CHAPTER 3: THE HUMAN RIGHTS FRAMEWORK
5. T HE CHILD ’ S ACCESS TO THEIR RIGHTS
The previous parts of this chapter show that there is no doubt as to what the perspective of the child entails when dealing with children of imprisoned parents:
• the child has a right to be informed about what is going on;
• the child has the right to see his/her imprisoned parent(s) on a regular basis and in a manner that respects his/her physical and moral integrity;
• the child has a right to be assisted by public authorities that have the obligation to facilitate his/her contact with the imprisoned parent(s).
The main challenge is therefore that children, in their own capacity, are very seldom in a position to claim their rights either because they do not know they have such rights or because they have nowhere to address their claim. The question of the access of children to remedies is therefore quite central to the rights of children of imprisoned parents (5.1). However, the rights of children can also be implemented through other means than redress mechanisms: hence, the perspective of the child is slowly emerging in its own right in the international human rights forum and opens for a greater awareness to the specificity of the situation of children of imprisoned parents (5.2).
5.1 The limited access of children to remedies
The CRC has made children rights-holders. Instead of just being the recipient of care and protection, children do hold rights,114 which the state must protect. There is, however, an important distinction between holding rights and having the legal capacity
110 as above, pt. 9.5
111 Recommendation 1469 (2000) of the Parliamentary Assembly of the Council of Europe on Mothers and babies in prison (based upon Report Mothers and Babies in Prison of the Social, Health and Family Affairs Committee of the Parliamentary Assembly of the Council of Europe, Doc. 8762, 9 June 2000), pt. 5.v.
112 Kleuver v Norway, judgment of 30 April 2002, app. no. 45837/99
113 as above, p. 9. For further discussion of this issue see chapter 4 of this report (case study on Denmark).
114 Doek, J. E. (2006) What does the Children’s Convention require? Emory International Law Review, Vol. 20 (1), pp. 199-208
to act when these rights are not being respected. In many Western European countries, a child does not have the capacity to act in his or her own name. The parents, unless they are deprived of their parental rights, or guardians can act on their behalf. According to the CRC, children have the right to express their views and heard in matters that concern them,115 which is not the same as actually claiming that a decision from the authorities violates their rights.116 Even in cases where children have the legal capacity to act, many practical problems such as information about remedies or access to remedies may hinder their actual capacity to claim their rights.
As far as children of imprisoned parents are concerned, a further complication occurs as the original decisions at stake (arrest, restrictions on visit, refusal of visit, etc) are exclusively directed at the detained parent(s). It is therefore impossible for the child to contest them even if helped by the other parent, a guardian or a lawyer. The only possibility for the child is to appeal either to specific domestic mechanisms (for example, ombudsman or children’s ombudsman), or to a supra national human rights mechanism and claim that his or her right to respect for private and family life has been violated.
In theory, children may bring their complaints to international or regional human rights mechanisms. There is, however, a growing awareness of the difficulties that face children’s access to international justice.117
The Committee on the Rights of the Child does not have competence to receive individual complaints which in itself is quite telling. Children can in theory lodge complaints before other UN treaty bodies, such as the Human Rights Committee118 or the Committee Against Torture.119 The ECtHR may also receive applications from ‘any person’ claiming to be a victim of a violation of a right set forth in the Convention:120 a child may therefore lodge a complaint with the Court “even if he or she is not entitled to bring an action before the national courts”.121 In the absence of a national remedy for the child, the Court is competent to examine the complaint on its merits. In practice, however, in most situations concerning children, it is one or both parents who act on behalf of the child. There are only a few children who have complained to the ECtHR, most of the time as co-complainants with one parent.122 In a few cases, older children
115 See above 2.2
116 For a theory on the rights of the child, see: Sund, L-G: (2006) ‘The Rights of the Child as Legally Protected Interests’ International Journal of Children’s Rights Vol. 14 pp. 327-337
117 See the publication of the Council of Europe (2008) International justice for children, Strasbourg: Council of Europe Publishing
118 Individual communications relating to states parties to the First Optional Protocol to the International Covenant on Civil and Political Rights
119 Individual communications relating to states parties who have made the necessary declaration under article 22 of the Convention Against Torture
120 ECHR, Article. 34
121 Berro-Lefèvre, I. “Improving children’s access to the European Court of Human Rights”, in: Council of Europe: as above p.70
122 See: Kleuver v Norway, judgment of 30 April 2002, app. no. 45837/99 or Marckx v Belgium, judgment of 13 June 1979 (A.31); in the case of A. v United-Kingdom (judgement of 23 September 1998) the child was the only complainant before the Court, but the complaint was originally lodged by the father and the son. It concerned the beating up of the son by his stepfather. The Commission considered that the father did not have any independent complaints of his own in the case, nor he claimed to be an "indirect victim" of any alleged violations. (Decision of the Commission as to the admissibility of Application No. 25599/94 by A and B against the United Kingdom, 9 September 1996)
