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Sentencing the parents, punishing the children? The role of the child’s best interests in sentencing decisions concerning adult offenders

(2020)
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(UGent)
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Abstract
When someone commits an offence, it is only normal that punishment follows his or her conviction. That this sentence also affects the defendant’s children is, however, often overlooked, despite of the emerging international and supranational (soft) law provisions on the matter and the rapidly growing body of research concerning the (negative) impact of parental imprisonment on children. With a view to filling that gap, this dissertation researches the role of the child’s best interests in sentencing decisions concerning adult offenders. The Belgian criminal justice system finds itself at a possible tipping point from obliviousness of the importance of children’s rights to a recognition thereof. Even though today, in Belgium, as in many other countries, the children of persons in conflict with the law are systemically invisible, that systemic lack of attention for the children of (alleged) offenders in the criminal justice system may be addressed in the future. The proposal for a new criminal code, which was submitted to the Belgian Parliament in 2019, may open the door for a debate on the role of the child’s best interests in the sentencing context on the basis of the wording of Article 28. Article 28 of this proposal prescribes that criminal courts should pursue one or more of the defined sentencing goals and should also consider the negative side effects of the sentence for the defendant, his or her environment, and society in general. The explanatory text to Article 28 clarifies that the judge should consider all consequences for all parties involved in order to determine which sentence holds the least negative consequences, beyond the sentencing goal set forth. In case two different sentences can realise the same result, the sentence with the smallest negative impact should be chosen. Although this proposal does not explicitly refer to the best interests of the child, it does open a window of opportunity to introduce the best interests of the child in the sentencing decision. That challenge is not so much the awareness of a possible interaction, but the complexity of embedding a children’s rights perspective in a criminal justice system. Whereas several scholars made a strong case in favour of a consideration of the child’s best interests in the sentencing decision, the principle of the best interests of the child in itself is notoriously vague and the position of the best interest of the child is insufficiently developed in criminal justice theory. The application of the best interests of the child, both in general and in the sentencing context, raises several questions, including how the scope of such obligation should be defined, how the best interests of the child should be determined in this context, how the best interests relate to the other interests at stake in sentencing decision, and which procedural guarantees are required for a proper consideration of the child’s best interests in the sentencing decision. These questions are researched in this study, both from a children’s rights and a criminal law perspective. The following central research question was formulated: How can the child’s best interests be conceptualised in sentencing decisions regarding adult offenders, in light of the principles of criminal sentencing and international and supranational law? In light thereof, this dissertation critically assesses the international and supranational law governing the obligation to consider the child’s best interests in the sentencing decision and formulates recommendations for Belgium in order to comply with these obligations. These recommendations go beyond the Belgian context, however, and are of relevance for other jurisdictions introducing or considering to introduce a similar provision and courts applying the principle of the child’s best interests in practice. More generally, the dissertation contributes to the knowledge concerning the application of the best interests of the child in decisions which do not directly concern children. This dissertation consists of five parts. The first part sets out the normative framework concerning the best interests of the child in general and within the particular context of sentencing decisions concerning parents. The analysis of the normative framework brings minimum standards with respect to four elements concerning the best interests of the child to the surface: the scope, determination, weight and procedural guarantees of the child’s best interests. The second part examines the extent to which these minimum standards – clearly developed from a children’s rights perspective – are compatible with the principles and goals of criminal law. Through a literature review, the criminal law arguments against the consideration of the best interests of the child are discussed and refuted. It is argued that some sentencing goals may, however, limit the influence of the best interests of the child consideration on the sentencing outcome. Additionally, it is researched to what extent the already existing mechanisms for sentence mitigation, i.e. mitigating circumstances and mercy, would allow for a meaningful consideration of the best interests of the child. Based on a comparative study, it is argued that a separate legal basis for the consideration of the child’s best interests in the sentencing decision is required, however. The third part of the dissertation explores the way in which a children’s rights approach is realised in other domestic jurisdictions. Particular attention is given to the South African sentencing guidelines, which prescribe that the best interests of the child should guide the sentencing decision in certain situation. Even though these guidelines are often considered a ‘best practice’, only limited research on their interpretation and application in practice is available. Through a qualitative and quantitative analysis of South African case law, the impact of these guidelines on the sentencing practice is researched. Several elements of the guidelines have proven to be very important, but important lessons can be learnt from the South African experience as well. The fourth part of the dissertation researches the role of the best interests of the child in the Belgian sentencing law and practice through a traditional legal analysis and an empirical study. Through qualitative in-depth interviews with Flemish criminal law judges, insight is obtained into the views and practices of the judiciary concerning the impact of the sentence on the child’s best interests in the sentencing context. It is argued that the current possibility to consider the best interests of the child as mitigating circumstances does not suffice from a children’s rights perspective and can also not be supported from a criminal law perspective. This part further researches to what extent the proposed reform of the criminal code may realise the child’s rights in this context. It is argued that the mere introduction of a legal obligation to consider the impact of the sentence on the child and his or her best interests is not sufficient, but broader measures are required to realise social change. In the fifth and final part, policy recommendations are formulated as to the incorporation of the best interests of the child in the sentencing context, at both the substantive and procedural level.
