Detention and people in situations of vulnerability ECtHR on detaining mothers with infants In 2013, the ECtHR dealt with the case of a woman arrested while nine months pregnant. The woman was interrogated during the very last stage of her pregnancy and gave birth in detention. Her husband was allowed to see the baby only twice for 30  minutes, and the mother only after she was released, 6 weeks after delivery of the baby. The court struck the case out of its list of cases after the government issued a  unilateral declaration admitting that the manner of detention violated Article 3 of the ECHR; that the applicant’s detention was not necessary to conduct the investigation, which violated Article 5 (1)(c); that the legality of detention was not properly examined, contrary to the requirements of Article 5 (4); and that the right to family life, guaranteed by Article 8 of the ECHR, was violated in respect to both the parents and the baby. Source: ECtHR, M.S.-D. and I.D. v. Poland, No. 32420/07, (dec.) 22 October 2013, and Dziedzic v. Poland, No. 62637/11, (dec.) 22 October 2013 The rights of fathers must also be considered, especially when they are the sole carers of the children. Some Member States, such as Sweden and France, have specific legislation on the right of fathers with young children to have their children with them. In Sweden, both men and women can request a licence to have their children with them following the opinion of a social welfare committee.218 In France, too, attention is paid to the role of the father – prison sentences can be suspended for fathers if they have parental authority over a child who is less than 10 years old and has their usual residence with this parent.219 Using alternatives to imprisonment for mothers and fathers with young children directly benefits the children, the mothers, and the fathers. There are fewer possible alternative sanctions for women with young children than for children themselves. Of the various measures in place in Member States, only home detention is specifically mentioned in the Framework Decision on the ESO (in Art. 8 (1) (c)). Other sanctions tend to focus on some form of deprivation of liberty, at the pre- and post-trial stage, which is relaxed in special consideration of the needs of the mother and child. Such measures vary among Member States. Some adopt a short-term strategy, allowing women to give birth outside of prison by postponing the prison sentence. This is the case in Bulgaria220 and Hungary, where this postponement is for the duration of one year following 218 Sweden, Ministry of Justice, The prison ordinance (Fängelseförordning (2010:2010)), 2010, para. 11. 219 France, Code of Criminal Procedure, Art. 720-1 and 729-3. 220 Bulgaria, Criminal Procedure Code (Наказателнопроцесуален кодекс), 28 October 2005, Art. 415. the expected date of birth, though there are exceptions, mainly related to public security or the risk of absconding.221 Sweden also allows women who have recently given birth, in situations where pre-trial detention is deemed damaging to the child, to instead be subject to travel bans and a continuous duty to report to police authorities.222 Other EU Member States have a long-term approach, reflected in the creation of special family-friendly institutions and forms of day release. Both Italy223 and Portugal224 have a form of home detention that permits women to serve their sentences in their own homes, which allows the mother and child, and other family members, to stay together in their local community. Other Member States, such as Denmark, France, Hungary, and Spain, have family-friendly institutions in which young children can live with their mothers. This allows them to spend time together and also often allows fathers and other family members to have easier access to the child, which, as noted, is important for the family member and for the child itself. These institutions have the potential to allow the family nucleus to be protected and may be a positive reflection of the European Prison Rules, which state that “[t]he arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible.”225 In France, for example, children can be kept in detention with their mothers until the age of eighteen months, in specially adapted buildings. In the twelve months following a child’s departure, the child can return to the mother for short periods.226 France also allows offenders to suspend their sentences and be released on parole if they have parental authority over a child who is less than ten years old and who has their usual residence with this parent. 227 This parole can take the form of day-release, external placement or placement under electronic tagging,228 allowing the parent a long-term alternative to post-trial detention that enables them to develop family relationships in as normal a manner as 221 Hungary, Act CCXL of 2013 on the implementation of punishments and penal measures, coercive measures and offence custody (2013. évi CCXL. törvény a büntetések, az intézkedések, egyes kényszerintézkedések és a szabálysértési elzárás végrehajtásáról), 2013, Art. 39 (1), (3) and (4). 222 Sweden, Ministry of justice, Code of judicial procedure (Rättegångsbalk 1942:740), 1 January 1948, Chapter 24, para. 4. 223 Italy, Law 354, Norms governing the prison system and the enforcement of measures involving deprivation of, and limitation to liberty (Legge n. 354, Norme sull’ordinamento penitenziario e sulla esecuzione delle misure privative e limitative della libertà), 26 July 1975, Art. 47b, para. 1. 224 Portugal, Decree-Law 48/95, Criminal Code, Art. 44. 225 Council of Europe, Rec (2006)2, Rule 24.4. 226 France, Code of Criminal Procedure, Art. D 401. 227 Ibid., Art. 720-1 and 729-3. 228 Ibid., Art. 720-1 and 729-3. 77