Part VIII of the Lukautim Pikinini Act 2015 is headed Child Friendly Practices in Prisons and Police Custody. It exists because a child who has committed no offence should not be punished by the imprisonment of a parent.
Section 56 — a separate facility
A mother and her child under three years living with her in prison shall be accommodated in a separate facility within the prison.
That a child may live with a mother in prison at all. Section 56 assumes it, for a child under three. The alternative — separating an infant from its mother — would breach section 7, under which a child is entitled to live with his parents unless separation is in his best interests.
That the accommodation must be separate. Not a cell in the general population. A separate facility within the prison.
That it is mandatory. “Shall be accommodated” — there is no discretion.
Section 58 — the standard of care
A child shall be entitled to the care necessary to promote healthy early childhood development during the time he remains with the mother in prison.
Section 58 states the point plainly: the entitlement is to the care necessary for healthy early childhood development, not merely to survival.
It sits with section 8(1), which gives a child the right to adequate nutrition, immunisation, clothing, shelter, education and guidance, and medical attention, and with section 5(1)(b) — protection from all forms of abuse, neglect and maltreatment.
The Office has a standing function under section 14(g) to inspect centres providing child care, jails and police cells, and section 61 requires review of these arrangements at least annually.
Section 57 — telling the Office
The Commissioner of Corrective Institutions or his delegate shall, as soon as practicable, notify the Office of the reception of a pregnant woman or a mother inmate with a child under the age of three years.
The Office cannot protect a child it does not know about. Section 57 makes the corrective institution the source of the information, at the point of reception.
It is the trigger for everything else in the Part — the separate facility under section 56, the care under section 58, the protections for a pregnant inmate under section 60, and the annual review under section 61.
Section 59 — children who live outside
(1) Where a mother is breast-feeding a child and that child resides outside of the prison, arrangements shall be made to allow the child access to the mother for the purpose of breast-feeding.
(2) A child with a parent in prison shall be allowed access to the parent unless a Court orders otherwise.
| Situation | Entitlement | Section |
|---|---|---|
| Child under 3 living in prison with mother | Separate facility; care for healthy development | 56, 58 |
| Breastfed child living outside | Access for breast-feeding | 59(1) |
| Any child with a parent in prison | Access, unless a Court orders otherwise | 59(2) |
| Mother of a child under 3 in lawful custody (remand) | Continue to feed and provide care at a place conducive to health and safety | 62(1) |
Not only mothers, and not only young children. A child with a parent in prison is entitled to access, and the only exception is a court order.
That reverses the ordinary assumption. Access is not a privilege the prison may grant; it is the child’s entitlement, which only a court can remove.
It gives effect to section 5(1)(k) — a child is entitled to maintain close relationships with people significant to the child, including parents, unless contrary to his best interests — and to section 5(1)(e), that the relationship between a child and his family should be maintained and strengthened.
Section 61 — the annual review
(1) The Director shall, in consultation with the Commissioner of Corrective Institutions, enter a prison to —
(a) review the circumstances of the child continuing to live in the prison;
(b) review the compliance of the prison with child-friendly practices in accordance with this Part; and
(c) have access at all reasonable times to all parts of the child-friendly place.
(2) The review shall take place at least annually, but may be done more often should the need arise.
Paragraph (a) is the important one. The question is not only whether the prison is complying, but whether it remains right for this child to continue living there — a question governed by the best interests of the child. Where it is not, the Director’s section 52 powers allow placement with a family member or other suitable person.
Part VII separately allows the Director to apply for an order to transfer a child out of a corrective institution or police lock-up, and section 60 protects a pregnant inmate.
Sources
- Lukautim Pikinini Act 2015 — ss 5, 7, 8, 14, 52, 55–62
- Constitution — ss 36, 37
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.