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Courts
Recommendation 20:
The incarceration of a parent, particularly a mother who is a primary or sole caregiver or who has very young children, can have very detrimental impact on the child/children. Various measures can be taken during incarceration, when appropriate, to help maintain the bond between children and their parent, facilitate, contacts between them, and prepare for their eventual reunification. Contact between a child and his or her incarcerated parent can positively impact the child.
- Prior to, or on admission, enable individuals with parental responsibilities to make arrangements for those children, taking into account the best interests of the child.
- Ensure that prison administrations collect information at intake and later regarding the children of detainees, keep that information up-to-date, and protect its confidentiality.
- On admission and on a prisoner’s transfer, assist prisoners (who wish to do so) to inform their children (and their caregivers) of their imprisonment and whereabouts or ensure that such information is communicated to them.
- Make information available about contact and visiting modalities, procedures and internal rules in a child-friendly manner and in different languages and formats as necessary.
- Give due regard in decisions regarding the transfer of the incarcerated parent to the best interests of the child when considering the rehabilitation purpose of the transfer.
- Enforce restrictions on contact of incarcerated parents in a manner that respects the children’s right to maintain contact with their parent.
- Consider significant events in a child’s life, such as birthdays, first day of school, graduation, or hospitalization when granting prison leave to parents.
- Ensure that children are allowed to visit an imprisoned parent, when appropriate, as soon as possible following the parents’ detention and, on a regular and frequent basis, from then on.
- Organize children’s visits so as not to interfere with other elements of the child’s life, such as school attendance.
- Allow arrangements for a qualified person to accompany the children during prison visits if the children’s caregiver is not available to accompany the child.
- Ensure that the prison visit context is respectful to the child’s dignity and right to privacy, including providing child-friendly spaces when possible, facilitating access and visits for children with special needs, and taking into account the children’sdevelopmental needs (physical contact, food, and play).
- Arrange the children’s visits in a flexible manner, particularly when the children’s parents are imprisoned far away from home.
- Use information and communication technology (e.g., video-conferencing, mobile and other telephone systems, internet, including webcam and chat functions), when a family is unable to visit regularly, to facilitate communications between parents and children.
- Assist imprisoned parents with the costs of communicating with their children if their means do not allow it.
- Facilitate imprisoned parents’ participation in the parenting of their children, including communicating with school, health and welfare services and taking decisions in this respect, except in cases where it is not in the child’s best interests.
- Facilitate home leaves for the parents, in particular during the period before their release in order to provide opportunities for them to prepare for fully resuming their parental role and its responsibilities on release, when appropriate.
- Offer programs to incarcerated parents that support and develop a positive child parent relationship.
Enhancing the Protective Environment for Children of Parents in Conflict with the Law or Incarcerated: A Framework for Action
Group/author:
Elizabeth Fry Society of Greater Vancouver, International Centre for Criminal Law Reform and Criminal Justice Policy, University of the Fraser Valley – School of Criminology and Criminal Justice
Elizabeth Fry Society of Greater Vancouver, International Centre for Criminal Law Reform and Criminal Justice Policy, University of the Fraser Valley – School of Criminology and Criminal Justice
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2018
2018
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Recommendation 2:
The importance of a National Action Plan cannot be overstated in terms of establishing national standards and strengthening the systems that respond to gender-based violence. However, at the same time, a key element of success will be ongoing engagement, collaboration and knowledge sharing with regions and communities, to reflect the diversity of needs, challenges and efforts across the nation. To do this, it will be important to link with and build on the work and expertise of existing provincial not-for-profit organizations in engaging and supporting local communities and in developing provincial-level strategies.
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Recommendation 12:
The Government of Canada must amend the Criminal Code to prevent the use and prosecution of discriminatory or destructive behavioural conditions of interim release and sentencing, specifically:
- legislate that conditions imposed on interim release be reasonable and proportionate to the nature and seriousness of the alleged offence and the circumstances of the accused;
- define “drug paraphernalia” as harm reduction medical equipment and prohibit the imposition of conditions that would interfere with the ability to access or possess harm reduction equipment;
- prior to imposing an abstinence condition, require that courts consider a person’s dependence on drugs or alcohol. Abstinence conditions shall not be imposed on people living with addictions, except where doing so is necessary to protect the safety of a victim, witness, or the public, and harm-reduction measures shall be preferred over abstinence;
- limit “red zone” conditions to situations where there is a substantial likelihood that, if released without a red zone, the accused will commit an offence involving violence or serious harm within the red zone and ensure that any red zone is tailored to the alleged offence, the principles of judicial interim release or probation, and circumstances of the individual;
- remove paragraph 504(2.1) (g), the power for police to impose “abstinence” conditions; and
- eliminate criminal sanctions for non-violent breaches of behavioural conditions.
