COMMITTEE ON THE RIGHTS OF THE CHILD HOLDS DAY OF GENERAL DISCUSSION REGARDING CHILDREN OF INCARCERATED PARENTS

The Committee on the Rights of the Child today held a Day of General Discussion with regard to children of incarcerated parents. It held two workshops on babies and children living with or visiting a parent in prison, and on children left “outside” when their parent was incarcerated. The Committee concluded that children of incarcerated parents were still too often forgotten. The priority was non-custodial sentencing for parents and there was a need for reconciliation between the interest of the State and the best interest of the child.

Opening the Day of General Discussion, Jean Zermatten, Committee Chairperson, said that they would focus specifically on the criminal justice system, and due to time restraints, the issues relating to children whose parents were in other similar situations, such as immigration detention, would not be part of the scope of the discussion.

Five speakers made presentations as part of the introductory statements.

Abdullah Khoso, from the Society for the Protection of the Rights of the Child, said that his presentation would focus on Pakistan, but that the problems evoked were also found in many other countries. In many places the rights of babies and children living with women prisoners or mothers in prisons were not respected. From the time of arrest until the release of women prisoners, the child’s best interest was not taken into consideration by policies or laws.

Ann Skelton, Director of the Centre for Child Law at the University of Pretoria, noted that very often the child was separated from the mother. How could incarceration of parents be minimized? Did all parents who were in prison need to be there? Was the child’s best interest considered when the parents were sentenced? Non-custodial measures should be considered when pregnant women or mothers of infants were condemned. Mothers should not be imprisoned with their child, there should be no death sentence, and social rehabilitation after the sentence should be ensured.

Isabelle Altenfelder Bordin, psychiatrist working in Sao Paolo who specialized in children and adolescents, spoke of a study on young children raised in prison, including the mental health of the incarcerated population and risk factors for children’s mental health. She elaborated on a study that showed that seven per cent of incarcerated adults were women, 80 per cent of those women had children, 45 per cent of those women had mental health problems, and 26 per cent of the women had severe mental health problems. The study also showed that 37 per cent of the children aged 6-17 years with incarcerated parents had emotional or behavioural problems.

Sian Knott and Raheel Hussain, from the COPING Project (Children of Prisoners, Interventions and Mitigations to Strengthen Mental Health), shared their experience of being the child of an incarcerated parent. They highlighted the issues that they were facing and the difficulties they had undergone.

Two workshops were held during the afternoon, one on babies and children living with or visiting a parent in prison, and the second on children left “outside” when their parent was incarcerated. On the first topic, Hadeel Al-Asmar, Committee member acting as Rapporteur, highlighted various aspects such as legal counselling that should be provided for women in prison. Issues around visitation should be dealt with and the aim was to reconcile the child’s best interests and prison security concerns. Moreover, there should be institutionalized training for prison officials. Justice reform should be undertaken, ensuring that juvenile justice legislation was in line with the Convention on the Rights of the Child. Methodology should be improved for clear statistics and data. Social stigma should be opposed and media sensitization undertaken.

On the second topic, Maria Herczog, Committee member acting as the Rapporteur for the workshop, said that three areas had been discussed: the time before, during and after imprisonment. It had been highlighted that the degree of stigmatization of the child was based on the type of offence committed by the parent and it was necessary to find solutions on how to prevent that discrimination. A best interest assessment had to be led on a case by case basis taking into consideration the views of the child. Also, special provisions should be created for indigenous children, minority children, foreign nationals and children left behind in other jurisdictions. The right to visit the parent in prison had to be respected; maintaining contact between the child and the parent was of prime importance. A further issue that needed to be addressed was that children sometimes committed crimes together with the parent or were forced to by parent(s). Good practices, such as the presence of a social worker, were identified for arrest procedures.

Yanghee Lee, Vice-President of the Committee and Committee member acting as the main Rapporteur for the Day of General Discussion, said in concluding remarks that children of incarcerated parents were still too often forgotten. The priority was non-custodial sentencing for parents. There was a need for reconciliation for the interest of the State and the best interest of the child.

General Discussion

JEAN ZERMATTEN, Committee Chairperson, said that the Day of General Discussion was focused specifically on the criminal justice system, and due to time restraints, the issues relating to children whose parents were in similar situations, such as immigration detention, would not be part of the scope of the discussion. The Convention of the Rights of the Child dealt with the issue of children with parents in custody in article 9, which expressed the right of a child to be raised by both parents. It was an important children’s rights issue and it was a direct problem of human dignity. Children had the right to receive education and affection from their parents; but that was often not possible when the parents or one of the parents was incarcerated.

