This a slightly abridged text of the lecture given by the ANC veteran and South African constitutional court judge Albie Sachs at the National Gallery of Scotland on June 25 2009 in Edinburgh, transcribed from my shorthand note.
Tam Baillie, Children’s Commissioner. Introduction.
In Scotland there are around 1,600 children affected by the imprisonment of a parent or a caregiver but we don’t know the exact number. The reason for that is we simply don’t count them. Their interests don’t figure at any point in the process.
A useful comparison is looked-after children. There are fewer than those affected by a parent or caregiver being in prison. Think of all the regulations, policy statements and column inches devoted to looked after children, rightly so, but you realise just how neglected in comparison are the children of prisoners.
There can be emotional impact, loss of contact, in some cases, children taking on caring responsibilities for siblings, financial impacts, stress as with prison visits, some children having to move home, some of these children will become looked-after children. Media coverage may be traumatic
On the other hand where the parent is punishing or neglectful the child may experience relief but in the majority of these cases there will be continuing support needs.
We need to remember that the children of offenders can be punished as well as the offender. The rights and needs of the child need to be considered.
Albie Sachs is a world-renowned authority on human rights. In 1988 he was blown up in a car bomb in Mozambique.
In 1994 he was appointed by Nelson Mandela to the constitutional court of South Africa, where he has been associated with some of the most progressive human rights judgments in the world.
Albie Sachs on the Case of S v M, a landmark case in which a woman who would otherwise have been jailed was kept out of jail because of consideration of the rights of her three sons.
Judges are the storytellers of the 21st century.
The first mindset that needed to be changed in this case was mine. Possibly by relating the persuasion that lead to my own transformation in thinking, I might persuade doubters in this area to follow that route and come to the same conclusion as I did in the case of Mrs M.
Mrs M had a full name at this stage but we decided to anonomyse her because the persons most interested in the decision were her three teenage sons and this was to protect them form the taunts of school kids and newspaper reports. So we called the case S v M.
We receive about 100 applications for a hearing by the constitutional court a month. By and large you have to apply to lodge an appeal to the court and the court judges whether the case is allowable.
The first test is, is it a constitutional matter? We are a constitutional court, we don’t hear ordinary appeals. Second, is it in the interests of justice? Most important is, is there a reasonable prospect of success? We don’t want to deal with purely academic matters.
I read the application and I remember drafting some extremely dismissive remarks in terms of the commentary, Mrs M had been charged with credit card fraud - 30 or 40 counts. It was little stores, grocers, bottle stores, no big amounts. The maximum was 30, 40 pounds. She was apprehended and given a suspended sentence and told not to do it again while the prison sentence was suspended. She did it again another 30 or 40 times. She was released on bail and even then she did it again. She was caught. The magistrate said you have been given very many opportunities to change. The total amount would have come to maybe £2,000 or £3,000 but that would have been adding up all the occasions, maybe 100 different presentations of a credit card that wasn’t hers in relation to funds she had no right to draw on.
The magistrate said: “You have been given every opportunity. It will be hard for you because you will be separated from your children, but they won’t be on the streets. Four years.” An appeal on technical grounds reduced the sentence to a less rigorous regime.
She appealed to our court. In a memo I said: “This doesn’t raise a constitutional questions. She wants to avoid going to jail. She doesn’t make out a case and her prospects of success are zero. She is a repeat offender. We shouldn’t hear the matter.” I couldn’t have been more sceptical.
One of my colleagues said: “Albie, there is something that you are missing. What about the children? She has three teenage children, she lives in an area that we politely call fragile, an area of gangs, drug peddling and a fair amount of violence. The indications are that she is a good mother and the magistrate gave no attention at all to the provision in the constitution that in any matter concerning children the child’s interest should be paramount. It is in our constitution on rights of the child and they should not be invisible.” And she said that in all cases like this, the rights of the children are not looked at as individual, significant factors.