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Recommendation 17:
The CRC was created by Article 43 of the CRC to implement it, by way of General Comments, and provide international standards that apply to the work that B.C. judges, lawyers and other professionals do in family law. They identify children’s rights and the importance of legal guarantees and apply procedural safeguards in describing how to implement children’s rights in judicial proceedings, which includes but is not limited to obtaining children’s views and requiring all appropriate legal representation (see CRC General Comment 14, para 93). These guarantees and safeguards are not implemented in B.C. nor across Canada and should be implemented (Brown, findlay, Martinson, & Williams, 2021; CBA 2020; Jackson & Martinson, 2019; Martinson & Tempesta, 2018; Martinson & Raven, 2020a).
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Recommendation 2:
The children of parents in conflict with the law have the same basic needs as any other child, but they face different challenges due to the situation of their parents and, generally speaking, the negative social reaction to persons in conflict with the law and their families. These children are at risk of being ostracized and stigmatized by people around them, being victimized in various ways, or developing behavioral problems (including finding themselves in conflict with the law). These risks are real and should be kept in mind, but not overly dramatized so as to avoid further stigmatizing children. Most importantly, the needs and circumstances of these children must be taken into account to provide them with opportunities comparable to those of other children and parents.
Enhancing the Protective Environment for Children of Parents in Conflict with the Law or Incarcerated: A Framework for Action
Group/author:
Elizabeth Fry Society of Greater Vancouver, International Centre for Criminal Law Reform and Criminal Justice Policy, University of the Fraser Valley – School of Criminology and Criminal Justice
Elizabeth Fry Society of Greater Vancouver, International Centre for Criminal Law Reform and Criminal Justice Policy, University of the Fraser Valley – School of Criminology and Criminal Justice
Year:
2018
2018
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Recommendation 19:
The best interests of the child should be considered when dealing with offenders with parental responsibilities. Decision making at the time of sentencing can be improved by ensuring that the impact of the decision on the offenders’ children is considered. Minimize children’s separation from their parents in conflict with the law by limiting the use of imprisonment whenever possible and appropriate.
- Provide courts with accurate information about an accused’s family situation and the potential impact of sentencing and bail decisions on family members, including through a pre-sentence, Gladue or cultural impact assessment report.
- Introduce the use of children/family impact assessments or statements at the time of sentencing.
- Where a custodial sentence is being contemplated, take into consideration the rights and best interests of any affected child and a child’s right to have their views considered.
- Use alternatives to detention or community-based sentences, as far as possible and appropriate, especially in the case of a parent who is a primary caregiver.
- Ensure that non-custodial sentences take account of an offender’s parental responsibilities.
Enhancing the Protective Environment for Children of Parents in Conflict with the Law or Incarcerated: A Framework for Action
Group/author:
Elizabeth Fry Society of Greater Vancouver, International Centre for Criminal Law Reform and Criminal Justice Policy, University of the Fraser Valley – School of Criminology and Criminal Justice
Elizabeth Fry Society of Greater Vancouver, International Centre for Criminal Law Reform and Criminal Justice Policy, University of the Fraser Valley – School of Criminology and Criminal Justice
Year:
2018
2018
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Recommendation 17:
The arrest of a parent can be a traumatic experience for children. It is almost always very disruptive and stressful for the family. It is important to try to mitigate these effects on the children. Also, temporary care arrangements must be made when the parents is the sole caregiver for the child.
- Try to mitigate the impact that arrest of a parent may have on any child present.
- Wherever possible, carry out the arrest in the absence of the child or, at a minimum, in a child-sensitive manner.
- Inquire, at the time of arrest, about the arrangements made for the children.
- Give the arrested parent who has sole custody of a child a reasonable opportunity to select a caregiver unless the arrest is for child abuse or neglect.
- Work together with local agencies to find appropriate ways to support children and other family members during and after an arrest. For example, prior to a planned arrest, agencies and community resources could be made aware, when appropriate, of any dependent or family members that might be present at the arrest.
- Develop protocols and policies concerning arrests and temporary care of children of the arrested individuals.
- Provide guidance to all concerned agencies and organizations, and their personnel, on how to support children and family members during and after an arrest.
