DAY OF GENERAL DISCUSSION: Coverage of the Working groups

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- Working group 1
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WORKING GROUP 1: Babies and children living with or visiting a parent in prison

Working group 1, chaired by CRC member Prof. Yanghee Lee, addressed all issues related to babies and children living with or visiting a parent in prison. Issues covered included: lack of official data to indicate the number of children in such circumstances, the conditions of prisons and the environment as child-friendly, the possibility of non-custodial sentences, setting an age limit for living with an incarcerated parent, maintaining family ties between the child at home and the parent in prison, children's right to know about their parent's incarceration, the training of staff within the prison and judicial systems, maternal healthcare and children's best interests.

Read some highlights of the discussion below. For more information, view the webcast of the day here.

Alternative, non-custodial measures

It was widely agreed among participants that alternatives to custodial sentences, such as community-based initiatives like community service, should be more frequently used.  Participants noted that young children should not be separated from the parent, but at the same time they should be kept out of a prison environment, yet the parent should still have to serve their sentence handed down.  This raised discussion on the need to reconcile the best interests of the child and those of the criminal justice system and public security.

Policy Director at Penal Reform International, Andrea Huber questioned if in all cases involving an incarcerated parent, whether a custodial sentence was really necessary. Member of the CRC, Mr. Jorge Cardona Llorens underlined that a custodial sentence should never be imposed until the situation of the child, in terms of care, is determined. Italy’s Associazione Communità Pappa Giovanni XXIII, highlighted that children with incarcerated parents have the right to be with the parent, but also have the right to live in a family environment and to socialise with other children. The Quaker United Nations Office said that as a presumption, non-custodial measures should be the alternative to a prison sentence when the offending parent is a primary care giver. A participant from the Democratic Republic of Congo suggested one such alternative carried out in his home country – that of allowing an offending mother to serve her sentence at home, also called conditional convictions. 

Benoît van Keirsbilck of Defence for Children International Belgium, highlighted that this issue should not only consider the relationship between the incarcerated parent and the child, but also that between the parent and other inmates. To illustrate his point, Keirsbilck gave the example of one case in Belgium where tensions grew between an incarcerated mother, who allowed to have her young child live in prison with her, and the other female inmates who had not been granted the same and so wanted to spend time with the child. This inevitably affected the relationship between the mother and her child.

A senior lecturer at the University of Huddersfield in the United Kingdom, who is also part of the COPING Project on children of prisoners drew on a study conducted at an open women’s prison that allows children of up to 18 years whose mothers are serving custodial sentences to stay together in a specially allocated house within the prison grounds, and with no supervision. This system allows children to “do natural things” like bonding through plaiting hair, painting each other’s nails and dancing. Before this initiative, the children of female inmates remarked that they felt suicidal; but after its construction, the senior lecturer highlighted that allowing for private visits between prisoners and their children is crucial for the latter to get through the experience of being separated from a parent. 

As a footnote, the Chair of the Working group and Member of the CRC Prof. Yanghee Lee suggested that research look into how the UN Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules) have been and could be linked to the issue.

A consideration of age

Some participants noted the need for setting an international standard on the minimum amount of time an infant or child can spend with the parent in prison, as well as an age limit for it. 

The International Baby Food Network proposed that a recommendation on this issue should take into consideration the importance of infant and young child feeding, saying that infants should be breastfed for a minimum of six months, as recommended by the World Health Organisation (WHO).  The Network was also adamant that artificial feeding should not be imposed just because it fits better into the schedule of prison staff. Additionally, Andrea Huber at Penal Reform International highlighted how the UN Rules for the Treatment of Women Prisoners and Non-custodial Measure for Women Offenders (the Bangkok Rules), which includes provisions related to breastfeeding, could be used to this end. However, she also pointed out just as a consideration that the Bangkok rules were written with the best interests of women in mind, and not the child.

A representative of the International Child Rights Bureau said the recommendations should be clear on the maximum age for children to leave prison, despite diversity of individual cases, as a recommendation would then allow States to fix an age limit. However, this view received contending opinions. Lisa Myers of the NGO Group for the CRC said that an age limit could be misused, reflecting on how some States previously honed in on the CRC's General Comment no. 10 on minimum age of criminal responsibility as an excuse to lower it. On this note, some participants suggested that rather than having guidelines with a strict age limit, they should instead be indicative, reflect the conditions of each country, and be determined on a case by case basis according to the individual needs of each child involved.

