Laws on Children Residing with Parents in Prison

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Part III. Foreign Country Surveys

Algeria

Algerian Law No. 04-05 of 2005, which deals with prison organization and the social reintegration of prisoners, contains provisions related to prisoners who have minor children.[1] Paragraph 6 of article 16 allows for the postponement of carrying out a prison term against a convicted person for the benefit of a minor child if the other spouse is also in prison. Paragraph 7 of the same article allows for postponement of a prison term of a pregnant woman or a mother with a minor child less than twenty-four months old. In accordance with article 17, the postponement shall last until two months after delivery if the child was stillborn or until the child is twenty-four months old if he is alive. Where a woman does give birth during her imprisonment, article 51 of the Law requires that the prison administration coordinate with the appropriate social welfare agency to arrange for placement of the newborn. If no placement is available, the imprisoned mother can keep the child with her until it is three years old. Information on the number of children living with their mothers in prison could not be located.

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Argentina

Argentinian Law 24660 on the Execution of Penitentiary Penalties[2] provides that an imprisoned mother may keep her children younger than four years of age with her in prison. The prison is to provide child care services and facilities with specially trained staff.[3] As of 2011 only one prison for women had a child care facility, however.[4] As of 2008, eighty-six children were living with their mothers in prison, according to a United Nations International Children’s Emergency Fund (UNICEF) report.[5]

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Australia

Each of Australia’s six states and two mainland territories apply their own legislative frameworks in relation to the correctional facilities that they manage. Provision is made in the policies or legislation of all of these states and territories for the accommodation of children with their mother in prison.[6] The Standard Guidelines for Corrections in Australia state that if provision is made for children and infants to reside with their primary caregiver in prison, “comprehensive and well structured policies and programmes should be developed where the interests of the children are paramount.”[7] The other guidelines on this matter are as follows:

Assessment processes for determining the placement of a child in a custodial environment should include appropriate input from the relevant external agencies.

Children and infants should be allowed to reside with their primary care giver in prison only after the Administering Department is satisfied that it is in the best interest of the child/ren to do so and there is no mechanism for the primary care giver to complete her/his sentence in the community (for example via home detention).

The accommodation for primary care givers and their children should, wherever possible be domestic rather than custodial.

While prisoners are responsible for the care of their children living in the prison, the Administering Department should take reasonable steps to ensure a safe environment for children.[8]

Information on the age limits and numbers of places available for children to reside with their mothers in prison in each state and territory is provided below.

1. Australian Capital Territory

The Australian Capital Territory (ACT) has detailed rules and procedures related to children residing with female detainees in a specified ACT prison.[9] Female detainees who are the caregivers of children up to the age of four years or who are pregnant may participate in the Women and Children Program.[10] Following approval, children are placed with their caregiver in a women’s cottage at the prison. The cottage “consists of two five bedroom units with a shared living room, dining room, kitchen, laundry and courtyard.”[11]

2. New South Wales

The New South Wales Mothers and Children’s Program[12] has three components: a full-time residency program, occasional residency program, and release of the mother to serve her sentence in an approved environment away from a correctional center.[13] In order for a child to reside full-time with his or her mother, he or she must be aged under six years and not attending school.[14] The two residency options are available in two correctional centers in the state. In one facility there are eight cottages that provide full-time accommodation for up to a total of forty women and sixteen children, and in the other there are full-time places for five women with preschool aged children.[15]

3. Northern Territory

The Northern Territory Prisons (Correctional Services) Act 1980 (NT) provides for a female prisoner who gives birth to a child or who has children under five years of age to obtain permission to have that child or those children accommodated with her in a prison.[16] In 2012, it was reported that “a new 24-bed cottage to meet the needs of women with children in custody has been constructed at the Alice Springs Correctional Centre.”[17]



4. Queensland

In Queensland, approval may be granted for a child who is not eligible to start primary (i.e., elementary) school to reside full time with his or her mother in a correctional facility.[18] Detailed procedures apply to the consideration of an application, and to the management of the mother and child who reside together in a facility.[19] Three Queensland women’s prisons have residential units that accommodate women who have a baby or young child residing with them in prison.[20] One prison has units that accommodate a total of eight inmates and their children; another regularly has “up to six children, sometimes ten, placed with their mothers;”[21] the third has a specialist unit that can accommodate up to eight mothers and babies, plus another eight places for mothers and babies in a double unit.[22]

5. South Australia

The South Australia Department of Correctional Services issued an instruction in 1993 stating that provision may be made for a child to live with a parent in prison.[23] According to the Department’s 2002–03 Annual Report, the Adelaide Women’s Prison has facilities to accommodate nine women with children under three years of age.[24] The 2012–13 Annual Report stated that a goal for the following year was to establish a mothers and babies program at the prison.[25]

6. Tasmania

In Tasmania, a prisoner may request approval for a child to live with the prisoner in the prison.[26] The women’s prison in Tasmania has a seven-bed mother and baby unit.[27]

7. Victoria

In Victoria, “[p]risoners who are pregnant or who are the primary carers of young children may apply for the Mothers and Children Program.”[28] A child must be under school age in order to live in the prison with his/her mother.[29] The program is available in the state’s two women’s prisons where mothers and their children are housed in dedicated facilities.[30] According to a February 2013 news report, at that time nine children, aged two months to four years, were living in prison with their mothers in the state.[31]

8. Western Australia

In Western Australia, a detailed policy directive sets out the rules and procedures related to children residing in prisons with their mothers.[32] For the residential programs in some prisons, the age at which a child’s residency must cease is twelve months.[33] However, in purpose-built facilities, the age limit is generally four years.[34] According to one report, in one prison with special facilities for mothers and children there were nine children residing with their mothers in 2010–11, although the facilities were designed to accommodate six.[35]

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Belgium

Belgian law allows inmates (détenus) to have their child live with them in prison until the child is three years old.[36] The law provides for special facilities specifically designed to accommodate mothers with children.[37]

According to the Coordination des ONG pour les Droits de l’Enfant (NGO Coordination for Children’s Rights), a nongovernmental organization that focuses on children’s rights, there were five places for mothers with children in the French-speaking regions of Belgium (Wallonia and Brussels).[38] The same report notes, however, that there are often more than five mothers with children owing to prison overpopulation.[39] The children’s length of stay ranged from a few weeks to the legal limit of three years.[40] As of November 2012, there appeared to be thirteen children living with their mothers behind bars in Belgium (including the Flemish-speaking region).[41]

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Benin

Beninese law appears to allow mothers to keep their young children with them in prison, although no special accommodation seems to be provided for such situations.[42] It has been reported that there are approximately a hundred children under the age of five living with their mothers in Beninese prisons.[43]

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Bolivia

The Code of Criminal Procedure (Código de Ejecución Penal)[44] provides that children aged six or younger may live with their incarcerated parent if that parent has custody.[45] When both parents have custody, the child remains with the parent who is free except when the child is breastfeeding, during which time he/she stays with the mother in prison.[46] Children living in prison with their parents stay in child care facilities set up for them.[47]

For older children, the Code of the Boy, Girl and Adolescent[48] provides that when both parents are in prison and it has been determined that their children do not have extended family, or that the extended family cannot possibly assume responsibility for the children’s care, those children will be assigned to a foster home or institution located close to their parents’ prison, except for children younger than six years old, who remain with their mother in prison.[49] The authorities are required to provide children separated from their parents the opportunity to stay connected with their parents in prison.[50]

According to official sources there are approximately two thousand children living in Bolivian prisons with their parents.[51] Most of these children are younger than six years of age but there are many prisons where children older than six, mostly adolescents, are still living in prison with their parents.[52] The lack of enforcement of the maximum age established by law has caused a high number of human rights violations and crimes against these children, which the government is trying to reverse and correct.[53]

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Botswana

Botswana law provides that a breastfeeding child of a female prisoner may live with the mother until the child has been weaned. During the child’s stay in prison, the child may be provided with “clothing and necessaries at the public expense.”[54] According to a 2013 US Department of State report, Botswana prison authorities allow female prisoners to bring breastfeeding children under the age of two to prison; however, some prison do not have maternity facilities.[55] After the child has been weaned, the Prison Service is required to place the child with a relative or family friend who is able and willing to provide support or, in the event that such a person is not available, with a government-approved child care provider.[56]

A previous US Department of State report noted that, in 2012, there were 4,241 prisoners in Botswana, 141 of whom were female.[57] No statistical information concerning the number of children living in prison with their mothers was located.

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Brazil

Article 83(§2) of Law No. 7,210 of July 11, 1984, determines that Brazilian prisons for women must have a nursery where convicted women can care for their children, including nursing them until they reach at least six months of age.[58]

For the purpose of assisting the child whose guardian is in prison, a women’s penitentiary must have a section for pregnant women and women in labor, and a child care facility to house children older than six months and younger than seven years.[59] The nursery and the child care facility must be equipped with qualified personnel in accordance with the guidelines adopted by educational legislation, and have opening hours that guarantee the best care for the children and their guardian.[60]

On July 15, 2009, the National Council of Criminal and Prison Policy (Conselho Nacional de Política Criminal e Penitenciária) issued Resolution No. 4, which details the steps to be taken for the gradual separation of the convicted mother from her child, once the child reaches the age of one year and six months.[61]

According to the National Penitentiary Department (Departamento Penitenciário Nacional), in December 2012 there were 14,119 convicted women incarcerated in a “closed regime” (regime fechado) in the country.[62] However, no information was provided regarding how many children were being raised in prison.

