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“Children of incarcerated parents, including parents detained in relation to immigration, are a vulnerable population that experience complex long-term psychological, social and economic disadvantages.” So begins a recent study by the Canadian Friends Service Committee (www. Quakerservice.ca). Yet the needs of these children are generally given relatively little consideration by courts who are sentencing their parents, the study concludes, based on an analysis of about 100 sentencing decisions from across the country.
There is very solid evidence that imprisonment of a parent, even for a relatively short period, can have many negative effects on children. These consequences include considerable disruption, such as having to move or to live with relatives or others, or even seizure by child welfare authorities. They can include significant loss of family income leading to problems of hunger or poor housing which in turn can cause illness and school problems. Parental incarceration can cause many psychological issues for children, leading to depression, illness and acting out that can lead to encounters with police. The report cites evidence that children of incarcerated fathers have a much higher rate of involvement with the criminal justice system. Another study found that more than 80% of women had no time to make alternative child care arrangements prior to be jailed. And it is important to remember that a very large number of people – about 15,000 in Canada on any given day – are being held in jail on remand – that is, without having been found guilty of any crime. A significant number of these will never be convicted yet they and their children are subject to the same damages.
A major problem
The Criminal Code of Canada already states that incarceration should be a last resort, yet thousands of people, many of them parents, are jailed in Canada every year for non-violent crimes. Mandatory minimum sentences, which remain prevalent in Canada despite a promise by the federal government to change this situation, contribute to the problem.
It is in nobody’s interests for children to suffer due to the actions of their parents. In light of these issues, several international agencies have proposed that the best interests of children should be a major factor in sentencing and bail decisions. Yet in reviewing sentencing decisions across Canada, the study found that judges generally considered only the issue of financial support for children rather than the whole range of potential negative consequences resulting from parental imprisonment. There was little consistency in the standards or criteria applied, despite the existence of widely accepted guidelines that judges could consider. In reality, “Judges rely more heavily on the principles of denunciation and deterrence” whatever the situation with children. And even though a high proportion of children in these situations, and a very high proportion of children in state care are Indigenous, there was no evidence that judges gave any special consideration to children in these cases.
There are no reliable data on how many children are affected by this problem. The only Canadian study cited suggests that more than 4% of all children – more than 350,000 – had to deal with this challenge.
Recommendations
The report recommends that in cases involving children courts should have pre-sentencing reports on the potential effects on children, and that the best interests of the child should become a standard and important factor in making sentencing decisions. There should also be greater use of alternatives to jail. Finally, the study says that Canada needs better data on the numbers and situations of children affected by an imprisoned parent.
Source: Considering the Best Interests of the Child when Sentencing Parents in Canada: Sample Case Law Review. Canadian Friends Service Committee. December 2018
A CBC radio interview about this report is available here.
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