ABSTRACT
A child is defined as any person below the age of majority (18 years) who possesses personal rights under the Convention on the Rights of the Child. Children of incarcerated parents are often referred to as “forgotten children” and “invisible victims” of justice. This paper briefly discusses the life experiences of children with incarcerated parents, societal attitudes towards them, and the numerous challenges they face. The researcher analyses the legal provisions concerning children of prisoners globally, highlighting the varying rules regarding the period a child may stay with an imprisoned mother. Further, the paper discusses the Indian scenario, examining the lived realities of such children and relevant case law. The paper concludes by asserting that children of prisoners are entitled to a life of dignity, and the government must implement appropriate measures to secure their safety and welfare.
INTRODUCTION
Children of incarcerated parents are frequently treated as forgotten children and invisible victims of the criminal justice system. They endure societal shame, rejection, discrimination, and systemic injustice arising from the stigma of their parent’s imprisonment. Once an individual is imprisoned, they are often no longer regarded as a “normal” parent, leading to profound repercussions for their children.
A child, under the Convention on the Rights of the Child, is defined as any person below the age of 18 years. Every child, regardless of identity, ethnicity, religion, gender, appearance, or parental status, is entitled to human rights under Article 2 of the Convention. No child deserves to be treated unfairly. The Convention enumerates the rights necessary for every child to realize their full potential, emphasizing dignity, well-being, and holistic development. Children living in prisons with incarcerated parents are often exposed to adverse conditions, deprived of recreational facilities and familial bonds, and are vulnerable to the criminogenic influences within prison settings.
LEGAL PROVISIONS RELATED TO CHILDREN OF PRISONERS AROUND THE WORLD
Different countries have adopted diverse legal frameworks regarding children of incarcerated parents, influenced by their cultural, economic, and social circumstances.
i) China
China prohibits children from residing with incarcerated parents. However, pregnant women and new mothers may temporarily serve their sentences outside prison for childbirth and breastfeeding.
ii) England and Wales
Children may live with their incarcerated mothers in specialized Mother and Baby Units (MBUs), subject to specific conditions assessed by an Admissions Board chaired by a social worker. The Board considers factors such as the best interests of the child, maintaining order within the MBU, and health and safety concerns. Children may stay with their mothers until 18 months of age, with limited extensions granted in exceptional cases.
iii) France
Children may reside with their mothers in prison until they are 18 months old. Extensions may be granted upon the mother’s request after consultation with a special commission, only if deemed in the child’s best interest.
iv) Japan
Mothers are allowed to keep their child until the child’s first birthday, with a possible extension of six months based on the prison authorities’ assessment of health and safety considerations.
v) Singapore
Children are permitted to stay with their mothers until the age of three years. Afterward, a medical officer evaluates whether continued residence is in the child’s best interests.
INDIAN SCENARIO
India ratified the Convention on the Rights of the Child in 1992. Despite this, children of prisoners in India often face profound challenges, lacking specific legal protections and bearing the consequences of their parents’ incarceration.
The Indian Constitution enshrines various rights relevant to children under its Fundamental Rights and Directive Principles of State Policy, including the right to health, education, protection from exploitation, and cultural participation. Entry 4 of the State List in the Seventh Schedule places prison administration within the jurisdiction of individual states, leading to variations in prison laws and practices.
In R.D. Upadhyaya v. State of Andhra Pradesh, the Supreme Court of India directed that children up to six years of age may reside with their incarcerated mothers, basing its decision on Article 21 of the Constitution (the right to life with human dignity) and Directive Principles mandating opportunities for healthy childhood development.
In Bachchey Lal v. State of Uttar Pradesh & Ors, the Allahabad High Court directed regular visits by female doctors to prisons to ensure proper medical care and nutrition for incarcerated women and their children.
In Sunil Batra (II) v. Delhi Administration, the Supreme Court held that prisoners retain fundamental rights even within incarceration, and the State, as a welfare entity, is obligated to uphold these rights.
The Model Prison Manual 2016 prescribes specific protocols for women inmates with children. In India, children are permitted to reside with their incarcerated parents up to the age of six, without specific assessments of the child’s best interests as is practiced in other jurisdictions.
Although the Juvenile Justice (Care and Protection of Children) Act, 2015 primarily addresses children in conflict with law and those in need of care and protection, its overarching child-centric approach implicitly encompasses the rights of prisoners’ children.
The National Policy for Children, 1974 recognizes childhood as a “supremely important asset” and obliges the State to ensure the welfare and development of all children, including those impacted by parental imprisonment.
The Financial Sustainability, Education and Welfare for Children Scheme, 2014 initiated by the Government of NCT of Delhi aimed to provide financial aid and education support for children left without resources after parental incarceration, though it suffers from several practical deficiencies.
Children of incarcerated parents often grapple with societal stigma, emotional trauma, and financial instability. Legislative reform is urgently needed to comprehensively safeguard their rights and ensure their holistic development.
CONCLUSION
Children of prisoners possess an inherent right to live a dignified and equitable life. The Government of India must adopt proactive measures, including the establishment of dedicated committees or commissions, to safeguard and promote the welfare of these vulnerable children. Legal, social, and policy interventions must be harmonized to prevent the systemic marginalization of prisoners’ children and ensure that they are provided with the opportunities necessary for their well-being and development.