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Burma

According to a 2011 report submitted to the United Nations Committee on the Rights of the Child (CRC) by the Child Rights Forum of Burma, there are infants and young children living in prison with their mothers in Burma.[63] The report states that babies born in prison and children who accompany their mother during the mother’s incarceration do not receive adequate health care and nutritious food, and their mothers are often denied assistance during childbirth. Moreover, the absence of everyday stimuli and educational material in Burma’s prisons hampers children’s social and emotional development.[64] No Burmese law regarding children in prison was located.

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Burundi

Burundian law appears to allow imprisoned mothers to have their children live with them. There were eighty-five babies and children living with an incarcerated parent (parent) in Burundian prisons as of 2009, out of a total penitentiary population of 11,084 inmates.[65] No special accommodation is provided for these children and their incarcerated parent, and only nine of them had access to special health services and clothing provided by a charity organization.[66]

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Cambodia

According to an October 2013 report of the Cambodian League for the Promotion and Defense of Human Rights (Ligue cambodgienne pour la promotion et la défense des droits de l'homme, LICADHO), there were fifty-one children aged between one month and eight years living with their incarcerated mothers in the prisons monitored by LICADHO in July 2013. The report states that the Cambodian Prison Law of December 2011 lowered the maximum age limit of children allowed to stay in prison from the age of six to the age of three, but this age limit has not been fully observed. The report also said that the Cambodian prison system is incapable of providing for most of a child’s basic needs, including education, family life, proper nutrition, and medical care.[67]

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Cameroon

Cameroonian prisons appear to house young children who were born there to incarcerated mothers. As of July 2012, there were allegedly five infants in the central prison of Yaoundé, the capital.[68] No special accommodation seems to exist for these children and their mothers, and the Yaoundé central prison is extremely overpopulated: originally built for eight hundred inmates, it housed 3,922 inmates in 2012, including 114 women and 211 juveniles.[69] No information on how many children live with incarcerated mothers in other Cameroonian prisons was located.

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Canada

In Canada, offenders who have been sentenced to imprisonment for two or more years are kept in federal corrections facilities, while those with a lower sentence remain in provincial correctional centers.[70] Certain measures are in place to help incarcerated parents maintain parental relations with their children, including escorted temporary absence,[71] unescorted temporary absence,[72] and family visits without a physical barrier to personal contact.[73] For younger children, the Correctional Service of Canada established guidelines in 1995 to provide for a Mother-Child Program (MCP),[74] which is subject to the institutional head (or warden’s) discretion and an institution’s space availability.[75]

The MCP provides a full-time cohabitation program for female offenders with children under four years old and a part-time program for children aged six and under. The program was fully implemented in 2001 and was modified in 2008 by Public Safety Canada, after the media covered the Whitford case, [76] in which a mother accused of shooting her partner was allowed to temporarily keep her newborn child in prison.[77] As a result of the Whitford decision the eligibility criteria were modified by ministerial directive to exclude offenders convicted of serious crimes and to restrict the part-time program.[78] In practice, the rate of participation for the MCP is very low, which is attributed to “correctional overcrowding,” a “more punitive institutional culture,” and a number of changes to “program’s eligibility criteria.”[79] Since 2008, only fourteen children have participated at the federal level, eight of them on a full-time basis.[80] There were three MCP participants among 261 federal female offenders in April 2003, four participants for 460 offenders in April 2007, and zero participants for 603 offenders in April 2012.[81] These numbers illustrate that the rate of MCP participation has decreased even while the number of female prisoners has increased. The Correctional Service of Canada recently announced the expansion of “special rooms” to facilitate the MCP but it has not been confirmed whether more women would actually participate, according to news reports.[82]

At the provincial level, most of the provinces, including Québec, Ontario and Alberta, do not provide a specific program allowing the cohabitation of children with their offender parents and programs that are in place are limited to familial visits, with the distinction that Alberta has implemented videoconference visits to allow for more visits, as well as longer visiting hours.[83] British Colombia began to provide an MCP at provincial institutions in 1973 to permit “women who gave birth while serving sentences of provincial incarceration” to “keep their babies with them in their respective institutions.”[84] In 2008, a mother-baby program was cancelled in a provincial correctional center but the Supreme Court of British Columbia reversed the decision by declaring it an unconstitutional violation of the principles of fundamental justice and the right to equality under sections 7 and 15 of the Canadian Charter of Rights and Freedoms.[85]

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Chile

The Regulation of Prisons[86] requires Chile’s prisons for women to provide adequate spaces and conditions for the pre- and postnatal care and treatment of mothers and their breastfeeding children.[87] In regular prisons that are not dedicated only to women, the penitentiary authorities must provide the necessary measures and programs for women who bring their breastfeeding children with them.[88]

As of 2012, 307 mothers had children of breastfeeding age living with them in the prison for women located in Santiago.[89]

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China

Chinese law does not appear to allow children to live in prisons with their prisoner mothers. Instead, the Criminal Procedure Law provides that a woman sentenced to imprisonment or criminal detention may be permitted to temporarily serve her sentence outside of prison when she is pregnant or breast-feeding her own baby.[90]

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Colombia

The Penitentiary and Prisons Code of Colombia[91] provides that children aged three and younger may live with their mothers in prison unless a judge decides otherwise.[92] The Instituto Colombiano de Bienestar Familiar (Colombian Institute of Family Welfare), in coordination with penitentiary authorities, provides special care to minor children residing in prison with their mothers, including educational and recreational programs for them.[93]

As of July 2013, there were 237 children living with their mothers in Colombia’s prisons.[94]

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Côte d’Ivoire

Ivorian law appears to allow incarcerated mothers to keep their young children with them in prison. As of July 2014, there were 144 pregnant women and mothers of children under three years of age at the MACA, the main prison in Côte d’Ivoire.[95] These inmates and their children are housed in regular prison cells, as there are no special accommodations for them.[96]

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Cuba

According to a Quaker United Nations Office report, as of 2010, the age limit for children living in prison with their incarcerated mothers in Cuba was generally one year.[97] No relevant statistical information on the number of children incarcerated with their mothers could be located.

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Denmark

Danish law provides that “an inmate has the right to have [his/her] child under the age of one accompany [him/her] to prison, provided that he or she is capable of looking after the child.”[98] Thus, the Danish provision does not limit the right to care for a child to only the mother but all inmates are given the same right, provided they can care for the child. Also, inmates in Denmark are allowed to cohabit with a fellow incarcerated inmate if the couple had a relationship before being sentenced, and with nonsentenced spouses at the more relaxed family houses of open prisons or halfway houses (i.e., houses where prisoners who are soon to be released are housed).[99]

High-security prisons are uncommon in Denmark; instead most inmates serve their sentences in so-called open prisons, as these are the presumed sentencing facilities for all crimes resulting in less than five years in prison.[100] The articulated goal is to have all inmates serve in an open prison.[101]

Denmark does not have special female prisons but has recently discussed the creation of the same.[102] The reason for the current lack of special female prisons is the relatively few female inmates (totaling seventy-five in 2014)[103] and the principle of being incarcerated close to family members.[104] The few mothers in prison can also be explained by the fact that Danish legislation specifically includes a mission statement that the purpose of a prison sentence is to serve as punishment” but also to help the individual transition into a crime-free life.[105]

Inmates are given the same rights to health care as the population at large and also perform work the same as ordinary citizens.[106] Prison mothers who work in prison are entitled to a year of maternity leave, i.e., they have to remain in prison but do not have to work or study during this time, which allows them to focus on taking care of their children.[107] Working inmates are also entitled to paid sick leave.[108]

Another accommodation that benefits mothers is Denmark’s relatively short prison sentences and its willingness to assign alternative sentences, such as electronic surveillance. Electronic surveillance is used for prison sentences of up to five months.[109] Other alternatives include serving out the sentence in an institution.[110]

There has been one report of a child that was conceived in a high security prison, born while her mother and father served a sentence for murder, who was reared in prison until her third birthday and then moved out to be better accommodated.[111] Another report estimated that approximately ten children live with their parents in prison each year in Denmark.[112]

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Ecuador

Ecuador’s Code of Childhood and Adolescence[113] provides that children whose parents are in prison are to receive protection and assistance from the state outside of the rehabilitation institution to ensure their right to family and community interaction, and are to be provided with direct and regular contact with their parents.[114]

In 2007, the government started a program called Ecuador Sin Niños en las Cárceles (Ecuador with No Children in Prisons) to remove children older than three years of age from the prisons where they were living with their mothers. As of 2012, only 203 children remained with their mothers in prison, reduced from 1,400 in 2007.[115]

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Egypt

Article 20 of Law No. 396 of 1956 on the Organization of Prisons, as amended by Law No. 20 of 1973, provides that a newborn in Egypt can remain with his/her imprisoned mother until the child reaches the age of two. If the mother is not willing to have the child stay with her or when the child has reached two years of age, the child must live with his/her father or any relative selected by the mother. If the child does not have a father or any other relatives, the prison director must notify the governor to place the child in an outside orphanage. The director will notify the imprisoned mother of the location of the orphanage so that she can visit the child in accordance with regulations.[116]

Article 31-bis of Law No. 12 of 1996 Promulgating the Child Law, as amended by Law No. 126 of 2008, states that

[a] nursery shall be established in every prison for women, according to the specifications for nurseries, where children of female prisoners may be placed until they reach the age of four on condition that the mother stays with her child during the first year of his life. A decree shall be issued by the Minister of Interior to regulate the communication between the imprisoned mother and her child. The mother shall not take the child to her prison cell and she shall not be deprived from seeing her child or taking care of him as a punitive action for any wrongdoing.[117]

According to a report issued by a women’s rights organization in 2013, there were thirty-five imprisoned mothers living with their children in the largest women’s prison, located in Cairo.[118] Information on the total number of children living with their mothers in prison in the country could not be located.

