Prison Nurseries in Finland: Balancing the Child’s Best Interests
By Abby Cote
Introduction
The best interests of the child are internationally understood to be the governing factor in decisions regarding children.[1] However, when it comes to parental incarceration, keeping the best interests of children in mind during sentencing can prove difficult.[2] One the one hand, attachment to caregivers is key for early childhood development and the prevention of trauma, indicating that it may be in the best interests of a young child to remain with an incarcerated parent when possible.[3] On the other hand, prisons are not traditionally child-friendly places, and the prison environment can be harmful to a child when not specially catered to their needs and development.[4] By adapting sentencing practices and placing family unit prisons under the care of child welfare agencies, Finland has provided an interesting model for bridging the best interests of a child in a prison environment.[5]
Relevant Background
Finland is a signatory to the United Nations Convention on the Rights of the Child (UNCRC).[6] The UNCRC was adopted in 1989 as an international agreement that expanded the UN’s Universal Declaration of Human Rights, which proclaimed “that childhood is entitled to special care and assistance.”[7] The UNCRC specifies that “[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”[8]
Finnish legislation has statutorily enforced the best interests of the child, far before the UNCRC, as seen in the 1983 Child Welfare Act.[9] While Finland’s Constitution does not explicitly mention the best interests of the child, the country’s renewed 1995 Constitution follows international human rights agreements, including the UNCRC.[10] Therefore, Finland’s determinations on child welfare must follow the UNCRC’s best interest standards.
The Finnish Constitution accordingly encompasses far more rights than are explicitly named in the document itself.[11] Finland is a signatory to several international human rights agreements that protect the right to family relations.[12] Article 8 of the European Convention on Human Rights (ECHR) protects the right to family life, and notes that it should only be interfered with “in the interests of national security, for the protection of health or morals, or for the protection of the rights and freedoms of others.”[13] The UNCRC further emphasizes in article 9(1) that State parties have an obligation to “ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.”[14]
Issue Presentation
While the UNCRC requires decisions be made in the best interests of the child, balancing the rights of a child to family relations with other factors in the child’s best interest can be a difficult balance, especially when it comes to a child’s placement during parental incarceration.[15]
Analysis
In Finland, mother baby units have existed since 1881, permitting the continued attachment of a mother and her young child.[16] However, as awareness of child rights grew in the early 2000s, major concerns were raised over the effect that this form of prison nursery system had on children.[17] There was a large lack of research on the long-term outcomes of children who were incarcerated with their parents, and these children were overseen by prison officials rather than child welfare agents.[18] There were no official policies governing the rights of children in prisons, making them legislatively “invisible.”[19]
Following these debates, the Committee on the Rights of the Child submitted a report and recommendations regarding children of incarcerated parents, recommending that “noncustodial sentences should, wherever possible, be issued in lieu of custodial sentencing,” and that “[a]lternatives to detention . . . be made available . . . with full consideration of the likely impacts of different sentences on the best interests of the affected child.’”[20]
In 2010, Finland, in partnership with the Ministry of Justice and the Ministry of Social Affairs and Health, addressed these concerns by revitalizing its sentencing practices for caregivers and creating child welfare units in prisons.[21] Thus, the rights of children in prisons were officially recognized at the legislative level.[22]
The new standards first incorporated child rights in parental sentencing, requiring that “[t]he best interests of a child whose caregiver is being sentenced are considered in ‘every step of the process.’”[23] Accordingly, Finland’s child welfare agency is informed any time a caregiver is facing incarceration to ensure that all decisions consider the child’s best interests. No child is placed with a child in prison without the child welfare authority’s approval and supervision.[24]
Second, the standards protected the rights of the child within the prison units themselves. Finland transitioned its mother baby units to family prison units and transitioned authority for these units from the Prison Service to the National Institute for Health and Welfare.[25] Child welfare workers are employed at the prison around the clock. [26]
Finland’s Vanaja Prison provides an example of such a family unit.[27] Vanaja is an “open” prison with ten family units available for incarcerated mothers or fathers and their children up to certain developmental age, so long as the court finds this situation to be in the best interests of the child.[28] Parents live in fully equipped apartments with their children to reflect normal life and build life skills. During the day qualified childcare staff cares for the children while the incarcerated individual works and studies in the community.[29] Thus, under Finland’s new standards, the best interests of a child are protected by child welfare workers, while the child’s right to unity with caregivers remains intact.
Conclusion
Granted, since Finland’s new guidelines on children in prisons is only eleven years old, much more research is needed regarding the efficacy of these guidelines. However, Finland serves as an example of a country that identified ways the rights of a child were not being addressed, formulated research-based solutions to the issues, and institutionalized the practice to ensure children’s rights are legislatively protected.[30] While defining the best interests of a child is not easy, especially when it comes to issues of parental incarceration, Finland’s willingness to creatively address solutions and rework institutional structures can serve as a valuable lesson for other signatories to the UNCRC on how to safely protect a child’s rights during caregiver incarceration.
[1] Convention on the Rights of the Child Preamble, Unicef, https://www.unicef.org/child-rights-convention/convention-text (last visited Sept. 5, 2021) [hereinafter UNCRC]
[2] Hayli Miller & Yvon Dandurand, The Best Interests of the Child and the Sentencing of Offenders with Parental Responsibilities, 29 Crim L. Forum 227, 227 (2018).
[3] Id. at 233.
[4] Tarja Poso et al., Children Residing in Prison with their Parents: An Example of Institutional Invisibility, 90 The Prison J. 516, 517 (Dec. 2010).
[5] Melanie Paurus, International Report on the Conditions of Children of Incarcerated Parents: A Survey of Prison Nurseries, U. of Minn, 4 (2017), https://cicmn.org/wp-content/uploads/2017/03/Melanie-Report-Edited.pdf.
[6] Chapter IV: Human Rights- Convention on the Rights of the Child, United Nations Treaty Collection, https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-11&chapter=4 (last updated Sept. 5, 2021)
[7] UNCRC, supra note 1.
[8] Id. at Art. 3 § 1.
[9] Children’s Constitutional Rights in the Nordic Countries 161-62 (Haugli et al. eds., vol. 5, 2019) (requiring “any decision on parental responsibility must be made in accordance with the best interests of the child”).
[10] Id. at 159-60, 163-64
[11] Id. at 338
[12] Id.
[13] Id.
[14] Id. at 338-39.
[15] Id. at 338.
[16] Poso, supra note 4 at 517.
[17] Id. at 517.
[18] Id.
[19] Id.
[20] Rep. of the Committee on the Rights of the Child (2011, Sept. 30), Report and Recommendations of the Day of General Discussion on “Children Of Incarcerated Parents” (Sept 30, 2011).
[21] Rosi Enroos, From Invisibility to Protection – Children in Prison with their Parent in Finland, 29 Children & Society 399, 407 (2015).
[22] Id. at 407.
[23] Paurus, supra note 5 at 4.
[24] Enroos, supra note 21 at 407; (citing the Child Welfare Act, section 13a and 37(3)).
[25] Id.
[26] Id.
[27] Id.
[28] Id. (quoting HE225/2009:29, “A child under 3 years may be placed... with his or her parent serving a prison sentence or in detention imprisonment in the prison’s family ward. The placement of a child under 3 years may continue in the family ward if it is absolutely in the child’s best interests to do so.”)
[29] Id.
[30] Id. at 408.