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 consequences 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 = 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.
Introduction
Children of imprisoned parents have been consistently described as ‘invisible’ or ‘unintended’ 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 perspective, 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 circumstances in which children’s care is managed, the quality of that care, the support 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 project 1 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 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 food and shelter are not assured.
Interestingly, whilst Victoria’s Charter of Human Rights and Responsibilities (2006) also does not appear to be influencing the practical decision making of concern here, these provisions have been recognised as relevant in situations where children are removed from their families, including when a family member is in prison. 2
Policing.
Whilst the Department of Human Services (DHS) – Child Protection – is the lead agency for the protection of children in Victoria, police responsibilities are spelled out in the Children Youth and Families Act (2005) and in the Protocol between Department of Human Services Child Protection and Victoria Police (2012). The latter gives some direction to officers about responding to children of parents in contact with the criminal justice system. It notes that a report to Child Protection must be made by police officers in their role as protective interveners, when a child is deemed to be ‘in need of protection’. 3 This protocol further advises that officers must consider making a report to Child Protection where they believe that a child is in need of protection due to a range of circumstances, including abandonment or parental incapacitation. It is noted that this ‘may include situations where a primary carer of dependent children is in custody and incapable of caring for their child during this period and there is no other suitable person willing or able to care for the child’ (Department of Human Services, 2012, p. 11). Whilst parental arrest is not specifically addressed, arguably this could be seen to lead to parental incapacitation. The protocol provides no further guidance as to assessing parental incapacitation or carer suitability, with these terms open to considerable interpretation. Further, in fulfilling their responsibilities to persons in police care, the station sergeant has a responsibility to enquire if the person in custody is a primary carer and if so, to enquire if suitable arrangements have been made for the care of that child; if there is no suitable carer, a referral to the Department of Human Services (Child Protection) should be made. The ability to take action in this area is also influenced by parents’ willingness to disclose that they have dependent children.
Child protection.
In relation to children of offenders and/or prisoners, Child Protection’s current policy advice (DHS, 2012) focuses solely on the placement of children with their mothers in prison, with a protocol between Child Protection and Corrections Victoria established. There is no specific guidance in relation to imprisoned primary carer fathers. There is also no further comment on children of imprisoned parents being a particularly vulnerable group, despite recognition in the Victorian Child and Adolescent Monitoring System (DEECD, 2013) that having a parent involved in the criminal justice system is an indicator of concern. No formal data are gathered by Child Protection or the Children’s Court about this group of children.
The Courts.
The lower, or Magistrates, courts have a role at two important points of time. They can make decisions about whether a parent is granted bail and allowed to return home or is remanded in custody. Subsequently, if the person is found guilty of the crime alleged, they then make decisions about sentencing, including whether to incarcerate the parent.
Bail will usually be granted for all but the most serious offences unless the court believes there is a risk that the person will not come to court when the trial is set or will offend or interfere with witnesses Bail Act 1977 (Vic). The court can set conditions such as requiring the person to hand in their passport, to reduce the risk of escape. The fact that the person has caring responsibilities is not a consideration referred to in the legislation, but childcare responsibilities are considered ‘clearly relevant’ to any risk of absconding or reoffending. 4
The sentencing legislation gives criteria for sentencing, including mitigating and aggravating circumstances (Sentencing Act 1991 (Vic)). The impact of the sentence on children or other family is not mentioned in the legislation, and the courts have been reluctant to specify hardship to children (or other third parties) as a result of imprisonment to be a mitigating circumstance. The courts recognise that imprisonment will almost inevitably cause hardship for family members; in fact they point out that it would be unjust for a person with dependants to receive a lighter sentence than a person committing the same offence who does not have dependants. 5 As the Victorian Court of Appeal stated recently, ‘It has long been the position at common law that, unless the circumstances are shown to be exceptional, family hardship is to be disregarded as a sentencing consideration.’ 6 The Commonwealth Crimes Act 1914 does require a court to take account of ‘the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants’, but this is still said to be subject to the need to find ‘exceptional circumstances’. 7 Whether such caring responsibilities amount to ‘exceptional circumstances’ appears to be a very subjective decision.
It is vital that we develop a better understanding of the circumstances of these children and how we respond to and care for some of the community’s most vulnerable members at a time of crisis.