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El Salvador

Salvadoran law provides that children under five years of age can stay with their incarcerated mothers in prison. To this end, the law requires that a place for child care must be established in women’s prisons[119] and that those prisons must provide pediatric care for children.[120]

An article published online in May 2013 indicated that the prison of Ilopango—an overcrowded prison just outside of San Salvador, the capital—contained 1,700 women prisoners, 300 of whom were mothers struggling to provide their children with a family-like environment.[121]

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England and Wales

England and Wales have specialized mother and baby units that are separate from the general population within women’s prisons to allow babies to stay with their mothers if a number of factors are met.[122] Admission into the unit is not automatic; it is decided by an admissions board chaired by a social worker. The capacity of these centers is very limited, with only seventy-seven places across the nation,[123] while around 120 females in custody give birth each year.[124] The decision to admit the mother and baby takes into account a number of factors, including

a) Whether it is in the best interests of the child

b) The necessity to maintain good order and discipline within the MBU

c) The health and safety of other babies and mothers within the unit[.][125]

In the majority of cases, the child leaves the unit by the time the child is eighteen months, or earlier if it is in the best interests of the child to do so. There are exceptional cases where the child may be allowed to stay longer, but the general expectation is that the child will leave the unit by the age of eighteen months or earlier. The separation plan is agreed upon by a team as soon as the mother enters the unit, and the mother is involved in the process.



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Ethiopia

Ethiopian federal law provides that an infant under the age of eighteen months whose mother is in federal custody and who needs close maternal care may be allowed to stay with the mother.[126] In this situation, the Federal Prison Administration (the Administration) is required to provide the infant with “the necessary food, vaccination, medical care as well as other necessary items.”[127] In addition, on the recommendation of a medical officer, the Administration is required to provide extra food to female inmates who are pregnant or caring for an infant child.[128]

The law further provides that if staying with the mother is likely to “have an adverse physical or psychological impact” on the infant, the child must be placed with a close relative.[129] In the absence of a close relative, the Administration is required to “facilitate the possibilities” of finding another suitable placement for the child.[130] For instance, some prisons in Ethiopia have placed in orphanages children for whom prisons were deemed unsuitable and no relation was available to assume custody.[131]

A secondary source consulted for this report indicated that regional prisoner treatment regulations and directives follow the same standards.[132]

In a 2012 study of 114 of the 119 detention centers (housing both convicts and people awaiting court decisions on their cases) in the country’s nine regional states and two Federal City Administrations, the Ethiopian Human Rights Commission (EHRC) found that there were 88,610 detainees, of whom 2,700 (3.1%) were female.[133] The EHRC also found that 496 children were staying with their mothers in detention centers around the country.[134]

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Fiji

The Fiji Corrections Service Act 2006 provides for regulations to be made in relation to “arrangements for female prisoners and their children consistent with the rights and obligations of CEDAW [Convention to Eliminate All Forms of Discrimination Against Women] and CRC [Convention on the Rights of the Child], and in particular the rights of mothers to feed and care for their infant children whilst in prison.”[135] The Corrections Service Regulations 2011 also provide for Commissioners Orders to be made related to “arrangements for female prisoners and infant children.”[136] The Officer in Charge of a prison must ensure compliance with the Regulations and Orders, including those relating to all aspects of the role of Visiting Medical Officers, “including matters associated with . . . the rights of female prisoners and their young children.”[137] The relevant Orders could not be located.

According to media reports, in 2009 the first ever arrangements were made for an infant to reside with his mother in the Fiji women’s prison, with the International Women’s Association providing assistance to renovate an empty room to turn it into a nursery and donating clothing, bedding, and furniture. The prison service was also said to be providing for the special needs of the mother and child, including dietary needs.[138] It was also reported that, as part of new arrangements under the 2006 legislation, children up to six years of age would be able to reside in prison with their mothers.[139] Later in 2009, the prison service reported that a second baby had been born to an inmate and that the women’s prison “has special accommodation for all necessary pre-natal and post-natal care and treatment.”[140] An August 2013 media report indicated that there were forty-five inmates in the women’s prison and that one child aged three years resided in the prison.[141] Funding for a new women’s prison was allocated in the government’s budget for 2014.[142]

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Finland

In Finland, the Prison Act specifies that placing a child in custody together with its parents is governed by the Children’s Protections Act.[143] A small child can be placed in a family unit in the prison while the parent is serving his/her sentence.[144] The upper age limit is generally two years, but can be extended to three years if the welfare of the child so demands it.[145] The wording of the legislation is gender neutral on its face, allowing both men and women to be accompanied by their small children. A social worker assigned to the child decides whether or not to send a child with the parent, after first having heard the Criminal Sanctions Agency’s recommendation.[146]

According to the Prison Act, men and women must live in separate units (wards) of a prison but may live in the same prison.[147] There are in total twenty-six different prisons in Finland, none of which is an all-female prison.[148] In one “open prison” there is a family unit in which parents can live with their small children.[149] Inmates are assigned to the prison with the appropriate security level that is closest to their home.[150]

Finland restricts prison sentences to only the most extreme cases.[151] A number of other alternative and conditional sentences can be imposed. These include conditional imprisonment, suspended sentences, and electronic monitoring.[152]

All prisoners have the right to health care outside of the prison if health care cannot be adequately provided within the prison.[153] All necessary health care is paid by the state.[154] A special provision is added for the delivery of a child, which states that “a prisoner who is pregnant shall, sufficiently in advance, under appropriate supervision, be sent to a hospital for delivery or to any other health care facility that is located outside the hospital.”[155] The sentence is not extended by any time spent in delivery or a health facility; instead, the clock runs while participating in these activities.[156] Moreover, the start of a pregnant woman’s term in prison can be postponed until the mother has sufficiently recovered from the birth.[157]

During 2013 there were 242 women in Finnish prisons, which accounted for approximately eight percent of the prison population.[158] Fifty percent of the sentenced women were serving time for violent crimes.[159] A study and survey of female prisoners was conducted in 2008, which found that little accommodation had been made for women.[160]

According to one report, approximately one hundred children were housed in Finnish prisons with their mother between 2000 and 2006.[161] No systematic statistics are kept of the number of small children in prison.[162]

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France

French law allows incarcerated mothers to keep their child with them until the child reaches eighteen months of age.[163] The interregional director of penitentiary services may allow a mother to keep her child beyond the first eighteen months, upon her request and after consulting a special commission.[164] This commission includes, among others, a psychiatrist, a pediatrician, a psychologist, and a probation officer.[165]

It is unclear exactly how many mothers live with their children in French jails and prisons, but it appears to be a very small number. A 2013 report by the Comptroller General in charge of the French prison system stated that, out of 1,794 places for women in the French penitentiary system, sixteen (4.3%) were reserved for women keeping a child.[166] He added that there did not appear to be any general problems in finding places for mothers keeping a child, which would indicate that, in contrast with the overcrowding that currently exists in the French prison system generally,[167] the number of places is sufficient to meet this specific demand.[168]

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Greece

The 1999 Disciplinary Code, Law No. 2776/1999, which governs life in prison for inmates, has an explicit provision for children of incarcerated parents.[169] Pursuant to article 13, imprisoned mothers have the right to have their children with them until they are three years old. The Code requires the placement of incarcerated mothers with children in special facilities suitable for the needs of the mothers and the children.[170] Children who are older than three and who lack other family support can be placed in special institutions for children, after the parents are informed and in accordance with the opinion of a judicial official. Such institutions operate under the supervision of the Ministry of Health, Welfare and Employment.[171]

Older children have the right to visit their parents in specially designated areas within the prison.[172] They also have the right to communicate with their parents through telephone and correspondence.[173]

The Disciplinary Code was amended in 2014, by Law 4274/2014.[174] The provisions cited above remained unchanged, however.

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Guatemala

Guatemalan law provides that detention centers for women must have units or sections for pregnant inmates. Moreover, these centers must have conditions that enable women inmates to live with their children who are under four years of age and must provide suitable places for child care staffed with skilled personnel.[175]

The law mandates that the Secretariat of Social Work of the First Lady (Secretaría de Obras Sociales de la Esposa del Presidente) create shelters outside the prison and see to the education of children older than four years whose mothers are incarcerated and whose close relatives cannot take care of them in conditions that guarantee their development and comprehensive education.[176]

A 2013 US Department of State report stated that children under three years of age could live in prison with their mothers.[177] This statement conflicts with Guatemalan law, which allows children under four to live with their mothers in prison. The report also indicates that the penitentiary system provided inadequate food for young children and many suffered from illness. According to the report, there were 1,412 women prisoners,[178] but statistics regarding the number of children living in prison were not located.

