Preventing childhood statelessness of children of prisoners

Laurel Townhead

1. Introduction

All around the world there are pregnant women in prison. Some give birth while they are detained. For their babies, this has a range of negative impacts on their safety and wellbeing and can result in violations of their rights, including their right to nationality. The Quaker United Nations Office was made aware of this nexus between two strands of our work by Heidi Cerneka of the Maryknoll Lay Missionaries.¹ In the course of her work in Brazil with women in prison she met foreign national women who were pregnant at the time of arrest and received lengthy sentences for drugs offences. As a result, their babies were born in prison and outside their mother’s country of nationality, raising a series of questions about acquisition of nationality. What are the risks of childhood statelessness for children born to foreign national women in prison and what causes them? Is this just a problem for foreign nationals? What about the impact of paternal imprisonment? These questions are explored below.

All children have a right to acquire nationality (Art. 24(2); Art. 7(1)) and this must be implemented without discrimination, including discrimination based on their parent’s status or activities (Art. 2(2)). International law therefore prohibits limitation of the right to nationality on grounds of parental incarceration. To our knowledge, there is no country that explicitly bars those in prison from transmitting nationality to their child as a result of their status as a prisoner. This does not mean, however, that violations of the right to acquire a nationality resulting from parental incarceration do not take place. The purpose of incarceration is to take people out of society. Unless alternative provision is made it can prevent prisoners from carrying out routine processes such as those required to register a birth.

The compound impact of the social exclusion of those deemed ‘criminals’ and the intersectional discrimination most of those in prison face hampers access to justice. The stigma faced by prisoners (and by extension their children) make self-advocacy and access to justice even more difficult by presenting additional obstacles to legal processes for remedy and impacting on the political will needed for reform.

2. Transmission of nationality to babies of prisoners

2.1 Transmission of nationality by incarcerated mothers
When women give birth in prison and they are not able to transmit their nationality due to inequality in nationality laws, their babies are at a heightened risk of statelessness. If the father is not in contact with the mother or is not cooperative, the child may become stateless. A significant proportion of imprisoned mothers are single mothers prior to entering prison; for others relationships breakdown once they are incarcerated (not least because of stigma). It is also worth noting that very high rates of women in prison have experienced prior victimisation, including situations in which the child’s father is the perpetrator. Even where there is a commitment to maintaining family relationships, this can be challenging due the financial, geographical or security barriers to ongoing contact. These factors could impact on the communication between the mother and the father required to enable and prove transmission of nationality.

2.2 Transmission of nationality by foreign national incarcerated mothers
The risks are compounded for babies born to foreign national women in prison. If women are not able to transmit their nationality and the father is not in the country where the birth takes place (or is unknown or unwilling to be recognised), there is a significant danger that the child could become stateless. This can have ramifications for the child beyond those risks already associated with statelessness, for example, if the child reaches an age at which he or she will be removed from their mother’s care in prison. If there is no family support available in the country of incarceration, it may be in the child’s best interests to be sent to relatives. If the child has not acquired the nationality of the country in which its family members reside it may not be possible for this to happen, leaving them without family care. In addition, problems may arise if the mother is deported at the end of her sentence but the child has not acquired her nationality and is unable to travel with her or is able to travel with her but then cannot access the same statutory services as nationals once in the mother’s country of nationality.

2.3 Other factors presenting barriers to transmission of nationality
In cases where women are incarcerated due to “offences” connected with sexual conduct (for example adultery offences) and are pregnant as a result it is highly unlikely that the father will voluntarily claim paternity. In cases where women have been raped (which in some situations is the reason for their incarceration where it is defined as “adultery”) they should not be required to communicate with the perpetrator to ensure a nationality for their child. For stateless women and women whose nationality is in doubt, prison presents an additional barrier to acquisition of nationality and is potentially compounded by perceptions of the likely criminality of the child leading to a reluctance to confer nationality.

3. Birth registration

Given the challenges faced by those without registration to prove the nationality that they acquired in accordance with the relevant legislation, universal birth registration is an important safeguard against statelessness. There is a risk of statelessness for those whose birth is not registered. The obligation on States to register every child immediately after birth must also be implemented without discrimination on any grounds. Therefore, States have a duty to register the birth of all children regardless of whether their parent is in prison.

