Robin Hansen is the author of Prison Born: Incarceration and Motherhood in the Colonial Shadow. She teaches law at the University of Saskatchewan.
Imagine if you – at your birth – were automatically taken from your mother and denied the ability to bond with her. Now imagine this being done to you by the state with zero due process, without any consideration given to the health effects of denying you – as a newborn – access to your mother.
This is the reality for infants who are born to persons who are incarcerated at the time of their birth in most Canadian provinces. They are stripped from their mothers and commonly shipped into the foster care system. This is done even if their mothers are no danger to their children and if they are willing and able to be their committed caregivers.
I became aware of these practices after representing a woman who gave birth while serving a prison sentence. Ontario alone automatically separated 26 newborns from their mothers over five years (2011-2015) in this way. Manitoba separated eight newborns from their mother in a single year (2015). Only B.C., the Northwest Territories and the federal system have policies in place to avoid automatic separation for all babies born to incarcerated persons, with areas available that accommodate infants. In other jurisdictions, dozens of children are separated from their mothers every year and this has happened to hundreds of children over the decades.
Science tells us that infants need bonding. Instinct tells us that infants need bonding. They need it for their physical, psychological and emotional development. Denial and disruption of bonding in the early stages of life is a very serious health deprivation with lifelong effects on a child’s development. Policy, in corrections and in sentencing, nevertheless lags horribly behind science. Courts and correctional facilities are still acting as if childbirth is an irrelevant inconvenience that can be ignored and that the love and care incarcerated mothers can provide their children is not worthy of consideration. On the contrary, the basic human rights of children born to prisoners necessitates that childbirth be taken much more seriously in future by courts and corrections policymakers.
All children have constitutional rights under section seven of the Charter to security of their person and to fair process. Those rights are supposed to guarantee that children’s health cannot be disregarded by the state without consideration. Canada is also violating the Convention on the Rights of the Child, the most widely ratified human rights treaty on the planet. Article 3 of the Convention obliges Canada to, at a minimum, consider the best interests of the child in state decisions affecting that child. This obligation is not being met when newborns are automatically taken from their mothers directly after birth without any consideration of their best interests.
It is racialized women and their children who are most affected by automatic separation. Ever-increasing Indigenous over-incarceration – a feedback loop in the legal system that remains unchecked – means that state actors are disproportionately taking Indigenous infants from their mothers at birth. These actions align with practices of colonial domination, namely the history of interference with Indigenous family bonds and maltreatment of Indigenous children in residential schools – practices that must be roundly rejected if governments want to embrace the recommendations of the Truth and Reconciliation Commission of Canada.
This practice of automatic separation is happening because there is inertia in the legal system and the voices of these mothers and children have not yet been heard. It is also happening because of unfair assumptions against incarcerated women and their children. The assumptions driving automatic separation are connected to controlling ideals of maternal purity that are both colonialist and classist. It is time to question the place these assumptions hold in our society, and to ask ourselves if they are a fit substitute for due process decision-making informed by medical consensus.