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Haiti

It appears that children born in prison are allowed to stay with their mothers until they are weaned.[179] No information could be found concerning the prevalence of this type of situation.

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Honduras

Honduran law provides that children of women prisoners have the right to be cared for by their mothers during their first two years of life in the least limiting conditions possible in the prison. To this end, the law mandates that child care centers be installed in modules nearby the mothers and food assistance and needed medication be provided.[180]

The age that incarcerated mothers can care for their children may be extended by a court resolution for up to two years when it is in the best interests of the child to do so, after which the court will decide on the custody of the child in accordance with the law.[181]

A 2013 US Department of State report indicated that there were 521 women in prison and that children up to the age of three could stay with their mother in prison,[182] but statistics regarding the number of children living in prison were not located.

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Hong Kong

In the Hong Kong Special Administrative Region of the People’s Republic of China (Hong Kong, or HKSAR), female prisoners are allowed to keep their babies with them in prison until the children reach nine months old, with the additional possibility to keep them until age three.

According to the HKSAR’s Prison Rules, the child of a female prisoner may be received into prison with its mother and kept during the normal period of lactation. Any child so admitted must not be taken from its mother until the medical officer certifies that it is in a fit condition to be removed.[183] When the child reaches the age of nine months, the Commissioner of Correctional Services may place the child under the care of a relative to whom such care can properly be entrusted, or if such a relative is not available, another person or institution as approved by the Chief Executive of the HKSAR.[184]

With the Commissioner’s permission, a child may remain in the prison until the mother has completed her sentence or such child has attained the age of three, whichever is earlier.[185] The Rules also specify that children living in prison may be supplied with clothing at public expense.[186]

A nongovernmental organization’s report on the prison conditions of Hong Kong described the condition of children residing with their mothers at a Hong Kong prison in 1997 as follows:

[E]ight women inmates had infants with them. Mothers with babies stay in special nursery area. In addition, the facility has a very pleasant play room, full of toys, for children up to age six who are visiting their incarcerated mothers. At the mothers’ request, the children are allowed half-day contact visits with them up to once a week.[187]

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Iceland

The Icelandic Execution of Sentences Act provides that, “[i]f a woman has an infant child when she begins serving her sentence, or if she gives birth to a child during her term of imprisonment, she may be permitted, in consultation with a Child Welfare Committee, to have the child with her in prison.”[188] The accompanying Enforcement of Sentences Regulation further prescribes that the upper age limit for a child in prison is eighteen months, as a stay thereafter is considered harmful to the child.[189] Children younger than eighteen months undergo an evaluation by the Child Welfare Committee to determine if a stay in the prison is in their best interest.[190]

In addition to regular prison sentences it is also possible to serve a sentence in an institution outside the prison or to conduct community service.[191] Icelandic law also allows for the deferment of sentencing for three months under special circumstances, which could apply to sentenced individuals who are pregnant or new mothers.[192]

Inmates enjoy the same health care benefits as the public at large.[193] This includes access to prenatal and postnatal care.[194]

There are very few female inmates in Iceland. According to International Centre for Prison Studies (ICPS) statistics, during 2013 women only accounted for 3.2% of the 152-inmate prison population, thus totaling five female individuals.[195] All females are housed in a separate prison, Kópavogsbraut, but because they are currently so few in number, men are also housed there.[196] Efforts have been taken to send men who have committed white-collar crimes to Kópavogsbraut and to keep them separated from the women.[197] There are both so-called “open” and “closed” (high-security) prisons in Iceland.[198]

Children have been housed at the Kópavogsbraut prison several times and it has reportedly worked well.[199] The prison provides children with all the equipment needed for their care, including toys.[200]

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India

According to the Constitution of India,[201] prisons are under the jurisdiction of states. Prisons are managed and administered by state governments, subject to federally enacted laws such as the Prisons Act (1894).[202] State governments have also enacted and issued state-level prison laws, rules, and manuals.

A large portion of the prison population is dominated by first-time offenders (around 90%) and they are mostly male (nearly 96%).[203] According to the National Crime Records Bureau’s Prison Statistics India Snapshots – 2012, 1,394 existing prisons housed 385,135 inmates in the country. There were a total of 344 women convicts with their 382 children and 1,226 women awaiting trial with their 1,397 children lodged in various prisons in the country.[204]

In 2006, the Supreme Court of India “laid down guidelines . . . to ensure prison authorities follow[ed] minimum standards while lodging women with children.”[205] According to a summary of the Asian Human Rights Commission the Court ordered that children up to the age of six can remain with their incarcerated mother and then should be placed with a surrogate, if the mother so wishes, or an institution maintained by the Social Welfare Department; children living with their mother in a prison should not be treated as detainees or convicts; they “should be provided with food, clothing, separate utensils, adequate sleeping facilities, and other necessary facilities” necessary for the “healthy development of a child;” they are also “entitled to medical care and vaccinations;” and they must be “provided with adequate educational and recreational facilities.”[206]

Following the Supreme Court ruling, Indian prisons must also “provide crèches for children under three and nurseries for children aged three to six.”[207] Moreover, various jurisdictions also provide financial support for the children of incarcerated parents.[208] The State of Kerala “pays a monthly stipend to children of prisoners serving at least a two-year sentence,”[209] and the State of West Bengal has a law providing “that if a detained person has dependent children studying in school or college, the state government will help to pay for the child to continue attending school.”[210] In addition, “some schools in India have lowered their tuition fees for children who are staying in prisons.”[211]

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Indonesia

According to secondary sources from 1990, 2000, and 2010, Indonesia permits mothers to keep their children with them in prison until those children reach the age of two.[212] That age limit was also noted in 2008 by Heather Roy, a Member of Parliament in New Zealand, in a parliamentary discussion of legislation in that country on the topic of children remaining with incarcerated mothers.[213] No information could be found on the number of such children currently residing in Indonesian prisons. As of 2013, of a total detained population of about one hundred fifty-four thousand inmates, 5.1% were women.[214]

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Iraq

Article 31 of Law No. 104 of 1981 states that a newborn in Iraq can remain with his/her imprisoned mother until he/she reaches the age of three. When the child reaches the age of three, the child must live with his/her father or any other relative.[215] According to a 2012 report, there were at that time twenty-one children living with their imprisoned mothers in the women’s prisons in the Iraqi capital of Baghdad.[216] In early 2014, Human Rights Watch reported that, as of June 2013, it was estimated that there were more than 1,100 women in Iraqi prisons and detention centers.[217] It also stated that there were “no facilities for child care for children who are frequently incarcerated with their mothers” and “women reported that there have been instances of children remaining in prison until they are 7-years-old.”[218] Information on the total number of children living with their mothers in prison could not be located.

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Ireland

In Ireland, the prison capacity for women is very limited, with only 133 spaces across the country. The average female prison population is around 152.[219] The Irish Prison Rules, 2007, provide that mothers may keep their babies with them in prison for up to one year. This applies regardless of whether the mother was pregnant when she entered into custody. The Prison Rules specifically provide the following:

Child of female prisoner 17. (1) A child, of less than twelve months of age, of a female prisoner may be admitted to a prison and remain with the mother to facilitate breast feeding until the child has reached twelve months of age. (2) In the case of a prisoner who gives birth to a child during the term of her imprisonment, the child may be admitted to a prison and remain with the mother in prison, until the child has reached twelve months of age.[220]

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Israel

In accordance with the Prisons Ordinance (New Version), 5732-1971, “[n]o person shall be admitted into a prison unless accompanied by a warrant of imprisonment or warrant of arrest; Provided that the child of a female prisoner may be admitted into a prison with its mother if it is at the breast and less than two years old.”[221] Under the Prison Authority directives, pregnant inmates and infants under the age of two who are in prison enjoy medical supervision and treatment, including prenatal care for expecting mothers and appropriate nutrition and immunizations for both mothers and children.[222]

Neve Tirtsa is the only prison in Israel designated for female inmates. The prison operates a day care with a caregiver “to enable mothers to work or study.”[223] The prison also has a petting zoo.[224] The total number of female inmates in Neve Tirtsa in 2013 was 200.[225] Information on the number of infants who are staying with their mothers in Neve Tirtsa, however, could not be located. A new women’s prison is expected to open in Beer Sheva in 2016 and will replace Neve Tirtsa.

The new prison’s objective is to serve as a place for treatment and rehabilitation of female inmates, “centering on the offender and not on the offence” committed by her.[226] According to information published on the website of the Ministry of Public Security, the new prison’s plan recognizes the different needs of female inmates as compared with those of their male counterparts. According to the plan, the prison will have a center for educational and vocational activities, a petting zoo, and a communication center.

