The rights of children born in prison or living with a parent in prison : a child centred approach

Abstract

Section 28(2) of the Constitution provides that the child’s best interests are of paramount importance in every matter concerning the child. This constitutional injunction has brought a new twist in the criminal justice system leading to the courts considering the interests of the child before sentencing a primary caregiver. The research explores how the best interest principle, as discussed by the courts in criminal law, can be applied in developing a child centred approach to the rights of children born or living with a parent in a correctional facility. The international law provisions and regulations that are be applicable in developing a child centred approach to the rights of children in correctional facilities are also discussed. National legislative provisions and regulations addressing the rights of children in general children are also discussed in assessing the legitimacy of the protection of children in prisons with parents. The author argues how the best interest principle can be applied in policies of the Department of Social Development and Department of Correctional Services as a guideline to protect the rights of these children when they are living in the correctional facility. The best interest principle should also be applied when the children born or living in correctional facilities are placed in alternative care. Remarks and recommendations on how best the child centred approach can be developed in the DCS and DSD when they deal with these children born or living in a correctional facility are made in conclusion.