An analysis of the South African law governing minors living with their mothers in prison

Abstract

South is one of the countries that allow minor children to live with their mothers in correctional facilities/prisons until they are two years old . The decision to allow a minor to accompany his/her mother to prison is to allow the child to bond with the mother, and according to South African law, such decision should be taken as a measure of last resort and should be in the best interests of the child concerned. South Africa has a policy framework in place to govern minors living with their mothers in prison. However, this policy framework has shortcomings that need to be addressed in order to protect the best interests of the child living with his/her mother in prison. It is against this backdrop that this study discusses the rights of children living in prisons with their mothers and how the living conditions in prison affect the realisation of these rights. The study also focuses on effects of maternal incarceration on children, particularly those who accompany their mothers to prison. International and Regional human rights instruments relevant to the issue of minors living in prison with their mothers are also discussed in order to find out whether South Africa as a State Party to the Convention on the Rights of the Child and The African Charter on the Rights and Welfare of the Child has incorporated these into its domestic law. Further, the study draws on comparative perspectives from other jurisdictions in order to deduce how South African policies governing minors in prison fare against other jurisdictions. The comparative study does not only analyse the policies of countries that allow minors to accompany their mothers in prison, it also discusses policies of countries that do not allow the practice. Finally, the study offers recommendations to the South African policy makers on how to improve the current policy framework by deducing lessons from other jurisdictions in the comparative study.