Caring for the children of prisoners
Some research has commented tangentially on the challenges for parents facing imprisonment in arranging care for children. Two common problems are described: limited time (Cunningham & Baker, 2003; Gursansky, Harvey, McGrath, & O’Brien, 1998), perhaps due to parental remand, and lack of preparation (Healy, Foley, & Walsh, 2000; Hounslow, Stephenson, Stewart, & Crancher, 1982; Sack, Seidler, & Thomas, 1976). It is generally acknowledged that chaotic family circumstances impede their ability to make suitable care arrangements for their children, particularly in what may be a crisis situation. Care arrangements are typically described as haphazard and often ad hoc (Hounslow et al., 1982; Zalba, 1964). The degree to which the legal systems, which parents facing prison have to negotiate, allow for any such planning is also unclear. As a consequence, the subsequent trajectory of care for children, beyond a basic indication that poor planning can mean being more likely to move from the family home (Cunningham & Baker, 2003; Stanton, 1980) is similarly unknown. But we can draw some reasonable conclusions about the negative impact of displacement, social isolation and lack of connectedness and support on children’s longer term functioning.
Adult services responding to children
The need for a child-family sensitive approach has been noted in other fields where services are adult focused. The mental health and alcohol and drug sectors are notable for their family responsive developments in recent years (e.g. Cowling, 1996; Odyssey House, 2004). This shift sits within a broader call for adult specialist services to ‘think family’ (Scott, 2009) in recognition that families confronting a range of complex challenges are likely to be in contact with a range of child and adult statutory services and emergency services. Scott (2009) argues that the capacity for organisations to make this shift is shaped by both individual staff members’ flexibility with regard to their role and organisational factors which can support this process. These include a holistic outlook/philosophy, as well as encouragement and acceptance of staff autonomy, discretion and decision making. Traditionally, however, criminal justice processes are risk averse, both about outcomes (prioritising community safety) and about the discretions open to key gatekeepers such as police carrying out arrests, and magistrates determining bail and sentencing.
Two small qualitative studies in Adelaide and Melbourne, Australia sought to examine the processes encountered by both women and their dependent children when a mother is arrested and imprisoned (Lilburn, 2000; Victorian Association for the Care and Resettlement of Offenders (VACRO), 2006). Both conclude that there is a general lack of policy and procedural guidelines to deal with the children of prisoners, and highlight the need for better coordination between child protection services and the criminal justice system, to ensure that risk to children is acknowledged and needs met. Typically, it was found that magistrates tended to rely only on material that was directly presented to them by the defence; if the care of children was not raised, it was not an issue on which they actively sought information. VACRO (2006) highlighted the absence of attention to children in adult services, describing for example, the then lack of set guidelines for Victoria Police officers when dealing with primary carers and or their dependent children when the adult is arrested. 8 Further, as noted earlier, neither the Bail Act 1977 nor the Sentencing Act 1991 make reference to the responsibilities of primary carers. It is important to note that the studies discussed above focus only on imprisoned mothers. The research into the care needs of children whose fathers are entering prison is almost non-existent, despite men making up 93% of the prison population (ABS, 2013) and estimates from other jurisdictions (e.g. see Glaze & Maruschak, 2008) showing around one-half of this group to be fathers. Similarly we know little about any caring role played by fathers and the implications when they are imprisoned. Two parliamentary enquiries have been conducted in Australia (NSW and ACT) (Standing Committee on Community Services and Social Equity, 2004; Standing Committee on Social Issues, 1997) into the needs of children and imprisoned parents more generally. While both conclude that the parenting status of prisoners needs to be recognised and subject to data collection to guide policy and practice, there has been little action.
