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Mother and child in prison: section 74 Austrian Prison Act

Mother-child detention under section 74 StVG: when infants may stay with the mother, how the Schwarzau mother-child unit works and how to challenge a refusal.

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3 July 2026 · Mag. Christopher Angerer, Rechtsanwalt

When a mother is serving a custodial sentence and has an infant or toddler to care for the law provides a special detention mode. Under section 74 StVG the child may remain with the mother in prison as long as care cannot otherwise be secured. This provision protects the child's best interests and the mother-child bond at a time when external care is not reasonable.

This post explains the requirements and the practice. Justizanstalt Schwarzau operates Austria's only specialised mother-child unit for custodial sentences. Accommodation ends at the latest when the child turns three. Those who apply in good time and plan the handover early can best safeguard the child's welfare even in this difficult situation.

Which step fits your situation?

Admission requirements, the Schwarzau mother-child unit, end of accommodation or application and complaint, what do you need?

Under section 74 StVG infants and toddlers may stay with their mother in prison until care can be secured elsewhere. In practice this lasts until the child's third birthday. The mother-child unit at Justizanstalt Schwarzau is the central facility in Austria. Choose what concerns you most and you will receive guidance with concrete first steps.

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01 Question 1

What is at the centre of your case?

Mother-child detention protects the child's best interests and enables the mother to care for her child despite imprisonment. Choose the angle that holds in your situation.

All paths at a glance

Overview of all answers.

01

Accommodation of the child with the mother requires that the child's best interests are served and that care cannot otherwise be secured.

Under section 74 StVG infants may be accommodated with the mother in prison as long as the alternative securing of care is not possible or not reasonable. The decision rests with the prison governor following consultation with the prison doctor. The child's best interests are the overriding criterion. In practice accommodation is granted until the child's third birthday. Older children cannot remain in prison; external care arrangements must be made for them.

What to do now: First, direct a written application for accommodation of the child to the prison governor setting out the child's age and the absence of alternative care options. Second, submit medical and paediatric documents recording the child's state of health. Third, explain why joint accommodation serves the child's best interests and why alternative care is not reasonable.

In depth: prison at a glance →
02

The mother-child unit at Justizanstalt Schwarzau is Austria's only specialised facility for mother-child detention.

Justizanstalt Schwarzau in southern Lower Austria operates a dedicated mother-child unit designed specifically for the needs of mothers with small children. The unit provides age-appropriate care and more child-friendly accommodation than standard prison areas. Imprisoned mothers from other prisons can be transferred to Schwarzau for mother-child detention. The transfer is authorised by the Federal Ministry of Justice.

What to do now: First, enquire at the responsible prison office about the possibility of transfer to the mother-child unit in Schwarzau. Second, take into account the distance from home and visiting options for relatives. Third, submit a written transfer application arguing that the Schwarzau mother-child unit better serves the child's best interests than the current accommodation.

In depth: rights in prison →
03

Accommodation ends at the latest when the child turns three; the handover must be planned well in advance.

The end of accommodation under section 74 StVG occurs when care of the child is secured elsewhere or when the child exceeds the age relevant for accommodation. In practice joint accommodation ends at the latest when the child's third birthday is reached. Handover of the child to suitable persons or facilities must be planned early to avoid a distressing separation.

What to do now: First, six months before the child's third birthday contact the prison governor and the competent child and youth welfare authority. Second, identify suitable carers in the family environment or an appropriate foster placement and make arrangements. Third, prepare for the end of accommodation in stages and if possible enable guided transitions for the child.

In depth: enforcing rights in prison →
04

If the application for mother-child accommodation is refused a complaint to the detention judge is available.

If the prison governor rejects the application for joint accommodation a complaint to the competent detention judge under section 121 StVG is available. The complaint must be lodged in writing and should demonstrate that the refusal did not give sufficient weight to the child's best interests. The best interests of the child are the overriding criterion and must be recognisably addressed in the reasoning of the decision.

What to do now: First, request the written refusal and examine the reasoning given. Second, lodge the complaint under section 121 StVG with the detention judge focusing on the principle of the child's best interests. Third, if appropriate also involve the children's ombudsman to promote a swift decision.

