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.
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