One of the very few studies to specifically examine children’s experience of the adult criminal justice system was conducted in California (Nieto, 2002). That study sought to understand the specific responses of law enforcement agencies and child protection staff to children of arrested parents. The findings indicate significant gaps in responding to children, with the majority of law enforcement officers typically not considering the children of offenders in their day-to-day practice. Whilst the majority (77%) did not routinely enquire about children and their care when arresting an adult, this did alter when a child was physically present at arrest; almost half of the officers would then make these enquiries. Individual ‘instincts’ were relied upon when formulating responses. For example, individual officers may make decisions about such issues as the care and placement of a child with no further oversight, and most were doing this with no procedures in place to assess carer suitability. It was concluded that these children were effectively ‘falling through the cracks’ because there was no attention to children or their needs and rights during their parent’s contact with the criminal justice system. More recently in the US, the International Association of Chiefs of Police (IACP, 2014) has taken action on these concerns, publishing a model policy for responding to children. It is based on the understanding that parental incarceration is an adverse childhood experience which can have a lasting impact on children; coordinating and responding to children’s needs at the point of parent arrest is seen to have benefits for the well-being of the child, both in the short and longer term and can support the parent–child relationship.
Beyond the point of arrest, Nieto’s (2002) study suggested that formal attention could also be drawn to the needs of children at sentencing. However, he also argues in contrast to Sachs (2009) that ‘[i]nformal conversations suggest that criminal judges do not want, nor feel they have the time to become involved in a separate civil issue to ensure the safe and appropriate placement of the children’ (2002, p. 3). To date, this has not been investigated, and most developments in responding to these children in the US have continued to focus on the point of arrest, although there have been some developments in sentencing. In Washington, the Family and Offender Sentencing Alternative (FOSA) (Department of Corrections Washington State, 2014) was established in 2010 under which parents of dependent children, who are found guilty of non-violent offences, are assessed for their suitability to serve a period of community custody as an alternative to imprisonment. Although it is thought to be showing benefits in terms of recidivism trends and successful completion of orders, there has been no formal evaluation to date.
A similar argument about key points of intervention was presented by Burns, Brandon, Oakes, Olopade and Krikorian (2007) in a national review of children of offenders in the UK, suggesting that parental imprisonment can be seen as an opportunity for intervention. Whilst this ‘flagging’ of children is seen by some to be controversial (Salmon, 2008), and reliant on individuals disclosing their parenting status, it could also be argued to not go far enough, particularly perhaps for specific subgroups of parents, who bring more complex needs, for example, those who are active substance users or who are remanded into custody, etc. (Flynn, 2008). Previous research has established that women who go to prison are typically primary, if not sole, carers, who rely predominantly on informal care for their children during imprisonment (e.g. see Enos, 2001). Findings from Australian research by Flynn (2013) indicate that even with time being available prior to sentencing and imprisonment, planning for children’s care is minimal. Although Burns et al. (2007) are correct in their conclusion that parental imprisonment is an obvious time of high risk and a window of opportunity for intervention, for some children of parents facing prison, intervening at the point of imprisonment may be too late. The proposal to use a triggering event to draw in appropriate services and formally acknowledge children requires further exploration, but for the children of primary or sole carers this may be more appropriately linked to the earlier points of arrest and/or sentencing.
It is clear that both the current research knowledge pertaining to the rights of children of prisoners and policy responses are poor. Whilst there is awareness of the negative impact of parental imprisonment on children, the nuances of this are glossed over due to our poor understanding of children’s interaction with the adult criminal system as they journey alongside their parents. The limited research which exists suggests poor responses to children, with inadequate attention to what can be done to mitigate this. Kruttschnitt (2011) makes a clear argument for understanding the external factors and processes which can affect the impact of parental incarceration on children. These include policies and procedures which should respond to children’s care at the crucial time when they lose their guardian to imprisonment (Hissel, Bijleveld, & Kruttschnitt, 2011). This study sought to gather the views of decision makers at the ‘crisis’ points of parental arrest and sentencing, to understand how children are seen and responded to.
Methodology
This study is part of an ARC funded Linkage project. The overall study sought to describe the current care planning practices and experiences for children when their primary carer is incarcerated, in NSW and Victoria. To expand knowledge in this particular area, data were sought from multiple primary and secondary sources. Primary sources included 124 professional stakeholders from a range of sectors in direct contact with children and families of prisoners: magistracy, police, prisons, child protection, foster care and education; it also included representation from the non-government sector and community and government interest groups. Primary data were also gathered from 157 incarcerated primary carer parents 9 and a smaller group of carers and children. This primary material is augmented by secondary data from government and non-government partners. Ethical oversight of the project has been complex, with a total of nine Human Research Ethics Committees (HREC) or Research Coordinating Committees reviewing and approving the project. 10
As there is limited knowledge of the experience of professionals in responding to children whose primary carer has been incarcerated, particularly in Australia, an exploratory approach, with a maximum variation sampling strategy (Patton, 2002) was used. The study purposefully sought a wide range of professions and/or areas of practice from across the arrest-sentencing-imprisonment journey, including participants from urban and rural areas.