In depth: complaint to the detention judge →

Legal framework for mother-child detention under section 74 StVG

Under section 74 StVG infants may be accommodated with the mother in prison as long as and to the extent that this serves the child's best interests and care cannot otherwise be secured. The decision is taken by the prison governor after consulting the prison doctor. The child's best interests are expressly the overriding standard. The statutory provision aims to prevent children from suffering under their mother's imprisonment.

In practice joint accommodation is granted until the child's third birthday. This age limit is not a rigid statutory boundary but corresponds to the principle that from this point alternative care is generally considered reasonable. For older children external care outside of the custodial setting must be organised.

The mother-child unit at Justizanstalt Schwarzau is the only specialised facility of its kind in Austria. Mothers from other prisons may be transferred there for the duration of mother-child detention. The facility offers child-friendly rooms and pedagogically trained staff who are attuned to the particular needs of very young children in this environment.

Application, planning and handover: what matters in practice

The application for mother-child accommodation must be submitted in writing to the competent prison governor. It should set out the child's age, state of health and the absence of alternative care options concretely. Medical and paediatric records strengthen the application. The earlier the application is made the more time is available to organise the accommodation.

If the application is refused the complaint under section 121 StVG to the detention judge is available. The complaint must demonstrate concretely how the decision failed to give sufficient weight to the child's best interests. Where the prison's reasoning targets only administrative considerations and not the child's welfare that is a strong ground of complaint.

The end of joint accommodation must be planned well in advance. No later than six months before the child's third birthday contact should be made with the youth welfare authority. A staged handover with transitional phases is less distressing for the child than an abrupt separation. Relatives who are willing to take the child should be given early legal certainty, for instance by way of a power of attorney or a guardianship appointment.

Mother-child detention at a glance

Requirements, practice and legal protection

Mother-child detention under section 74 StVG differs from regular imprisonment in several dimensions. The overview places the key points side by side.

Mother-child detention under section 74 StVG: key features compared
Aspect Standard imprisonment Mother-child detention under section 74 StVG
Child in prison Children not permitted Infants up to approx. 3 years may stay with the mother
Facility Standard prison wing Specialised mother-child unit at Schwarzau
Decision Not applicable Prison governor after consulting the prison doctor
End Release from prison Child turns 3 or care is otherwise secured
Legal protection Complaint under section 121 StVG Complaint under section 121 StVG with child's best interests review

Section 74 StVG is decisive. The child's best interests are the overriding criterion and must be recognisably addressed in the prison's decision.

Frequently asked questions

What people often ask about mother-child detention.

Until what age may the child stay with the mother in prison? +

The law does not set a rigid age limit. In practice joint accommodation under section 74 StVG is granted until the child's third birthday. From that age alternative care is generally considered reasonable. The child's best interests in the individual case remain the overriding criterion.

Where does mother-child detention take place in Austria? +

The only specialised facility is the mother-child unit at Justizanstalt Schwarzau in Lower Austria. Mothers from other prisons may be transferred there for the duration of mother-child detention. The facility provides child-friendly rooms and specially trained staff.

Can the application for mother-child accommodation be refused? +

Yes. The decision rests with the prison governor. If the application is refused a complaint under section 121 StVG to the detention judge is available. The complaint should demonstrate concretely that the refusal did not give sufficient weight to the child's best interests.

What happens when the child turns three? +

Joint accommodation ends as a rule. The child is handed over to suitable carers outside the prison. The handover should be planned early, ideally six months in advance. A staged handover is less distressing for the child than an abrupt separation.

Does section 74 StVG also apply to fathers in prison? +

Section 74 StVG is directed primarily at mothers according to the statutory wording and practice. An analogous application in favour of imprisoned fathers is not provided for in the law. There is no comparable facility for fathers in Austrian prisons.

In depth

Further topics on prison

Prison at a glance

The focus page on rights and duties in prison.

Rights of prisoners in Austria

Which fundamental rights must be maintained in prison.

Complaint to the detention judge

How the detention judge is invoked and what they review.

Prison mail and correspondence

Letter inspection and the rights of prisoners on mail.

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