Parental Imprisonment and Children's Rights

Fiona Donson, Aisling Parkes, Fiona Donson, Aisling Parkes

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781351981453
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Human Rights
• Index: Politics & International Relations

This book brings together internationally renowned academics and professionals from a variety of disciplines who, in a variety of ways, seek to understand the legal, conceptual and practical consequences of parental imprisonment through a children's rights lens. Children whose parents have been incarcerated are often referred to as "invisible victims of crime and the penal system." It is well accepted that the imprisonment of a parent, even for a short period of time, not only negatively affects the lives of children but it can also result in a gross violation of their fundamental human rights, such as the right of access to their parent and the right to have an input into decision-making processes affecting them, the outcomes of which will without doubt affect the life of the child concerned.

This collection foregrounds the voice of these children as it explores transdisciplinary boundaries and examines the practice and development of the rights of both children and their families within the wider dynamic of criminal justice and penology practice. The text is divided into three parts which are dedicated to 1) hearing the voices of children with parents in prison, 2) understanding to what extent children's rights informs prison policy, and 3) demonstrating how law in the form of children's rights can help frame both court sentencing and prison practice in a way that minimises the harm that contact with the prison system can cause. The research drawn upon in this book has been conducted in a number of European countries and demonstrates both good and bad practice as far as the implementation of children's rightsis concerned in the context of parental incarceration.

An accessible and compelling read, this book will appeal to students and scholars of law, children's rights, criminology, sociology, social work, psychology, penology and all those interested in, and working towards, protecting the rights of children who have a parent in prison.

1 Introduction

Aisling Parkes and Fiona Donson

This book began life as a result of a two-day workshop in 2015 organised by the editors with the support of Irish Research Council funding to share knowledge on the rights of children with a parent in prison. The event was designed to focus attention on this marginalised group of children and to develop connections between those working in the area from an academic research perspective. Over the course of those meetings, a group of academics from a range of countries and disciplines shared research, reflections and ideas about the significance of children’s rights in the context of parental imprisonment. At that point, issues raised by the incarceration of a family member were beginning to be noticed internationally through both practice and research, but little work had been developed that focused specifically on the potential that children’s rights could bring to the area. The development of a book that would focus specifically on children and their rights in the context of parental imprisonment provided a concrete activity, bringing such work together.

The original workshop participants were soon joined by other academics who shared the belief that by recognising and respecting children’s rights, the cloak of invisibility which currently hides this group of children can be removed. But visibility is not enough; it is vital that the voices of these children are heard, that their lived experiences of parental incarceration not only inform the development of law, policy and practice in this area but also its operation in practice. As the research in this book powerfully describes, prison has a traumatising effect on the children (and families) of loved ones who reside there. Loss, trauma, stigmatisation and marginalisation are all themes that run throughout this book alongside systems that struggle to see this, or struggle to respond to it.

It is in this context that the Forward to our book – written by Lorna Brookes in collaboration with children and young people supported by Time-Matters UK, its affiliated organisations (Families Outside, Scotland and Nepacs, England) and Out There, England – is extremely important. Academic researchers can often find it difficult to get funding or permission to research hard-to-reach children, particularly where that group remains unseen. Indeed, children with a parent in prison are often regarded as almost unreachable because of multiple barriers to their participation: their invisibility in the wider policy and legal context, their own lack of knowledge of their parent’s imprisonment, the stigma of being associated with imprisonment and the protective shield of carers or gatekeepers not wanting to expose children to yet more potential traumas. Yet, research that does not include children’s voices can only ever provide a small part of the picture of how imprisonment impacts them, and how the system needs to effectively respond. We, as researchers, cannot and should not “speak” for this group of children but should be providing a safe and respectful context where they can not only speak freely but can also be effectively heard. The Forward to this book provides a space, albeit limited, to facilitate this and we are truly grateful to the children and young people who so powerfully shared their reflections on how rights could improve the lives of children in this context.

The book chapters that follow seek to build on these voices, reflecting on the need to hear these children and to incorporate their perspectives into the creation of policies and laws that meaningfully recognise and respect their rights. In doing this, the collection is broken down into three sections highlighting voice, policy and law. However, there is of course much overlap between these artificial divides.