Two special wings will be built in the new prison for mothers; one in the area designated for convicted inmates and the other for those who are temporarily detained. The annexes will have private rooms for each inmate who is a mother and her baby. Public areas with a living room, a kitchen and a play area, will also be included in the mothers’ annexes to foster “a feeling of a ‘home’ ” in prison.[227]

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Italy

Law 40 of March 8, 2011,[228] amended the Code of Criminal Procedure allowing imprisoned mothers with children aged three or younger to benefit from alternatives to incarceration.[229] Law 40 also provides that convicted mothers with children aged ten or younger may be allowed to serve their sentences in their own residence, in another private residence, or in a place of care or assistance, in order to provide care or assistance to their children, if there is no specific danger of recidivism and the possibility of restoring cohabitation with their children exists.[230] This latter benefit accrues to mothers who have served one-third of their sentence, or at least fifteen years in the case of a life sentence.[231] Under Law 40, special home detention may also be granted to an incarcerated father when the mother is dead or incapacitated and there is no possibility of entrusting the children to persons other than the father.[232]

The benefits established in Law 40 do not apply to persons deprived of their children’s custody in according with the Civil Code.[233] Law 40 does not address the situation of imprisoned foreigners who, because they lack an established residence, are not able to benefit from the special home-detention regime.[234]

Law 62 of April 21, 2011,[235] extended the benefits established by Law 40 to incarcerated fathers and introduced a series of amendments aimed at protecting the relationship between incarcerated mothers and their minor children. In particular, Law 62 states that when the criminal defendant is a pregnant woman or the mother of children six years of age or younger (or the children’s father when the mother is deceased or absolutely incapable of caring for the children), she/he may not be subject to preventative imprisonment unless exceptional precautionary measures are needed.[236] Additionally, the judge may order the mother or father’s custody in a minimum-security institution, if exceptional circumstances allow it.[237] Also, the Law allows an imprisoned parent to request judicial authorization to accompany his/her children under ten years of age to medical visits under certain circumstances, even if the children do not reside together with the incarcerated parent.[238]

Establishment of “protected family homes” as alternative institutions for women serving sentences with children was foreseen by Law 62. A 2012 decision by the Court of Cassation[239] recognized ICAM–Istituto a custodia attenuata madri (the Attenuated Custody Institute for Mothers) in Milan as the only existing protected family home in Italy at that time.[240] According to more recent news reports, there are now other protected family homes throughout the country as well.[241]

According to news reports, about sixty children under three years of age enter Italian prisons every year with their convicted mothers.[242] Also, about one hundred thousand children visit their incarcerated parents in prison facilities every year.[243]

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Jamaica

According to a 2013 report of the Acting Overseer of the Jamaican Department of Correctional Services, “[f]emale inmates are allowed to keep the babies with them for a period of three months or longer, based on the circumstances, after which a suitable family member can be granted temporary custody of the child. This is done to allow the mother some time to bond with her baby, a critical element in the child’s development.”[244] At the termination of the initial three-month period, “[i]f there is no elected guardian then the child would be placed in the care of the state, so those are the two options.”[245]

Fort Augusta Adult Correctional Centre, formerly Fort Augusta Prison, has served as Jamaica’s only prison for women. It was built to accommodate 250 female inmates but has reportedly accommodated over 280 at times.[246] The number of infants who are currently staying with their mothers in the prison could not be located.

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Japan

In Japan a mother who has been incarcerated may raise her infant in prison up to the infant’s first birthday if the mother wishes. The term can be extended by up to six months if the incarcerated mother wishes and the head of the prison decides that this is necessary for the health and/or welfare of the mother and/or infant. These infants are entitled to medical care provided by the prison.[247] The number of infants who are staying with their mothers in Japanese prisons could not be located.

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Jordan

Pursuant to article 15 of Jordanian Law No. 9 of 2004, concerning reform and rehabilitation centers, a pregnant inmate shall be treated appropriately as directed by a physician and in accordance with instructions issued by the Minister of Interior.[248] The mother may keep her child with her in prison until he is three years old, whether he was born while she was incarcerated or before. Information on the number of children living with their mothers in prison could not be located.

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Kazakhstan

Even though the correctional legislation of Kazakhstan is undergoing transformation and the currently effective 1997 Correctional Code of Kazakhstan[249] will be repealed as of January 1, 2015, and replaced by a new Correctional Code of 2014, provisions concerning the rights of pregnant women, nursing mothers, and women having children will remain approximately the same.[250] Both laws state that child care facilities for children under three years of age can be established in penitentiary institutions where women are serving prison sentences. Incarcerated mothers may spend their free time with children without restrictions and may live together with their children if such an opportunity is provided by a correctional institution. These child care facilities must be staffed by prison employees, and bed linens and clothing must be provided by the prison administration.[251] Upon written consent of a mother, children born in prison can be given to the mother’s spouse or relatives; otherwise they must be transferred to orphanages after reaching three years of age.[252]

In addition, the Criminal Code of Kazakhstan provides for the deferral of criminal punishment for up to one year for pregnant women and up to five years for women having children under fourteen years of age if the punishment prescribed for the crime committed is no more than five years of imprisonment.[253]

According to a Radio Free Europe Radio Liberty report, in 2010 (latest data available) child care facilities were built in one Kazakhstani prison where all pregnant women and women who gave birth to children in other Kazakhstani prisons were transferred. According to the report, there were sixty-three children under the age of three living in this prison. The child care center had no pediatrician on staff and no medicines were available for children. The children were not vaccinated and the prison administration stated that the purchase of special food for children was prohibited.[254]

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Kenya

Kenyan law allows infant children of female prisoners to stay with their mothers in certain circumstances. The law specifically states that

the infant child of a female prisoner may be received into prison with its mother and may be supplied with clothing and necessaries at public expense: Provided that such child shall only be permitted to remain in prison until it attains the age of four years or until arrangements for its proper care outside prison are concluded, whichever shall be the earlier.[255]

The facilities available for the women and their children may take different forms. For instance, in 2013 the Langata maximum security female prison in Nairobi, where close to seven hundred women prisoners and forty-five children under the age of four are housed, opened a day-care center for the children of prisoners.[256]

A study published in 2013 indicated that Kenya has an average of three hundred children aged zero to fifty-nine months living with their mothers in the thirty-five women’s prisons around the country.[257] A 2013 US State Department report indicated that 117 of the 4,314 prisoners nationwide in 2012 were women.[258]



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Kiribati

In Kiribati, the Prisons Ordinance provides that an infant child of a female prisoner may be received into prison with its mother and “may be supplied with clothing and necessaries at the public expense.”[259] When the child has been weaned, the officer in charge must send the child to relatives or friends, provided there are such relatives or friends capable and willing to support the child.[260] According to a 2013 US Department of State report, there were four female detainees in prison in Kiribati as of September of that year.[261] No information was located on whether any children resided in prison with the women.

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Kuwait

Article 34 of Law No. 26 of 1962 states that a newborn in Kuwait can remain with his/her imprisoned mother until the child reaches the age of two. If the mother is not willing to have the child stay with her or when the child has reached two years of age, the child must live with his/her father or any relative selected by the mother. If the child does not have a father or any other relatives, the prison authorities place the child in an outside orphanage. The imprisoned mother will be notified of the location of the orphanage so that she can visit the child in accordance with regulations.[262] No information was located on the number of children residing in prison with their mothers.

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Libya

Pursuant to the Law on Reform and Rehabilitation Institutions, a pregnant woman inmate shall be treated during the pregnancy and until forty days after delivery in accordance with what the physician in charge decides.[263] The same treatment may be accorded to the breast-feeding inmate if so decided by the physician. The woman inmate is allowed to keep her child with her until he is two years old.[264] Information on the number of children living with their mothers in prison could not be located.

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Luxembourg

Children who are too young be separated from their mother are allowed to stay with their mother in prison.[265]

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Malawi

Malawian law provides that a breastfeeding child of a female prisoner may be permitted to live with the mother until the child has been weaned. During the child’s stay with the mother, the child may be provided with “clothing and necessaries at the public expense.”[266] Once the child has been weaned, the Prison Service is required to place the child with a relative or family friend able and willing to support the child and, in the absence of such a person, with a government-approved child care provider.[267]

A 2013 US Department of State report indicated that there were a total of 12,505 inmates in the country’s prisons, 107 of whom were women.[268] No statistical information regarding the number of children currently living in prison with their mothers was located.

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Malaysia

Under the Malaysian Prison Act 1995, regulations may be issued for various matters, including “the treatment and wellbeing of a child born to a prisoner while in custody and a child of a female prisoner admitted with his mother.”[269] The Prisons Regulations 2000 provide that a child under the age of three years may be admitted with his or her mother.[270] Such a child “must be provided with basic necessities for the child’s maintenance and care by the Director General.”[271] Furthermore, the Medical Officer must, where possible, “see every child accompanying [a] female prisoner as often as necessary.”[272] The regulations also specify the daily diet for each child.[273]

When a child reaches the age of three years, a Medical Officer must report on whether the child should be retained in the prison for a longer period.[274] However, except by special authority of the Director General, no child may be kept in prison after he or she reaches the age of four years.[275] Special instructions from the Director General must be sought if a child reaches the age of three or four years and there are no known relations willing or in a position to receive the child.[276] No information on the number of children residing in prisons with their mothers could be located.

