Children's Rights

Albie Sachs, arguably the world's most famous judge, was fleetingly in the UK last week, primarily to tell the story behind the judgment he made in South Africa not to send a woman to prison because it would infringe the human rights of her three children. Even by the standards of a judge responsible for some of the most progressive legal judgments, such as ruling that it is unconstitutional to limit marriage to a man and a woman, the case of S versus M, now being cited in courts worldwide, is remarkable. "Judges are the storytellers of the 21st century," says 74-year-old Sachs, who told an international audience of human rights lawyers in Edinburgh that the first mindset that needed to be changed in the now historic case was his own.


At first sight, he had intended to throw out an appeal on behalf of Mrs M, who was facing four years in jail for up to 40 counts of credit card fraud that she had committed while under a suspended sentence for similar offences. "I remember drafting an extremely dismissive response. I said: 'This doesn't raise a constitutional question. She simply wants to avoid going to jail. She doesn't make out a case, and her prospects of success are zero.' " It was a female colleague, another of the 11 green-robed judges in South Africa's constitutional court, who insisted that the case be heard. She argued that the human rights of the accused woman's children were not being looked at separately. "She said: 'There is something you are missing. What about the children? Mrs M 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 to the children's interests.'

"The minute my colleague spoke to me about the importance of the three teenage children of Mrs M, I started to see them not as three small citizens who had the right to grow up into big citizens but as three threatened, worrying, precarious, conflicted young boys who had a claim on the court, a claim on our society as individuals, as children, and a claim not to be treated solely as extensions of the rights of the mother, but in their own terms." As a result, Sachs created a legal precedent in 2007: a woman who otherwise would have gone to jail did not have to, because of her children's rights. "We could have said the children's rights must be considered but sent Mrs M to jail anyway, perhaps for a lesser term. But that would not have changed anything."

At the time he was drafting the judgment, Sachs did not know of any country that took the rights of offenders' children into account, but he subsequently discovered that similar ideas were being framed in Scotland in a report by the then children's commissioner, Kathleen Marshall. "This was astonishing," Sachs told the audience. "In a totally different legal system, in a totally different society, a conclusion was being reached that is almost identical. It showed that the time has come for new ways of thinking."

Sachs says that South African courts are also taking a new approach to dealing with young offenders. "We use as much diversion as possible from the criminal justice system. We try to use the family and the community. We try to find ways of helping them to live together in the same neighbourhood, and we use apology and reparation and reconnection, rather than institutionalising and isolating the offender from the community and placing the offender with other offenders in a youth culture of marginalisation and anger. Offenders are encouraged to see themselves as part of the community."