State’s Responsibility to Protect Children’s Best Interest
News of a four-year-old boy who tragically died as a result of abuse became one of the heart breaking stories of 2022. The poor child was reportedly being cared for by his older sister after their parents were imprisoned for drug offences. Initial investigations revealed that the child was later handed over to the care of the sister’s friend. This tragedy was distressing despite efforts being made to raise awareness of the importance of children as a national asset as emphasised in the National Child Protection Policy 2009, and the need to protect children as vulnerable members of society from acts of neglect, abuse, violence, and exploitation must therefore be a priority.
This matter is also enshrined in the Convention on the Rights of the Child 1989. Yet every year, one billion children experience some form of emotional, physical, or sexual violence, and every seven minutes a child dies as a result of violence. Violence against children takes place in institutions, schools, or even at home, where they should have the greatest possible protection. In the case of the four-year-old child victim of abuse, the situation is even more distressing because he had to be separated from his incarcerated parents. Many studies have shown that the experience of loss due to the incarceration of parents can be confusing for children and damaging to their socialisation, mental health, and personality.
Another study conducted by Jane A. Siegel on children whose mothers are incarcerated for drug offences found that the child is exposed to a disruptive relationship with his mother. Drug use causes the mother to be away from home for long periods of time. Even before the mother is imprisoned, the child may have to live with another relative because she cannot take care of the child. Children often build bonds with their caregivers, and the occasional return of the mother can disrupt these relationships. Therefore, separations between mothers and their children have long-term negative effects on the children.
Efforts have, therefore, been made to protect the relationship between incarcerated mothers and their children. This includes the legal provisions that allow children to be in detention with their mothers. The age limit and maximum length of stay vary from country to country. Differences in prison culture and values of motherhood, family life, and child-rearing also need to be taken into account. This diversity is reflected in the different arrangements and legal provisions. In Malaysia, for example, a child under the age of three can be admitted together with his mother, and a child can remain in prison after the age of four only with special permission from the Prison Director-General. In Sweden, infants are rarely admitted to prison, but they can be housed for up to a year, with an average stay of three months. In Iceland, staying in prison is only authorised for very small babies who are breastfed or have special needs.
In Germany, there are six closed prisons where children up to the age of three can be accommodated and two open prisons where children up to the age of six can be accommodated. The open unit at Frankfurt-Preungesheim is located outside the prison walls. This demonstrates a policy of separating the mother child-unit from the rest of the prison. Each mother has her own apartment comprising a bedroom or living room, a kitchen, and a bathroom. In the semi-open Ter Peel prison in the Netherlands, children can stay until their fourth birthday. The mother-child unit is in a separate house, but within the prison grounds, for four mothers and four children. In the five closed prisons, the children can stay up to nine months. In other countries such as Portugal and Switzerland, children can stay in prison for up to three years, and in Finland up to two years. Denmark allows male and female detainees to have their children with them if they are to be released before the child is three years old, but in practice, few children are ever held in prison.
There are also other efforts by various organisations at the international level to preserve the relationship between children and incarcerated parents. One of these is the Storybook Project, a programme run in 14 prisons throughout the US that gives incarcerated parents the opportunity to record themselves reading a book to their children. With the help of dedicated and well-trained volunteers, parents choose a book that is the right reading level for their child. Then a volunteer sits down with the parent to record the story, which is then burnt on a CD. CD and the book are sent to the child or children free of charge.
It is a fact that dealing with children whose parents are in detention is very difficult. However, efforts must be made to protect the best interest of the children. In addition, families in need of protection must receive the utmost support, which is the duty of the state. In this context, the approach of prioritising restorative justice is important in order to repair harm and recognise the maintenance of positive relationships with others as a basic human need. In this way, offenders can also be rehabilitated to escape the vicious cycle. This is in line with the Islamic principle of promoting mercy towards all humanity, which is the main mission of the Prophet Muhammad SAW as mentioned in verse 107, Surah al-Anbiya’.