In Section 1: Voices, we assemble three chapters that, to some extent, seek to consider the voices of children, their families and the reasons for their invisibilities. Ben Raikes provides the chapter “I Just Used to Say ‘I Haven’t Got a Mum’ Because That Was The Best Thing for Me to Say”: Exploring the Lived Experience of Children With Parents in Prison which draws directly and powerfully from the voices of children who participated in the COPING Project, one of the few large-scale research projects working directly with children across the UK, Sweden, Germany and Romania. The chapter highlights themes which run through the book: the role of stigma, the importance of honesty and the need to support relationships through child-responsive approaches. This is followed by Una Convery and Linda Moore’s chapter Living with the Pains of Confinement: The Experiences of Children With Parents in Prison in Northern Ireland which approaches the issue from the perspective of the pains of imprisonment, providing a compelling insight into the impact on the lives of children of having a parent in the Northern Ireland prison system. Again, stigmatisation is a core theme, as is the fundamental damage that interaction with the prison causes to the family and the lives of children. The final chapter in this section is the editors’ discussion as to why it is that children remain effectively invisible in the context of parental imprisonment despite increased knowledge and understanding of its impact on these children. Making Children Visible: Children’s Rights and Their Role in Parent–Child Contact within the Prison System highlights the ongoing failure of prison systems and policy makers to hear children’s voices and to recognise them as rights holders. The chapter provides recommendations for action to move the system from one of children’s rights rhetoric to one that actively respects those rights. In this way, the chapter seeks to bridge the space between the voices section of the book and the two further sections that focus on policy and legal frameworks.

Section 2: Policy provides an insight into policy concerning children with an imprisoned parent, reflecting on how children’s rights have become more significant in recent years. Marie Hutton’s chapter Children First: Putting the Rights of Children Visiting Prisons at the Heart of Policy and Practice picks up from the previous section and highlights the way children have become instruments of their parent’s rehabilitation within the UK context. The chapter highlights the “roles” often ascribed to children with parents in prison including future offender or an intervention for example – highlighting that there is a dual approach to children as both a problem and a solution; an indefensible approach within a children’s rights framework. The next chapter focuses on the specific issues raised by pregnancy and birth in both the Irish and English prison systems. Sinead O’Malley, Lucy Baldwin and Laura Abbott’s contribution Starting Life in Prison: Reflections on the English and Irish Contexts Regarding Pregnancy, Birth, Babies and New Mothers in Prison, Through a Children’s Rights Lens highlights that even where there are legal mechanisms in place to support pregnant women and babies in prison, the reality of policy and practice can fall a long way short of the rights protections that are clearly set out in this context. The final contribution in this section is Liz Ayre’s chapter Framing and Children’s Rights in Europe: Exploring Policy Processes for Children With an Incarcerated Parent which charts the shifting policy frames within Europe focusing on the case study of Ireland to examine the growing recognition of children with an imprisoned parent at the policy level and the potential role of international standards in informing such change.

Finally, Section 3: Law focusses on the role law can play in shaping both our understanding of children’s rights in this area and practice on the ground. The section opens with a chapter from Peter Scharff Smith and Emma Villman, Prisons, Families and Human Rights: From Prisoners’ Rights to the Rights of Prisoners’ Children, which charts the development of prisoners’ rights, the role of children’s rights and, in particular, the question of how children’s rights can and should inform prison law and practice. In doing so, it provides an important foundation for discussions elsewhere in the collection relating to key children’s rights concepts, including the best interests principle, the right to contact and the right to be heard. These foundational rights are taken up in vivid form in the next contribution, Re-imagining the Paramountcy Principle which is provided by Justice Albie Sachs, former Judge of the South African Constitutional Court and author of the highly influential S v M judgment. The chapter is based on a lecture given by Justice Sachs at a conference held at University College Cork in 2014 which provides a powerful account of his thinking around the question of how to sentence a person who is the primary carer of children. This theme is taken up further in Rona Epstein’s chapter Sentencing Mothers: The Rights of the Child which charts similar case law in the English/Welsh context and which has since developed a framework to protect the rights of children, at least to some extent, when a carer is being considered for imprisonment. Disappointingly, the reality of practice in first instance courts means that even a clear rights framework is lost to preconceived attitudes around offending and the invisibility of children. The final chapter Every Child Matters? Global Perspectives on Incarcerated Mothers and their Children is provided by Helen Codd in which she further develops the reflections on children’s rights to bring in global perspectives on the needs and experiences of children of incarcerated mothers. She highlights a theme which runs through many of the chapters in this book as both an explicit and implicit premise – that we need to find ways to remove prison from the lives of families by finding alternatives to imprisonment and to end our overreliance on prison as a central form of punishment.