For the purposes of this paper, we concentrate on a specific sub-group of stakeholders: those involved in decision making at arrest and sentencing in the state of Victoria. Participants were recruited via email. A flyer was sent to key contacts in each organisation (Police, Courts, Legal Aid); this was then distributed by them to staff in direct service roles. The flyer stated that the study was seeking input from staff who had contact with prisoners and/or their children/families; and that we wanted to hear staff views and experiences of current practices with children whose parent/s were incarcerated. As the study was exploratory, we were seeking expert views rather than representative views; staff who volunteered to participate clearly had an interest in and knowledge of this area.
Data gathering occurred via two focus groups with police (n = 7) (one in metropolitan Melbourne and one in a regional city), two focus groups with legal representatives (n = 5) and individual interviews with magistrates (n = 4): a total of 16 participants, which allowed for the gathering of rich qualitative information. Each data gathering session lasted approximately 1–2 h and occurred during the period October 2011 through to May 2012. These focus groups and interviews were conducted by the authors, two of whom are chief investigators on this project, with the third author a research assistant. Data gathering sessions were audio recorded and transcribed. All sessions utilised the same semi-structured interview schedule, focusing on four key areas of the investigation: the organisational perspective on children, organisational expectation and processes, professional experiences and suggestions for improvements. Once the audio recordings had been transcribed the transcripts were reviewed independently by each of the three authors. Data were analysed thematically, involving a process of data reduction, organisation and interpretation (Coleman & Unrau, 2011). Codes were developed based on issues identified from the data – inductive codes – as is appropriate in areas where there is little existing research (Grbich, 2007). We were seeking patterns both within and across participant groups in relation to how they responded to children: the inhibitors and enhancers of practice. The researchers individually coded and categorised the data and developed possible themes. The team then came together and collaboratively refined the final themes, using a consensus approach.
Discussion of findings
In this paper we seek to understand how decision makers involved in the criminal justice system respond to children, by describing both their professional views and experiences. Of significance, the results show that professional responses to children mirror the parental responses described in the literature (Flynn, 2013; Hounslow et al., 1982; Zalba, 1964): frequently attention to children, their rights and consequently their care, is uncoordinated, unplanned and subsequently quite haphazard. The views of decision makers in relation to children of adult defendants at two key points in the criminal justice process – arrest and sentencing – are examined, exploring how the different professions, police, solicitors and magistrates, understand their role in relation to the children of the adults with whom they come into contact.
Children of defendants and the adult criminal justice system: Not core business
Central findings indicate that, currently in Victoria, the relationship between children of defendants and police and the court system is tenuous at best, but could more accurately be described as ambiguous. While typically, children are not seen to be ‘core business’ for their organisations, data suggest a level of confusion or questioning by professionals across all participant sub-groups about the actual relationship between children and their organisation: ‘It’s very grey’ (Police) ‘No. Well it depends … They’re not [clients], but they are’ (Police) ‘There’s not necessarily a direct relationship, except as probably an incidental relationship’ (Magistrate) ‘No [they are not clients] … but they could be’ (Legal)
This ambiguity or awareness that something is amiss has not been commented on previously in the literature. Participant perceptions are clearly based on their understanding of their core role and the functions of their organisation. These roles and functions are shaped and reinforced by policies and procedures. Tellingly, no participant groups report having or being aware of clear child-oriented policies to shape their responses to children at the arrest or sentencing of their parent.
Lack of child-specific guidelines: Arrest
Data from Victoria Police participants about arrest processes indicate limited knowledge ‘on the ground’ about responding to children and a lack of awareness of current policies and guidelines.