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Mali

Malian law appears to allow mothers to keep their young children with them in prison. According to Association Asmae Soeur Emmanuelle, a nongovernmental organization that focuses on child poverty, sixty-nine babies or young children lived with their mothers in Malian prisons in 2009.[277]

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Mexico

Mexico’s Law Establishing the Minimal Standards on the Rehabilitation of Incarcerated Individuals provides that children may live with their incarcerated mothers until they reach six years of age, provided that qualified specialists approve such a stay as being in the best interests of the children.[278] It is estimated that approximately two thousand children currently live with their incarcerated mothers in Mexico.[279]



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Morocco

Pursuant to article 139 of Law No. 23.98 of 1999, children may stay with their mothers in prison until they are three years old.[280] However, this may be extended to five years old if the mother submits a request to this effect and obtains the approval of the Minister of Justice. Information on the number of children living with their mothers in prison could not be located.

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Namibia

Namibian law permits a female prisoner to temporarily bring her infant child to reside with her in a correctional facility where she is housed.[281] The law mandates that the state provide such a child “clothing and other necessaries” for as long as the child remains in the correctional facility.[282] Once the child is two years of age, the Namibian Correctional Service is required to place the child with a relative or family friend able and willing to support the child or with an appropriate child welfare authority.[283]

A 2012 US Department of State report noted that there were a total of 4,314 inmates in Namibian prisons, 117 of whom were women.[284] No statistical information regarding the number of children living in prisons with their mothers was located.

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Nepal

According to Nepal’s Prisons Act, 1963, if any imprisoned woman gives birth to a child in prison or has a minor child under the age of two, she can keep the child with her even if there is a person outside who could look after the child. However, after the child reaches the age of two, the custody of the child must be given to another person outside of prison “except in the event of necessity.”[285] If there is no one outside prison to look after the child then “all the care, education, maintenance and subsistence of such a child shall be carried out at the expense of The Government of Nepal as prescribed until [sic] that Detainee or Prisoner remains detained or imprisoned.”[286] However, according to a statement made by a Kathmandu based organization, Early Childhood Development Center (ECDC), to the UN Committee on the Rights of the Child,

this law is often disregarded in practice. If no local guardian is able or willing to care for the children other than their incarcerated parents, children are often forced to live inside prisons with their mothers. The law clearly states that the government is liable to bear the cost of raising and caring for these children until their parents complete their jail sentences. In reality, no system of services exists to accomplish this task.[287]

According to a news report from 2012, Nepal’s Department of Prison Management “estimates 80 children live in the nation’s prisons.”[288] However, a 2011 statement by the ECDC states as follows:

Currently 208 women live inside the Central Prison in Sundhara, Kathmandu, Nepal. Roughly 10 children under two years of age currently reside with their mothers inside this prison. In other prisons across the nation, between 50 and 100 children are believed to still reside with their incarcerated parents in jail, though accurate numbers are impossible to gather with the corruption and misinformation that infiltrates the record-keeping system. [289]

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New Zealand

A 2008 law change in New Zealand increased the age at which a child may remain in prison with his or her mother from six months to twenty-four months.[290] The amendments came into force in 2011. The mother must be the child’s primary caregiver, must not have a conviction involving sexual or violent offending against children, and must undergo screening to identify any mental health or substance abuse issues.[291] A woman’s request to have the child reside with her in prison may only be approved if such placement is in the best interests of the child and not inconsistent with a court order relating to the child.[292] The mother must enter into a parenting agreement in relation to the child’s placement that imposes certain obligations on both the mother and the Department of Corrections, and there must be appropriate facilities to accommodate the child.[293]

Following the law change, special Mothers with Babies Units were built or refurbished in two women’s prisons to accommodate women and their children aged up to twenty-four months. A third prison can only accommodate children aged up to nine months.[294] An independent evaluation of these units completed in 2013 concluded that, overall, “the units have continued to develop, that positive advancements have been made, and an underlying ‘best interests of the child’ approach to decision-making was evident.”[295] At the time of the review, there were a total of thirteen mothers and their children housed in the units across the three prisons.[296]

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Nicaragua

Nicaraguan law provides that prisons must seek to have special units to provide women prisoners with pre- and postnatal care. Efforts must be made for the birth to take place outside the prison, in a health center. In cases where the child is born in prison, this circumstance must not be mentioned in the child’s birth certificate.[297]

In cases where the jail has no special facility for pre- and postnatal care, incarcerated mothers should be placed under a “family-life regimen” (convivencia familiar) conducive to breastfeeding until the child is six months old. This provision is applicable to women in prison where criminal law does not provide for a bail benefit. In the other cases, the family-life regimen is granted until the child reaches two years of age.

A 2013 US Department of State report indicated that the “National Women’s Prison reportedly held approximately 253 women in 2012.”[298] Statistics regarding the number of children living in prison were not located.

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Nigeria

Nigerian federal law provides that a child of a female prisoner may be allowed to reside with the mother if the child is breastfeeding and less than eighteen months old.[299]

According to the Nigerian Prisons Service, as of April 31, 2014, there were 55,935 people in 239 prisons across the country, 1,089 (2%) of whom were women prisoners.[300] A US Department of State report noted that there were 69 children living with their mothers in the country’s prisons in 2013.[301]

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Norway

Norway does not allow children to stay with their parents in prison. Instead, a new mother is housed outside of the penitentiary in a mødrehjem (home for mothers) until her child is old enough to be separated from her,[302] generally around nine months of age. Mothers with young children and short sentences may serve their entire sentence at the home for mothers.[303] However, mothers who are in custody awaiting trial do not necessarily have this opportunity because prosecutors may fear that they could influence the investigation if allowed outside the holding cell.[304] Children who cannot be raised with their mothers in prison may be placed in foster care.[305]

Being pregnant or having a small child less than nine months old can be a reason to postpone the start of a prison sentence.[306] Pregnant women are still jailed, however.[307] Prisoners who are pregnant have the same right to health care and prenatal care as the ordinary population.[308] They may even leave the prison to consult with a doctor. Pregnant women serve until approximately six months of their pregnancy and thereafter are given a break in their prison sentence (soningsavbrudd) until they can again serve, after it is justifiable to separate the mother and child.[309]

In general, the Norwegian prison policy reserves prison sentences for the most heinous crimes and attempts to avoid sentencing criminals to prison.[310] Courts have also chosen to transform certain sentences from prison sentences to community service,[311] generally in cases where mothers are convicted of drug offenses but have since been drug free and are caring for a small child.[312]

At the start of 2012, 255 women were incarcerated in Norway,[313] of whom 187 were serving out the sentence in an alternative institution.[314] It is unclear how many of them served out their sentence in a “home for mothers” institution where they could be joined by their children.[315]

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Oman

Article 33 of Law No. 48 of 1998 provides that a newborn in Oman can remain with his/her imprisoned mother until the child reaches the age of two. If the mother is not willing to have the child stay with her or when the child has reached two years of age, the child must live with his/her father or any relative selected by the mother. If the child does not have a father or any other relatives, the prison authorities must place the child in an outside orphanage. The director of the prison will notify the imprisoned mother of the location of the orphanage so that she can visit the child in accordance with regulations.[316] No information was located on the number of children residing in prison with their mothers.

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Pakistan

Under Pakistan’s Prison Rules “women prisoners shall be allowed to keep their children with them in prison till [sic] they attain the age of three years.”[317] The provinces of Punjab, Sindh, and Khyber Pakhtunkhwa are exempt from the general rule and women prisoners are “allowed to keep their children with them in prison till they attain the age of six years.”[318] However, according to a statement by a Pakistani children’s rights organization, in practice

it is reported that there are some children who stay up to ten years. Cases in which women have killed their husbands or relatives of their husbands cannot find anyone outside to look after their children when their children reach six years, and the prison authorities tend to have a lenient view regarding the stay of children; therefore children even of 10 years are reported as staying with mothers in prisons.[319]

According to a 2012 news report, Pakistan’s Ministry of Human Rights stated that “in five jails surveyed, there were 68 children confined with their mothers.”[320] According to a 2011 study, “[m]ore than 60% of women prisoners are mothers of little children. 3% of women’s children are living in jail with them.”[321]

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Papua New Guinea

Under the Papua New Guinea Correctional Service Act 1995, an imprisoned mother may request permission for a child to live with her in the correctional institution. In order for permission to be granted, the Commanding Officer of the institution must be satisfied that: the child is under the age of three years; it is in the best interests of the child to live with his mother in the institution; the management, good order and security of the institution will not be threatened; and the child can be adequately cared for and maintained by the detainee in the institution.[322] The legislation states that “the detainee is responsible for the safety and care of the child of the detainee while the child lives in the correctional institution.”[323] The relevant regulations include further provisions related to children living in prison, including a requirement that the Commanding Officer “ensure that where a child is permitted to reside in the correctional institution that child is provided with food in accordance with this Regulation and the Standing Orders.”[324]

Other provisions in the regulations include requirements for a written report on the assessment of whether it is appropriate for a child to live in the institution;[325] an annual review to “assess whether the continued placement of the child is in the child’s best interest and not detrimental to the security of the correctional institution;”[326] and the keeping of records of every child of detainees living in the institution and reporting any accident or injury to a child requiring medical attention.[327] In addition, a Commanding Officer may restrict the movements of a child in order to maintain good order and security.[328] Where a mother is unable to provide adequate facilities for the care of her child, the case must be referred to the child welfare department or other welfare organizations for assistance.[329]

