Children incarcerated with their mothers : a critique of the current age-based approach to the separation of children from their mothers.

Abstract

It is a worldwide phenomenon that, when mothers are imprisoned, their young children are allowed to accompany them. However, practices between different countries, and even within different prisons, vary greatly and there are arguments both for and against the incarceration of children with their mothers. Some argue that, without better alternative care options, these children benefit from the strong emotional attachment that develops because they spend so much time with their mothers. Others contend that prisons are not suitable environments for children to live and grow in. It is generally agreed that allowing young children to accompany their mothers in prison and separating them from their mothers, are both problematic. Most countries that allow young children to be incarcerated with their mothers set an upper age limit, after which time the child is removed. This reflects an assumption that from a certain age the adverse effects of a prison environment on the young child and its development outweigh the benefits of being with the mother. There is no empirical evidence on the optimum age of separation and it varies between countries. In South Africa, Section 20(1) of the Correctional Services Act 111 of 1998 (as amended by the Correctional Services Amendment Act 25 of 2008) determines that children may accompany their mothers in prison up until the age of two years, after which time they must be removed from the prison environment. For those children incarcerated with their mothers, this compulsory separation could constitute a violation of their right to family life. For these children there may come a stage when the issue of separation has to be dealt with, but it is at such times when a flexible approach to the age of separation is suggested. A flexible approach would require an individualised analysis of the child’s best interests. It is suggested that the potential for flexibility does exist in Section 20 of the Act. However, it is also submitted that since it is merely potential and not policy, prison authorities might have too much discretion in interpreting this section. This might result in a lack of uniform practices and some children might therefore be disadvantaged. The overall aim of this study is to critically examine the abovementioned piece of legislation in order to assess whether this approach is compatible with children’s rights and is in their best interests.