3.1 Barriers to birth registration for babies born to women in prison
Despite the duty to register births, parental imprisonment can present a barrier to accessing birth registration. Analysis of barriers to accessing birth registration examines the impact of various factors coupled with the process in the country in question. Parental imprisonment, much like other factors that have been more fully examined, prevents birth registration where specific provision is not made to facilitate it. The simple fact of deprivation of liberty means that women are not free to go to wherever registration takes place. Birth registration usually requires the presence of at least one parent in a designated location; this will only be possible for women prisoners if provision is made to allow them out of prison to travel there. If this requires a long journey it will be even harder for women prisoners. Practices such as mobile birth registration units are useful means of facilitating birth registration where distance would otherwise be prohibitive, however, this will only assist if they go into prisons. Other barriers to birth registration which limit access for the general population, such as access to information and prohibitive costs, are also compounded for imprisoned women.

In States where gender discrimination in nationality laws persists and only the father can register the birth, the barriers to registration are almost insurmountable. If the father is in full contact with the mother and wishes to be recognised as the parent (the likelihood of which is lower for women in prison as explained above), provision would need to be in place to facilitate the registration. For example, the father must be able to have sufficient contact with the mother and with the prison and/or medical facility where the child was born to obtain all the information needed for registration. Similarly, where the father’s presence is required in addition to the mother’s this must be facilitated and alternative measures developed for the many cases in which the father is unknown or unwilling to be recognised as the parent or the mother does not wish to have contact with the father.

• Authorities responsible for birth registration and prison administration should consider the following questions:
• Is information about birth registration made available to women who give birth while imprisoned (and is that information available in relevant languages and formats and provided in a timely way)?
• Do existing procedures allow for the registration of babies born to imprisoned women in practice?
• Is a specific procedure required to enable the registration of babies born to imprisoned women?
• If the father’s presence is required for birth registration, how is this facilitated for babies born to women in prison?

One or more of the following processes to facilitate the registration of births in prison should be in place:

• Registrars or mobile registration units visit prisons.
• Women are granted temporary release or escorted to register births at community registration facilitates.
• Specified other individuals with whom the mother is in contact can register a birth.2
• Prison staff or health or welfare staff working in prisons are trained and licensed to register births.

3.2 Barriers to nationality registration for babies born to foreign national women in prison
For foreign national women in prison access to registration of nationality for their babies with the country (or countries) of which the mother is a national may be necessary in addition to birth registration. Similar issues to those outlined in relation to birth registration apply. However, in these circumstances the responsibility lies with consular officials. They should ask themselves the questions outlined above and must ensure information is available to their nationals who are in prison about processes for citizenship registration for babies born abroad. They will need to facilitate the registration processes within any time limits that exist in their procedures. Where consular services fail in these duties and the child would be stateless as a result, the responsibility to fulfil the child’s right to acquire a nationality falls to State in which the birth took place.

3.3 Barriers to birth registration for babies born with fathers in prison
In States where the father’s presence is required for birth registration or where only the father can register the birth and the father is imprisoned, there are similar risk to those described above. Pending the introduction of equal nationality laws and registration procedures, the same questions apply as for imprisoned mothers and similar practices are needed to prevent statelessness. For instance, contact could be enabled between the mother and father and registration in or from the prison could be provided.

4. Conclusion

The UN Human Rights Council has called on all States to work to address barriers to birth registration faced by persons in vulnerable situations. Ensuring that women can transmit nationality and delivering on the obligation to register all births, even those in prison, and providing consular assistance in facilitating citizenship or nationality registration are all safeguards against parental incarceration resulting in childhood statelessness. Such practices should be stopped immediately.

Whether the safeguards to prevent childhood statelessness are not in place because of deliberate action by the State, as the result of oversight or somewhere between the two with discrimination resulting in certain groups being more likely to be overlooked, the result is the same: a violation of the child’s right to acquire a nationality as protected in international law. The response must be to close these gaps and ensure this right for each child.

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^{1 The Maryknoll Lay Missioners is a Catholic organization seeking to respond to basic needs by living and working with those affected, this includes work with women prisoners in Brazil.
2 For example in the UK if the parents cannot register the birth it can be registered by i) someone who was present at the birth, ii) someone who is responsible for the child or iii) a member of the administrative staff at the hospital where the child was born.}