Considering the Best Interests of the Child in Sentencing and Other Decisions Concerning Parents Facing Criminal Sanctions: An Overview for Practitioners

By Hayli Millar, Yvon Dandurand, Vivienne Chin, Shawn Bayes, Megan Capp, Richard Fowler, Jessica Jahn, Barbara Pickering, and Allan Castle

This Overview forms part of a broader project on the Best Interests of the Child in Sentencing and Other Decisions Concerning Parents Facing Criminal Sanctions, made possible through the support of a generous project grant from the Vancouver Foundation. The broader project’s objective is to instigate and support a systemic and cultural change in the way that the best interests of the child are considered by defence counsel, the prosecution and the courts. The ultimate intention is to mitigate the negative impact on the child of a parent facing criminal sanctions, especially when the parent/legal guardian is a primary or sole caregiver. The motivation for this work is the general lack of attention directed towards the best interests of dependent children whose parents are before the criminal courts, despite a wide range of international and regional norms and standards which suggest that domestic criminal courts are obliged to take the rights and best interests of dependent children into account as a primary consideration when making bail and sentencing decisions. This lack of attention persists despite all that is known about the negative influence of parental criminal sentences, and in particular incarceration, on children. This Overview is intended specifically to encourage active consideration of child impact and family impact at time of sentencing and other court decisions, principally by prosecutors and judges but also all those with influence in criminal proceedings, to avoid the potentially negative impacts of those decisions. A broader purpose is to raise awareness about these issues more generally, and to assist the reader in identifying practices which serve to diminish consideration of the best interests of the child, where these exist. More generally, the Overview is intended to influence policy change, to encourage greater availability of non-carceral or community-based alternatives to incarceration for people with parental responsibilities, and to support parents in mitigating the impact of their own sentencing and court order compliance on their children. The recommendations in this Overview are intended to stir productive discussion. Our efforts will have been successful if this document encourages subject matter experts and decision makers holding positions of responsibility in the criminal process to consider how the best interests of the child may most suitably and effectively be incorporated into decisions and orders of the criminal courts.

Vancouver: International Centre for Criminal Law Reform and Criminal Justice Policy, 2023. 56p.