We have a process that if any one of the11 judges feel strongly on a legal position we will hear the case and I would say in three or four cases one person has started out alone and ended up with a majority or a unanimous verdict. So we trust the gut feeling of a stubborn judge and the strong sense of a judge that there is something that needs to be looked at that hasn’t been looked at before.
So that creates a crack in my sceptical mindset and sometimes you just need a tiny perforation and it all starts to flood in. She just alerted me to a discourse that I hadn’t considered.
I was following that mental flow. The normal way of thinking was that if she was worried about her children she should have thought of them before she went on that spending spree.
But then I remembered we had a conference on the rights of children which took place just before those first democratic elections in South Africa, you may remember them, Nelson Mandela voting and FW de Klerk voting, and it was a moment of hope. We were considering the rights of children and our children had suffered so much under apartheid. They couldn’t understand, they just grew up in a world that was hostile. The adventure was fleeing the police, hiding away, seeing parents humiliated. So it was not just any conference, it felt huge. Our country was a child. This was part of what we were going to create, our Utopia.
Many people spoke about the abuse of children, quite rightly. But I felt an unease with what the rights of children were about. I felt that there was something lacking.
Children are more than just little sentient beings who shouldn’t be beaten up. There is another class of rights, the more progressive rights, not simply negative rights but the right to grow a healthy body, access to shelter, to have a name and an identity. But then what about also the rights of children to have fun, to explore to imagine, to question.
Maybe I was lucky because I grew up in a world where I could take for granted I would have enough to eat and I would not be beaten up. But my challenges now are still about life, relationships, existence, faith, making sense of the society in which I live.
I was thinking about that whole realm of growing up and emerging as an adult.
I felt it was significant that while white children could imagine they could be anything, sail round the world, be a doctor or a lawyer or just grow things, black children didn’t have those horizons. They could just dream of escaping from the mad rules. And I felt this new South Africa should not just see them as little beings who had the right to become big beings, healthy, fit and productive but should grant them the right to search, to laugh to cry, to have feelings.
So the minute my colleague spoke to me about the importance of the three teenage children of Mrs M I started to see them as three threatened, worrying, precarious, conflicted young boys who had a claim in the court, a claim on our society as individuals, as children and a claim not to be treated simply as extensions of the rights of the mother but in their own terms. And that little perforation became a bit of a torrent.
Dealing with this in the court required a major change of mindset.
(Couple of lines missed here about court process)
In this matter the normal process in South Africa as perhaps everywhere involves the state looking at the circumstances of the accused, the circumstances in this case included her three children . In this case the court instructed counsel as amica curiae and she said : “the children are not circumstances of the mother. It is the lives and interests of three children who have to be looked at,” and she, and the debate, switched the thinking of the court away from prison.
That is not to say that the rights of the child which are in the constitution are paramount over the need to sentence someone for a violation of the criminal law. Much the most interesting part of the judgement for me was the definition of the meaning of paramount. It does not mean absolute - every policy affects children. If you raise taxes, children are affected, pension policy affects grandparents who look after children. A formulation had to be given that was manageable and workable.
But what we insisted upon was that in all future cases magistrates must inquire whether there are minor children who would be affected in their primary caregiver would be sent to jail. In most cases it is a mother, sometimes if can be fathers and by questioning persons concerned where possible a primary report should be obtained. In some cases report might indicate that the offender is a good candidate for correctional supervisions instead of prison. The report may be about individuals where there are alternative care arrangements available. If the offender has to go to jail, the court must take some responsibility for what happens to the children and ensure that there some kind of back up and not simply say it is out of our hands.
The court can’t simply say: “She should have thought about that before she did it.” or “She has no right to hide behind her children.”
(A line missed here about borderline cases)
Even if a case is not borderline and she has to go to jail, the court is obliged to ensure that the impact on the children is mitigated as much as possible.
