THE IMPACT OF IMPRISONMENT ON WOMEN AND CHILDREN. ARE WE ACTING IN CHILDREN'S' BEST INTERESTS? SAHRC BRIEFING TO CORRECTIONAL SERVICES PORTFOLIO COMMITTEE, 25 AUGUST 2006

1. Introduction

The SAHRC welcomes the invitation extended to it by the Correctional Services Portfolio Committee to address it concerning the impact of imprisonment on women and children in prison and to discuss possible solutions and recommendations. Women prisoners currently constitute 2,25% and children 1,4% of the total prison population in South Africa. Most often and in keeping with international trends as well, the imprisonment of men, by virtue of their constituting the largest portion of the prisoner population in all countries, occupies the vast domain in any discussions concerning prisoners. It is important however that women and children as small and vulnerable groups within the prison system are discussed in order that legislative frameworks, policies and programmes address their specific needs and thereby ensure that their rights are protected and that their dignity is respected. In so doing, we will ensure more effective rehabilitation and reintegration of prisoners into society.

2. Women and children in prison

According to March 2006 statistics there are 3 551 women prisoners and 2 207 children in prison. Based on the overall number of prisoners in South-Africa, women comprise 2,25%_and children 1,4% of the total prison population: It must be further remembered that the 2 207 children are made up of 1 069 sentenced and 1 138 unsentenced prisoners. The women prisoners are accommodated in 8 women-only correctional facilities and 72 correctional services facilities for men and women throughout the country. There are 13 youth corrective facilities.

When we refer to women and children in prison we refer to the following three categories of persons:

· Children in prison

· Women and Children (Infants) in prison

· Women in prison

It must not however be forgotten that there is also the category of children of mothers in prison whose lives are impacted on by their mothers incarceration. For the purpose of this discussion this group of children will be considered within the discussion on women in prison.

3. Outline of presentation

This presentation will seek to consider the impact of imprisonment on children whose mothers are in prison or who are with their mothers in prison. The presentation will also consider some recent international developments that may assist South Africa in the future in responding to the human rights issues that are raised. At the end of the presentation, we will propose suggestions and solutions that seek to ensure that policies and programmes promote the best interests of the child principle.

Regarding children in prison, this presentation will address a matter of concern to the commission, namely education of children in prison. We will also make recommendations at the end of the presentation.

It is however necessary to mention that in relation to children in prison more generally the Child Justice Bill needs to be processed in order to more effectively ensure that we have fewer children in prison and that there is an adequate legislative framework that will address appropriate measures concerning children in conflict with the law and adequate alternatives to incarceration.

4. International Constitutional, legislative and policy framework

4.1. International

There is a broad and comprehensive body of international instruments that address human rights and imprisonment. Some of the more relevant international instruments include:

· · International Convention on Civil and Political Rights

· International Convention on Economic, Social and Cultural rights

· International Convention on the Elimination of All Forms of Racial Discrimination

· Convention on the Elimination of All Forms of Discrimination against Women

· Convention on the Rights of the Child

· The UN Standard Minimum Rules for the Treatment of Prisoners, 1955

· Convention on the Rights of the Child

· The United Nations Standard Minimum Rules For Non-Custodial Measures (The Tokyo Rules).

· Basic Principles For The Treatment Of Offenders.

· The United Nations Guidelines For The Prevention Of Juvenile Delinquency (The Riyadh Guidelines).

· The United Nations Rules For The Protection Of Juveniles Deprived Of Their Liberty.

· African Charter on the Rights and Welfare of the Child (Article 30)

It should be pointed out that international instruments such as the UN Standard Minimum Rules are now quite dated and that there have been vast advances in understanding gender issues related to the imprisonment of women. Also, because women constitute a small minority of prisoners throughout the world generic instruments tend not to take into considerations gendered issues concerning women in prison.

