There are no specific provisions in penal law for children who are incarcerated with their mothers or who are born while their mother spends time in prison. Of the 234 articles and many more sub-articles of the prison regulations, which deal comprehensively with prisons and prisoners^[5], only one article (Article 69) refers to women and children. Otherwise, laws governing prisons do not refer to the gender, ethnic, religious, sexual or political orientation of the prisoners. Article 69 of the prison regulations states that: ‘Prisoners will be allocated a place on vocational courses according to their background’ and the sub-article indicates that female prisoners can bring their children up until the age of two, but in the same line it states that in every prison there should be a separate place for children between two and six years of age. Alternatively, they should go into state care.^[6]

In preliminary findings for an upcoming ICAVI research project into child abuse in Iran’s prisons, women prisoners have reported on the situation of children who are incarcerated with their mothers, documenting that they face a chronic lack of access to adequate food, hygiene, personal care and the provision of health and safety. In practice, prison regulations are not carried out as stipulated in the prison laws. In one case study, the mother talked of the horrors that her four- year-old child had witnessed. The abuse of children in prisons goes unnoticed as they live in the same quarters as their mothers and other inmates. Prison authorities impose the same physical abuse on children as they do on their mothers, including pushing, kicking and stopping them from going to the toilet, while they also face a lack of air circulation (both too cold and too hot), a lack of adequate medical care and a lack of access to educational programmes. Furthermore, psychological forms of abuse of children in custody include: the use of profane language, shouting, threats, torturing the mother in front of the child and separating the mother from her child for significant periods of time.

In the framework of children’s rights in Iran, two basic issues are in need of reform: legislation and the regulatory system on the one hand, and disorder on the other. However, there are many issues that derive from the political nature of the government. Given the political context of the judicial system, the government can apply a wide range of pressure against prisoners, sometimes deliberately resorting to torture irrespective of the age or condition of the prisoner. Children who live with their incarcerated mothers often come from families where the father is absent or in prison himself.

The pre-2012 penal code categorised crimes according to punishment. The punishment is differentiated by the crime’s theological, judicial or legislative origins.

The new penal code^[7] largely maintains the same categories of crime and the new punishments are more or less the same. However the Islamic Republic of Iran announced that it had abolished child execution. Yet, according to Articles 145 and 146 of the new penal code, the age of criminal responsibility is still ‘puberty’, meaning nine lunar years for girls and 15 for boys, in both cases violating the Convention on the Rights of the Child. Under Article 87, execution for discretionary punishments has been abolished for children under 18 and replaced with correctional measures. Although this article abolishes the execution of juveniles for certain crimes, most juvenile executions are for Qesas homicide-related crimes.

Article 90 of the new penal code stipulates that legally ‘mature’ individuals under 18 (boys 15-18 and girls 9-18) who are convicted of Hodoud and Qesas may be exempted from adult sentences –the death penalty - if it is established that they were not mentally mature at the time of the crime. Although the new code is an improvement on the previous Islamic penal code, in respect of the execution of juveniles, Iran still holds the highest rate of child executions.^[8]

According to reports by human rights organisations, of the 32 executions of juvenile offenders in the world since January 2005, 26 occurred in Iran.^[9] In 2007, Iran executed eight juveniles. Iran is a signatory to the UN Convention on the Rights of the Child (CRC) which states that ‘Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed below eighteen years of age,’ and the International Covenant on Civil and Political Rights (ICCPR), which declares that ’sentence of death shall not be imposed for crimes committed by persons below 18 years of age’. Despite these commitments, in July 2008 the Stop Child Executions Campaign recorded that there were 130 children facing death in Iran.

The Guardian Council’s approval and confirmation of the ‘Unsupervised or Ill-Supervised Children and Youth Protection Bill’ means that it has become law (an Act).^[10] Although the new Act has some positive points, such as the right of single women to adopt children and an adopted child’s right to inheritance and their father’s pension, it also has many ambiguities and a number of objectionable articles.^[11] However, none are as dangerous to the moral, mental and physical integrity of the child (particularly the girl child) as Article 27. According to this Article, a child’s legal guardian can marry the child. As a recent ACI report notes ‘Article 27 of the Bill could lead to the girl child being adopted for nefarious purposes and at risk of abuse by paedophiles. The legislation seems to disregard the fact that based on other national laws^[12], as well as Article 21 of the CRC^[13] and all other related documents, the child’s best interest should be paramount in any placement. Here, instead of taking steps to criminalise any such act, the Guardian Council has legalised it’.^[14]

Sexual and physical forms of child abuse at home are already rife in Iran, although documentation is rare, but it is believed that this Article would give rise to paedophilia as the father might consider a female daughter a potential wife and sexually abuse her in childhood. Equally, the mother could see a girl as a potential rival in the coming years and decline to give the care and love the child needs to develop her full potential.

Iran is a state signatory to all conventions on the rights of the child, and human rights, women’s rights and child welfare activists demand amendments to Article 27 of the new Act on legal guardianship in Iran before it reaches implementation.