I just want to read how it appeared in the judgement that I wrote: “Every child has his or her own dignity. If a child is to be constitutionally imagined as an individual with a distinct personality and not merely a miniature adult waiting to reach full size, he or she cannot be treated as a mere extension of his or her own parents umbilically destined to sink or swim with them. The unusually comprehensive and emancipatory character of s28 (in the Bill of Rights, dealing with the rights of children) presupposes that in our new dispensation the sins and trauma of the fathers and mothers should not be visited on their children.”
We gave the rights of the children a hearing. We were talking about three vulnerable young men in a precarious area who were totally dependent on their mother.
Could a case be made for her not going to prison? The case brought out the importance of the individual in each case where children are involved and looking at the best interests of the children.
Having appointed a curator the court could order without any hesitation in favour of keeping her out of prison. It so happened that because of the law’s delay, seven years had passed in which she had kept out of trouble. She had run two business, one a laundry the other a mechanism for collecting money from absent fathers to pay for the upkeep of their children so she was doing a service to the community. She was on the governing body of the school, she took her children to school and fetched them every day. She took them to the different things that children who are a little bit better off than their neighbours do, like swimming. So she had shown herself to be the kind of parent that one looks for and had done this over a long period of time. She offered to pay back the people she had defrauded. We said: “That’s not enough, you can’t steal form someone and then say it’s OK because I paid you back," but it was important not in terms of the money but in terms of her committment. The feeling on our part was that the objectives if the law would be better served by relying on her relationship with the community rather than prison to secure some future responsibility.
She would do ten hours a week of community service. My hope was that the children would see their mother not as a jailbird, not as a failed lax person, but they would see her in the community doing useful productive work, earning a living, and be able to take some pride in her rather than to have the awful sense of being future failures because they are bound to people who are failing in life,
The underlying principal was Ubuntu, which means, you are a person because I am a person. I cannot separate my humanity from your humanity,
We have that notion in our cultural backgroumd, We had the Truth and Reconciliation Commission because of that.
That cultural background has lead to forward thinking - trying to find routes that are more effective than simply sending people to jail. The court decided that Mrs M shouldn’t be sent to jail. Three members of the Constitutional Court couldn’t go that far. But the appeal has already caused a lot of inquiries.
Unless we put them on the radar with some legal precedent, the children will not get attention. Cases like this will build up results and they will no longer be virtually invisible. But we had to start by using our imagination. We weren’t aware of this happening elsewhere.
But then I come to Scotland and I pick up a document, Not Seen Not Heard Not Guilty [By Scotland's former children's commissioner Kathleen Marshall]. And I read it and I find that in a totally different legal system, a totally different society, a totally different judicial setting, it’s almost identical.
“It may be legitimate in some cases to deprive a child of parent’s care through imprisonment of the parent. However, because this involves a breach of the fundamental right of the child, the proportionality of the interference should be considered and the impact on the child assessed and put into the balance. Where there are alternatives to prison that promote the public order agenda at least as well, while interfering less with the children’s rights, these should be preferred.”
If I had known about this earlier, it might have saved me some work on my legal judgement. I think that is quite a nattily written paragraph.
So something is happening here. How is it then at this particular moment in two societies different countries, the same point is being made?
Think of so many other areas where this is happening for instance, the question of torture and the right to use evidence obtained during torture, in totally different states there have been clear decisions which are the same as we have reached in our own society.
The extent to which children embody so much of our hopes for the future has given them a special in status in the legal arena as in our human arena. This is something picked up in Scotland and at the same time in our Constitutional, Court in South Africa. I am very proud of our courts and that our Constitutional Court has produced judgements that are read in many parts of the world.
The time has come for new ways of thinking.
Our marvellous Constitution has enabled us to be a little bolder than other countries. It is a source of great congeniality that in Edinburgh, in Scotland, a place we have had so much contact with over some centuries, I have been able to give my first lecture outside South Africa on the case of SvM.
During questions, Jonathan Mitchell QC said he had cited the case in the Court of Session that morning.