Part II. Regional and International Policy
1. General Principles on Treatment of Women and Children
According to the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), adopted in 1979, States Parties are to “ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.”
In the late 1980s, the UN issued a resolution on principles governing persons under detention or imprisonment emphasizing that measures “to protect the rights and special status of women, especially pregnant women and nursing mothers, children and juveniles,” among certain other groups, will not be deemed discriminatory, even though such measures would be subject to judicial or other official review.
2. Convention on the Rights of the Child
The UN Convention on the Rights of the Child (CRC) quotes in its Preamble the Declaration of the Rights of the Child, which stated, “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.” The Preamble further recognizes “that, in all countries in the world, there are children living in exceptionally difficult conditions, and that such children need special consideration.”
The Convention also puts forward the principle that a child must not be separated from his or her parents except under certain particular circumstances and that a child has a right to contact with both parents, and espouses a number of precepts aimed at protecting the rights of children, among them “the notion that a child has the right not to be discriminated against based on the parents’ status or activities”; “the necessity to respect the child’s best interests as a primary consideration”; and “the state’s obligation to ensure the child the care and protection ‘as is necessary for his or her well-being.’ ”
While none of these provisions specifically address the situation of incarcerated mothers and their children, the principles enunciated in the CRC are frequently cited as the basis for a specific country’s treatment of children residing in prison with incarcerated parents.
3. UN Standard Minimum Rules for the Treatment of Prisoners
The UN Standard Minimum Rules for the Treatment of Prisoners “set out what is generally accepted as being good principle and practice in the treatment of prisoners and the management of institutions,” Rule 23 provides that special accommodation will be made in women’s institutions “for all necessary pre-natal and post-natal care and treatment” and that “[a]rrangements shall be made wherever practicable for children to be born in a hospital outside the institution. If a child is born in prison, this fact shall not be mentioned in the birth certificate.” Rule 23 further calls for “a nursery staffed by qualified persons” to be provided in cases “where nursing infants are allowed to remain in the institution with their mothers,” and that when the infants are not in their mothers’ care they will be placed in the nursery.
4. The Salvador Declaration and the Bangkok Rules
At the Twelfth Congress on the Prevention of Crime and the Treatment of Offenders, held in April 2010, the UN Member States underscored the importance of addressing the needs of the children of prisoners, stressing in the Salvador Declaration that
such responses should take into account the human rights and best interests of children and youth, as called for in the Convention on the Rights of the Child and the Optional Protocols thereto, . . . where applicable, and in other relevant United Nations standards and norms in juvenile justice, . . . where appropriate.”
The UN Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders, known as the Bangkok Rules, were adopted by a resolution of the UN Economic and Social Council in July 2010, pursuant to Resolution 18/1 of the UN Commission on Crime Prevention and Criminal Justice. The Bangkok Rules supplement rather than replace prior UN Rules.
According to the Bangkok Rules, the principle of the best interests of the child is to be used as the basis for decisions to allow children to stay with their incarcerated mothers, and “[c]hildren in prison with their mothers shall never be treated as prisoners.” Women prisoners who have their children with them in prison are to be given “the maximum possible opportunities to spend time with their children,” and the environment for the children’s upbringing is to“be as close as possible to that of a child outside prison.”
Rule 5 of the Bangkok Rules, on personal hygiene, supplements Rules 15 and 16 of the Standard Minimum Rules by making the specific provision that women prisoners will “have facilities and materials required to meet women’s specific hygiene needs, including . . . a regular supply of water to be made available for the personal care of children and women, in particular women . . . who are pregnant, breastfeeding or menstruating.” Women prisoners are to receive a health screening on entering the prison and children who accompany a woman prisoner will also undergo a health screening, “preferably by a child health specialist, to determine any treatment and medical needs. Suitable health care, at least equivalent to that in the community, shall be provided.”
