Should Having Kids be a ‘Get out of Jail Free’ Card?

Should those who commit crimes be allowed to avoid prison if they have kids?

Should family responsibilities even come into the equation when it comes to sentencing?

One UK man certainly thought so, and argued this before the Court of Appeal.

The father, Wayne Bishop (pictured above), was originally sentenced to prison, but received a ‘suspended sentence’ instead after successfully arguing that imprisonment was a breach of his human rights. This means that he will stay out of prison as long as he complies with the terms of the good behaviour bond attached to the suspended sentence, and does not commit further crimes.

Bishop was convicted of burglary and dangerous driving after he broke into a rugby club, and later crashed into a police car. These offences earned him a total of eight months in prison.

But 33 year old Bishop is a single father with seven children – all aged between five and 13 years old.

He argued in front of the Court of Appeal that the original judge didn’t pay enough attention to the impact that a prison sentence would have on his children, as he was their sole carer.

The Court of Appeal agreed, declaring that the original judge had made an error by not sufficiently considering the interests of the children, who they argued should be “central to the decision making process where children are affected by a decision.”

The Court of Appeal substituted his prison sentence with a suspended sentence on that basis.

The Right to a Private and Family Life

The right that Mr Bishop used to avoid prison was found in the UK Human Rights Act.

Article 8 of the Act states that “everyone has the right to respect for his private and family life, his home and his correspondence.”

The Article goes on to say that public authorities are not to interfere with this right unless it is in accordance with the law and is necessary to the interests of:

1. National security,

2. Public safety,

3. Economic well-being of the country,

4. For prevention of some disorder or crime,

5. Protection of health or morals, or

6. The protection of the rights and freedoms of others.

The Court of Appeal evidently came to the view that none of these caveats – not even ‘prevention of some disorder or crime’ or the ‘protection of the rights and freedoms of others’ – applied in Mr Bishop’s case.

Mr Bishop announced that: “I’m overjoyed to be reunited with my children. It has been hard for me to be away for six weeks. It was the first time and I have done wrong. It was the spur of the moment… but people need to how hard it is to be a single parent on benefits.”

Unfortunately for Mr Bishop and his children, he was convicted for assault the very next year and sent to prison for eight months.

What is the law in Australia?

The imprisonment of a parent can be devastating for a child. Indeed, children will often share in their parent’s punishment. For this reason, the impact upon kids is sometimes called the ‘hidden punishment.’

In Australia, approximately half of all inmates are parents, and having children is certainly not a ‘get out of jail’ card.

We do not have a human rights act like the UK does, and Bishop’s argument would not carry the same weight in Australian jurisdictions as it does on the UK.

In our law, the fact that a person is a sole parent, or has children, or that imprisonment will affect the kids are not ‘mitigating factors’ in themselves; in other words, they are not something to be taken into account when determining the appropriate penalty.

In practice, however, criminal defence lawyers will outline their clients’ circumstances in order to push for the most lenient penalty; and those circumstances will often include the person’s family situation and commitments.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers, Sydney's leading firm of criminal and traffic defence lawyers.
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