Responding to the needs of children of parents arrested in Victoria, Australia. The role of the adult criminal justice system
| Author | Paula Fernandez Arias,Catherine Flynn,Bronwyn Naylor |
| Published date | 01 September 2016 |
| Date | 01 September 2016 |
| DOI | http://doi.org/10.1177/0004865815585390 |
| Subject Matter | Articles |
Article
Australian & New Zealand
Journal of Criminology
2016, Vol. 49(3) 351–369
Responding to the needs of
! The Author(s) 2015
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DOI: 10.1177/0004865815585390
in Victoria, Australia. The
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role of the adult criminal
justice system
Catherine Flynn
Department of Social Work, Monash University, Australia
Bronwyn Naylor
Faculty of Law, Monash University, Australia
Paula Fernandez Arias
Department of Social Work, Monash University, Australia
Abstract
The prison population in most jurisdictions is escalating. As many prisoners are also parents,
more children will inevitably be affected by the experience of having a parent incarcerated.
Police and the lower courts are the gatekeepers of the criminal justice system and make
urgent and vital decisions about arrest, remand and sentencing which have critical conse-
quences for the children of those arrested, remanded and sentenced. To better understand
how these children are responded to by this adult system, this paper draws on data collected
from a purposive sample (N ¼ 16) of Victorian magistrates, legal representatives and police,
as part of a broader ARC funded study. Findings indicate that the consideration of these
children by police and magistrates is largely ad hoc and depends on good will and the exercise
of discretion. The balancing of justice issues and the interests of children is also complex and
currently under-researched and under-informed. The authors argue that until the agencies
dealing with adults incorporate child-focused practices, children, who have a primary carer in
prison, will continue to be disadvantaged by a system which considers them only as collateral
damage in the exercise of justice.
Keywords
Arrest, children of offenders, magistrates, parents, police, prison, sentencing
Corresponding author:
Catherine Flynn, Dept. of Social Work, Dandenong Rd, Caulfield East, Vic 3160, Australia.
Email: Catherine.Flynn@monash.edu
352
Australian & New Zealand Journal of Criminology 49(3)
Introduction
Children of imprisoned parents have been consistently described as ‘invisible’ or ‘unin-
tended’ victims of crime, as ‘orphans of justice’ or simply as the ‘collateral damage’ of
the everyday workings of the adult criminal justice sector. In the state of Victoria, where
this study was conducted, there is no official record of the number of children affected.
This invisibility is mirrored nationwide (Dennison, Stewart, & Freiberg, 2013). More
broadly, there is a general lack of attention or coherence across Australia’s states and
territories to responding to this group of children (Saunders & McArthur, 2013),
although all do have some provision to accommodate children with their mother in
prison (Paddick, 2011). In Victoria, the most recent estimate of numbers of children
affected was made more than a decade ago, when Tudball (2000) suggested that around
3000 children resided in households affected by parental incarceration. Given the recent
growth in the prisoner population in this state (ABS, 2013), with further expansion
planned (Premier of Victoria, 2014), the numbers of children affected are likely now
to be considerably higher, and continuing to grow. Unfortunately these children have
typically fallen between government departments, in a fragmented service system, with
little policy interest or statutory welfare attention. Whilst this is apparent across many
Australian jurisdictions, for the purposes of this paper, we focus on Victoria. We know
little from Victorian service providers about how they respond to children when their
parent/s enter the criminal justice and are imprisoned. This paper presents that perspec-
tive, highlighting the challenges to ensuring children’s rights and recommending
improved responses.
