General Comment on Article 30 of the Africa Charter on the Rights and Welfare of the Child
GENERAL COMMENT NO. 1 (ARTICLE 30 OF THE AFRICAN CHARTER ON
THE RIGHTS AND WELFARE OF THE CHILD) ON:
“CHILDREN OF INCARCERATED AND IMPRISONED PARENTS AND PRIMARY CAREGIVERS”
“Every child has his or her own dignity. If a child is to be […] imagined as an individual with a distinctive personality, and not merely as a miniature adult waiting to reach full size, he or she cannot be treated as a mere extension of his or her parents, umbilically destined to sink or swim with them.”
1. The African Committee of Experts on the Rights and Welfare of the Child (the Committee) was established with a mandate to promote and protect the rights enshrined in the African Charter on the Rights and Welfare of the Child (African Children’s Charter). In particular, the Committee is expected to formulate and lay down principles and rules aimed at protecting the rights and welfare of children in Africa.
2. Through the Reporting Procedure provided for under Article 43 of the African Children’s Charter, the Committee interacts with States Parties by reviewing their reports and issuing observations and recommendations aimed at improving the implementation of the rights of the child where the desired standard of implementation is deemed not to have been achieved.
3. The Committee recognizes that children face many violations of their rights under the African Children’s Charter when their parents and/or primary caregivers come into conflict with the law. Through its consideration of States Parties’ Reports, and other activities falling within its mandate, the African committee has become aware that children can be affected by both the stigma of their parent or primary caregiver’s involvement with the criminal justice system as well as by the trauma of separation caused by arrest, pre-trial detention and imprisonment.
4. Children living in prison with their mothers experience a range of violations of their rights, including psychosocial and health problems and difficulties in accessing education. Parental incarceration can also result in difficulties for children living apart from their parents such as financial and material hardship, instability in family relationships and residential mobility. It can result in worsening performance at school, shame, and social and institutional stigma. In some States Parties, parents are under pressure to terminate their parental rights upon conviction. Incarceration may also damage parents’ perception of themselves as parents. The psychological repercussions can be analogous to those resulting from other
forms of loss, such as death or divorce, although some repercussions are distinct.
5. In recognition of the importance and invisibility of the issue of children affected by the incarceration of their parents/ primary caregivers, the African Committee decided to prepare its first General Comment on this theme.g an order of custody, adoption, or divorce, and as a result children’s best interests need to have a primary role in such circumstances. As a result, there is often an acute need for special treatment, and support services, which will vary depending on the child’s particular family circumstances and the stage of the criminal proceedings.