Keywords
Child Rights, Best interest of the child, sentencing parents

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Citation

Please use this url to cite or link to this publication:

MLA
Lauwereys, Heleen. Sentencing the Parents, Punishing the Children? The Role of the Child’s Best Interests in Sentencing Decisions Concerning Adult Offenders. Ghent University. Faculty of Law and Criminology, 2020.
APA
Lauwereys, H. (2020). Sentencing the parents, punishing the children? The role of the child’s best interests in sentencing decisions concerning adult offenders. Ghent University. Faculty of Law and Criminology, Ghent, Belgium.
Chicago author-date
Lauwereys, Heleen. 2020. “Sentencing the Parents, Punishing the Children? The Role of the Child’s Best Interests in Sentencing Decisions Concerning Adult Offenders.” Ghent, Belgium: Ghent University. Faculty of Law and Criminology.
Chicago author-date (all authors)
Lauwereys, Heleen. 2020. “Sentencing the Parents, Punishing the Children? The Role of the Child’s Best Interests in Sentencing Decisions Concerning Adult Offenders.” Ghent, Belgium: Ghent University. Faculty of Law and Criminology.
Vancouver
1.
Lauwereys H. Sentencing the parents, punishing the children? The role of the child’s best interests in sentencing decisions concerning adult offenders. [Ghent, Belgium]: Ghent University. Faculty of Law and Criminology; 2020.
IEEE
[1]
H. Lauwereys, “Sentencing the parents, punishing the children? The role of the child’s best interests in sentencing decisions concerning adult offenders,” Ghent University. Faculty of Law and Criminology, Ghent, Belgium, 2020.
@phdthesis{8713899,
  abstract     = {{When someone commits an offence, it is only normal that punishment follows his or her conviction. That this sentence also affects the defendant’s children is, however, often overlooked, despite of the emerging international and supranational (soft) law provisions on the matter and the rapidly growing body of research concerning the (negative) impact of parental imprisonment on children. With a view to filling that gap, this dissertation researches the role of the child’s best interests in sentencing decisions concerning adult offenders.
The Belgian criminal justice system finds itself at a possible tipping point from obliviousness of the importance of children’s rights to a recognition thereof. Even though today, in Belgium, as in many other countries, the children of persons in conflict with the law are systemically invisible, that systemic lack of attention for the children of (alleged) offenders in the criminal justice system may be addressed in the future. The proposal for a new criminal code, which was submitted to the Belgian Parliament in 2019, may open the door for a debate on the role of the child’s best interests in the sentencing context on the basis of the wording of Article 28. Article 28 of this proposal prescribes that criminal courts should pursue one or more of the defined sentencing goals and should also consider the negative side effects of the sentence for the defendant, his or her environment, and society in general. The explanatory text to Article 28 clarifies that the judge should consider all consequences for all parties involved in order to determine which sentence holds the least negative consequences, beyond the sentencing goal set forth. In case two different sentences can realise the same result, the sentence with the smallest negative impact should be chosen. Although this proposal does not explicitly refer to the best interests of the child, it does open a window of opportunity to introduce the best interests of the child in the sentencing decision.
