2. SAFETY, SECURITY AND DIGNITY FOR ALL WHY IS IT IMPORTANT? In many countries, children are allowed to stay in prison with their parent or main care-giver, which is usually their mother or other female relative.139 Children usually end up staying in prison because no alternative care is available, or because they were born while their mothers were in prison. 75 Prison environments deprive children of a regular childhood and it can be difficult for prison authorities to cater for their needs. Prison environments pose additional risks, including exposure to violence among prisoners. On the other hand, living in prison with a parent or care-giver may still constitute the best, or only option for the child, and be less harmful than if they were separated. 76 Children living with their parent or other care-giver in prison must never be treated as prisoners and prison authorities have a responsibility to protect their health and wellbeing while they are in the facility. They need to plan and cater for their needs accordingly, including through budgetary and resource planning. 2 74 68 PUTTING IT INTO PRACTICE Decisions on co-habitation 77 Decisions on co-habitation should be made on a case-by-case basis by child welfare agencies, in coordination with health-care specialists. The decision-making process should be inclusive of both the care-giver and the child.140 78 As stipulated by Rule 52 of the Bangkok Rules, decisions as to whether and when a child is to be separated from her or his care-giver must be based on individual assessments and with a view to protecting the best interests of the child. 79 Individual assessments should be reviewed regularly in recognition of the changing prison environment and the developing needs of the child. 80 While the Mandela Rules and the Bangkok Rules refer to mothers (or parents) in connection with care-giver status, children might also live in prison with other care-givers, such as grandparents or older siblings, particularly if their parents are no longer alive or are unable to look after them. CONTEXT: CHILDREN IN PRISON WITH A PARENT – DECISION-MAKING PROCESSES [2.8] In assessing whether a child should be housed in prison wither or his parent, and when the child should leave, considerations should include: – The best interests of the child and the right of the child to development opportunities; – The benefits of a continued parent-child relationship, including if the child is breastfeeding; – The child’s developing maturity, health and relationship with the parent or care-giver both inside and outside prison; 139. UN Commission on Crime Prevention and Criminal Justice (CCPCJ), Commentary to the Draft UN Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders, E/CN.15/2009/CRP.8, 9 April 2009, page 31 at www.unodc.org/documents/justice-and-prison-reform/ Expert-group-meeting-Bangkok/ECN152009_CRP8.pdf. This commentary on the Bangkok Rules makes it clear that some of the rules are applicable to both men and women prisoners, including those relating to parental responsibilities, and that there is therefore is a need to recognize the central role of both parents in the lives of children. Accordingly, the rules which relate children living in prison with their parents should apply equally to male prisoners and offenders who are fathers. 140. Article 12 of the UN Convention on the Rights of the Child, adopted by the General Assembly resolution 44/25 of 20 November 1989, provides that: “1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law”. Guidance document on the Nelson Mandela Rules