have presented their own complaints.123 In such cases, children may be represented by solicitors provided that they can prove their authority to act on behalf of the child.124 A recent case before the Human Rights Committee (HRC) shows that a complaint from a minor may be more successful than the same complaint presented by his or her parents. In a case concerning family reunification, the Committee stated plainly that:
[a]t stake in the present case are the [complainant’s] rights as a minor to maintain a family life with his father (…) and to receive protection measures as required by his status as a minor. The Committee notes that the author [of the complaint] cannot be held responsible for any decisions taken by his parents in relation to his custody, upbringing and residence.125
In doing so, the HRC moves away from the argument that parents are responsible for their own actions or decisions in relation to their children and that both parents and children must bear the consequences of such actions or decisions.126 Here, the situation of the child is seen as very different of the one of his father and the Committee concludes to a violation of Articles 23 (protection of the family) and 24 (protection of the child) of the International Covenant on Civil and Political Rights (ICCPR).127
Human rights are being developed at local and global levels. At both levels, courts of law and other control mechanisms ensure their practical implementation. Such mechanisms are first of all reactive, which means that they only deal with the problems that are presented to them. This implies that if no lawyer takes the perspective of the child in to account in a complaint, there is very little chance that a court will do so – of its own initiative. Lawyers must therefore enhance the perspective of the children of imprisoned parents in cases concerning visits in order for the courts to be able to take the best interests of the child in to account in matters that only indirectly concern them.
A London High Court (administrative court) judgment, which concerns the exclusion of a prisoner from a mother and baby unit of a prison as a result of her poor behaviour, put a strong emphasis on assessing the effect of the separation on the baby, moving thereby away from only taking the family life of the imprisoned woman in to consideration.128
The attention to the perspective of the child is to date only very timid when looking at courts of justice handling of decisions concerning the family life of prisoners. On the contrary, an increasing attention to the perspective of children is to be found in international forums and international documents.
5.2 Increasing attention to the perspective of children in international forums and international documents
While children have in practice very little access to legal remedies, the perspective of the child is nevertheless slowly emerging in international forums and international documents.
123 See: Aydin v Turkey, judgment of 25 September 1997; Tyrer v United Kingdom, judgment of 25 April 1978
124 See on the standing of children, Berro-Lefèvre, Isabelle as above pp. 70-71: Leach, P. (2005) Taking a case to the European Court of Human Rights, Oxford, Oxford University Press, pp. 119-120
125 Human Rights Committee: Mohamed El-Hichou v Denmark, Communication no.1554/2007, Views of 22 July 2010, pt. 7.4
126 See this chapter section 3.5.4
127 Human Rights Committee: Mohamed El-Hichou v Denmark, op. cit. 124, pt. 8
128 R. v Secretary of State (Administrative Court Maurice Kay J), 16 January 2003, [2003] EWHC 155 (admin)
5.2.1 The Committee on the Rights of the Child
When examining states’ reports under Article 44 of the CRC, the Committee on the Rights of the Child looks in to a number of points, one of them being ‘Family environment and alternative care’. Under this point, the Committee scrutinises the rights of children in situations such as ‘alternative care for children without parental care’, ‘adoption’ or ‘abuse or neglect’. In a few reports, the Committee has also looked in to the situation of children of imprisoned parents or children in prison with their mothers.129
This has given the Committee an opportunity to specify a number of obligations under the CRC in respect to children of imprisoned parents:
• The best interests of the child of a defendant /an imprisoned parent must be considered carefully and independently ‘by competent professionals and taken into account in all decisions related to detention, including pre-trial detention and sentencing, and decisions concerning the placement of the child’.130
• Concerning children placed in alternative care, the state must ensure that alternative care allows the child to maintain personal relations and direct contact with the parent who remains in prison.131 Children who have an imprisoned parent must be provided ‘with adequate support, including counselling, and to facilitate contacts with their parents in prison, whenever this is not contrary to the child’s best interest’.132
• Concerning children residing in prison with their mothers, the Committee recommends that the state ensures that living conditions in prisons are adequate for the child’s early development. It further recommends that states develop and implement adequate alternative care for children who are removed from prison, and allow them to maintain personal relations and direct contact with their mothers remaining in prison. 133
More recently, the Committee has recommended that states strengthen their efforts to assist parents to exercise their parental responsibilities. In the case of divorce or separation, all professionals and practitioners involved must assist children’s contact with both parents, considering under all circumstances the best interests of the child.