That challenge is not so much the awareness of a possible interaction, but the complexity of embedding a children’s rights perspective in a criminal justice system. Whereas several scholars made a strong case in favour of a consideration of the child’s best interests in the sentencing decision, the principle of the best interests of the child in itself is notoriously vague and the position of the best interest of the child is insufficiently developed in criminal justice theory. The application of the best interests of the child, both in general and in the sentencing context, raises several questions, including how the scope of such obligation should be defined, how the best interests of the child should be determined in this context, how the best interests relate to the other interests at stake in sentencing decision, and which procedural guarantees are required for a proper consideration of the child’s best interests in the sentencing decision. These questions are researched in this study, both from a children’s rights and a criminal law perspective. The following central research question was formulated: 
How can the child’s best interests be conceptualised in sentencing decisions regarding adult offenders, in light of the principles of criminal sentencing and international and supranational law?
In light thereof, this dissertation critically assesses the international and supranational law governing the obligation to consider the child’s best interests in the sentencing decision and formulates recommendations for Belgium in order to comply with these obligations. These recommendations go beyond the Belgian context, however, and are of relevance for other jurisdictions introducing or considering to introduce a similar provision and courts applying the principle of the child’s best interests in practice. More generally, the dissertation contributes to the knowledge concerning the application of the best interests of the child in decisions which do not directly concern children.
This dissertation consists of five parts.
The first part sets out the normative framework concerning the best interests of the child in general and within the particular context of sentencing decisions concerning parents. The analysis of the normative framework brings minimum standards with respect to four elements concerning the best interests of the child to the surface: the scope, determination, weight and procedural guarantees of the child’s best interests.
The second part examines the extent to which these minimum standards – clearly developed from a children’s rights perspective – are compatible with the principles and goals of criminal law. Through a literature review, the criminal law arguments against the consideration of the best interests of the child are discussed and refuted. It is argued that some sentencing goals may, however, limit the influence of the best interests of the child consideration on the sentencing outcome. Additionally, it is researched to what extent the already existing mechanisms for sentence mitigation, i.e. mitigating circumstances and mercy, would allow for a meaningful consideration of the best interests of the child. Based on a comparative study, it is argued that a separate legal basis for the consideration of the child’s best interests in the sentencing decision is required, however.
The third part of the dissertation explores the way in which a children’s rights approach is realised in other domestic jurisdictions. Particular attention is given to the South African sentencing guidelines, which prescribe that the best interests of the child should guide the sentencing decision in certain situation. Even though these guidelines are often considered a ‘best practice’, only limited research on their interpretation and application in practice is available. Through a qualitative and quantitative analysis of South African case law, the impact of these guidelines on the sentencing practice is researched. Several elements of the guidelines have proven to be very important, but important lessons can be learnt from the South African experience as well.
The fourth part of the dissertation researches the role of the best interests of the child in the Belgian sentencing law and practice through a traditional legal analysis and an empirical study. Through qualitative in-depth interviews with Flemish criminal law judges, insight is obtained into the views and practices of the judiciary concerning the impact of the sentence on the child’s best interests in the sentencing context. It is argued that the current possibility to consider the best interests of the child as mitigating circumstances does not suffice from a children’s rights perspective and can also not be supported from a criminal law perspective. This part further researches to what extent the proposed reform of the criminal code may realise the child’s rights in this context. It is argued that the mere introduction of a legal obligation to consider the impact of the sentence on the child and his or her best interests is not sufficient, but broader measures are required to realise social change.
In the fifth and final part, policy recommendations are formulated as to the incorporation of the best interests of the child in the sentencing context, at both the substantive and procedural level.}},
  author       = {{Lauwereys, Heleen}},
  keywords     = {{Child Rights,Best interest of the child,sentencing parents}},
  language     = {{eng}},
  pages        = {{503}},
  publisher    = {{Ghent University. Faculty of Law and Criminology}},
  school       = {{Ghent University}},
  title        = {{Sentencing the parents, punishing the children? The role of the child’s best interests in sentencing decisions concerning adult offenders}},
  year         = {{2020}},
}