Consideration of the Rights of the Child in Sentencing of a Parent

S v S (CCT 63/10) [2011] ZACC 7 (29 March 2011)


This case considered the degree to which a court is required to take into consideration the best interests of the child when determining the appropriate sentence to impose upon a primary caregiver. In particular, it considered the circumstances when a person will be considered to be the primary caregiver of a child, and the impact the person’s imprisonment will have on the child.


The applicant in this case, Mrs S, is a married mother of two young children. She was convicted and sentenced in the Regional Court on charges of forgery, uttering and fraud and sentenced to five years’ imprisonment with conditional correctional supervision.

Her application for leave to appeal were unsuccessful. In this application, with the support of the Centre for Child Law as amicus curiae, Mrs S contended that the sentencing court and the Supreme Court of Appeal failed to adequately consider the best interests of the children during the sentencing process.

She claimed that the sentencing court and Supreme Court of Appeal failed to follow the correct approach to sentencing the mother of young children as set out by the Constitutional Court in S v M, where the Court described the duties of a court considering a sentence for a primary caregiver. This case found that it was important to consider the best interests of the child when sentencing a person who was the child’s primary caregiver. In these circumstances consideration needs to be given to the availability of appropriate care for the children during the caregiver’s imprisonment. If there is not adequate care available and there are multiple sentencing options available in relation to the crime, then the punishment which takes into account the child’s best interest should be imposed.

Mrs S’s children were four years old and one year old at the time of her sentencing. The four year old has a dysfunctional heart valve and needs constant medication. The one year old has chronic chest infections and requires constant attention. Mrs S argued that if the approach in S v M had been followed the sentencing court would not have imposed a custodial sentence.

The State, however, argued that this case was different to S v M because Mrs S’s husband was available to take care of the children while she was in prison. Mrs S argued that Mr S would not be able to take care of the children because of his working hours, and he could not afford the necessary medical care and child care for the children on his wage alone.


The court issued a split judgment with nine judges dismissing the appeal and one judge dissenting.

The majority dismissed the application holding that the sentencing court had properly balanced the constitutional interests at stake. The Court found that S v M had revolutionised the sentencing process by re-asserting the central role of the interests of young children of someone being sentenced as an independent consideration and confirmed that the correct test to be adopted by sentencing courts where a custodial sentence of a primary caregiver is as specified in S v M.

However, the Court found that the applicant’s situation was markedly different from the mother in S v M as her husband was available to care for the children. The mother in S v M, on the other hand, had almost full responsibility for the care of her children.

In order to ensure that appropriate care was available, the Court directed the National Commissioner for Correctional Services to appoint a social worker to visit Mrs S’s children at least once a month during Mrs S’s incarceration.

Justice Khampepe, in a minority judgment, held that the sentencing court and Supreme Court of Appeal failed to fully investigate the quality of alternative care the children would receive if Mrs S was to be incarcerated.  Khampepe J concluded that:

  • the children would be adversely affected by Mrs S’s incarceration;
  • there were a range of possible options;
  • Mr S would not be a suitable alternative caregiver; and
  • the matter was indistinguishable from S v M,
  • and, therefore, Mrs S should be placed under correctional supervision.

Relevance to the Victorian Charter

Section 17 of the Charter provides that families are entitled to be protected by society and the State, and that every child has the right to such protection as is in his or her best interests and needed by reason of being a child.

Accordingly, this case signifies that there are circumstances where the best interests of a child should be considered when a court is imposing a sentence on the child’s primary caregiver. The court should take into account the impact of the sentence on the child and, if appropriate, impose a sentence that enables the child to continue to receive appropriate care. However, this decision indicates that this will not be extended so far as to prevent a custodial sentence being imposed on the primary caregiver where this is considered appropriate for the crime committed and there are adequate alternative care arrangements available for the child.

The decision is at

Mandy Lister is a volunteer lawyer with the Human Rights Law Centre