Implications for the State

Abstract

I have attempted to find a legitimate basis for the treatment of children whose mothers are before the court for sentencing but have failed to do so. This chapter begins by asking: Are these harms to children part of the state’s intended punishment of the mother? If not, then do other terms such as ‘collateral consequences’ provide sufficient explanation for them? Has the terminology used to describe the experiences of children played a part in limiting the attention given to this anomalous treatment? Other possible justifications for the harms are considered before examining whether a communitarian analysis of punishment would permit a proper understanding of the implications of the punishments given to individuals. I consider the obligations on the state to minimise harm to children of defendant mothers and when such harm is unavoidable, the scope of the state’s residual obligations to children and families. A South African case provides an example of change.