Alternatives to detention
197.
Generally, alternatives to detention and
imprisonment should be available and applied
when parents or primary caregivers are accused
of committing an offense. This should be done in
consideration of the possible impact of different
custodial and non-custodial measures on the best
interests of the affected child.420 The preference
for non-custodial measures should be applied not
only in terms of sentencing, but also in the pre-trial
and trial phases.421 Non-custodial measures
may include house detention, mother-child
houses, community service, probation and
suspended sentences. Such measures would
save affected children from enduring adverse
implications from their parents’ detention,
including their own possible detention.422
198.
Non-custodial sentences are especially be
preferred for pregnant women and women with
dependent children.423 States should make efforts
to keep such women out of detention, with due
consideration to the seriousness of the offence at
issue and the risk to the public.424 The preference
for non-custodial measures for pregnant women
and mothers with young children also exists at
the regional level. For example, the African Charter
on the Rights and Welfare of the Child (1999)
provides that a non-custodial sentence should
always be considered first and alternative
measures to institutional confinement should be
established and promoted for such mothers.425
The Council of Europe has also recommended avoiding custodial sentences for pregnant
women and developing and using communitybased sentences for mothers of young children.426
Example from Morocco—The right to
leave detention
In Morocco, article 46 of the Penitentiary
Centre Law provides the right to leave the
penitentiary centre not only for children, but
also for mothers once they serve more than
half of their sentences. They can leave the
centre and stay with their families for 10 days
to maintain family relations. This visit system
can also be used for other purposes, such
as cultural events and education.
7.2 Key Recommendations
199.
The following are recommended:
Avoiding deprivation of liberty
420 Committee on the Rights of the Child, general comment No. 14 (2013), para. 69.
a. Deprivation of liberty is generally not in the
best interests of the child. If used, it should
only be used as a last resort because other
measures were tried and failed or there are
no other less restrictive alternatives. It should
be for the shortest period possible and in the
least restrictive setting.
421 Committee on the Rights of the Child, Report and Recommendations of the Day of General Discussion on “Children
of Incarcerated Parents” (2011), para. 30.
b. Adhere to prohibition of arbitrary detention
under international law. All detention must
422 UNODC, the Bangkok Rules Commentary (2011), rules
57-58.
423
The Bangkok Rules (2010), rule 64.
424 Ibid.; Human Rights Council resolution 10/2 (2009), human rights in the administration of justice, in particular juvenile justice, para. 13.
425 The African Charter on the Rights and Welfare of the
Child (1999), art. 30.
426 The Council of Europe, Parliamentary Assembly Recommendation 1469 (2000), on mothers and babies in prison.
91.
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