In 2012, a United Nations special rapporteur on violence against women in Papua New Guinea stated that, “(f)or women in prison who have their children living with them, there is only a one-bed cell which sometimes has to cater for 7 women and 9 children. Furthermore, the prison does not provide food or other necessities for babies and children, and this remains the responsibility of the mother.”[330]

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Peru

According to the Peruvian Code of Criminal Execution,[331] minor children may stay with their mothers in prison until they are three years old, with prior intervention of social services (asistencia social). The children must be taken care of in a child-care facility.[332] However, children may remain temporarily in prison with their mothers even if there is no child-care facility available in the prison. In this case, the penitentiary authorities are responsible for assigning a separate space for the mother and child.[333] Children older than three years will be assigned to live outside of the mother’s prison as determined by the parent who has parental authority (patria potestad) or guardianship. In the case of children who are at moral risk, social services authorities coordinate a solution with the Judge on Minors.[334]

The Regulation of the Code of Penal Execution further provides that, in addition to having child-care facilities in prisons for women, inmate mothers of children aged three and younger are to have active and direct participation in their children’s care, except in circumstances when such participation is not suitable.[335]

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Philippines

In the Philippines a child born while the mother is incarcerated may stay with her for up to one year.[336] After this period the mother must place the child “in a home of her own.”[337] Otherwise, Filipino authorities must arrange for the care of the child through a welfare agency.[338] No relevant statistical information on the number of children incarcerated with their mothers could be located.

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Portugal

During the execution of sentences and custodial measures in Portugal, an inmate is guaranteed the right to keep his or her child until the child reaches three years of age, or in exceptional circumstances five years of age, with the consent of the other holder of parental responsibility, and provided that it is in the minor’s interest and the necessary conditions exist.[339] For this purpose, medical care and appropriate educational and entertainment activities are ensured to the minor, according to his or her developmental needs.[340]

A 2013 report prepared by the General Directorate of Rehabilitation and Prison Services (Direção-Geral de Reinserção e Serviços Prisionais) stated that on December 31, 2013, there were 597 convicted women in prison.[341] No information was provided in regard to how many children were being raised in prison.

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Qatar

Article 42 of Law No. 3 of 2009 on the Organization of Penal and Correctional Institutions states that a newborn in Qatar can remain with his/her imprisoned mother until he/she reaches the age of two. If the mother is not willing to have the child stay with her or when the child has reached two years of age, the child must live with his/her father or any relative selected by the mother. If the child does not have a father or any other relatives, the prison authorities place the child in an outside orphanage. The imprisoned mother will be notified of the location of the orphanage so that she can visit the child in accordance with regulations.[342] No information was located on the number of children residing in prison with their mothers.

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Russia

Russian women cannot take their children to prison with them. Some analysts say that this is not prohibited by law but there is no judicial interpretation of the applicable provision.[343] If a woman gives birth to a child after being arrested or while imprisoned, the child may stay with his/her mother for some amount of time or be separated and placed in a child care facility at the penitentiary. If a child is born during pretrial detention or the trial, it stays with the mother in her prison cell until she is transferred to the correctional facility where she will serve her sentence.

The Correctional Code of the Russian Federation states that child care facilities can be established in penitentiary institutions where women who have children serve sentences. Children up to three years of age can be placed in prison child care centers. The Code allows imprisoned mothers to visit their children after work, and provides for the possibility of children and incarcerated mothers living together.[344] If a mother has less than one year of imprisonment to serve when the child reaches the age of three, the child may remain at the prison child care facility. In all other cases, a child is given to relatives designated as the child’s guardians if there are relatives willing to accept this responsibility, or placed in an orphanage when relatives are unavailable.[345]

Presently, about sixty thousand women are serving sentences involving deprivation of freedom in Russia’s penitentiary institutions. This constitutes about 5% of all incarcerated people in the country, or forty imprisoned women per 100,000 of the population.[346] Thirteen penitentiaries in Russia have child care facilities, which can host a total of nine hundred children. There are about two hundred places throughout the entire Russian prison system for mothers and children to live jointly. Nursing mothers are allowed to visit their children up to six times a day for feeding purposes. Non-nursing mothers can see their children for up to two hours daily after work.[347]

The Federal Law on Detention of Suspects and Accused Persons allows arrested women to have children under the age of three in their cells for the duration of the investigation and trial.[348] The Law prohibits women who have children with them from being placed in isolation cells for punishment or having limits placed on their walk time. However, human rights organizations report that these rules are not fully implemented.[349]

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Samoa

In Samoa, the new Prisons and Corrections Act 2013 states that regulations may be made related to “arrangements for female prisoners and their children consistent with the rights and obligations of CEDAW [Convention to Eliminate All Forms of Discrimination Against Women] and CRC [Convention on the Rights of the Child], and in particular the rights of mothers to feed and care for their infant children whilst in prison.”[350] The relevant regulations, if they exist, could not be located. A US Department of State report records that, as of 2013, there were twenty-three women in prison in Samoa.[351] No information was located on the number of children residing with their mothers in prison.

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Saudi Arabia

Article 15 of the Law of 1977 on Prisons states that a newborn in Saudi Arabia can remain with his/her imprisoned mother until he/she reaches the age of two. When the child reaches the age of two, the child must live with his/her father or any other relative. If the child does not have a father or any relatives, the prison authorities place the child in an outside orphanage. The imprisoned mother will be notified of the location of the orphanage so that she can visit the child in accordance with regulations.[352] According to a media report, between 2002 and 2012 there were 224 children admitted to an orphanage designated by the Saudi authorities to accommodate children of imprisoned mothers.[353] No information was located on the number of children residing in prison with their mothers.

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Sierra Leone

No primary source was located regarding children living with their mothers in prison while the mothers are serving custodial sentences. However, secondary sources located for this report indicated that Sierra Leone allows breastfeeding children whose mothers are in jail to live with their mothers until they are two years of old.[354] Although they are supposed to be removed once they turn two, in practice, these children are allowed to remain in prison longer.[355] Moreover, when the children are taken out of prisons, many end up in orphanages instead of with family members because family members tend to be unable or unwilling to look after such children.[356]

It has been reported that the prison authorities do little to accommodate children living in prison. For instance, the children have no access to a special diet and most mothers “lack access to basic welfare items, such as toiletries or sanitary napkins, and medicines.”[357]

A US Department of State report indicated that there were a total of 2,413 prisoners in the country in 2013, eighty-eight of whom were female.[358] No statistical information regarding the number of children currently living with their mothers in prison was located.

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Singapore

According to Singapore’s Prisons Regulations, a child under three years of age may be admitted to prison with its mother. When any child has presumably attained the age of three, the medical officer must report whether it is desirable or necessary for the child to be retained longer. With special authority of the Minister for Home Affairs, a child may remain in prison with its mother after reaching the age of four. In addition, should he know of no relatives who can receive the child, the Superintendent must ask the Commissioner of Prisons for instructions.[359]

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Solomon Islands

In the Solomon Islands, children under six months of age may be admitted to prison with the mother under the Correctional Services Act 2007.[360] Children over six months but under two years of age may also be admitted with the mother if there are special circumstances, it is in the best interests of the child, and “the correctional center can, as far as practicable, ensure that the basic needs of the child are adequately met.”[361] Furthermore, the legislation provides for regulations to be made on “arrangements for female prisoners and their children consistent with the rights and obligations of international conventions and recognised standards, including the rights of women to feed and care for their infant children whilst in a correctional centre.”[362] However, no specific provisions related to children were located in the available regulations.[363] A 2013 US Department of State report recorded that there were two female prisoners in the Solomon Islands during that year.[364]

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South Africa

A woman inmate in South Africa can have her young child live with her “until such child is two years of age or until such time that the child can be appropriately placed taking into consideration the best interest of the child.”[365] When a mother is incarcerated, the Department of Correctional Services (the Department) is required to take the necessary steps to find a proper placement for her child in cooperation with the Department of Social Development.[366]

Whenever possible, the Department is required to ensure the availability of “a mother and child unit” to accommodate inmates with children.[367] In addition, while the child is in its custody, the Department is responsible for the child’s food, clothing, health care, and other facilities necessary for the child’s “sound development.”[368]

In 2013, the Department reported that there were 3,505 female inmates in the Department’s custody, 282 of whom were incarcerated with their babies.[369]

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South Korea

In South Korea a mother who has been incarcerated may apply for permission to rear her infant in prison. The warden of the correctional institution must grant permission for this until the infant reaches eighteen months of age, unless there are special health or other concerns. The warden must provide the necessary equipment and goods and take all necessary measures to enable the mother to care for her child.[370] The number of infants who are staying with their mothers in South Korean prisons could not be located.

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South Sudan

South Sudan law provides that a child of a female prisoner may stay with the mother in prison until the child is two years of age.[371] Upon turning two, the child must be placed with a relative; in the absence of a relative, the child is to be placed in a childcare home.[372] However, if there is a “reasonable ground” for doing so, the prison authority may allow the child to continue to live with the mother after the child reaches the age of two.[373]

A 2013 US Department of State report indicated that there were nearly 7,500 inmates in the country’s prisons, about four hundred of whom were women.[374] No statistical information regarding the number of children living in prison with their mothers was located.