Likewise, Rachel Brett of the Quaker United Nations Office said that considerations on an age limit should be based on a case by case basis, taking into account each individual child, the situation of the parent (e.g. if the primary care giver), the conditions of the prison in which the parent is serving the sentence (e.g. if child-friendly or otherwise), and the laws in the country in question.

Lisa Myers of the NGO Group for the CRC also highlighted the importance of considering the principles of best interests, while also acknowledging that they can be viewed subjectively between States. On the same issue, Andrea Huber of Penal Reform International noted the changing nature of children's best interests as they get older, and how best interests may also be different in cases where the incarcerated parent is on death row or serving a life sentence.

The right to know

Participants also drew on children's right to know about the circumstances of their parent's incarceration and details about what a prison is for, noting that adults tend to lie to children under the assumption that they are protecting them from the “harmful” truth. In addition, one participant highlighted the lack of information on how courts and family courts function, which makes it difficult to determine anything about parental responsibility on the matter.

Maintaining family ties

SOS Children's Villages highlighted the obstacles for children visiting a parent in prison, noting the long distances between the child's home and the prison, the resulting travel costs, and even school regulations that do not recognise visiting a parent in prison as a justifiable excuse for taking a day off school.

On the issue of distance, Assistant director of Action for Prisoners’ Families, Ms. Sarah Salmon maintained that before a parent is imprisoned, the relevant authorities should first establish where the child is living in order to have the parent within suitable travelling distance of the child's home. Ms. Salmon also highlighted that the rule in England and Wales of having visits granted only by the prisoner means that children’s best interests are not always taken into account, as incarcerated parents often prefer that their children not visit them due to the assumption that it may be too traumatic for them, as well as for the parent in question.

A representative from Prison Fellowship International highlighted that in some countries restrictions are placed on family visits as a way of putting pressure on prisoners for the sake of investigations during pre-trial detention. Similarly, Cambridge University doctoral student, Ms. Marie Hutton brought attention to the quality of visits themselves, in terms of the duration of the visit and the level of privacy conferred during the visit, noting that in some prisons in the United Kingdom these depend the good behaviour of the imprisoned parent, saying that this condition treats children as “carrots at the end of a very long stick”.

And Rachel Brett of the Quaker United Nations Office highlighted that in cases where the incarcerated parent is a foreign national, and they have children in their home country, then other forms of communication should be considered to maintain family ties, such as the use of technology (email, telephone) and written correspondence.

Adequate training

A number of organisations noted the need for the adequate training of prison staff. A representative of Bambini senza sbarre highlighted that in Italy only 11 per cent of prison personnel are adequately trained, despite 100,000 children entering prisons every year.

The European Network for children of incarcerated parents (EUROCHIPS) mentioned the importance of training of prison staff, saying that attitudes (of staff) are often more important than the physical environment of the prison. Likewise, one participant from the United Kingdom said that such training is vital for when children visit the parent in prison, as it is important to foster positive attitudes and build good relationships between prison staff and family members.

Yet the Director of Penal Reform and Justice Association, Rani Shankardass said that it is not enough to just train prison staff, but that all authorities whose decisions impact the life of children of incarcerated parent, including police officers and members of the judiciary, should also be familiarised with the situation inside detention centres.  Mr. Abdullah Khoso, National Programme Manager on Juvenile Justice at the Society for the Protection of the Rights of the Child (SPARC), said that training should not consist of short courses, which in some countries can be as short as six to eight weeks, but should be a sustained and continuous effort. Khoso further added that such training should be institutionalised in prison academies, and that governments should develop it with the support of NGOs so that it reflects a national State approach, and not one that could be seen as interference from the “outside” if coming from NGOs.

Budgeting

Participants also discussed which State body should hold statutory responsibility over the interests of children living with or visiting a parent in prison, as in a number of countries none hold such responsibility. The ministries of education or social welfare were proposed as possible bodies, while acknowledging that relevant ministries or authorities are not the same in each county. The Chair of the Working group and member of the CRC, Prof. Yanghee Lee warned that the ministry of justice would probably say it only has funds for prisoners, and not their children, and so the ministries of education and health would be possible alternatives. Jokingly, Mr. Abdullah Khoso, National Programme Manager on Juvenile Justice at the Society for the Protection of the Rights of the Child (SPARC), suggested that the Ministry of Defence should be responsible as it is guaranteed to have an ample budget!