4.2. The constitution

Any discussion concerning prisoners must bear the following rights contained in our constitution in mind:

· · Equality (Section 9)

· · Human dignity (Section 10)

· · Children's rights (Section 28iv), the right to family care or parental, or to appropriate alternative care when removed from the family environment etc....

· Arrested, detained and accused persons (Section 35)

The constitution also guarantees the right to basic education (Section 29t,

4.3. Legislation

· Correctional Services Act 111/98

In the Preamble to the Act international principles on correctional matters are recognized. This would include the United Nations Standard Minimum Rules for the Treatment of Prisoners.

Chapter 3 (Custody of all prisoners under conditions of human dignity) makes specific reference to children (Section 19) and mothers of young children (section 20).

Chapter 4 (Sentenced prisoners) refers specifically to women in section 41 concerning treatment, development and support services. In particular section

41 (7) states that" Programmes must be responsive to he special needs of women and they must ensure that women are not disadvantaged." Section 13 (Contact with community)(section 13(6)(c» imposes a duty on the. Commissioner to notify the appropriate state authorities who have a statutory responsibility for the education and welfare of children.

Chapter VI (Community Corrections) has a section setting out Additional conditions for children (section 69).

4.4. Policy

· Correctional Services, White Paper, March 2005

· Strategic Plan and Budget of the Department

The Departments White Paper refers to international human rights standards that seek to promote the rights of prisoners:

"13.12.2 In the light of this, it is of immense importance that the Department should include the following UN standards and norms, instruments and resolutions as part of its foreign policy for implementation within the Department:

· The United Nations Standard Minimum Rules For The Treatment Of Offenders.

· The United Nations Standard Minimum Rules For Non-Custodial Measures (The Tokyo Rules).

· Basic Principles For The Treatment Of Offenders.

· The United Nations Guidelines For The Prevention Of Juvenile Delinquency (The Riyadh Guidelines).

· The United Nations Rules For The Protection Of Juveniles Deprived Of Their Liberty... ."

5. Children in prison with their mothers

Prisons are not ideal environments in which to bring up young children. However, there is a double-edged sword in that it is also far from ideal to ever separate a child from her mother. "There are no simple solutions but the complexity of the situation cannot be an excuse for failing to protect the rights of children who have a parent in prison"

5. 1. Current situation

Section 20 of the Correctional Services Act provides that female prisoners may be permitted to have her child with her until the child reaches the age of five years and that during the time that the child is in prison that the Department is responsible for food, clothing, health care and facilities for the sound development of the child. In the White Paper the Department sets out that ideally "Mother and Child Units" should be established n correctional centers with the focus on the "normalization of the environment" and that the interest of the child "should be .put at the forefront in any policy development regarding babies of offenders. In reality, children only stay with their mothers in prison until they reach two years of age. In 1995, there were 192 infants and toddlers in prison with their mothers.

5.2. International developments

Increasingly at an international level and in particular through the UN mechanisms such as the committee which monitors the Convention on the. Rights of the Child, more and more questions are being asked about the rights of children who are in prison with their mothers.

Issues that have been identified as needing more attention include:

· "how the child's rights are considered in sentencing a mother;

· how decisions are taken about whether babies and young children accompany their mother into prison (or pre trial detention);

· the impact of imprisonment on the child;

· the facilities to be provided;

· how any later separation of the child from the mother should be handled; and

· alternatives to, and different forms of, imprisonment that better support motherhood and child development."

6. Children whose mothers are in prison

In all countries around the world the majority of women prisoners are mothers. In South Africa 84% of women who are imprisoned are mothers. There has been an increase in the number of female offenders and also the average length of sentences imposed by courts in the past 10 years (5 yrs 3 mnths to 7yrs). According to 2004 statistical data 6,5% of women prisoners are in prison because they cannot pay fines imposed by the court and approximately a third of all women prisoners are convicted of economic offences. The latter statistic highlights the linkages between poverty and crime and that the social economic context within which crime occurs needs to be understood and addressed.

