The best interests of children of primary caregivers to be sentenced: a comparative study

Abstract

Every child has the right to care. The commission of an offence by the child’s primary caregiver and her resultant imprisonment may infringe or place the right of the child to care at risk of infringement. The incarceration of the child’s caregiver may lead to the child being deprived of care as there may be no one to care for the child. International children rights instruments impose the duty to act in the best interests of the child in every matter that concerns the child on the court as well. The sentencing of the child’s primary caregiver is itself a matter that involves the child and that directs the court to consider the right of the child to care when imposing a custodial sentence on the child’s primary caregiver. The prescript of the best interests of the child has altered the traditional approach to sentencing. The court has the obligation to take into account the right of the child to care when imposing a custodial sentence on the child’s caregiver. The landmark dictum of S v M has since established guidelines for the sentencing of a child’s caregiver. The guidelines for the sentencing of the child’s primary caregiver are not always adhered to much so to the detriment of children of caregivers. In some of the cases where the guidelines for the sentencing of the child’s caregiver have been complied with, the placement of the children in appropriate alternative care was often left to the Departments of Social Development or Correctional Services and was without appropriate supervision by the court. The procedure that social workers follow in putting a child in alternative care is unsuitable for the child of a caregiver that stands to be sentenced to a custodial sentence or that is jailed. The placement of children in alternative care without appropriate supervision by the court has the potential of infringing their right to care. The placement of children in appropriate alternative care is often intended, where possible, to avoid confining children with their imprisoned caregivers. The prison environment is at most uncongenial for children. The Children’s Act creates possibilities for the care of the child of an imprisoned caregiver. The child may be cared for by a person or persons that he is familiar with and who is or are able to perpetuate the child’s religion, heritage, language and culture and such care makes it unnecessary to resort to other forms of alternative care such as institutional care. The placement of the child of an incarcerated caregiver in appropriate alternative care requires that the mandate of the Family Advocate be amended. At present, the Family Advocate operates from the private law sphere. The Family Advocate should be an integral part of the sentencing of the child’s caregiver and must be authorised to assist the child’s primary caregiver to identify and to enter into a parental responsibilities and rights agreement with a person or persons who will care for the child during her term of imprisonment.