Statelessness

Another important issue raised during the working group meeting was the status of children born in prison, especially if the mother is a foreign national. One advocate from Cote d’Ivoire highlighted that in the country much of the female prison population is of migrant origin, so there is a major risk that these women cannot register their children after birth, effectively leaving them stateless. Further on the issue, Rachel Brett of the Quaker United Nations Office questioned what the child's nationality would be in such circumstances: that of the mother, or of the country he/she is born in? Ms. Brett also highlighted the case that if foreign national prisoners have children in their home country, would they ever receive visits from them?

WORKING GROUP 2: Children left 'outside' when their parent is incarcerated

Working group 2, chaired by CRC member Mr. Sanphasit Koompraphant and facilitated by Oliver Robertson of the Quakers United Nations Office, focused on all aspects of the impact of a parent's incarceration on children who remained on the outside. Issues covered included: arrest, issues of pre-trial, court and sentencing, contact with the incarcerated parent, life on the outside, and release and reintegration.

Read some highlights of the discussion below. For more information, view the webcast of the day here.

The problem of identification

A representative from the Prison Advisory Care Trust in the UK spoke of the difficulty of identifying children who need support as it is often only children who happen to be there at point of arrest who are given support. Julia Morgan from Plymouth University highlighted the importance of respecting children's dignity and not 'outing' the child's situation in inappropriate circumstances. She further noted the importance of offering appropriate support in schools as research has found that some children have been directed towards resources for children of separated parents or whose parents had died.

Participants highlighted research data which finds that witnessing the arrest of a family member is a significant traumatic experience for children. There is a need to look at the way parents are arrested in front of their children and not to overlook children who are not present at the time of arrest. A representative from EUROCHIPS recommended that governments establish legislation to guide this process and ensure that the parent is not humiliated in front of child, for example, in some places children are taken into another room during the arrest. Delegates from the Open Society Institute in the US and from HAQ Centre for Child Rights in India also emphasised the need to develop protocols, checklists and training on how to deal with children of parents who have been arrested and imprisoned. These should include information about where children can go, how they can contact the parent/ be contacted, and follow-up by social services.

Penal Reform International addressed the issue of funding for ensuring measures and protocols for fulfilling the rights of children in these circumstances, especially in the case of foreign nationals.

Oliver Robertson from the Quakers United Nations Office highlighted that there can be situations where parents deliberately do not inform authorities that they have children out of fear of what will happen to them. Silvia Zega, Juvenile Justice Services Division, from the Federal Court of Appeal in Argentina, explained that it is often women from disadvantaged backgrounds who find themselves in this position and, being unaware of the law, they are worried about losing their children and therefore do not inform the authorities of the children's existence.

Children's rights back in focus

EUROCHIPS made a plea for children's rights to take precedence over those of their parents as all too often their situation is disregarded. In the UK, for example, children only know that a parent has been arrested if the parent chooses to tell them; children can be stigmatised by inappropriate media coverage; and in many countries it is only the parent who has the right to contact the child, not the other way around.

A delegate from the Scottish Commissioner's office reiterated that access of children to their parent is often related to parent's behaviour in the criminal justice system. Visits are treated as the privilege of the parent rather than the right of the child.

The Croatian Ombudsperson for Children agreed that although the media can be a force for good, in such situations there are times when the media can be harmful by revealing the child's identity, for example. This can lead to discrimination and stigma against the child. Another participant highlighted that where such cases have been brought before the European Court of Human Rights, the regional court usually comes down on the side of privacy for the child.

The particular situation for native American children was also raised where they are arrested under federal law because they are held in federal prisons which are generally very far away from the children.

Enakshi Ganguli from HAQ Center for Child Rights in India asked if the Committee on the Rights of the Child could pay more attention to children of prisoners under other articles of the Convention when examining State Party reports.

Explaining how the system works in Norway, member of the Committee on the Rights of the Child Kirsten Sandberg recommended involving the social protection authorities. In Norway they go with police if children are involved so they can take care them if necessary. Also speaking about the situation in Norway, Hanne Christoffersen, the Organisation for Families and Friends of Prisoners, revealed that an initiative is under way to establish child ambassadors in every prison in Norway. Part of their mandate will be to help make prisons more child-friendly, using Sweden as an example where this system is already in place.

Alternatives to imprisonment

Participants agreed that the focus of courts should be to find alternatives to custody. Where imprisonment is unavoidable, access of children to their parent is critical.

EUROCHIPS suggested that children could provide an impact statement to the court on how a custodial sentence would impact them in the same way that courts consider victim statements.

In considering ways to avoid handing down prison sentences to primary caregivers, an example was presented from Georgia where courts can suspend a mother's sentence for a year.