6.1. The impact of the mothers' imprisonment on children

From a child rights perspective, a major concern is the impact of imprisonment upon the child and how this impacts on the rights of the child. Increasingly, more and more attention is starting to be focused on these children and in particular how the imprisonment of their mothers impacts upon them. What is clear however, is that research indicates that "the loss of a mother is much more significant and may be more immediately traumatic than the loss of a father."

The mother's imprisonment affects the child in many ways including:

· Change in caregiver. Children possibly experience an unexpected change in caregiver, neighborhood as well as possible separation from siblings. Many of these children come from disrupted family backgrounds where and there are absent fathers.

· Emotional and Behavioral impact. The children are affected emotionally and behaviorally. Emotions and behaviors experienced by these children included: sadness, withdrawal, low self-esteem, excessive crying, depression, diminished school performance, truancy, disciplinary problems, alcohol and other drug use, running away, and aggressive behaviour.

The impact of imprisonment on children differs according to the child’s age and maturity.

· Research indicates that two- to six-year-old children are the most impacted by separation from their mothers.

· The development of autonomy and initiative in children aged two to six may be compromised by the trauma of witnessing parental arrest and the loss of a parent due to incarceration.

· Children aged six to twelve... may justify her [their mother's] behaviour and believe instead that the "system" chose to pick on her. Left unaddressed, these attitudes can eventually result in anti-social rationales for their own criminal behaviour.

· Children aged six to twelve may experience aggression, difficulty concentrating, multiple absences and even school avoidance.

· Additional responsibilities. Children are forced to take on adult responsibilities.

· Social stigma. There is great social stigma attached to having a parent in prison. Children often make up cover stories to explain their mother's absence and this hampers the development of friendships.

· Become children in conflict with the law. There are also long term implications for children whose mothers are imprisoned. For example, children of incarcerated mothers are more likely to engage in lawbreaking and to be arrested than other children.

The enormous impact on children whose mothers are in prison are further exacerbated by challenges that are faced in maintaining a relationship with the mother.

· Visiting the mother in prison is often difficult and unpleasant: There are not as many prisons for women as there are men and this can lead to increased travel costs. For other children, these costs may even be prohibitive.

· Visiting time is short and the environment is often child-unfriendly, hampering meaningful contact. There are no activities or basic play areas for mothers to spend quality fun-time with their children.

· Parent-child visitation for children living separate from their mothers is important to children's emotional adjustment, well-being, and reduced behaviour problems

6.2. Children of women who kill their partner

Because of high levels of domestic violence in South Africa there are a number of children whose mothers are currently incarcerated for the murder of their father who was the abuser. Research indicates that these children face additional difficulties. "

"By imprisoning [the mothers], we punish not only the killer, but the "innocent children who lose both parents" suddenly," traumatically", and simultaneously. The children's fate is dire.

Children are impacted upon emotionally (ambivalence, relief, fear, confusion, and deep anger that occur when one parent has been killed by another in the context of domestic violence). In addition, many are never able to fully come to terms with the ambivalent feelings they have for both their abusive fathers and their mothers who killed them.

The children are affected by the conflict that the murder has caused in their immediate nuclear and extended family. Conflict between kin is common and affects the care children receive. The carer's own response to the violent death of the father is going to influence the way they respond to the children. Often, the children feel that they do not belong with their new care giver and do not feel completely accepted into their new home. Paternal relatives sometimes try to alienate the children from their mothers and children are often directly or indirectly blamed them for their father's death.

Finally, living with the stigma of having their mother labelled as a murderer means these children's social and community supports are often minimal.

The research indicates clearly that these children need to be dealt with within a caring environment that caters for their specific social, emotional and developmental needs. This needs to take place within a rights based framework that gives effect to these children's rights.

6.3. Recent international developments

At an international level the UN Committee on the Rights of the Child has proposed that 'Guidelines for Children Deprived of Parental Care' should be developed. The draft Guidelines are currently in the process of being finalized and are entitled "UN Guidelines for the protection and alternative care of children without parental care".