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Spain

Under Spanish Royal Decree 190/1996 on the Penitentiary Regulation,[375] a child aged three or younger is allowed to live with his or her mother in prison, provided that the mother has proven the child’s filiation and the stay will not pose any risk to the child.[376]

The penitentiary authorities provide special accommodations for mothers and their children in mothers’ pavilions with child care facilities that are physically separated from the rest of the units, to accommodate the special needs of minors.[377] After a child is admitted into the prison, he/she must be checked by the prison’s physician. Once the physician has completed a report, the child lives with his/her mother in the room assigned to the mother in the mothers’ pavilion.[378]

In the case of a conflict between the rights of the child and the mother derived from the prison stay, the rights of the child prevail.[379]

Cooperation agreements with public and private institutions involved in child development are entered into by prison authorities in order to improve and develop the mother-child relationship and child development.[380]

As of November 2006, there were 156 children living with their mothers in Spanish prisons.[381]

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Sri Lanka

As of 2011, Sri Lanka allowed children up to the age of five to remain with their mothers in prison.[382] However, one instance of an older child entering prison with her mother “because she had nowhere else to go” has been reported.[383] According to a 2001 study (the most recent data available), during an eighteen-month period beginning in January 1999, 4,089 women were imprisoned in Sri Lanka. Of those,

· 88% had their cases remanded;

· 20% awaited trial for more than one year in prison;

· 2,416 were mothers;

· 1,411 of the women had at least one child under twelve years of age;

· 200 mothers interviewed had 262 children under twelve years of age at home;

· Of those children not with their mothers in prison, 69% were with a relative, 16% were with their father, 4% were with an older sibling, 2.7% were with a religious organization, and 1.3% were with a neighbor;

· None of the children had received social services support; and

· 70 children accompanied their mothers into prison.[384]

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Sudan

Pursuant to the Prisons Law of 2010, pregnant women inmates shall be accorded the necessary medical care in accordance with the relevant regulation and may deliver in a hospital whenever it is feasible to do so.[385] The inmate mother can keep the child with her until he is two years old. However, the prison director may decide to extend the stay of the child with his mother if this is in the child’s interest.[386] Information on the number of children living with their mothers in prison could not be located.

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Swaziland

Swaziland law provides that a breastfeeding child of a female prisoner may live with the mother until the child is weaned, during which time the child may be provided with “clothing and necessaries” at the public expense.[387] Once the child is weaned, the Correctional Service is required to place the child with a relative or family friend able and willing to support the child or, in the absence of such a person, with other government-approved childcare providers.[388]

According to a 2013 US Department of State report, women inmates accounted for 2.6% of the 3,280 adults in the country’s prisons.[389] No statistical information regarding the number of children living with their incarcerated mothers was located.

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Sweden

Under Swedish law “an inmate may be allowed to have [his/her] infant with [him/her], if it can be considered to be in the best interest of the child.”[390] However, an opinion from the local Social Services Committee is required.[391] The legislative history of the provision explains when children should be allowed to reside with the parents as follows:

Such permission can for instance be compatible with the best interest of the child when the inmate’s remaining time in the facility is short or where a deportation is imminent and there is no appropriate alternative placement of the child. An inmate who is granted the right to have [his/her] child with [him/her] in the facility must be granted access to equipment which is necessary to care for the child.[392]

The provision, which entered into force in 2011, has two new aspects compared to previous legislation: the legislation is gender neutral, giving both mothers and fathers the legal right to have their children with them in prison; and the provision requires that cohabitation between a child and his/her incarcerated parent be considered in the best interest of the child.[393] The new wording of “infant” (Spädbarn) that now appears in the provision is also interpreted to mean the first few years of the child’s life, while it was previously limited to the first twelve months of a child’s life.[394] This does not mean that Swedish legislation allows for a child to stay for several years in prison; rather, if a single parent is imprisoned for a few months his/her young child may accompany him/her to prison.[395]

Prior to the current legislation, special exceptions were made when young children above the age of one but under the age of three were so traumatized by being separated from their mothers that it was considered necessary for the welfare of the child for them to be reunited with the parent despite an explicit prohibition in the law.[396]

Children who cannot be cared for by their incarcerated mothers or a relative are placed in foster care.[397]

Sweden frequently uses alternative sentences, called “noncustodial care.”[398] This includes probation, electronic monitoring, etc.[399] Approximately 14,000 individuals are currently serving some form of noncustodial sentence.[400] Swedish law also allows for the postponement of a prison sentence when a female inmate is pregnant or nursing, the duration of which is determined on the basis of what can be considered reasonable.[401]

Pregnant women have the same right to health care and prenatal care in prison as that of an ordinary citizen.[402] This includes prenatal, delivery, and postnatal care.[403]

There were 234 females imprisoned in Sweden in October of 2013, totaling 5.1% of the total imprisoned population.[404] Women are jailed at special, all-female prisons (kvinnovårdsanstalter). There are currently a total of six kvinnovårdsanstalter in Sweden.[405]

There are no official statistics on the number of infants cohabiting with their imprisoned parents in Sweden. One commentary states that there were twenty-six children in prison in 2010, compared to sixteen in 2009 and six on average during the years of 1999–2008.[406]

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Switzerland

The Swiss Penal Code provides for special forms of imprisonment for pregnant women giving birth and for the immediate time after giving birth.[407] Likewise, the Code provides for special forms of imprisonment for mothers and their small children as long as these forms are in the interest of the child.[408] The federal law specifies neither the forms of imprisonment nor what constitutes the interest of the child. Two proposals to set a minimum age of four and five, respectively, before separating the child from its imprisoned mother have been rejected by the Swiss Parliament.[409] In practice a child usually stays with its mother until the age of three. That is considered the time when a child needs a broader social environment for its development than a prison can provide.

The federal law entitles the cantons (states) to provide for the necessary forms of imprisonment of mothers with small children.[410] The cantons have introduced special mother-child prison locations with special services—for example, staff with experience in childcare, suitable rooms, and external daycare facilities.[411] Those services are available in all prisons for long term sentences and in some specialized prisons. However, critics call attention to the fact that smaller prisons in particular have difficulties allocating the necessary services for mothers taking care of their children.[412]

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Taiwan

In Taiwan, female inmates may be permitted to bring their children under the age of three into the prison. After the child reaches the age of three, his/her stay may only be extended for six months if there is no proper recipient and the child cannot be entrusted to the care of someone else. Upon expiration of the six-month extension period, the child must be placed with a welfare institution.[413] Children born in prison are also subject to these provisions.[414]

As of March 2006, there were reportedly fifteen female inmates in Taiwan’s women’s prisons who had their children with them in prison. Among the fifteen inmates, thirteen were imprisoned for drug offenses, one for larceny, and one for robbery. They were between twenty-four and thirty-six years of age. The ages of the children ranged from newborn to two years old. The fifteen children were kept together.[415]

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Tanzania

Tanzania (mainland) law provides that an infant child of a female prisoner may be allowed to reside in prison with his/her mother.[416] Although no provision was located regarding age or other limits on children residing in prison, or the removal of children from prison and their placement with a guardian, a 2011 report by the Commission for Human Rights and Good Governance (CHRAGG), an independent government watchdog agency, indicated that children are permitted to live with their mother in prison until they are two years old.[417]

The law mandates that the Tanzania Prison Service provide the child “with all necessities.”[418] However, the CHRAGG report noted that children staying in prisons with their mothers live in poor conditions with no special diet, and are thus forced to share food with their mothers.[419]

A 2013 US Department of State report indicated that there were approximately 1,206 female inmates in mainland prisons.[420] According to the CHRAGG report, thirteen children lived with their mothers in prison in 2011.[421]

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Tonga

In Tonga, the Prisons Act 2010 provides that where a female prisoner gives birth during her period of imprisonment or is breastfeeding her child, the child “may be accommodated with his mother in the prison if the prison has suitable accommodation for the child.”[422] Furthermore, if the sentencing court is of the opinion that the child of a prisoner is too young to be separated from his mother, it “may make an order directing that the child be accommodated with his mother in prison.”[423] On admission to the prison, “the prisoner shall be informed that she will have the responsibility for the child’s care and safety, including all costs associated with that care.”[424] The officer in charge of a prison may remove a child being accommodated with a prisoner if there is a court order that the child live with another person; the prisoner herself requests it; the child starts school; the prisoner is transferred to another prison that cannot accommodate the child; or the presence of the child poses a risk to the security and good order of the prison.[425] A female prisoner may apply for a review of a decision to remove the child.[426]

Female prisoners are housed at the main prison in Tonga.[427] According to a 2013 US State Department report on Tonga, as of September of that year there were six female prison inmates.[428] No information was located on whether any children resided in prison with the women.

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Trinidad and Tobago

According to Trinidad and Tobago’s Ministry of Justice, construction of a nursery for the children of women who give birth while incarcerated was due to commence in fiscal year 2013. The Ministry recognizes that

[s]eparation between a mother and a child takes its toll emotionally on both. In providing a humane approach to addressing this situation, the Prison Service intends to construct a facility where incarcerated mothers can meet with their children and maintain that important relationship. The facility will comprise a visitors’ waiting area, an area for incarcerated parents to visit with their children and a nursery for babies born to incarcerated mothers.[429]

Additional information regarding the age of infants that are allowed to stay