Children of prisoners - maintaining family ties

Contexts - policy and legislation

The following policy, legislation and delivery plans are ‘cross-cutting’. This means there are implications and responsibilities associated for all the statutory sectors including social care, health, education and criminal justice.

Every Child Matters

The Every Child Matters: Change for Children Programme (1) is the policy framework which aims to put in place a national framework to support the joining up of services so that every child can achieve the five Every Child Matters outcomes:

Three of the key elements of the national framework are:

Children’s trusts and children’s services both play a central role in trying to improve outcomes for the most vulnerable. A key measure of success will be achieving change through closing the gap between their outcomes and those of the majority of children and young people.

Children’s Act (2004)

The Children’s Act (2004) is a piece of legislation which transforms the proposals set out in Every Child Matters, creating clear accountability for children's services, to enable better joint working and to secure a better focus on safeguarding children. The Act provides for the establishment of a Children's Commissioner and supports better integrated planning, commissioning, and delivery of children's services. The Act places a duty on local authorities to make arrangements through which key agencies co-operate to improve the well-being of children and young people and widen services' powers to pool budgets.

Human Rights Act 1998

Article 8 of the Human Rights Act states that “Everyone has the right to respect for his private and family life, his home and his correspondence” (4). The Act goes on to state that:

“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.

While it would seem that being in prison inevitably results in interference in maintaining family ties, it could be argued that the rights of the child and family are being ignored if they are unable to have appropriate access. Several cases have been brought by prisoners to test such a theory.

United Nations Convention on the Rights of the Child 1989

This states categorically that best interests of the child shall be a primary consideration (Article 3)(5), and that they have the right to be heard and have their views taken into consideration.

Article 9 is particularly relevant and says that states shall ensure that children are not separated from their parents against their will. It goes on to say:

“States’ parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests” (9.3).

So it is clear that the rights of the child entitles them to contact with an imprisoned parent, regardless of that imprisonment, if it is in the best interests of the child. This puts the onus on the state to ensure that this is achievable, although there is no case law to act as precedent as yet.