consideration.416 The assessment should
consider the implications on the child’s right
to development and their right to family life,
among others. Deprivation of family care or
long-term
disruptions
to
relations
or
separations may have serious implications on
the child’s right to development, as well as his
or her actual development.417 At the same time,
children suffer irreparable psychological harm
when in detention or situations of restricted
liberty. They are more vulnerable during detention, and girls in particular are at risk of violence.418
196.
States should give due consideration to
circumstances in which the best interests of the
child may be better fulfilled by living with the
parent in detention. Such due consideration
should encompass the overall conditions of
detention, including services available to the
child while in detention, availability and
willingness of family members to care for the
child and the quality of care outside of detention, as well as the particular need for parentchild contact in early childhood.419 At the same
time, the decision to detain a child with his or
her parent should be regularly reviewed by judicial authorities, particularly when the investigation or sentence is lengthy. Should it be decided
that the best interests of the child are better ful-
416 Committee on the Rights of the Child, Report and Recommendations of the Day of General Discussion on “Children
of Incarcerated Parents” (2011), para. 33; UNODC, the Bangkok
Rules Commentary (2011), rules 49-52.
417 Committee on the Rights of the Child, general comment
No. 7 (2005), para. 36(b).
418 UNODC, Handbook on Children Recruited and Exploited
by Terrorist and Violent Extremist Groups (2017), 98.
419 Committee on the Rights of the Child, Report and Recommendations of the Day of General Discussion on “Children
of Incarcerated Parents” (2011), para. 37; UNODC, the Bangkok
Rules Commentary (2011), rules 49-52.
90.
filled by removing the child from detention, it is
of utmost importance that the separation from
the parent be explained carefully in age-appropriate language that children understand, and
that they are prepared and handled with extreme
care. (See chapter 3 on preserving family unity.)
Example from Belgium—The best
interests of the child
Under Belgian law, detained mothers may
keep their children with them up to the
age of 3 years. This rule applies both to
children whose mothers are arrested,
convicted and imprisoned and children
born in prison. The request must always
come from the mother herself. In principle, the decision on whether to allow the
mother to do so rests with the prison director. According to the regulations, the prison
director may not refuse to allow a woman
to be accompanied by a child who is
dependent on the mother’s care. The
best interests of the child are the
main criteria in making this determination. If issues arise, the case can be
referred to a judge who specializes in
juvenile affairs who will make a final decision on the placement in the best interests
of the child. Several prisons (Bruges, Berkendael and Lantin) have specific facilities
for the care of infants. Theoretically, the rule
also applies to fathers, but given the lack of
specific infrastructure in male institutions,
in practice, a child cannot accompany his or
her father.
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