Children Inside Prison

(From: Jan C.M. Willems (ed.), Developmental and Autonomy Rights of Children: Empowering Children, Caregivers and Communities, Intersentia: Antwerp/Oxford/New York, 2002, pp. 191-207 (90-5095-224-0; www.intersentia.com) read the full text here.

Sometimes care-dependent children stay with their mother in prison. The limit of ages and also of the maximum stay differs from country to country. And also the provisions on behalf of the children are various. 1 Not only the prison culture differs between countries, also values on motherhood, family life and raising children are diverse. This diversity is reflected in the variety of arrangements and provisions.

It is often recommended, also in an international context, that a pregnant woman be able to deliver her baby in a hospital outside the prison (without handcuffs!). The place of birth will be a regular hospital. Afterwards there should be good facilities for a longer stay of a baby in prison with its mother as long as it needs the physical care of its mother. These facilities differ in various countries. Sometimes the mother and child department looks like a kind of hospital, where for example, the warders are wearing white uniforms, like I saw in Italy. In other situations the mothers try to make a little home for themselves and their children (they often have to share cells), where they even cook some small meals, like I saw in Israel. In other more ‘progressive’ prisons, the children stay with their mothers during the evening and the night, while they go to a nursery in or outside the prison during daytime, while the mother is working.

In the 10th General Report the Committee for the Prevention of Torture (CPT) made general recommendations on the ante‑ and post-natal care. 2

’Every effort should be made to meet the specific dietary needs of pregnant women prisoners, who should be offered a high protein diet, rich in fresh fruit and vegetables.

It is axiomatic that babies should not be born in prison, and the usual practice in Council of Europe member States seems to be, at an appropriate moment, to transfer pregnant women prisoners to outside hospitals. Nevertheless from time to time, the CPT encounters examples of pregnant women being shackled or otherwise restrained to beds or other items of furniture during gynaecological examinations and/or delivery. Such an approach is completely unacceptable, and could certainly be qualified as inhuman and degrading treatment. Other means of meeting security needs can and should be found.

Many women in prison are primary carers for children or others, whose welfare may be adversely affected by their imprisonment. One particularly problematic issue in this context is whether – and if so, for how long – it should be possible for babies and young children to remain in prison with their mothers. This is a difficult question to answer given that, on the one hand, prisons clearly do not provide an appropriate environment for babies and young children, while on the other hand, the forcible separation of mothers and infants is highly undesirable.

In the view of the CPT, the governing principle in all cases must be the welfare of the child. This implies in particular that any ante- and post-natal care provided in custody should be equivalent to that available in the outside community. Where babies and young children are held in custodial settings, their treatment should be supervised by specialists in social work and child development. The goal should be to produce a child-centred environment, free from the visible trappings of incarceration, such as uniforms and jangling keys. Arrangements should also be made to ensure that the movement and cognitive skills of babies held in prison develop normally. In particular, they should have adequate play and exercise facilities within the prison and, wherever possible, the opportunity to leave the establishment and experience ordinary life outside its walls. Facilitating child-minding by family members outside the establishment can also help to ensure that the burden of child-rearing is shared (for example by the child’s father). Where this is not possible, consideration should be given to providing access to crèche-type facilities. Such arrangements can enable women prisoners to participate in work and other activities inside the prison to a greater extent than might otherwise be possible.’

The length of the stay sometimes depends on the care facilities outside the prison. The stay is also often linked with a normal period of breast-feeding, which also differs from culture to culture. 3

To give some examples: 4 in Sweden, babies are rarely accepted in prison, but they can be accommodated for up to a year and the average stay is three months. In Germany, there are six closed prisons which allow children up to three years old, and two open prisons which allow children up to the age of six. The open unit at Frankfurt-Preungesheim is located outside the prison walls, reflecting a policy of distancing the mother-child unit from the rest of the prison. Each mother has her own apartment comprising a bedroom/living room, a kitchen and a bathroom. In The Netherlands, children may stay until their fourth birthday in the half open prison Ter Peel. The mother-child unit is located in a separate house, but within the prison area, for four mothers and four children. In the five closed prisons children can stay up to nine months. In Iceland, only very young babies who are breast feeding or who have special needs may stay in prison. Portugal and Switzerland allow children up to three years, Finland up to two years, to stay in prison. Denmark allows male and female prisoners to have their children with them if they are to be released by the time the child is three, but in practice few children are ever held in prison. In England and Wales, three closed prisons have places for 34 babies, and one open prison has places for 20 babies. Children may stay until they are 18 months old in the open prison and in one closed prison, otherwise the limit is nine months.

