Tam Baillie: Rights of offenders’ children must influence courts

Tam Baillie, Scotland’s new children’s commissioner, wants the country’s courts to consider the “overall costs to society” when sentencing parents by taking the rights of their children into account.

Baillie said imprisoning parents had “emotional, financial and long-term consequences” for their children, including the possibility of them being taken into care.

Amendment to Bill

He has had talks with Scotland’s justice minister, Kenny MacAskill, about amending the Criminal Justice & Licensing (Scotland) Bill to make children’s rights a consideration in sentencing, in addition to other factors such as previous convictions.

Baillie’s call comes 18 months after his predecessor, Kathleen Marshall, published a report claiming the rights of children of prisoners were “rarely taken into account”, and the situation was likely to worsen as the number of prisoners, particularly women, increased.

16,000 children affected

“We have to look for alternative ways of dealing with those women and children affected by Scotland’s sentencing policy,” said Baillie, who estimates that around 16,000 children in Scotland have a parent in prison.

A Scottish government spokesperson said it would be up to the country’s parliament to decide on amendments during the passage of the Criminal Justice & Licensing (Scotland) Bill.

The principles of sentencing outlined in the bill include “consideration of any information before the court about the particular circumstances of the offender, including the offender’s family situation”.

It also contains provisions to establish a Sentencing Council, which would prepare and publish guidelines relating to the sentencing of offenders.

South African precedent

Scotland would not be the first country to make children’s rights a factor in sentencing policy; in 2007, South African judge Albie Sachs decided not to imprison a woman guilty of credit card fraud because it would have infringed the human rights of her three children.

In England and Wales, charity Action for Prisoners’ Families said there was “no systematic collection of information about a prisoner’s family when he or she is admitted to prison”.

However, it is estimated that 125,000 to 160,000 children have a parent in prison in England and Wales, and they are three times more likely than other children to develop mental health problems.

Also, Action for Prisoners’ Families said a quarter of young men in young offender institutions were shortly to become fathers, while mothers sentenced to prison often lost their homes and subsequently their children.

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