Peter Gurán, a member of the Committee on the Rights of the Child, asserted the importance of establishing minimum standards for children of incarcerated parents and of minimising the effect of incarceration. Both Mr. Gurán and Alan Kikutchi-White from SOS Children's Villages, emphasised the importance of making case by case decision-making, saying that children's best interests must not be determined in advance, but made according to each family assessment.

Participants also considered children's rights issues which arise during a parent's imprisonment, including contact with a parent, life on the outside and access to housing, care, schooling, friendships, free time, and how children experience stigma, as well as the impact of particular types of sentences on children, such as the death penalty.

Helen Houghton, from Dublin spoke about the problem of drugs in prison, saying that in Ireland, glass barriers between the sentenced person and the family are in place to prevent drugs being passed through. However, this also means that parents can not hug their baby or have any physical contact with them. Maria Herczog, a member of the Committee on the Rights of the Child, meanwhile raised the question of parents who were in prison for violence and what sort of procedures should be in place to ensure the protection of children of such prisoners.

A representative from Amnesty International spoke of the impact on children of parents being sentenced to the death penalty and the secrecy that surrounds this in some States. Article 9.4. Families are not always informed, nor bodies returned. This means that a child does not have a chance to say goodbye in person or at a burial. He stated "I would like to invite the Committee on the Rights of the Child to consider whether child's right to such information is contained in article 9 – where there is a potential of execution to inform family members of the date, to allow a last visit, and indicate where the body is located. Various international standards require transparency about and publicity of the use of the death penalty. This has most recently been reiterated in an individual decision issued by the Human Rights Committee on Kyrgyzstan which concluded that the right of family members to such information does exist.

A representative of Morning Tears added that research proves that if children know about the imminent execution of a family member and know that they will be safe after this has taken place, this can help with coming to terms with the situation. He concluded that State parties should take this into account.

Drawing attention to indeterminate sentences, EUROCHIPS explained that the use of such sentences is difficult for family members. They do not know when they will see their relative again and when people sentenced to indefinite periods of imprisonment, they are often released at very short notice with no warning and no time for either the sentenced person or family members to prepare for their release.

Some of the participants expressed surprise that social media hasn't been discussed as a means for maintaining contact between parent and child. One delegate spoke of an online project in Jamaica which enables children to post messages for their parents to read and at the same time enables parents to improve their literacy by recording in their own voice books that the children are reading in school.

ISSUES FOR RECOMMENDATIONS

• Non custodial measures as a priority, includnig sentencing alternatives such as community based initiative;

• Identify if parents have a child before custodial measure is imposed;
  

• Age – minimum and maximum age limit (based on individual child assessment; 

• Disabled children and special need; 

• Statutory responsibility - which ministry should hold responsibility for these children. Possible coordination between ministries;
  

• Justice for women in places of detention (legal counselling, support services, relationship with social workers);
  

• Pregnant and lactating women (pre- and post-natal care; 

• Training for all officials at all relevant level; 

• Reconciliation of criminal justice and protection of the children;
  

• Lack of research and initiatives at the national, regional and global levels;
  

• Methodology for clear statistics / data;
  

• Fight against social stigma and media sensitisation;
  

• Possibilities to work and make money inside detention centres;
  

• Issues about birth registration, nationality and civil rights;
  

• Implementation of the Bangkok Rules, and other relevant norms and standards;
  

• Provision of services to children in places of detention (health, education, food, playgrounds); 

• Stigmatisation of the child (treatment depending on the offence of the parents);

• Best interest assessment on case by case basis – with inclusion of children’s views (danger of the all fits all assumption);
  

• Special provision for minority children (indigenous, migrant, with disabilities);
  

• Right to visit the parent, maintaining contact (physical contacts, friendly environment of prison – body searches on children). On communication, if no chance to meet personally with parent, then new media should be considered. Also cross-border issues – if the parent is incarcerated in a country different from that of residence of the child; 

• Distance between family home and prison – right of both parent and child; 

• Children complicit in crime of parent; 

• Arrest procedures (prison authorities to work together with social workers);
  

• Humiliation of parent in front of the child should be avoided (e.g. putting children in another room); 

• The automatic removal of parental custody rights should not be the case; 

• Child’s right to information and to be heard (provision of information to the child – noting that it is traumatic, it should be child-friendly). Also noting cultural differences. Access to information about the parent (expected imact of incarceration, facts around the prison); 

• Age appropriate intervention (with consideration of individual child); 

• Capacity building - training of professionals who have contact with children; 

• Role of the media – in the negative sense.