In western countries, from a psychological view, the period of a stay in prison of a child with its mother is often justified by the attachment theory, although in a rather modern view the young child does not necessarily have to get attached to its own biological mother. So, if there is an adequate alternative (like the father, the grandmother, or a foster parent), a child could stay outside the prison where its mother is detained. 5 But in Italy, for instance, the mother-child attachment in a home environment is considered so important that mothers with children under the age of three are not imprisoned but put under house arrest. Until the child is ten years old they follow an alternative (work) programme outside prison. 6  There seems to be a paradox, since it is suggested that the non-imprisonment also is justified by the argument that most imprisoned mothers were foreigners and Roma women. 7 Research on the effects of co-detention of young children with their mothers does not show clear evidence for developmental or other damage to the child compared to other children. Most of all, it is not easy to find a reliable control group. And observations alone are questionable. Sometimes interpretations of detainees’ children’s behaviour is falsified like ‘children being obsessed by keys,’ which might be quite normal for a child of two years old. Especially in the case of pre-school children, mothers signal that their children have trouble in behaving themselves in the outside world, as in the traffic or in playing with other unknown children. A real worry is that through her baby the mother becomes a hostage in the repressive prison system and even that a mother and child in a way become each other’s hostage and develop an unhealthy symbiosis. 8 Life in prison is infantilised. When the mother has problems or disagrees with a certain policy she will be seen as ‘nasty.’ On the other hand, mothers can use their baby or toddler as a doll. The authorities can (ab)use their power by threatening to take the child away, and the mother can demand facilities and use her child, for instance, by taking it to the court to influence the judge. The child has its own ups and downs. Getting teeth is normally often painful and frustrating, but inside prison even worse to handle. So, even in the ‘normal’ behaviour and illnesses of a child lies a great source for irritation between the warders, the mothers and the other inmates. Even in a separate mother-child unit the mothers did not choose each other to live together. If one child does not feel well and cries a lot, it has its effect on the other children and their mothers. In prison there is not much privacy and not much intimacy, so mother and child in a way are in their loneliness condemned to each other.

In the international fora the stay of babies and young children in prison is more and more criticised. 9 In the Summary Report Mothers and Babies in Prison it is said:  10

’Prisons do not provide an appropriate environment for babies and young children, often causing long term developmental retardation. Yet, if babies and children are forcibly separated from their mothers they suffer permanent emotional and social damage. Most European prison systems provide some places for babies to stay with mothers but many hundreds of babies are nevertheless separated from their imprisoned mothers. This report argues that a new approach is needed for those few mothers of young children who commit serious offences and who represent a danger to the community, and that the overwhelming majority of female offenders with young children should be managed in the community.’

I believe that even in a modern prison system with good intentions on the part of the management and rather good facilities for children, there is a danger of overestimating the possibilities of creating a child-friendly climate in prison. In essence, prison in itself is incompatible with raising children. But it can happen that, sometimes, there is no alternative for a child but to stay, and in that situation the best environment must be created. Cultural backgrounds may lead to different solutions, and a lot of creativity of the prison management is required. The pedagogic conditions under which the child is detained must be assessed. Relevant factors are the length of the stay at the detention centre, the personality, age, development and mobility of the child and the possibility of contact with peers and the world on the outside, also in a spacial sense. As Biondi says: 11

‘Attendance at an external crèche allows a child to move outside prison, to obtain reassurance for his early fears of separation from the mother figure, to play, to interact with other children who do not live in his same situation, with less fear of new situations or of the unknown. It is worth repeating that to be kept continuously confined in prison strengthens the symbiosis between child and mother and reduces urges and stimuli, which gradually become weaker and poorer in terms of content, novelty and unpredictability.’