Introductory Statement by a Prison Service Professional

ABDULLAH KHOSO, of Society for the Protection of the Rights of the Child (SPARC – associate member of Defence for Children International), said that his point of reference would be Pakistan, but that the problems evoked were also found in many other countries. In many places the rights of babies and children living with women prisoners or mothers in prisons were not respected. From the time of arrest until the release of women prisoners, accompanying children’s best interests were not taken into consideration; policies and laws did not consider them. There was little scientific and systematic research on the social and psychological impact of the treatment given and the procedures applied to children accompanying women prisoners in detention centres, nor were there any systems to record those children’s vulnerability inside detention centres. For example, except for issues of diet, pregnancy and suspension of death sentences for pregnant women, as mentioned in the Pakistan Prison Rules, there was no direct legislative provision for children with women prisoners in Pakistan.

The maximum age for children living in prisons varied widely between States. In Pakistan the children could officially stay from infancy to six years, but it was reported that there were some children who stayed up to ten years. Cases in which women had killed their husbands or relatives of their husbands could not find anyone outside to look after their children when their children reached six years, and the prison authorities tended to have a lenient vies regarding the stay of children; therefore children even of 10 years were reported to stay in prisons with their mothers.

Many prisons in many countries were overcrowded. That obviously also affected children and babies living in prison with their mother. Without clean conditions and proper health services, children were at risk of, alongside their mother, diseases such as scabies. Pregnant women may have to deliver babies in the absence of pre- and post-natal care. Human rights reports had spoken of situations where children in prisons were born to women prisoners because of sexual abuse by the prison authorities, and of mothers remaining untreated for HIV and other sexually transmitted diseases. The most common aspect observed in prisons was that children faced loneliness and lived in isolation; they had limited access to the outside world and did not live in a natural setting; there were very few areas for walking and playing. They also faced the issue of access to education. Often, services and facilities were not provided.

There were various reasons why women prisoners kept children with them. When women were convicted and sent to jail, there was hardly anyone in the house to assume the responsibility of the child. The mother often did not have a choice but to take the child with her. Those women alleged to have killed their husbands did not have the option to leave their children outside at the mercy of other relatives. Also, many children were abandoned by their fathers when their mothers were imprisoned; and no one came to visit the children while they were with their mothers in prison. For those who did receive visits, they were weekly only, in presence of the mother and in public rooms.

Being pregnant or having a minor to look after may be a factor in a woman getting bail or probation, though the Society for the Protection of the Rights of the Child did not know of cases where that was the sole reason. Children who did not stay in prison with their mothers would need alternative care. There were currently no established alternative care institutions to cater to the needs of those children. However, initiatives had been taken by SOS Children’s Villages in different cities, children could be sent to an SOS Children’s Village once they turned six years of age, if their mother still had to serve more time in prison and there was no other person to look after their children. However SOS Children’s Villages did not exist everywhere and were often located far away from the prisons. It was important that children of prisoners were supported by adequate budgets, as their welfare and protection was a serious matter.

The Society for the Protection of the Rights of the Child had come to the following recommendations for children with mothers in prisons: a legislative framework that addressed issues of such children from the time of their mother’s and/or father’s arrest, and lay down procedures and rules for their protection, was required. There was also the need to expedite trials and strengthen the probation and bail system by making them functional. Women probation officers should be employed to monitor the conduct of the women prisoners who had minors with them; there was also the need to allocate funds for free legal aid and sureties for those poor women prisoners who could not afford them.

Releasing women on bail and probation would provide the opportunity for the child to go back to the environment in which they could grow and enjoy their fundamental rights. Governments should make institutional arrangements for abandoned children whose parents were in jails or whose mothers were ailing and unable to provide care and protection. Those institutions had to meet minimum standards, and be close to the prisons so that meetings between the mother and the child could be easily arranged.

Children whose parents were detained in another country and children whose parents were detained under the accusation of blasphemy should also be considered by that forum.

