A comparative approach on the treatment of children in the criminal justice system : the need to address the rights of ‘collateral convicts’

Abstract

In serving justice, an issue which is often overlooked is the effects of the incarceration of primary care-givers on children. In order to strike a fair balance between the interests of the general public to maintain order and the interests of the children of offenders/alleged offenders, it is important to ensure that their children do not end up suffering for crimes which they did not commit. This dissertation analyses the way in which the child’s rights are safeguarded by the criminal justice system; starting from the pre-trial period and following possible detention and release. A child-sensitive approach should be adopted throughout the whole process. Most foreign countries safeguard the children’s fundamental right to live with their parents by providing children of parent offenders with the opportunity to be able to be raised by their parents. This is effected either through alternatives to imprisonment such as house arrest and suspended sentences, or in cases where imprisonment cannot be avoided, through the establishment of specialised institutions in which the child can be raised by the parent. Upon delving into Maltese law regulating the administration of justice with regards to children of offenders, it becomes evident that there is a need to address the scarce law in this area. After analysing various efforts made at a European level, such as the interpretation of article 8 of the Convention on Human Rights on the child’s right to family life by the European Court of Human Rights, and the recommendations made by the Council of Europe, as well as efforts made by the United Nations through the promulgation of the United Nations Convention on the Rights of the Child, amongst others, the last chapter of this paper is dedicated to putting forward some recommendations, aimed at ensuring that children of prisoners are guaranteed the same rights as children of non-prisoners.