The latest May 2006, draft states Clause 46 of the draft states:

"When the child's sole or main carer may be the subject of deprivation of liberty as a result of remand or sentencing decisions, the best interests of the child should be a primary consideration. Non-custodial sentences and remand measures should be used wherever possible. States should take into account the best interests of the child when deciding whether to remove children born in prison and children living in prison with a parent.

The removal of such children should be treated in the same way as other instances where such separation is considered. For younger children, especially those under the age of three years, such removal should in principle not take - place against the will of the parent. Best efforts should be made to ensure, that a child remaining in custody with his/her parent benefits from -adequate care" and protection."

7. Education for children in prison
7. 1. The right to basic education

Section 29 of the constitution guarantees the right to basic education. The South African constitution specifically excludes this socio economic right from progressive realization. It is therefore an immediate right that all citizens are entitled to. Within this context it is difficult to understand or justify that children who are awaiting trial and who are sentenced to less than 12 months are imprisonment do not receive education.

In terms of section 3 of the South African Schools Act it is compulsory for learners in Grade R through to Grade 9 or from age seven (7) through to fifteen (15), whichever happens first to attend school and receive education. Whilst primary education is the most important component of basic education it is not synonymous. The right to basic education includes fundamental education which would include education for children who are older than 15 years and whose fundamental education needs have not been met.

Unless specifically provided for in the sentence that is handed down, rights enshrined in the constitution should generally not be limited by incarceration. This is a well established and recognized principle when dealing with prisoners rights.

Where it is not possible for the parent or caregiver to ensure their childs' attendance at a school, then it is arguable that the responsibility to ensure compulsory attendance is placed on the State who is incarcerating the child. It is due to the States actions of placing the child in prison that education no longer becomes accessible. Thus the right to basic education is being violated.

7.2. Our courts approach

The following comment from the August constitutional court case (prisoners right to vote case, 1999) gives an indication of the courts approach towards rights of prisoners being respected and the ability of the Department to ensure that prisoners can exercise their rights:

"There are a variety of ways in which enfranchisement of prisoners could be achieved in practice. Polling stations could be set up in prisons or special votes could be provided to prisoners. Prisoners are literally a captive population, "living in a disciplined and closely monitored environment, regularly being counted and recounted. The Commission should have little difficulty in ensuring that those who are eligible to vote are registered and given the opportunity to vote, and that the objective of achieving an easily managed poll on election day is accomplished."

The court was of the view that prisons are places where. there is a population which is relatively easy to control and to make arrangements for. They are not fraught with the difficulties and complexities that are encountered with making practical arrangements within the community.

Similarities in approach can also be seen in the recent decision emanating from the Westville prison cases in which the court has emphasized that there is a duty on prison authorities to make access to health care available for prisoners.

8. Solutions and Recommendations

8.1. More information and research is needed

There is a need for ongoing analysis of the prisoner population and research in order that a better understanding of the impact of imprisonment on children.

For example, it is important to know and/or understand:

· How many women prisoners are mothers

· The extent to which courts adequately consider the impact of imprisoning a mother on the child

· The impact on parenting when a mother is imprisoned

· The impact on the child of the removal of a mother

· The levels of education of women and child prisoners and suitable education programmes

· Who is looking after the children of mothers in prison and whether they are accessing social services that are available

· The accessibility of prisons to children and challenges that are faced in maintaining relationships between mothers in prison and their children

· Comparative research and models used in other countries need to be studied and considered

Another possible recommendation is that a gender critique of current legislation and policies is undertaken. The European Prison Rules for example have been subjected to a gender critique. This would assist implementers in understanding and recognizing the gender implications of imprisonment on women.

8.2. Greater use of non custodial sentences
8.2.1. Women who are mothers

The greater use of non-custodial sentences needs to be emphasized. It is recognized by the Department in their White Paper, that many women in prison are sentenced to short-term sentences and that there is thus a "greater potential for successful rehabilitation through alternative sentences." Short-term sentences indicate that the crimes that have been committed are not of a severe nature and it thus begs the questions whether there are not more appropriate non-custodial sentences that ought to be used.