The raising of the child has to be part of a rehabilitation programme that fits into the situation of the specific prisoner, her background and plans for the future. In social reality not only the position of very young children, but of all children is narrowly linked with that of women. Children’s rights can be (ab)used to coerce women into taking up their traditional and often isolated mother role. Protecting children can mean controlling mothers, both in the private and public sphere. Children are often used as hostages to bind mothers in bad home situations and bad marriages. And women, as primary caretakers, are often economically dependent, poor and/or oppressed. 12 Both children and women, however, benefit from their own social networks. For this reason, the autonomous position of women in relation to ‘the best interests of the child’ is important. Good child care facilities, for instance, can benefit both mother and child. This is the case for both children in and outside prison. In the Report Social and Family Effects of Detention it is stated: 13

‘The need to maintain contacts must not expose the child to the ill-effects of the prison experience or prevent the mother from receiving vital training for her return to work. Responsibility towards children of imprisoned parents cannot be one-sided.’

Notes:

  1. European Action Research Committee on Children of Imprisoned Parents, Children of Imprisoned Parents; Family Ties and Separation, Report on the situation in eight European countries, Paris, 1996.
  2. CPT/Inf. (2000)13 (EN), Women Deprived of their Liberty. The Committee noted that any standards which it may be developing in this field of Discrimination Against Women and the United Nations Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment should be seen as being complementary to those set out in other international instruments, including the European Convention on Human Rights, The United Nations Convention on the Rights of the Child, the United Nations Convention on the Elimination of All Forms of The Committee for the Prevention of Torture is based on a treaty signed by forty countries in Europe, including for example the Federal Republic of Russia, Iceland, Turkey and Georgia.
  3. In The Netherlands, some gipsy-women kept their children in prison during the seventies. They fed their children for a rather long time (at that moment the child was one and a half years). Since that time the authorities decided that a period of nine months should be sufficient. This also became the rule for the maximum stay of a child in a closed prison.
  4. See European Action Research Committee on Children of imprisoned parents, ibid., and the Appendix of the Report Mothers and Babies in Prison of the Social, Health and Family Affairs Committee, Parliamentary Assembly of the Council of Europe (9 June 2000, Doc. 8762).
  5. See for instance the Advice of the Child Protection Board in The Netherlands (Lb99RvdK/439, 20 January 2000), VAN NIJNATTEN, o.c., 17-35.
  6. Recent Italian Law 1998, 165, Article 4 reads as follows: A sentence of imprisonment for a period not exceeding four years, even if it constitutes the remaining part of a longer sentence, as well as a penalty of arrest, may be served in the offender’s place of abode or other private residence, or in a public place of treatment, assistance or reception, when the offender in question is: a pregnant woman or mother of children under 10 years of age living with her; a father with parental authority (care and control) of children under 10 years of age living with him when the mother is deceased or entirely incapable of looking after the children. (In: G. BIONDI, Infants in Prison, Delfi Editore, Milan, 1995, 156-157.)
  7. H. ZEEDIJK, ‘Geen moeders met kinderen achter tralies in Italië,’ Opzij 2001, no. 4, 64. The negative effects of house arrest should not be underestimated, such as the isolation of the whole family by time and spacial bounderies. (R. WOLLESWINKEL, ‘Gevangene van het systeem en cipier van het gezin; Over moeders en detentie,’ in: Gevangen vrouwen; Over ciminaliteit en detentie, Nemesis Essays, Amsterdam, 1995, 129.)
  8. WOLLESWINKEL, o.c., 326-330; BIONDI, o.c., 121. See also the Havana Rules on the protection of imprisoned minors, Article 93 and Article 102
  9. Parliamentary Assembly of the Council of Europe, Recommendation 1469 (2000), Mothers and Babies in Prison; Report Mothers and Babies in Prison, Social Health and Family Affairs Committee, Doc. 8762, 9 June 2000; Report Social and Family Effects of Detention, Social Health and Family Affairs Committee, Doc. 7816, 15 May 1997, 13-14
  10. Summary Report Mothers and Babies in Prison, ibid.
  11.  BIONDI, o.c., 121.
  12. F. OLSEN, ‘Children’s rights: Some feminist approaches to the United Nations Convention on the Rights of the Child,’ International Journal of Law and the Family 1992, no. 6, 193.
  13.  Report Social and Family Effects of Detention, o.c., 14.

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