Several of the Bangkok Rules specifically supplement Rule 23 of the Standard Minimum Rules on special accommodation for all necessary pre-natal and post-natal care and treatment and on nurseries. Women prisoners are also to receive advice on their health and diet and “[a]dequate and timely food, a healthy environment and regular exercise opportunities shall be provided free of charge for pregnant women, babies, children and breastfeeding mothers.” Breastfeeding is not to be discouraged without specific health-related reasons.
In regard to searches of children who are in prison with their mothers and those who are visiting prisoners, the Bangkok Rules provide that prison staff must “demonstrate competence, professionalism and sensitivity” and also “preserve respect and dignity.” Incarcerated pregnant women, women with infants, and breastfeeding mothers are not to be punished by close confinement or disciplinary segregation, and “disciplinary sanctions for women prisoners shall not include a prohibition of family contact, especially with children.” Prison staff are to have training on child development and basic child health care, so that they can respond appropriately when needed if children are permitted to stay with their incarcerated mothers.
One rule stresses the need to facilitate women prisoners’ participation in prison activities, by offering a prison regime to respond to the needs of pregnant women, nursing mothers and women with children, e.g., by providing child care facilities or arrangements so that women prisoners may participate in prison activities and “appropriate programs” for these women.
The Bangkok Rules incorporate the principle that noncustodial sentences “shall be preferred where possible and appropriate” for pregnant women and women with dependent children.
5. Future Steps
One of two workshops to be held at the April 2015 Thirteenth Congress on the Prevention of Crime and the Treatment of Offenders will be “on experiences and lessons learned in meeting the unique needs of women and children, in particular the treatment and social reintegration of offenders.” One of the proposed discussion questions is “what successful measures have been taken with regard to pregnant women, women with babies and children in prison, and custody and care of children of imprisoned mothers (outside prison).”
Council of Europe
The 2000 Parliamentary Assembly Recommendation of the Council of Europe takes note of “the adverse effects of imprisonment of mothers on babies” and makes eight recommendations to counter them, among them that member states only use custody for pregnant women and mothers of young children “as a last resort.” In addition, a section on infants in the European Prison Rules sets forth the Council of Europe’s Committee of Ministers 2006 Recommendation, stating as follows:
36.1 Infants may stay in prison with a parent only when it is in the best interest of the infants concerned. They shall not be treated as prisoners.
36.2 Where such infants are allowed to stay in prison with a parent special provision shall be made for a nursery, staffed by qualified persons, where the infants shall be placed when the parent is involved in activities where the infant cannot be present.
36.3 Special accommodation shall be set aside to protect the welfare of such infants.
Nevertheless, a Quaker UN Office report notes that despite the trend in Europe towards establishing child-centered facilities in order to facilitate child-parent contact, a 2002 European Court of Human Rights ruling “held that States were not under any obligation to provide facilities for a child to reside in the prison with their parent,” and European policy-makers may be reluctant to encourage children’s placement in prisons.
At the European Union level, the question of whether or not infants and children up to a certain age should live with their mothers in prison is a matter of national law. General visitation and correspondence rights of parents with their children and vice versa are provided for in national legislation of the Members States, as well as in a number of binding and nonbinding international legal instruments.
Statistics in the EU Member States indicate that the number of children whose parents are incarcerated is close to 800,000 daily on any given day. In the last few years, this issue has received wider recognition in the EU following the publication of an EU-funded report, Coping with a Parent in Prison: An Agenda for Policy Reform, on a three-year study of prisoner’s children.
Two EU instruments have a bearing on this issue: the Charter of Fundamental Rights, which is binding on all EU Members and has a general provision on the rights of the child, and a 2008 resolution of the European Parliament.
1. Charter of Fundamental Rights
Article 24 of the Charter of Fundamental Rights states that (1) children’s views must be taken into account on issues of concern to them in accordance with their age and maturity; (2) when public authorities or private institutions take measures that affect children, they must consider the best interests of the child; and (3) every child must have the right to maintain, on a regular basis, a personal relationship and direct contact with both of his/her parents, provided this is in the child’s best interest.
