Symbiotic Harms of Imprisonment and the Effect on Children’s Right to Family Life

Shona Minson,Catherine Flynn

doi:10.1163/15718182-29020011

Shona Minson, Catherine Flynn

Open Access

https://doi.org/10.1163/15718182-29020011

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Abstract

Abstract Measures taken by governments to address covid-19 in prisons, have impacted significantly on the lives and rights of children. There has been consequential interference with children’s rights to family life and to contact with a parent from whom they have been separated. Since the onset of the pandemic, prisoners in many jurisdictions have lived under restricted regimes with almost universal bans on family visits. Children have not had face-to-face contact with their imprisoned parents, and alternate forms of contact have not always been available to them. Using survey and interview data collected during lockdowns in the UK and Australia, we consider the implications of the interference with the rights of children with an imprisoned parent. Focusing on their relationships, health and wellbeing and using the concept of symbiotic harms, we note how children’s experiences of the cessation of contact interacted with parents’ and caregivers’ experiences, amplifying the harms to children.

Highlights

Under Article 9(3) of the United Nations Convention on the Child, 1989 (“uncrc”), ratified by Australia and the UK, children have a right to maintain personal relations and direct contact with both parents unless it is contrary to the child’s best interests
Whilst the Australian survey gathered primarily quantitative data, for the purposes of this article we focus on the qualitative data gathered via a small number of open-ended questions, which provide participant descriptions of their experiences of maintaining contact with a parent during covid-19 restrictions
For eight of the 71 children their mother was in prison, for 58 children their father was in prison, and five children had both parents in prison

Summary

Introduction

Under Article 9(3) of the United Nations Convention on the Child, 1989 (“uncrc”), ratified by Australia and the UK, children have a right to maintain personal relations and direct contact with both parents unless it is contrary to the child’s best interests. Under Article 8 of the European Convention on Human Rights as incorporated into UK domestic law by virtue of the Human Rights Act 1998, a child has a right to respect for their family life. When a parent is imprisoned without their child, there is an obvious interference with these rights. Consideration of this within the courts of England and Wales has led to case law (R (on the application of P and Q) v. Secretary of State for the Home Department [2001]) which established: The criminal sentencing of a parent engages the Article 8 right to respect for family life of both the parent and the child. The more serious the intervention the more compelling the justification must be. (ibid.: paras. 78 and 87)

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