11
‘I don’t know if it is a policy or guidelines’ (Police) ‘I don’t know if there’s anything in the VPM [Victoria Police Manual] that says “Victoria Police in this scenario must …” – it’s more of a judgement, a duty of care, you know, that unwritten …’ (Police)
The 2012 Protocol with Child Protection provides general information about responding to children in need of protection but leaves considerable room for interpretation and intervention when considering the parenting status of those in custody. The extent to which any developments in protocols have been incorporated into officer training or ongoing professional development is unknown. The lack of specific understanding about responding to children at arrest reinforces their invisibility and cements their place as ‘not core’ business. Our data indicate, similar to Nieto (2002), that this also seems to be highly influenced by physical presence: ‘We naturally assume that if they don’t have custody of the children at the time [at arrest] then it’s, then there’s no issue’. (Police)
In the absence of children, police maintain focus on their narrow ‘core’ role (Scott, 2009). These findings also importantly indicate that it is not sufficient to have guidelines or protocols about children, unless there is a clear commitment to their rights and welfare and an embedding of this in staff development and training.
Arguably, given the small number of cases this involves for police on a day-to-day basis, responding to children is not an issue of major concern. 12 Police officers have multiple responsibilities at the point of arrest: to arrest the person in a timely and safe manner and to ensure that correct process is followed and evidence obtained. The presence of children or the arrestee’s responsibility for dependent children, however, remains an issue which requires attention, as the decision to arrest and remove a parent has implications for children, who may then be in need of protection. As noted, in most circumstances after being arrested it is more typical for people to be bailed and allowed to return home, often within a few hours. Clearly in this research, we are most interested in those extreme cases where parents are removed from the home for substantial periods of time, during arrest, remand and/or imprisonment.
Lack of child-specific guidelines: Sentencing
Magistrates similarly report a lack of direction to guide them in responding to the children of parents before the court, noting also that individual colleagues make decisions differently: ‘[familial responsibilities being factored into sentencing discretion] … I suspect it’s pretty variable between judicial officers’ (Magistrate)
Importantly these data provide a new and more complex view on the situation facing both magistrates and families in the court, with respondents noting that any response from the court involves three possible aspects. Firstly, the extent to which impact on children should be a factor in parents’ sentencing; secondly, how to take account of caring responsibilities in sentencing, and finally, dealing with children in actuality, either present in court, or perhaps at home or at school. On the first point, Magistrates can only modify a sentence on the basis of childcare responsibilities if they are satisfied that the situation involves ‘exceptional circumstances’. Children’s rights are not a factor in sentencing decisions. Sentencing decisions are however, shaped by Magistrate’s individual experiences and personal frameworks, as suggested by Sheehan (2001) in her research in the children’s court. The result can be inconsistent and unpredictable outcomes for children and families, despite calls for standardisation over the past decade, including recommendations for the inclusion of family impact statements in sentencing. Requiring such a statement in a pre-sentence report instead, prepared by community corrections officers, would ensure a thorough assessment of children in their families, with attention to the likely impact of sentencing options on them.
On the second point, it is also clear that even if a magistrate is inclined to examine a primary carer defendant’s family circumstances and consider this as factor in sentencing, it cannot be assumed that they will either have or receive this information. Previous research (Lilburn, 2000; VACRO, 2006) indicated an expectation from magistrates that this information will be presented by defence counsel. Data in the current study were more variable; again, probably shaped by personal values. Some participant magistrates described their role as clearly one of seeking information, asking relevant questions and then acting upon this: ‘I’ll adjourn sentence for a day so that the arrangements can be made for the child as well’. (Magistrate)
However, such an outcome is not guaranteed, with inconsistent outcomes noted.
Given current pressures on publically funded legal services and evidence that many legal representatives have limited time with and knowledge of clients, it seems responding to dependent and potentially vulnerable children is being left to chance.