Section 1

Voices

2 ‘I just used to say “I haven’t got a mum” because that was the best thing for me to say’

Exploring the lived experience of children with parents in prison

Ben Raikes

Introduction

It is hoped that this chapter will promote the voices of children with imprisoned parents to be heard. All too often these children can appear invisible to policy makers and the judiciary (Murray et al., 2012) who make sentencing decisions that have such a significant impact upon their lives. Putting an emphasis on their lived experiences in their own words is intended to be in keeping with Article 12 of the United Nations Convention on the Rights of the Child 1989 (UNCRC) which encourages adults to listen to and give ‘due weight’ to the views of children. The author will explore the lived consequences of children whose parents are sentenced to imprisonment in the context of their rights as enshrined in the UNCRC. As Minson (2018) has argued, children are treated very differently when they are separated from their parents by the state following decisions taken by a family court, compared to when a parent is removed from them as a result of receiving a sentence of imprisonment imposed by a criminal court. In the former situation children have the benefit of their own legal representative and decisions made are informed by their best interests. By contrast, when a parent is sentenced to imprisonment the children affected are ‘neither represented nor acknowledged’ (Minson, 2018, p.2).

This chapter draws on material gathered from interviewing children with parents in prison in the U.K. whilst conducting the European Commission-funded Children of Prisoners Interventions and Mitigations to Strengthen Mental Health (COPING) Project between 2010 and 2013. The author was a member of the COPING research team. In the U.K., a total of 67 children from 47 families, aged between seven and 17 years of age, were interviewed in depth using a child centred methodology that focussed on their strengths and coping strategies. Their non-imprisoned parent or carer was also interviewed and, where possible, their imprisoned parent too. The interview data was analysed thematically. In addition to this, questionnaires were completed by 291 children and their carers in the U.K. to assess their well-being. Research was also carried out in Sweden, Germany and Romania, but this chapter’s focus is purely on the U.K. data. Children with imprisoned fathers as well as those with imprisoned mothers were interviewed. Ethical approval for the research was obtained both from the National Offender Management Service (NOMS) (now Her Majesty’s Prison and Probation Service) and the University of Huddersfield’s research ethics panel.

COPING project findings

The key findings of the COPING project (Jones et. al., 2013) were that children with parents in prison in the U.K. are 25% more likely to suffer mental health problems than those who do not have a parent in prison. COPING research identified that the main factors that assisted children’s resilience, in addition to their innate qualities, were the stability provided by their carers, and the extent to which they were able to maintain a quality relationship with their imprisoned parent via face-to-face and telephone contact, assuming there were no safeguarding issues indicating against this. In addition to this, the availability of support from extended family members was also an important protective factor. Children also reported to COPING researchers that the stability provided by schools had the potential to contribute to their emotional well-being. Young people interviewed also stated their desire to discuss their experiences with other children in the same position as themselves as a means of coping.

COPING participants

The children who participated in the COPING research visited their imprisoned parent regularly. This reflects the fact that recruitment for the research in the U.K. was mainly conducted at prison visiting centres, greatly assisted by the non-governmental organisations (NGOs) Partners of Prisoners Service (POPS) in Manchester and Person Shaped Support (PSS) in Liverpool. Therefore, the vast majority of children and families engaged were receiving support from an NGO, which meant that they could receive rapid support for any emotional issues that emerged during the interviews.

From the outset, it is important to acknowledge that the method of recruitment meant that a number of situations that children with parents in prison might find themselves in were not represented. These included: children who had a poor relationship with their imprisoned parent and did not visit them, children who were relieved that their parent had been imprisoned due to the stress they had brought to their lives prior to their imprisonment, and children who were looked after in foster care or residential children’s homes who had parents in prison. The COPING project set out to include the experiences of the above-mentioned children in the research. However, it proved to be very difficult to access these children. This was due to the fact that these families did not visit prisons and were not in touch with NGOs making them very hard to identify and engage. Likewise, the local authorities that were approached with a view to involving children in state care in the research were unable to facilitate our access to those children at the time when the research was undertaken.

However, despite these limitations, the chapter that follows delves deeply into the lived experience of children who are attached to their imprisoned parent, bringing alive the dilemmas and pressures they face. It is clear from the accounts of the children and young people...