A society is judged by how it treats its children. Nonetheless, the protection of children and the punishment of adults are often conflated.

In some cases, incarcerated mothers, considered a threat to society, are separated from their children from the outset of their detention, assumed to neglect, if not endanger them. This logic is clearly demonstrated in the decision of several European countries to systematically separate children from their mothers who have recently returned from Jihadist regions. Separation is justified by the need to protect the babies from their mothers. But the rationale of protecting babies from a hypothetical risk cannot justify methodically separating them from their mothers. Nor should the politically sensitive situations of women returning from Jihadist regions be an argument in favour of a State's arbitrary and evidence-free determination of these mothers’ inability to care for their children, without any detailed analysis of each situation.

In more general cases, incarcerated mothers are considered by some societies to be sufficiently attentive and affectionate for their babies, to be allowed to keep their children with them in prison [1]. However, this situation is always only for a limited period of time: children will be placed in foster care as early as the age of 18 months in many European countries, including France [2]. This premature separation of babies from their mothers in prison is again justified by the need to protect children—this time, from the violence of the prison environment. However, the States themselves have created the environment in which mothers and children are housed and are, therefore, themselves responsible for this danger!

This is a tragic situation for these babies of imprisoned mothers, always at risk: kept with their mothers in very difficult, potentially harmful conditions or separated from them, which endangers their development and infringes their rights [3].

Governments' claimed rationale of protecting the child in both of these situations appears to be conflated in reality with that of punishing the adult. And the punishment of the mother necessarily punishes her child. On the one hand, the earlier the mother and baby are separated, the greater the risk for the child's development, with major consequences in the short, medium, and long terms [4]. On the other, adverse childhood experiences such as an unhealthy environment negatively affects both their development and well-being [5, 6].

As early as 1992, Luisa Dillner called for keeping mothers out of prison [1]. In 2000, the European parliament declared that “deprivation of liberty should be regarded as a sanction of last resort for mothers”, as prisons are not a proper environment for their babies and young children [7]. Twenty years later, more than 10,000 young children in Europe are still incarcerated with their mothers [8]. The diversity of incarceration procedures for mothers and babies across Europe (Table 1) seems to reflect the difficulty of finding the right balance between protecting children and punishing their mothers, both in the interest of society [9]. Fortunately, non-custodial sentences are the prioritized alternative in many countries. Nonetheless, it is also essential to pay attention to the environments in which these sentences are served as well, for they can be as harmful as prison for the child’s development [10].

Table 1 Several European countries’ laws regarding children kept in prison with an incarcerated parent
Full size table

As we said above, a society is judged by how it treats its children. What can we say then about a society where the rationale of punishing adults and that of preventing harm to the health of these future adults collide? Putting children's health first is acting for tomorrow's society.