Thirdly, in relation to the courts dealing with practical issues and children, either in the courtroom or at home, there remains a similar lack of guidelines to assist magistrates, of which all were aware: ‘No, I don’t think there’s any systems … I’ve got no idea. I wouldn’t have a clue. Here’s the thing – I think the fact that we don’t know is interesting in and of itself’. (Magistrate)
Others, mindful of the possible trauma to children present in the court, will take informal action to ‘protect’ children; this typically involves removing children from the courtroom. ‘I had [a case] late last year or earlier this year where someone had come to Court … So, he was going in [to prison] but he had his children all in Court and … well, first I asked them to be outside and then I just said to the [lawyer] … “like, are you arguing exceptional circumstances?” And he said, “no”. “So, you’re fully cognisant that your client’s going into jail today? There’s no prospect of him not, and you, you’ve allowed the children to be in court?” [In] that scenario, the children, I asked the children to be taken away from the court precinct – the mother was there – and I asked them all to leave’ (Magistrate)
Responsibility then for the care of the child, outside of the court room is unclear: ‘The Court Network says that they’re not childcare people, but we have a good relationship with our Court Network people and because we don’t ask them to do it often, if we’re in a bind, they will look after a child. Or sometimes we’ll have Police informants who are around and who’ll sit outside and … amuse the child for a while but it’s not satisfactory’ (Magistrate)
Other anecdotal evidence, however, indicates that magistrates do not necessarily feel a sense of responsibility for the consequences for children when incarcerating their primary carer. It is common to hear of parents being advised by the magistrate that they should have considered their child/ren when they were committing the offence: by their offending, they are seen to have abrogated that responsibility. It is clear that ensuring a child’s right to state protection and assistance if they are to be displaced from home is not considered part of a sentencer’s role; perhaps as for Nieto’s (2002) magistrates, this is seen to be a separate, civil issue.
Whilst this study confirms previous findings that dependent children are invisible in the adult criminal justice system, it also provides new data. Findings indicate that when primed, often by attitude or experience, professionals can actively seek out and ‘see’ children.
Looking out for children
An important question to be considered is whether and how children are ‘seen’ by police, legal representatives and magistrates when carrying out their roles, acknowledging that parents can have a key role in making children ‘visible’. It was clear from the data presented that individual staff do see individual children, typically when they are physically present, with many providing helpful and effective, albeit informal, responses. A positive response relies on a range of factors, including the life experience of individual staff. Being a parent themselves was highlighted by some participants as a key determinant in being able to see children: ‘… if I put in a trainee that had six months experience that had to arrest … you don’t have the experience … “my job is to arrest the person and charge them with theft” … So, if you’ve got two young connies [constables] that are working on the van and they don’t see the tricycle and they don’t see the drawing on the fridge or whatever … They want to make sure they fill out the right forms, you know? That’s because at the academy, that’s what they’re taught’ (Police)
More broadly, the lack of intra and interorganisational policy and protocol (or understanding of this) in relation to children when arresting and sentencing parents was influential. With no one organisation held accountable for these children, there is a resounding sense of displaced responsibility (Flynn et al., in press). This has an impact on what happens to children; without clear organisational roles and responsibilities, children can fall through the cracks. Where children are seen and responded to, professionals involved are typically acting outside of their narrow organisational roles: ‘… sometimes you just work around it. Sometimes you'll delay arresting or interviewing someone because of child care issues. I had a case a couple of months ago, I had to arrest two parents for offences and they had a very young child who was only eight or nine months of age. All we did on that occasion was arrested the father first, taken him back, processed him, then took him back to the house and then arrested the mother and took her back, and did it that way. So that way you’re not interfering with the care of the child’ (Police)
Police were clear, however, that they do not typically have the time, resources or knowledge to care effectively for children. They highlighted deficits in basic materials such as car seats to transport children or nappies for babies; the need for relevant education was also indicated. They noted the impact of policing locations, with greater levels of informal knowledge about families and children in rural/regional settings. The role of further training was highlighted as well: those police who had worked in Sexual Offences and Child Abuse units or who had experience in Family Violence were more inclined to see children, and hence see their role more broadly. Whilst the specific reasons for staff to act in these ways were not examined in this study, it is likely that is also influenced by personal values and beliefs (McCaughey, Shaver, & Ferber, 1977, cited in Scott (2009)) and professional experiences, along with the capacity and willingness to ask questions and to use initiative. Having all of these variables operating concurrently means that children do not get a guaranteed and predictable response. While the current tendency towards reliance on individual decision making does allow for flexibility, our data indicate that this can result in inconsistency.
Improving practice
The views presented by participants provide insights into the ways in which responses to these children could be improved, when viewed through the lens of children’s rights. These improvements can be summarised as developments in both attitudes and actions. Improving responses to children requires approaches which are both ‘child sensitive’ in attitude (the role of training is emphasised, both for magistrates in ‘court craft’ and for police in responding to children, whether present or not) and ‘child focused’ in action (normalising and formalising responses to children).