Introductory Statement by a Legal Expert

ANN SKELTON, Director of the Centre for Child Law at the University of Pretoria, also noted that very often the child was separated from the mother. How could incarceration of parents be minimized? Did all parents who were in prison need to be there? Were the children’s best interest considered when the parents were sentenced? The African Charter on the Rights and Welfare of the Child had an extra provision, article 30, on the matter. Special treatment should be given to pregnant mothers or mothers of infants. Non-custodial measures should be considered when condemning them. Mothers should not be imprisoned with their child, there should be no death sentence, and social rehabilitation should be ensured after the sentence.

The 2007 legal case of M versus State (CCT/53/06) was a groundbreaking case in South Africa led by Judge Sachs. The woman accused (‘M’) had committed a series of frauds and was facing imprisonment. She was the primary care giver of three boys, was not married to any of their fathers and lived separately from them. The Constitutional Court asked what duties a sentencing court had to take into account the best interest of a child? The mother did not receive prison sentence; instead she had to repay the money she had stolen and do community service. The case set a precedent when sentencing a primary care giver; it was the most cited judgment and was also cited in bail proceedings (pre-trial phase). Thanks to that judgment, the trial of women in a similar condition almost always resulted in non-custodial cases. The negative point was that the sentencing did not specify gender. Another case came up, and the woman accused that time was married. Then it was said that primary care-givers should not be interpreted as the “sole” caregiver but the “main” caregiver; M versus State had to be interpreted broadly. The best interest of the child should be kept in mind at all stages of the system.

Introductory Statement by a Child Development Expert

ISABELLE ALTENFELDER BORDIN, a psychiatrist specialized in children and adolescents working in Sao Paolo, said she had led a study on young children raised in prison, the mental health of the incarcerated population, and risk factors for child’s mental health.

The 1994 Brazilian law stated that there had to be nursery rooms in prisons, as well as special sections for pregnant women and daycare for children (aged six months to six years). Regarding marital stability and childcare, the majority of incarcerated men were supported by their partners. Yet most incarcerated women were abandoned. Children had to leave the prison and their mothers once they turned seven, and were frequently sent to shelters or relatives who lived far away from the prison.

There were negative aspects for children raised in prison: pregnancies were developed in a context of vulnerability and lack of social support; birth and maternal care took place in seclusion, conditions that favoured maternal depression and drug abuse; and prisons were an adverse environment for raising children due to penitentiary rules. Yet there were also positive aspects, such as the fact that the mother-child relationship was not broken, babies were not deprived of the mother’s affection, and women benefited from the experience of caring for their babies.

The number of incarcerated women was increasing mainly due to involvement in drug trafficking. There was overcrowding of units, and there were increasing difficulties to offer an appropriate environment for children living in prisons (in matters of space, staff and costs). The study showed that seven per cent of incarcerated adults were women, 80 per cent of those women had children, 45 per cent of those women had mental health problems, and 26 per cent of the women had severe mental health problems. The study also showed that 37 per cent of the children aged 6-17 years old who had incarcerated parents had emotional or behavioural problems.

Living in prison with their mother may be beneficial to young children depending on maternal health and environmental conditions. Incarcerated women frequently suffered anxiety and depression, and many of those women were mothers. Maternal anxiety and depression was a very important risk factor for different types of child emotional and behavioural problems. The absence of a father favoured aggressive and rule-breaking behaviour among adolescents who lived in poor urban areas.

Introductory Statements by Youth Representatives

SIAN KNOTT and RAHEEL HUSSAIN, from the COPING Project (Children of Prisoners, Interventions and Mitigations to Strengthen Mental Health), shared their experience of being a child of an incarcerated parent. Sian was 13 and Raheel was 17; they were both from the United Kingdom.

Sian said that she used to spend a lot of time with her dad before he was arrested, they were very close. She was there when he was arrested, and she was only eight years old; it was very sudden and unexpected. Two months went by between the moment her dad was arrested and the first visit, which was very long time.

Raheel said that they were both at the meeting to inspire change in the prison system, using experience from other children as well as their own. When his father was arrested, he was first released on bail for two years, which was a very nerve-racking experience because Raheel knew his dad could be taken away anytime.

Sian’s dad was sentenced in 2006 to 19 years in prison but he was actually going to serve nine and a half years. It was his fifth prison sentence, and he and the family had had to adapt to different rules every time he had moved.

The adolescents explained that being a child of a prisoner, there were many questions that constantly came back to their mind: why did the prison staff not treat them like human beings? Why could there be no private visits? It was difficult to talk when other people were around. Why was there no financial help; Sian’s mother for example could not work and they had no money; why was there no support group set up for children of imprisoned parents; all those children wanted was a friend; and why could they only see their dad only once a month; they were worried that their dad would forget them.

