A child staying with the mother in a penal execution institution is not a person against whom a conviction or detention order has been issued. The child’s needs relating to care, health, development and family relationships call for a legal assessment separate from the execution of the mother’s sentence. The family’s effective application should likewise not consist merely of the request that “the child not stay in prison”; it should show which need is falling short, how this affects the child and what workable solution exists.
What is the legal status of a child staying with the mother in prison?
Article 65 of Law No. 5275 regulates the possibility for convicted mothers to keep with them children in the zero-to-six age group who have no one who could be entrusted with their protection outside. The same provision also covers day care and nutrition appropriate to the child’s age, condition and needs. The issue is therefore not only admission to the institution, but arranging the period spent in the institution in a manner suited to the child’s development. [1]
Staying with the mother and the best interests of the child
The best interests of the child is not an abstract phrase that leads to the same result in every case. Whether safe family care exists, the nature of the bond with the mother, the child’s health and developmental condition, sibling relationships and the real conditions of the institution must be assessed together. The fact that a family member is outside does not, by itself, show that this person can in practice provide suitable care. The work schedule, health condition and relationship with the child of the person who would provide care must be explained.
The mother’s status as convicted or detained must also be stated correctly in the file. In the case of a convicted person, the deferral of execution is discussed; in the case of a detained person, the necessity of the detention measure and alternative measures are subject to a different judicial review. A request for suitable conditions for the child cannot be reduced to either of these two routes.
How are care, day care and health rights requested?
Day care and developmental support
In an application to the institution administration, the following should be asked: which age group the child belongs to, whether the child takes part in the existing activities, the reason if the child cannot, and how the child can gain access to suitable day care. Where in-house facilities are lacking, a request may be made for workable outside services and inter-agency coordination options to be considered. The existence of a mother-and-child unit in a particular institution does not mean that the same service is in fact provided in every prison.
If a developmental delay or a change in behavior is suspected, the family should request an assessment in the field of child health and development rather than making a diagnosis itself. It is helpful for the application not to stop at saying “there is an adjustment problem”, but to describe what change has been observed and since when, and what has been done before.
Nutrition, examination and special needs
Allergies, special diets and the need for regular medication or follow-up should be explained with the existing medical documents. A request for health services should rest on the child’s concrete situation, independently of the administration’s general reply. Vaccination and routine check-up records, referral and appointment information, the doctor’s recommendations and procedures that have not been carried out may be added to the application file. The family should not steer changes in treatment or medication on its own.
For needs such as hygiene, sleep and a safe play area as well, measurable shortcomings should be stated rather than general criticism of the institution. For example, it should be shown when a suitable bed or cleaning supplies were requested and what reply was received. Posting the child’s photograph on the internet is not necessary for a legal application and may harm the child’s privacy.
To which authority, with which request, is an application made?
| Problem | First authority of assessment | Focus of the application |
|---|---|---|
| Care and daily living conditions | Institution administration, relevant services | The concrete shortcoming and a workable arrangement |
| Health and developmental need | Institution health unit, relevant health facility | Examination, follow-up and, where necessary, referral |
| Claim of unlawfulness against an institutional act | Enforcement judgeship (infaz hâkimliği), according to its jurisdiction | Annulment or correction of the act |
| Need for protective care outside | Social service units and the competent child protection authority | Social inquiry and a suitable protective measure |
| Request concerning the mother’s liberty | A separate competent authority as to detention or execution | Individual assessment of the relevant conditions |
Why is a social inquiry important?
The protective approach of Child Protection Law No. 5395 is based on the child’s interests and on support within the family. [2] If the family proposes a care alternative, it may ask for a social inquiry to assess whether this alternative is realistic. The separation of the child from the mother or the child’s move to another care environment is not an administrative detail to be settled by agreement among family members alone; custody, representation and the necessary judicial decisions are examined separately.
In the application petition, a principal request and an alternative request may be distinguished: for example, that suitable conditions be provided for the child, and, where this is not possible in the current institution, that suitable placement or transfer options be examined. The alternative request must not push the child’s needs into the background.
What does the Şükran İrge decision mean for families?
In the Constitutional Court (Anayasa Mahkemesi) decision Şükran İrge, Application No. 2016/8660, November 7, 2019, the assessment of the request of a mother who sought deferral of execution on account of her young child was examined. The file contained information that the physical structure and overcrowding of the institution were not suitable for the life and development of children. The Court held that the right to respect for family life had been violated. [3]
How should the outcome of the decision be used?
The importance of the decision lies in the child’s related need being addressed on the basis of concrete conditions and relevant reasoning. It does not imply that every mother with a child must be released unconditionally. The execution deferral provisions in force at the time of the events should also not be confused with the rules that would apply today. A current application should be built on the mother’s status and the conditions in force.
In the Constitutional Court file, a process of transfer to a suitable institution also took place following the protective measure that was granted. This shows that protection should not be thought of in terms of a single outcome only. What matters is whether the requested solution genuinely answers the child’s concrete need.
Documents the family should prepare
- The necessary records showing the child’s age, closeness to the mother and representation status.
- The institution where the mother is held and her legal status; the relevant decision or file information.
- Current documents explaining the health, development, nutrition and care needs.
- Petitions submitted to the institution, receipts and reasoned replies.
- If an outside care option is put forward, information explaining the suitability of the person and the environment.
Unnecessary personal data should be removed when submitting documents. Rather than sending the child’s entire health history to everyone, it is more appropriate to submit to the relevant authority the documents necessary for the request. Where there is a conflict between the interests of the authorized representative and the mother, the child’s need for independent representation must be assessed separately.
Application time limits and follow-up of the file
Complaint to the enforcement judgeship and objection to the decision
A complaint against the decisions, acts or activities of an institution within the scope of Law No. 4675 is made within fifteen days of learning of them and, in any event, within thirty days of the date of the act. An objection route is provided against an enforcement judgeship decision within two weeks of notification. Jurisdiction, the persons who may apply and the nature of the specific act must be checked separately. In continuing situations or in decisions of a different nature, the start of the time limit is examined separately; these general time limits do not apply to every legal remedy. [4]
A complaint does not by itself stop the act. When the conditions in the law are met, a request for deferral or suspension must be explained separately on the grounds of consequences that are difficult to remedy and of unlawfulness. It should not be assumed that submitting a petition to other authorities preserves these time limits. The full decision, the notification document and the previous applications should be kept together.
Related articles: Rights of Child Detainees and Convicted Prisoners: Education, Security, Discipline and Application; Detained and Convicted Prisoners with Disabilities in Prison: Accessibility, Care and Legal Protection; Suicide Risk and the Protection of Mental Health in Prison: Application Routes for Families.
Frequently asked questions
Is every child under six admitted to the institution automatically?
No. The conditions in the law, the mother’s status and the child’s concrete care situation are assessed. Age alone does not make up the whole of the application.
Can a day care request and the mother’s release request be resolved in the same application?
These are different legal needs. Access to institutional services and the judicial assessment concerning the mother’s liberty may depend on separate authorities and conditions. The rejection of one does not mean the automatic rejection of the other.
Should the family disclose the child’s identity to the public when applying?
No. The necessary identity information is given to the competent authorities; a public post is not a condition of the application. The child’s future privacy must also be protected.