Clear and practical changes could be incorporated into current processes, including:
Requiring officers to ask about any dependent children during the standard arrest process to make them visible. This has been successfully implemented in California (Puddefoot & Foster, 2007), alongside a clear relationship with child protective services, including co-location of services. Whilst all are aware of the multiple responsibilities of police officers during arrest, participants in the current study described existing and similar practices already occurring. The need to question and respond to the specific circumstances and needs of indigenous arrestees was a notable example. The need to work collaboratively, ideally with an identified non-government agency, to then support and arrange care for identified children, was emphasised. Requiring Magistrates to ask about dependent children during the sentencing and custody management process, perhaps through the provision of in-court reminders. Again it was made clear by participants that, as with arrest, questions are currently asked about a range of matters, including health and mental health related to the well-being of the person being sentenced. Asking about dependent children seems a logical inclusion, but does imply then, the capacity and resources to respond and refer appropriately. Currently, there is not an identified body which has oversight of this group of children. Incorporating into Pre-Sentence Reports the likely consequences to children of parental incarceration. Although related specifically to women, the Better Pathways Policy (2005) highlighted the need to improve the effectiveness of sentencing, for example by providing training for Community Corrections workers to ensure that court advice and assessment reports are sensitive to the needs of mothers before the court. More broadly, such a focus would ensure that an assessment of children’s circumstances and needs and the likely impact of primary carer incarceration were put before the court. Data also indicate the need for clearer protocols and guidelines for professionals involved in the arrest and sentencing processes, and a greater range of alternatives to imprisonment, perhaps like the FOSA project – with guidelines for sentencing options, as well as resources to respond to children. The introduction of innovative responses like this would, however, require both a shift away from the current ‘law and order’ agenda evident in Victoria and the political will to prioritise children’s rights and needs.
Conclusion
Up to this point, research on actively responding to children whose parents are in contact with the criminal justice system has been minimal. The issue of children has not been considered as pertaining to the scope of adult-focused services. Prisoners are viewed, both by police and the court system, as atomised individuals who present a potential danger to society and who need to be punished for breaches of the law. They are typically not thought of as parents or primary carers with responsibilities for vulnerable children.
This study corroborates previous findings relating to children and parents in prison; that children are invisible to a system that is devoted to dealing with adults; that there is little coordinated agency effort and that protocols for dealing with children, even when present, are not widely known. For staff working in the area, acknowledging that prisoners are also parents is heavily dependent on their own experience in the job, and as a parent, and the information that is provided to them at contact. This reliance on information being volunteered further perpetuates the vulnerability of children, as parenting status will only be disclosed if parties consider it useful to do so.
Importantly, this study contributes fresh ideas. It generates specific and localised knowledge about these children and how we can and do respond to them. Findings point to a degree of awareness in staff that children are somehow ‘missing’ from their service. Notably the study found willingness from some to incorporate child-centred practices, provided they had appropriate training and support. This study also points to the importance of the lived experience of staff working in the system, and how this can increase their awareness of children as an integral part of the lives of offenders. This should not be taken to mean that there should be sole reliance on individual attitudes towards children, but rather that there are already some practitioners who are child focused.
This study specifically describes the lack of explicit, and comprehensive, protocols between agencies dealing with arrest and sentencing. This lack of procedural specificity affects how staff do or do not think of children; it generates inconsistent and ad hoc responses, with basic food and shelter not guaranteed for these children at the point of parental arrest and sentencing. Although this study found that some workers go far beyond their prescribed role to ensure the rights and well-being of children, it also highlights a systemic predisposition to ignore children caught up in an adult system. As one police officer aptly put it: ‘[…] there’s no notice up in the custody area [asking] “Does your offender have children?”’. The question remains, why not?
Footnotes
Acknowledgements
Feedback on earlier drafts of this paper was gratefully received from Victoria Police.
Declaration of conflicting interests
The author(s) disclosed receipt of the following financial support for the research, authorship, and/ or publication of this article: The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
This work was supported by the Australian Research Council (grant number LP110100084).