2. European Parliament
In 2008, the Committee on Women’s Rights and Gender Equality of the European Parliament adopted the Report on the Situation of Women in Prison and the Impact of the Imprisonment of Parents on Social and Family Life. This report led to the adoption of a European Parliament Resolution that encouraged EU Member States to implement the Report’s findings and recommended that the European Commission pass decisions aimed at promoting gender-specific policies. The Report reiterated that the principle of the best interests of the child must be taken into account in decisions affecting contact with their parents in prison. It also stated that, prior to issuing a decision to remand a defendant to custody and when issuing a sentence, the national judicial authorities should verify whether children are involved and should take measures to ensure that children’s rights are respected. It recommended that alternative penalties to imprisonment, such as community-based sentences, should be preferred where possible, especially for mothers, provided that the underlying sentence is short and there is a low risk to public safety. It urged the EU Member States to facilitate contact between imprisoned parents and their children, provided that this is in the best interests of the child. It also urged them to establish appropriate accommodations for children in prison, separate from the prison environment where possible, and to create local nurseries or schools for them.
Global Legal Research Directorate Staff
 Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, G.A. Res. 43/173, Principle 5(2), U.N. Doc. A/RES/43/173 (Dec. 9, 1988), http://www.un.org/documents/ga/res/43/a43r173.htm.
 Convention on the Rights of the Child, Preamble, Nov. 20, 1989, in force on Sept. 2, 1990, G.A. Res. 44/25, U.N. Doc. A/RES/44/25, http://www.ohchr.org/en/professionalinterest/pages/crc.aspx (quoting the Declaration of the Rights of the Child, G.A. Res. 1386 (XIV), 14 U.N. GAOR Supp. (No. 16) at 19, U.N. Doc. A/4354 (Dec. 10, 1959), http://www.un.org/cyberschoolbus/humanrights/resources/child.asp).
 Convention on the Rights of the Child, supra note 3, Preamble.
 Id. art. 9.
 Id. art. 2(2).
 Id. art. 3(1).
 Id. art. 3(2).
 See generally Part III, infra, Country Surveys.
 Standard Minimum Rules for the Treatment of Prisoners (adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, 1955; approved by the Economic and Social Council by Resolutions 663 C (XXIV) (July 31, 1957) and 2076 (LXII) (May 13, 1977)), http://www.ohchr.org/EN/ ProfessionalInterest/Pages/TreatmentOfPrisoners.aspx.
 Id. art. 1.
 Id. art. 23(1).
 Id. art. 23(2).
 Salvador Declaration on Comprehensive Strategies for Global Challenges: Crime Prevention and Criminal Justice Systems and Their Development in a Changing World, Twelfth United Nations Congress on Crime Prevention and Criminal Justice, Salvador, Brazil, point 26 (Apr. 12–19, 2010), http://www.unodc.org/documents/crime-congress/12th-Crime-Congress/Documents/Salvador_Declaration/Salvador_Declaration_E.pdf.
 United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (the Bangkok Rules), Resolution 2010/16 (July 22, 2010), http://www.un.org/en/ecosoc/docs/ 2010/res%202010-16.pdf; Crime-Related Resolutions and Decisions from 2000 to 2009,UNODC, https://www.unodc.org/unodc/en/commissions/CCPCJ/Resolutions_Decisions/Resolutions_2000-2009.html (scroll down page and click on Resolution 18/1, issued on April 24, 2009).
 Id. rule 49.
 Id. rule 50.
 Id. rule 51(2).
 Id. rule 5.
 Id. rule 6, supplementing rule 24 of the Standard Minimum Rules.
 Id. rule 9.
 Id. rule 48(1). Rule 48 supplements rule 23 of the Standard Minimum Rules.
 Id. rule 48(2).
 Id. rule 21.