Background
Whilst there has been more sustained research interest in this group of children in the
past decade, this has been generated mostly in the US, in response to concerns about
mass incarceration and its broader consequences, including intergenerational offending
(Murray, Farrington, & Sekol, 2012). The focus of research remains largely descriptive,
however, ‘driven by the need to generate basic information in the face of limited formal
data’ (Flynn, 2013, p. 45). An examination of research trends indicates three primary
areas of interest, again descriptive: intergenerational links in offending behaviour,
children’s care arrangements and the ‘impact’ on children of parental incarceration
(Flynn, Bartlett, Fernandez, Evans, & Burgess, in press). In relation to the latter,
research has substantiated the long lasting and negative impact of parental incarceration
on children, both emotionally and practically (Wakefield & Wildeman, 2014). Yet, when
‘we then add into the mix the unintended consequences of the adult criminal justice
system, what is clear are the increased risks to children’s long term well being as well as
their immediate safety’ (Flynn & Field-Pimm, 2014, p. 12). We know these unintended
consequences include: children witnessing traumatic arrest processes (Phillips & Zhao,
2010), experiencing sudden and unanticipated separation from their parent/s, being
displaced from home and struggling to maintain contact with their imprisoned parent
(e.g. see Flynn, 2014; Tudball, 2000). Current knowledge highlights limited attention to
children’s needs or adult oversight of children’s experiences. We do not know the cir-
cumstances in which children’s care is managed, the quality of that care, the support
Flynn et al.
353
needs of carers or the impact of these arrangements on children’s well-being. This paper
reports on one aspect of an Australian Research Council (ARC) funded Linkage
project1 which sought to describe the current care planning practices and experiences
for children when their primary carer is incarcerated, in NSW and Victoria. This paper
focuses on key points in the decision-making process as parents journey through the
criminal system prior to prison in Victoria, from the perspective of professional
stakeholders. In order to understand what is occurring in practice, the challenges and
necessary amendments, we first discuss the relevant policy and other frameworks in the
Victorian context.
Decision making frameworks for responding to children whose
parents face imprisonment
Rights
At each point in the criminal justice process – arrest, sentencing, imprisonment and
post-release – adult offenders are considered and treated primarily as individuals, with
limited attention to their role as parents or their dependent children. This lack of
acknowledgement of these children as the indirect recipients of adult justice contradicts
the United Nations Convention on the Rights of the Child (UNCRC) (Office of the
United Nations High Commissioner for Human Rights, 2008), in a number of key areas
outlined below. Though not directly enforceable, the UNCRC provides specific and
widely recognised protections for children, particularly those made vulnerable by their
circumstances.
When separated from their parent who is imprisoned, the child should be afforded the
protection of Article 5 of UNCRC, that the State will respect the responsibilities, rights
and duties of parents. Yet parents facing and experiencing imprisonment continue to be
managed with negligible regard for their family context or responsibilities (Butler, 1994;
Healy et al., 2000; Lilburn, 2000). The frameworks governing arrest and sentencing
processes in the adult jurisdiction do not give weight to the rights of dependent children
to parental care, as will be seen below. Articles 9 and 12 require that where children are
separated from their parents, all parties involved in any decision-making proceedings
will have the opportunity to participate and make their views known; the right of the
child to be heard in any legal or administrative proceedings affecting them is particularly
noted. Whilst this principle has been incorporated into the dealings of other courts, there
are currently no avenues for the child’s views to be heard in any proceedings when they
are separated from their parent because of parental incarceration. These proceedings are
not seen to ‘directly affect’ them. A compelling case for children’s rights and interests to
be paramount in such proceedings is presented by Justice Albie Sachs (2009). He argues
that the usual sentencing factors should be broadened to include the circumstances of the
defendant’s family, taking a paired approach. Firstly, the courts should consider
alternatives to prison ‘that promote the public order at least as well, while interfering
less with the children’s rights’ (Sachs, 2009, p. 9). Secondly, sentencing magistrates
should be accountable for the impact of their decision to incarcerate, by ensuring
‘proper arrangements must be made to mitigate the effect of that’ (Sachs, 2009, p. 9).
Finally, where parental imprisonment leads to a child being displaced from home, the
child should be afforded the protection of Article 20: a child who is deprived of their
354
Australian & New Zealand Journal of Criminology 49(3)
home environment should be provided with special protection and assistance by the
State. No such assistance is routinely provided to the children of imprisoned parents.
Although it is common for children to move from their home, and to be cared for by
extended family or friends (Wildeman, 2014), there is currently no formal assessment or
oversight of their care arrangements; even their basic rights to...
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