Recently, questions arose regarding the sentencing procedures applied by our courts. While such a discussion never ceases in the legal camp, the recent case of two Turkish mothers found travelling with falsified documents gave rise to a different set of questions.
Was the first court’s decision proportionate? Was enough consideration given to the entirety of the situation? Should children’s rights play a role in these decisions? If so, what extent of scrutiny should be afforded?
The appellate court thoroughly considered the above and concluded that, while the first court’s decision was within the parameters of law in its sentencing procedure, not enough consideration was afforded to the extraordinary and mitigating circumstances.
The first court’s impulsive decision to imprison the women for six months failed to consider that they are mothers and the primary caregivers to two young boys, which would lead to the children being ripped away from their mothers’ arms, with no other familiar face to offer them comfort.
What does this rash decision say about our system and its treatment of human rights and children’s rights? Didn’t we, as a nation, voluntarily sign the Convention on the Rights of the Child (UNCRC) in 1990? Aren’t we signatories to the European Convention on Human Rights (ECHR)? Was any weight afforded to Article 8 of the ECHR, contemplating the right to private and family life?
Although the sentence handed down was eventually amended, the questions originally raised still prevail. It should not have been up to the appellate court to primarily consider that the women’s role as primary caregivers merits greater concern and that the collateral effects on the children would have been dire. Such factors should have been scrupulously considered by the first court.
Children’s best interests shall be afforded primary consideration and not a secondary role (Article 3.1 UNCRC).
While the best interest principle is often considered too broad, it may also be classified as fairly self-explanatory. In this case, the punishment handed down to the women is bound to have a direct effect on their children because “the fate of children is often linked to the fate of their parents” (Lagoutte).
Therefore, while the decision maker shall consider all the necessary factors, a fair balance shall be struck between the punitive element and ensuring that the end result provides for the best outcome for the children.
This compromise is reached by taking full cognisance of the wide-ranging and reasonably practicable alternatives contemplated by law, along with all the possible negative outcomes that may result from excessive measures.
However, unless our legal system remoulds its sentencing procedure to ensure that decision makers place certain weight on the interests of other dependents of the offender, particularly children, then no practicable way forward may be contemplated.
The impulsive handing down of a prison sentence in this case raises other fundamental questions. Was any thought afforded to the balancing-of-proportionality test?
When justice is devoid of a human face, the effects, especially on children and young people, could be traumatic and long-lasting
At the appellate stage, the attorney general argued that the women did not merit a mitigation in their sentence just because they are mothers. So does this mean that courts should blindly hand down a judgment without taking into consideration all mitigating elements and how such decision might reflect on others? Or that the court should swiftly move past the fact that a three- and a four-year-old’s futures were on the line?
This is not to say that no action should have been taken but that various factors necessitate consideration when making a decision, including its direct effects on others.
This balancing exercise requires rigorous consideration of all applicable elements and shall be applied on a case-by-case basis. Some prevalent factors here include: the offence, the reasons, the sense of desperation and the immediate admission of guilt, the women’s role as primary caregivers, the possibility of the children being orphaned in an unknown country if separated from their mothers and that the long-term effects from such separation may be catastrophic.
If one effectively balances these on a scale, where does this effectively leave us?
“If the passing of a custodial sentence involves the separation of a mother from her very young child (or, indeed, from any of her children) the sentencing court is bound… to carry out the balancing exercise… before deciding that the seriousness of the offence justifies the separation of mother and child. If the court does not have sufficient information about the likely consequences of the compulsory separation, it must, in compliance with its obligations… ask for more,” (R vs Secretary of State for the Home Department).
In the Turkish mothers’ case, the first court failed, among other things, to consider the children’s best interests, both present and future.
While some may argue that the boys were not separated from their mothers for long, a rigorous look at the various alternative sentencing methods contemplated by law, along with the facts of the case, will show that even such a ‘short’ period was too long.
A 2019 report by the Joint Committee on Human Rights (UK) quoted Baroness Corston saying that “the effects on... children... whose mothers are sent to prison are so often nothing short of catastrophic”. It highlighted that “these effects begin as soon as a mother is sentenced, are felt throughout her sentence and continue for many years after she is released”.
“Scientists now know that chronic, unrelenting stress in early childhood caused by abrupt separation from caregivers… can be toxic to the developing brain in the same way as witnessing violence changes brain architecture. Parents are most often the buffers from this stress and the attribution is centred on the developing brain” (Adalist-Estrin).
Considering the latter arguments, several crucial factors emerge.
Firstly, we need to take a good look at our legal system and consider the true purpose of our criminal justice system.
What is its main aim? Is it primarily to punish? Or to effectively rehabilitate and re-educate offenders?
Secondly, this case further stressed the dire need for enforceability of children’s rights within our legal system. The first court’s failure shall not be swept under a rug but it shall now instigate a learning curve to avoid additional children being victimised by a robotic and inhumane system.
“When justice is devoid of a human face, the effects, especially on children and young people, could be traumatic and long-lasting” (Lisa Maria Foundation).
Therefore, if the present case has not taught us anything, one point speaks loud and clear: it is now that our legal system must take a stand and work towards effectively implementing the notion of children’s best interests contemplated in various parts of our law and towards ensuring that impulsivity and excessiveness do not leave a negative imprint on children’s future.
Daniela Farrugia is an associate with Mifsud Bonnici & Camilleri Advocates specialised in international children’s rights