 Id. rule 22.
 Id. rule 23. Rule 23 supplements rules 27–32 of the Standard Minimum Rules.
 Id. rule 33(3).
 Id. rule 42(2) & (3).
 Id. rule 64.
 Thirteenth United Nations Congress on Crime Prevention and Criminal Justice, Doha, April 12–19, 2015, Discussion Guide at 29, U.N. Doc. A/CONF.222/PM.1 (July 19, 2013), http://www.unodc.org/documents/crime-congress/13th_ crime_congress/RPM/Discussion%20Guide/ACONF222_PM1_e_V13853671.pdf.
 Id. at 34, ¶ 83(k).
 Council of Europe, Parliamentary Assembly, Recommendation 1469 (2000), Mothers and Babies in Prison (adopted on June 30, 2000), recommendation 5(i)–(viii), http://assembly.coe.int/Main.asp? link=/Documents/AdoptedText/ta00/EREC1469.htm. See also U.N. Office on Drugs & Crime, Handbook for Prison Managers and Policymakers on Women and Imprisonment, Criminal Justice Handbook Series, U.N. Sales No. E.08.IV.4 (2008), at 67, available at http://www.unodc.org/documents/justice-and-prison-reform/women-and-imprisonment.pdf.
 Council of Europe, Committee of Ministers, Recommendation Rec(2006)2 of the Committee of Ministers to Member States on the European Prison Rules (Jan. 11, 2006), https://wcd.coe.int/ViewDoc. jsp?id=955747.
 Jean Tomkin, Quaker United Nations Office, Orphans of Justice, in Search of the Best Interests of the Child When a Parent Is Imprisoned: A Legal Analysis 35 (Aug. 2009), http://www.quno.org/sites/ default/files/ resources/ENGLISH_Orphans%20of%20Justice.pdf (citing European Court of Human Rights decision in Kleuver v, Norway, App. No. 45837/99 (Apr. 30, 2002), http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i= 001-22377).
 In 2011, the Committee on the Rights of the Child held a Day of General Discussion on “Children of Incarcerated Parents” during which it discussed the issue of establishing a minimum or a maximum age limit for a child to live with parent(s) in prison. There was consensus that imposition of a limit would not be a viable solution and could potentially result in lowering the standard in some countries. Committee on the Rights of the Child, Report and Recommendation of the Day of General Discussion on “Children of Incarcerated Parents” § 15 (Sept. 30, 2011), http://www2.ohchr.org/english/bodies/crc/docs/discussion/2011CRCDGDReport.pdf.
 See Part III, infra, Country Surveys.
 Supporting Children with Parents in Prison, European Union, European Platform for Investing in Children (Feb. 7, 2014), http://europa.eu/epic/news/2014/20140207-children-prison_en.htm. See also Elizabeth Ayre et al., Children of Imprisoned Parents: European Perspectives on Good Practice (2d ed. 2014), available at http://www.academia.edu/7444964/Children_of_Imprisoned_Parents_Ed._.
 Coping with a Parent in Prison, An Agenda for Policy Reform 8 (Pan-European Conference, Brussels, Nov. 6, 2012).
 Charter of Fundamental Rights of the European Union, 2012 O.J. (C 326) 391, http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12012P/TXT&from=EN.
 Id. art. 24.
 European Parliament, Committee on Women’s Rights and Gender Equality, Report on the Situation of Women in Prison and the Impact of the Imprisonment of Parents on Social and Family Life (2008) (hereinafter European Parliament Report), http://www.europarl. europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A6-2008-0033+0+DOC+PDF+V0//EN; see also European Parliament Resolution 2007/2116(INI) of March 13, 2008, http://www.europarl.europa.eu/sides/ getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2008-0102+0+DOC+XML+V0//EN.
 European Parliament Report, supra note 42, recital 18.
 Id. recital 16.
 Id. recital 22.
Last Updated: 06/09/2015