Do Judges Consider Children’s Rights When Sentencing Parents?

When a parent (or a person with parental responsibilities) is arrested, sentenced, or imprisoned, it can have a profound and lasting impact on their children. A standard measure of childhood trauma that psychologists use is called the Adverse Childhood Experiences score. One of the ten questions used to calculate this score is, “Did a household member go to prison?”1
If a parent is imprisoned, the family may suddenly lose a source of income in addition to emotional support. The children may end up in foster care, or taken in by other family members. On the other hand, if it is possible for a judge, while keeping in mind any concerns around public safety, to pronounce a sentence that doesn’t involve jail time, then the parent may be able to continue to care for their children, financially and emotionally.
Canadian Friends Service Committee has a long-standing concern about the effects that the justice system has on the children of people who have been incarcerated. We believe that a focus on the fundamental rights of children could have a profoundly positive impact on the criminal justice system.
Canada has signed or voted for a number of international agreements about the rights of children, of which the most important is the United Nations’ Convention on the Rights of the Child.
The Convention states, in Article 3, that “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” (Emphasis added.)
UN Conventions are legally binding on the countries that ratify them. Canada must ensure that domestic laws and practices are consistent with its obligations under international law, and should be held accountable for doing so.
In 2016, CFSC commissioned legal research to find out whether or not judges are actually considering the best interests of the child when sentencing parents. Our research was pretty thorough, but it was limited in some ways, so it shouldn’t be taken as an absolute answer.
The answer we found was an emphatic no.
Our researcher found no cases (during the period she looked at) where a judge actually referred to a child’s rights, or any of the appropriate agreements (including the Convention on the Rights of the Child) in the sentencing report.
There are many reasons that could contribute to this finding. For instance, some parents have no actual contact with their children, and pay no support. In this case, sentencing might have little or no impact on the child. Also, judges often consider a variety of mitigating or aggravating factors when deciding on a sentence, so it can be hard to know exactly which factors were considered and how they were balanced. In fact, unless someone brings the information forward, the judge might not even know that the person being sentenced is a parent, or any details of how sentencing them might affect their children. We have no process in Canada for ensuring that this information is presented to the court.
We recently released the results of our research publicly, with a report called Considering the Best Interests of the Child When Sentencing Parents in Canada.
Whilst sentencing is a key factor that impacts children of incarcerated parents, it is by no means the only issue facing this vulnerable and almost invisible group of children.
Even if a parent is not sentenced to prison, the child/ren can be traumatized by the initial arrest (watching their parent be taken by police), pre-sentence detention (even a night away can have detrimental effects on children), and if a parent is incarcerated, the negative experiences of prison visitation procedures (security searches, visits through glass walls, and long trips to far away institutions).
On top of these experiences, children of incarcerated parents also experience social stigma and shame about their parents, often resulting in negative psychological effects and trying to hide the fact that their parent is incarcerated.
To further explore this vast but under-researched area, CFSC just finished holding a policy dialogue with experts (academics, social workers, and child advocates, among others). We convened this two day dialogue to further discuss our own and other key research, and to consider and take up the measures that are most important in helping children whose parents come into conflict with the law.
Joy Morris, Calgary Meeting, is a member of CFSC’s criminal justice program committee.

  1. ACEs Too High, “Got Your ACEs Score?”