Children who live with their parents in prison

As a result of parental imprisomnent, some children end up living with their parent in prison. Dilferent countries and prison systems have different rules in this area, but typically a limited number of small children will be allowed to live with their mothers for a few years (see also Chapter 6 (p. 87) and Chapter 11 (p. 187) of this volume). It is not known how many children live with their parents in prisons around the world, as these data often not are officially recorded (Alejos, 2005, p. 30). In some countries, the number will be miniscule and could be counted in single digits (Smith and Jakobsen, 2010). In other places, we are talking about hundreds or even thousands of children. In India in 2008 there were, for example, 2,135 children living with 1,774 mothers in prison (see Robertson, 2012, p. 5).

In Norway, on the other hand, children are never allowed to live with a parent in prison. Cases where inmates give birth during imprisonment raise further questions of whether and when the mother and child should be separated. Research on early attachment has observed that “breaking the maternal-child bond through the practice of at-birth separation can have serious detrimental consequences on the mother as well as on the child” (Tapia and Vaughn, 2010, p. 438).

When looked at internationally, children seldom live with their fathers in prison. Women are more often the single or main provider for their child, as does gender roles and culture often point in that direction. As a result of the latter, male prisons often simply do not have facilities for children (Robertson, 2008, p. 17). Australia and Demnark are among the few countries where children can live with their fathers while they serve a sentence (Robertson, 2008, p. 17; Ayre, Philbrick, and Reiss, 2006, p. 74; regarding Australia, see Government of West Australia, 2007). Similarly, in Finland, national legislation allows both mothers and fathers to bring their children into prison to live with them (Poso, Enroos, and Vierula, 2010, p. 517). However, even in countries where children can live with their imprisoned fathers, this occurs much less compared to the number of situations where children live with their imprisoned mothers (Robertson, 2008, p. 17; Ayre, Philbrick, and Reiss, 2006, p. 74).

A prison is clearly not a suitable place for a child to live, but separating a young child from its primary caregiver might be an even worse idea. The human rights guidelines in this area attempt to strike a balance between these two seemingly obvious, but opposing, truths. A diversion away from imprisonment and the use of other sanctions is generally a much better solution. Also, the Council of Europe recommends that the majority of female offenders with young children should be managed in the community outside of prisons (Council of Europe, 2000). While the Council of Europe recognises that the “adverse effects of imprisonment of mothers on babies” as well as that “the development of young babies is retarded by restricted access to varied stimuli in closed prisons”, it also acknowledges that “early maternal separation causes long-term difficulties, including impairment of attachments to others, emotional maladjustment and personality disorders” (Council of Europe, 2000).

If we look at the ECtHR, in the case Kleuver v. Norway (2002), the court rejected a complaint from a mother who was not allowed to have her newborn daughter with her in prison. The case concerned a pregnant woman from the Netherlands who was arrested and imprisoned in Norway for drug smuggling. The ECtHR ruled in favour of Norway because the prison's conditions were not suitable for children and because the national authorities had placed the child in a good children's home nearby where the mother visited him often and where the staff ensured that he was given his mother's milk. The court found that the Norwegian authorities had done a great deal to maintain contact between mother and son. According to the court, the mother therefore did not have a right to demand that the Norwegian authorities take special measures to ensure that her son could be in the closed prison together with the mother.

The reasoning used by the ECtHR in the Kleuver judgment is, however, problematic in the way

that it solely deals with the situation of the parent and her responsibility for the situation she has created. However, the son has no responsibility whatsoever for the fact that his mother was on remand at the time of his birth (and later convicted) - he did not ‘know’ about the situation before he was born. He is however the one who has to suffer from the separation from his mother.

(Lagoutte, 2016, p. 219)

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