Weighing in the balance
| Author | Fiona Donson,Aisling Parkes |
| DOI | 10.1177/0264550516649575 |
| Published date | 01 September 2016 |
| Date | 01 September 2016 |
| Subject Matter | Articles |
Article
Weighing in the
balance: Reflections
on the sentencing
process from a
children’s rights
perspective
Fiona Donson
University College Cork, Ireland
Aisling Parkes
University College Cork, Ireland
Abstract
A substantial body of research now exists indicating that parental imprisonment can
produce multiple negative effects on dependent children. While the criminal justice
system can respond to this post-imprisonment through positive interventions, an
important question arises as to whether courts should take into account the impact of
imprisonment on the children of offenders at the point of sentencing. The recognition of
children’s rights in many jurisdictions has prompted courts to develop approaches that
take account of these important third party considerations. This article will explore how
the courts of South Africa and England and Wales have made space for the rights of
children of offenders within the sentencing process and consider whether Ireland might
adopt such an approach. Central to this process is how relevant information regarding
dependent children can best be presented to the sentencing court. The article will
therefore examine the potential introduction of child impact statements into the Irish
sentencing process, and the extent to which probation officers are suited to adapting
their current pre-sanction report role to include child impact information.
Corresponding Author:
Fiona Donson, School of Law, University College Cork, Cork, Ireland.
Email: f.donson@ucc.ie
Probation Journal
2016, Vol. 63(3) 331–346
ªThe Author(s) 2016
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DOI: 10.1177/0264550516649575
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The Journal of Community and Criminal Justice
Keywords
sentencing, probation officers, children of prisoners, children’s rights, pre-sentence
reports, child impact statements
Introduction
Conventionally, criminal justice systems have paid little attention to children of
offenders. Where they are considered, it is largely post-sentence in relation to
prison visits or in the context of supporting reintegration post-release. However, at
the point of sentencing, families remain sidelined, at best considered as a collateral
feature of the offender. In some jurisdictions, there are indications of a shift in
approach. For example, in Ireland, research relating to the impact of imprisonment
on children of offenders is emerging (Breen, 2010; IPRT, 2012; Donson and Parkes,
2012; O’Malley and Devaney, 2016), while the Irish Prison Service and Irish
Probation Service have both made moves to formally support families of prisoners
and develop new practices to facilitate change.
This article will consider the extent to which the courts, when deciding on the
punishment of an offender, give formal recognition to the impact of incarceration on
an offender’s children. It will interrogate how courts might best be facilitated in
acknowledging the rights of such a vulnerable and largely invisible group of chil-
dren in a transparent, consistent and, above all, proportionate fashion. Current
practice shows that the Irish courts regard these matters, where relevant, simply as
relating to the offender in the form of mitigation. However, given the discretionary
nature of the process, and a lack of engagement with a clear (children’s) rights
framework, the approach is likely to be inconsistent across courts and unsupported
by guidance. Finally, the question of how information can be effectively presented
to the courts will be examined; this includes the use of probation officer-prepared
pre-sentence reports and alternative more child rights-oriented approaches. This will
shine a light on the underlying tension between offender mitigation and the adop-
tion of a child rights-oriented approach in this area.
Sentencing and third party information
The criminal justice system’s disregard of the impact of a custodial sentence on
children of offenders stems in large part from the traditional focus of the criminal law
which, as Lerer notes ‘has four purposes: retribution, incapacitation, deterrence and
rehabilitation. It is considered axiomatic that the needs of third persons should have
no relevance in these determinations’ (Lerer, 2013: 27). The focus of the court at this
stage of the process is generally described as being binary in nature, excluding
third party harms other than as personal mitigation (Lerer, 2013: 44) and engaging
only with two actors in the form of the State and the accused/offender (Conway
et al., 2010: 222). Personal mitigation, through which children are considered as a
‘condition’ of the offender, allows the court discretion to consider whether some-
thing might alleviate the severity of a sentence. Such mitigation is either provided by
332 Probation Journal 63(3)
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