‘in a case where custody cannot proportionately be avoided, the effect on children… might… afford grounds for mitigating the length of sentence, but it may not do so’ (Rosie Lee Peterick: para 24).

The guidance provided in this case as to how impact is considered is of critical importance to ensuring consistency in practice. It might therefore be expected that a change of mindset in the sentencing courts in England and Wales would follow. However, research indicates that in practice this has not happened. Epstein, who reviewed 75 cases where mothers were sentenced to imprisonment, found the operation of the balancing exercise in sentencing courts to be ‘inconsistent’ at best:

A balancing exercise is a vague phrase with no clearly defined set of procedures. Given the vagueness of the concept, the fact that sentencers have considerable discretion in terms of sentencing generally, and the absence of any guidelines, there is an obvious risk of a large degree of inconsistency in judicial attitudes and practice in this area.

(Epstein, 2014: 15)

These findings are an important reminder that even in the face of guidance from the CA a consistent rights-oriented approach is not guaranteed. The reasons for this are varied and well documented (Minson et al., 2015). They include a ‘lack of familiarity’ with the decisions of higher courts at the lower court level, an ongoing concern about discrimination in sentencing on a gendered basis, and a belief that allowing children to ‘mitigate’ against prison produces a situation where dependent children are perceived as a ‘“get out of jail free” card’ (Minson et al., 2015: 12).

One important practical factor identified by both Minson et al. (2015) and Epstein (2014) is that sentencers often appear to have insufficient information before them to allow them to carry out an effective balancing exercise even if they wished to do so. Speaking of the England and Wales experience Minson et al. note:

The quality, depth and availability of pre-sentence reports are variable, as is the quality of legal representation, and it seems that judges may not always obtain information that would enable them to make a decision in which the child’s best interests can be properly considered.

(Minson et al., 2015: 12)

Child impact statements

One method of ensuring that information concerning vulnerable children is systematically considered by the court is the creation of a Child Impact Statement (CIS), also known as Child Impact Assessments. As discussed above, information concerning the children and family of the offender is often presented in an inconsistent manner to the court as part of the regular sentencing process. For example, in England and Wales, Epstein found that in just under 10% of the sentencing decisions she reviewed, no reference was made to the defendant’s children at all; in one example the judge openly refused to have information about four dependent children presented before the court concluding that it would be of no assistance (Epstein, 2014: 17).

As Reed highlights, there is a striking difference between the approach taken by sentencing courts to decisions that result in family separation and that of family courts ‘which determine the issue of forced parent-child separation after lengthy litigation involving detailed consideration of evidence from child welfare processional and the parents’ (Reed, 2014: 72). It is noteworthy that, analogous to sentencing decisions, children are not direct parties to family law cases. Yet over time it has become well accepted that it is vital that such decisions are made in the best interests of these children, with their views being considered seriously. This lack of engagement with the impact of sentencing decisions on dependent children stems, in large part, from the traditional focus of the sentencing court, which excludes third party harms other than as personal mitigation (Lerer, 2013: 44). A similar approach is found in Ireland, though to date it is largely undocumented.

It is argued that it is incumbent upon the courts to consider the impact of imprisonment on families in light of international human rights norms. The courts have already watered down the traditional binary approach to sentencing. Mitigation provides the court with a discretionary power to consider the harm that a prison sentence may have on children of offenders; while victim participation in the criminal court illustrates the potential for the creation of a space for other third parties within the process.

Even if it is accepted that the rights of children should be considered at sentencing stage, the question remains as to how this can be effectively achieved within the existing adversarial process. There are two options that exist within the family courts which could be effectively utilised within the criminal justice context: (1) through a court report or child impact statement (CIS) or (2) through a guardian ad litem (GAL). The first option of a court report may involve the probation service adapting current pre-sanction reports to take more clearly into account the impact of a sentence on dependent children. However, such court reports are not necessarily child-focused, given they primarily relate to mitigation and risk factors in offenders, as will be discussed below. The CIS is an alternative option which is already used in some jurisdictions including California and Arkansas (Osborne Association, 2012). Research carried out in Scotland on the potential use of Child or Family Impact Statements in sentencing courts concluded that there were definite advantages to their adoption, not least the fact that they are able to provide judges with an understanding of the potential impact of decisions on an individual’s family (Loureiro, 2009: 2).

Conclusion

The critical question for consideration here is whether our commitment to children’s rights in Ireland is a genuine one to the extent that it permeates all aspects of legal decision-making affecting children. There is no doubt that this requires a fundamental shift in thinking both in the courts and at policy level. The latter changes must be underpinned by raising awareness in society of the importance of supporting children of offenders during a very difficult time in their lives.

The systematic assessment and delivery of CIS could be developed through pre-sanction reports, particularly given that most reports in Ireland operate on a non-statutory basis and are thus at the discretion of the court. However, the difficulty remains that these reports, along with the probation officers preparing them, are very much focused on the offender. The process fails to consider the impact of imprisonment on the offender’s children and family independent of the offender. This prevents the decoupling of the issue of child impact from offender mitigation, maintaining the status quo approach which fails to achieve the purpose of undertaking child impact assessment.

From a practical point of view, the benefit of child impact statements lies in their potential to deliver child-specific information to the court which can facilitate a sentencing decision that includes consideration of the best interests of the offenders’ child(ren) and is thus, Article 3 UNCRC compliant. To effectively meet this requirement, it is clear that the information provided to the sentencing judge needs to go beyond the current pre-sanction report. Given that the Irish legal system already allows for victim impact statements and reports to be presented to court, there is clearly potential for this to be introduced in practice.

More challenging is the move to ensure that courts engage with an assessment of this impact on a children’s rights-oriented basis. Providing the information through a CIS goes a long way to triggering this process in a consistent and more transparent fashion. However, so long as the court remains rooted in its bilateral approach, the full impact on this vulnerable group of children will not be adequately assessed and their rights will be allowed to go unprotected. The shift in thinking, the changed mindset advocated by Justice Sachs, is not an easy one. It represents both a different perspective but also a major challenge in what is already a complex balancing exercise between competing rights. Treating more favourably those offenders who have children is not what is being advocated here, it is something much more fundamental than that. Viewing parental imprisonment through the eyes of a child demands a complete shift in thinking on the part of the decision-maker, one that is grounded in children’s rights but also future-focused.