They highlighted that small changes can have a big impact: sofas had been installed in the prison, for example, in the room where visits took place, which was much better. There needed to be more changes similar to that one.

They also noted that children in that situation needed to fight isolation, get information about how to cope, and needed inspiration – they should get involved in non-governmental organizations that could help them deal with their situation.

Work Shop on Children Living with or Visiting a Parent in Prison

On the topic of babies and children living with or visiting a parent in prison, HADEEL AL-ASMAR, Committee Member acting as Rapporteur, made a comprehensive summary of what had been said during the workshop. First, a minimum and maximum age limit should be defined for children in prisons. Special needs for disabled children should be taken care of and services for pregnant and lactating women (pre-natal and post-natal care) should be provided. Also, non-custodial measures should be a priority (including pre-trial sentencing) and alternatives and community-based initiatives should be promoted (with legislative frameworks that included conditional convictions). On the topic of statutory responsibility, it should be defined who would be responsible for overseeing those children. There were concerns about the coordination between the different ministries. In addition, legal counselling should be provided for women in prison. Issues around visitation should be dealt with and the aim was to reconcile the child’s best interests and prison security concerns.

Moreover, there should be institutionalized training for prison officials. Justice reform should be undertaken, ensuring that juvenile justice legislation was in line with the Convention on the Rights of the Child. Methodology should be improved for clear statistics and data. Social stigma should be opposed and media sensitization undertaken. The research and initiatives at the national, regional and global levels should be improved and deepened. Issues about nationality, birth registration and civil rights were also important and had to be resolved. The right to information of the child had to be respected and the focus on the reintegration process was also crucial.

Workshop on Children Left Outside When Their Parent Was Incarcerated

On the topic of children left “outside” when their parent was incarcerated, MARIA HERCZOG, Committee member acting as the Rapporteur for the workshop, said that three areas had been discussed, the time before, during and after imprisonment. It had been highlighted that the degree of stigmatization of the child was based on the type of offence committed by the parent and it was necessary to find solutions on how to prevent the discrimination. A best interest assessment had to be led on a case by case basis taking into consideration the views of the child. Also, special provisions should be created for indigenous children, minority children, foreign nationals and children left behind in other jurisdictions.

The right to visit the parent in prison had to be respected; maintaining contact between the child and the parent was of prime importance. A further issue was that children sometimes committed crimes together with the parent or were forced by parent(s); it needed to be addressed. Good practices were identified for arrest procedures, such as the presence of a social worker. Humiliation of the parent in front of the child had to be avoided – placing the child in another room for the time of the arrest was necessary.

Also, children of incarcerated parents were seen as juvenile justice cases (such as in India), but did children who needed care and protection really belong to the juvenile justice system? A further issue concerned the custody rights of incarcerated parents and their right to designate a carer for their child.

On the topic of the right to be heard and the right to information, children should be included in the development of protocols and guidelines for the judiciary and the police. Children of an incarcerated parent should be given information, regardless of whether they were present or not during the time of incarceration. Information should also be available through services outside the prison system.

Regarding age-appropriate intervention, there should be specific measures on whether the child was, for example, disabled or an adolescent. On institution and decision-making, police protocols were needed for when parents were arrested in the presence of the child. Child protection services should be present throughout the whole process of arrest. Unfortunately, there was a lack of data and research on children of incarcerated parents. There was a need for community research for community-specific action, such as in Uganda. Sometimes, the issue was that children were only identified if they were present at the time of arrest, as in the United Kingdom.

With regard to capacity-building, education and awareness-raising on the rights of children and parents should be undertaken. Members of the courts should be trained, as well as prisons and detention centre staff.

Concluding Remarks

YANGHEE LEE, Vice-President of the Committee and Committee member acting as the main Rapporteur for the Day of General Discussion, said in concluding remarks that children of incarcerated parents were still too often forgotten. The priority was non-custodial sentencing for parents. There was a need for reconciliation between the interest of the State and the best interest of the child. She thanked all the people and organizations that participated in the Day of General Discussion.

JEAN ZERMATTEN, Committee Chairperson, thanked again the two adolescents who had participated in the discussion and mentioned that the next Day of General Discussion would take place in the last week of September 2012.


For use of information media; not an official record

CRC11/031E