Orphans of justice: in search of the best interest of the child when a parent is imprisoned

Abstract

In the absence of explicit legislative safeguards, and detailed empirical research, children of imprisoned parents remain in a precarious and vulnerable position. Even the primary source of Children’s rights, the Convention on the Rights of the Child is not yet a ‘living instrument for children of imprisoned parents.’ In recognition of the universality of imprisonment as a form of punishment throughout the world, this paper takes a global perspective on the effects of custodial sentencing on the rights of the child. The paper examines how both developed and developing countries seek to ensure that the children of prisoners are not also subject to the punishment of their parent’s crimes. This analysis is conducted by assessing cases in which parents and children are separated due to imprisonment, as well as when they live together inside the prison. The impact of a parent's imprisonment on the rights of the child is examined through the perspective of the lynchpin of children’s rights, that is, the best interest principle, and the general principles of the Convention on the rights of the Child.