Childrens of Incarcerated parents

Deeksha Singh

Children are the future custodians of sovereignty, rule of law, - justice, liberty, equality, fraternity and finally international peace and security. They are the potential embodiment of our ideals, aspirations, ambitions, future hopes.

Nature has provided some inherent rights to every human being including children. These fundamental rights bestowed in human being from the very inception.  Every child has the right to protection. This not only includes children who are in different circumstances and those who have suffered violence, abuse and exploitation, but also those who are not in any of these adverse situations and yet need to be protected in order to ensure that they remain within the social security and protection net. Child protection is about protecting children from or against any perceived or real danger/risk to their life, their personhood and childhood. It is about reducing their vulnerability to any kind of harm and in harmful situation.

Children are deeply affected when a parent is imprisoned. Yet millions of affected children worldwide are overlooked at every stage of the criminal justice process, and there are no international standards on how countries should act to protect their rights and welfare.  Children of prisoners in general do not enjoy any special rights. Children’s needs are not considered when a parent is sent to prison. When this happens the child’s life might be turned upside down. Although they have done nothing wrong, they are punished too . Children are confronted with a host of challenges when a parent or caregiver is in conflict with the law.

• They have to contend with the break-up of their family and may need to be placed in alternative care where they are more vulnerable to violence, abuse, neglect and exploitation.

• Losing their primary caregiver may result in financial hardship and make it difficult to access health services and education.

• They experience discrimination and stigma as a result of their parent’s status as a suspect, defendant or convicted prisoner.

• They may end up living with their mother/ father in detention facilities. 

For the public at large, prisoners in the first place are lawbreakers. It is difficult to picture them as mothers and fathers who might want to care for their children. So, the children are in a way double  victims: they miss their imprisoned parent and they are confronted with stigma, social rejection and shame.  It is estimated that millions of children worldwide have a parent in prison: and an estimated 19,000 are living in prison with their parent, most often their mother, and many times that number are separated.   

The plight of these guiltless children has long been known in India,   Allowing   children to grow up in small cubicles in prisons has triggered serious debate. Until the age of six, children are allowed to live with their imprisoned mothers in India. Many develop without getting the attention they need, suffer a loss of health, and are isolated from the outside world. Some incarcerated children are old enough to attend school, but instead remain invisible victims of crime, their rights violated, deprived of social and emotional security not only by the criminal activities of their parents but also the state’s actions in the name of justice. 

Guidelines set out by India’s Supreme Court make the obligations of authorities clear: The Supreme Court of India, in the case of R.D Upadhyay v. State of A.P, AIR 2006 SC 1946, framed several guidelines for the protection and development of these children

The Apex court has clearly stated the following, specifically with regard to childcare:

• Female prisoners shall be allowed to keep their children with them in jail until they attain the age of six years.

• After six years, the child shall be handed over to a suitable surrogate as per the wishes of the female prisoner.

• Expenses of food, clothing, medical care and shelter shall be borne by the respective state.

• There shall be a creche and a nursery attached to the prison for women where the children of women prisoners will be looked after.

• Children below three years of age shall be allowed in the creche and those between three and six years shall be looked after in the nursery. The prison authorities shall preferably run the said creche and nursery outside the prison premises.

• A dietary scale prepared by the National Institute of Nutrition, Council of Medical Research, Hyderabad, provides guidelines for a balanced diet for infants and children upto the age of six.

• In this case, the state legal services authorities were directed to periodically inspect and see that the directions regarding mothers and children in jail were being followed. The court also directed that the central government, state governments and union territories  file affidavits with respect to the judgment's implementation, within four months. Courts, however, do not have an independent machinery to crosscheck implementation. Only the time will tell whether this judgment has had any true impact on the condition of the children of women prisoners who are in jail with their mothers.159

• Jail manual and/or other relevant rules, regulations, instructions etc. were to be amended within three months of these directives in order to comply with the above directions.

These non-uniform laws have left behind major inequality. Several instances of gross human rights violations have also been reported where children have been lodged alongside criminals. Thus, some children are currently living in a state of extreme neglect. Also, due to the absence of any enforcement or grievance mechanism to keep check on the implementation of rules and guidelines, the promise of ensuring a healthy upbringing for children behind bars gets defeated. Thus, the guidelines passed by the Supreme Court and the existing provisions in different states have failed to fulfill their intended purpose, rendering them futile.

RECOMMENDATIONS:

The need of the hour is a strong legislation by the Parliament specifically considering children of

imprisoned parents. Certain provisions of the Juvenile Justice (Care and Protection of Children)

Act, 2015 should also be extended to children of incarcerated parents. These include:

 Chapter II- General Principles of Care and Protection of Children

 Chapter V- Provisions for a Child Welfare Committee

 Chapter VI (Procedure in Relation to Children in Need of Care and Protection), clause31(1) and (2).

 Chapter VII (Rehabilitation and Social Integration), sub-clause 39(1).

 Following England and Wales, India should take the decision to admit the parent and child by taking into account a number of factors, including: Whether it is in the  best interest of the child. For this purpose, children should be consulted in determining the extent and type of relationship they want with an imprisoned parent and it should be remembered that one child‘s wants and best interests may differ from another‘s, even within the same family.

 The child should have the right be kept safe and informed at the time of the parent's arrest. Thus, there must be developed arrest protocols that support and protect children and offer children and/or their caregivers basic information about the post-arrest

Author is a young Lawyer