Enhancing the Protective Environment for Children of Parents in Conflict with the Law or Incarcerated: A Framework for Action
Group/author:
Elizabeth Fry Society of Greater Vancouver, International Centre for Criminal Law Reform and Criminal Justice Policy, University of the Fraser Valley – School of Criminology and Criminal Justice
Elizabeth Fry Society of Greater Vancouver, International Centre for Criminal Law Reform and Criminal Justice Policy, University of the Fraser Valley – School of Criminology and Criminal Justice
Year:
2018
2018
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Audience:
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Recommendation 10:
Strengthen the legal duty of the Ministry to consider less disruptive measures by:
- Adding legislative language in the CFCSA that explicitly directs the Ministry to actively and diligently pursue and implement less disruptive measures on an ongoing basis;
- Including a non-exhaustive list of less disruptive measures that the Ministry must consider on an ongoing basis including an order of preference of placements akin to that set out in section 16 of Bill C-92;
- Adding legislative language in the CFCSA that directs the Ministry to establish in court that social workers have made active efforts that proved unsuccessful to return the child to their family;
- Where parents and Nations have identified less disruptive measures, the CFCSA should direct the Ministry to provide prompt, clear, and written reasons for rejecting these less disruptive measures.
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Category and theme:
- Access to justice ,
- Accessibility ,
- Classism ,
- Courts ,
- Decolonization and Indigenous rights ,
- Disability and parenting ,
- Discrimination and hate ,
- Health, wellness and services ,
- Human rights system ,
- Indigenous children and youth in care ,
- International human rights ,
- Policing and the criminal justice system ,
- Poverty and economic inequality ,
- Public services ,
- Racism
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Recommendation 5:
The Canadian legal system also requires specialised training of professionals working with children, including mental health professionals, lawyers, and judges (Bala & Birnbaum, 2019; Collins, 2019; Paetsch et al., 2018). This is particularly important for legal professionals working on cases involving parental alienation and/or family violence (Elrod, 2016; Martinson & Jackson, 2016). These types of cases require judges and mental health professionals who are experienced in discovering and addressing problems in the family, as there can be multiple reasons for a child refusing contact with a parent or guardian, including family violence that can continue to put the child at risk if left unaddressed in custody and access decisions (Elrod, 2016; Martinson & Tempesta, 2018).
Specific recommendations for children’s legal counsel include: ensuring democratic communication, in which lawyers and child both share information about themselves to build trust in preparation for proceedings; having lawyers inform children about the court process and what it means to have a lawyer represent them; having lawyers pose questions to children to better recognize how children understand the court process; and getting lawyers to emphasize flexibility in the child’s options to share their views, not share them at all or change their instructions to the lawyer (Bala & Birnbaum, 2019; Koshan, 2020; Horsfall, 2013; Paetsch et al., 2018). Those working at family courts should receive specialised training on family violence and high-risk cases, which can have a substantial impact on children’s rights (Koshan, 2020; Martinson & Raven, 2020a). From a scholastic perspective, much more research is needed to understand which of the many strategies implemented across Canada (and the world) might be most helpful to children’s legal participation (Birnbaum & Saini, 2012). This requires ongoing cooperation and collaboration between the legal and academic communities, to guarantee specialised and sensitised approaches to this topic.
Specific recommendations for children’s legal counsel include: ensuring democratic communication, in which lawyers and child both share information about themselves to build trust in preparation for proceedings; having lawyers inform children about the court process and what it means to have a lawyer represent them; having lawyers pose questions to children to better recognize how children understand the court process; and getting lawyers to emphasize flexibility in the child’s options to share their views, not share them at all or change their instructions to the lawyer (Bala & Birnbaum, 2019; Koshan, 2020; Horsfall, 2013; Paetsch et al., 2018). Those working at family courts should receive specialised training on family violence and high-risk cases, which can have a substantial impact on children’s rights (Koshan, 2020; Martinson & Raven, 2020a). From a scholastic perspective, much more research is needed to understand which of the many strategies implemented across Canada (and the world) might be most helpful to children’s legal participation (Birnbaum & Saini, 2012). This requires ongoing cooperation and collaboration between the legal and academic communities, to guarantee specialised and sensitised approaches to this topic.
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Category and theme:
- Access to justice ,
- Accessibility ,
- Accessible services and technology ,
- Ageism ,
- Courts ,
- Decolonization and Indigenous rights ,
- Discrimination and hate ,
- Human rights system ,
- Indigenous children and youth in care ,
- International human rights ,
- Policing and the criminal justice system ,
- Poverty and economic inequality ,
- Public services
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Recommendation 131:
Require that all child welfare decision makers and courts must mandatorily consider the impact of the residential school experience on children and their caregivers.
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