Whilst it is .recognized that the DCS does not play a role. in determining sentences, it is important that the Department actively engages with the justice Department (Justice College) and in particular the prosecuting authorities and magistrates to encourage greater awareness on the impact of imprisonment on mothers. The judiciary also needs to be brought on board and greater awareness created.

The 'best interests of the child' principle enshrined in our constitution needs to playa larger role during sentencing in ensuring that sentences handed down to women who are mothers do not violate this principle. Where the 'best interests of the child' is not considered adequately by the court, the child effectively becomes punished for her or his mothers crime.

There is ample international support for this approach and it would be in line with South Africa's international human rights law obligations. The Committee on the Rights of the Child is increasingly stating in its Concluding Observations on reports submitted by State parties (of which South Africa is one having ratified the Convention on 16 June 1995) comments of the following nature:

"Where the defendant has child caring responsibilities, the Committee recommends that the principle of the best interests of the child (article 3) is carefully and independently considered by competent professionals and taken in to account in all decisions related to detention, including pre-trial detention and sentencing, and decisions concerning the placement of the child."

There is even recognized support by our constitutional court that mothers can be considered differently to others who are sentenced and that this can be fair discrimination. In Hugo v the President of the Republic of South Africa and Another, the constitutional court case in which unfair discrimination was alleged against the President by a male prisoner after the President exercised his constitutional prerogative and released women with children below 11 years as part of an amnesty programme, the court stated:

"Not all discrimination was unfair and the president was substantially influenced by the concern of family life and nurturing and care which mothers normally provide for their children."

8.2.2. Where there are no alternatives to direct imprisonment of mothers There ought to be a clear obligation in law that government agencies take responsibility in ensuring that there is adequate protection and care for children whose mothers are sentenced to imprisonment.

A possible suggestion would be to consider amending the Correctional Services Act by adding an additional section similar to section 13(6)( c)(i) that would place a duty on correctional officials to notify education and welfare state authorities that a child's' mother is in prison. This in turn ought to set in motion a process whereby the State would ensure that the child is being adequately cared for and is attending. This could also lay a basis for more--cooperation between relevant government departments in setting up programmes that would support the relationship between mothers in prison and tier children. Programmes are also needed to educate mothers in prison on how to communicate with their children and explain their imprisonment in a manner that seeks to reduce the negative impacts on children.

8.3. Education in prison

The SAHRC recommends that the Department of Correctional Services in conjunction with the Department of Education urgently ensures that adequate arrangements are made to ensure that all children in prison regardless of the length of their term of imprisonment and also awaiting trial children receive education.

8.4. Focal point for women and children in DCS

The DCS does recognize and address vulnerable groups within the prison system. However, there needs to be greater emphasis on vulnerable groups.

The Department needs to address issues related to

· creating child friendly visiting areas in prisons,

· ensuring that as many prisons as possible can accommodate women in order that women prisoners will be closer to their children who live outside the prison and

· ensure that child friendly environments are created within the prison and that children remain with their parents until the age of five years.

8.5. Current review of women prisoners

Parole boards should be educated specifically upon the impact on children who have mothers in prison or who are with their mothers in prison. This would create greater awareness and more informed decisions when it comes to considering parole for this category of prisoners. The Parole Boards could be innovative in converting sentences to correctional services.

The Department should consider fast tracking the parole of mothers in prison.

9. Conclusions

The impact of imprisonment on children is an area, which is receiving growing international attention. The government in its legislation and policy documents has made a firm commitment to following and implementing international norms and standards that seek to protect the rights of prisoners. There is clearly an acknowledged need to begin considering and implementing the 'best interests' of the child' principle within this area. This principle and the rights of the children affected by their mothers who are in prison are enshrined in our constitution and it is clearly an area that needs more focus and attention.

[Pmg note : endnotes not included]