The Committee also recommends that prison authorities facilitate the visiting arrangements of a child with his or her imprisoned parent(s).134
129 Committee on the Rights of the Child, Considerations of reports submitted by States Parties. Concluding observations: Australia, 20 October 2005, CRC/C/15/Add.268 §§ 40 and 41; Committee on the Rights of the Child, Considerations of reports submitted by States Parties. Concluding observations: Nepal, 21 September 2005, CRC/C/15/Add.261 §§ 51 and 52; Committee on the Rights of the Child, Considerations of reports submitted by States Parties. Concluding observations: The Islamic Republic of Iran, 31 March 2005,
CRC/C/15/Add.254 §§ 51 and 52; Committee on the Rights of the Child, Considerations of reports submitted by States Parties. Concluding observations: Philippines, 21 September 2005, CRC/C/15/Add.259 §§ 53 and 54;
Committee on the Rights of the Child, Considerations of reports submitted by States Parties. Concluding observations: Thailand, 17 March 2006, CRC/C/THA/CO/2, § 48
130 Concluding observations: Thailand (2006) as above
131 Among others Concluding observations: Australia (2005) and Thailand (2006) as above, note 128
132 Concluding observations: Australia (2005), as above
133 Concluding observations on Thailand (2006), Iran (2005), Philippines (2005), Nepal (2005) as above.
134 Committee on the Rights of the Child, Considerations of reports submitted by States Parties. Concluding observations: Norway, 3 March 2010, CRC/C/NOR/CO/4 § 33
5.2.2 The UN Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
The UN Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment has also looked into the question of children of imprisoned parents, during his last visit in Denmark. Manfred Nowak has underscored the efforts made by the Danish prison authorities in his report on his last mission to Denmark. He has highlighted:
[t]he Government’s efforts, together with civil society, to aid and encourage contact between prisoners and their children by establishing a child-friendly environment within detention facilities. He notes that children of convicted prisoners up to 3 may live with their mother or father in prison, provided that he or she is capable of taking care of the child.135
In addition, he has drawn attention to the minimum standards for visiting facilities set out by the Department of Prisons and Probation in 2004 which stipulate, among other things, that the visiting facilities must appear light and friendly, be nicely decorated, and have a suitable selection of toys to stimulate contact between prisoners and their children. The Special Rapporteur names a couple of concrete examples of good family visiting facilities. He also draws attention to the positive outputs that came from the joint efforts of prison staff, prisoners and civil society.136
5.2.3 The Parliamentary Assembly of the Council of Europe
The Council of Europe’s Resolution on Women in Prison137 builds on a Report of the Social, Health and Family Affairs Committee of the Parliamentary Assembly of the Council of Europe on Women in prison. Part of the report focuses on the perspective of the child:
In most cases, the imprisonment of a woman can lead to the violation not only of her rights, but also of those of her children.138
The report is concerned with a number of issues including:
• Visiting facilities: visiting facilities should be designed ‘with children in mind’
and include play facilities.139
• Search procedures: they may be frightening for children. Searches and security procedures involving children should be carried out in a non-threatening manner.140
• Overnight visits: they should be made available for both male and female prisoners, where possible, using a separate apartment. Overnight visits are
135 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, Mission to Denmark, A/HRC/10/44/Add.2, 2009, § 31
136 The Special Rapporteur refers to the visiting flats of the East Jutland State Prison, as well as the children’s visiting area of Vridsløselille State Prison stands. For further discussion on this see chapter 4 of this report (case study on Denmark)
137 Resolution 1663 (2009) of the Parliamentary Assembly of the Council of Europe on Women in prison, 28 April 2009
138 Women in prison, Report of the Social, Health and Family Affairs Committee of the Parliamentary Assembly of the Council of Europe, Doc. 11619 revised, 23 June 2008, pt.45. See also §§ 12-16 on the social and
psychological impact of parental imprisonment on children
139 Report Women in prison pt. 47
140 As above, pt. 48
seen as a chance for a family to bond together. Additional conjugal visits should be made available.141
• Training of staff: staff should receive training to deal with visiting children.142
• Evaluation of measures impacting family life: any new measures or policies proposed should be analysed for their effects on children visiting the prison and take into account the rights of the child.143
All these initiatives have the perspective of the child as their main focus and complement the many standards on prisoners analysed above. It must be underlined that the observations made by UN monitoring organs (CRC, Special Rapporteur) rely primarily on information given by states, national human rights institutions and NGOs (in reports and during visits). It is only because the perspective of the child is enhanced by these institutions and organisations that it is reflected in the monitoring work of the CRC and the Special Rapporteur.