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Johnston, Annaliese --- "Sentencing the silent: children's rights and the dilemma of maternal imprisonment" [2013] NZPubIntLawJl 8; (2013) 1 Public Interest Law Journal of New Zealand 120

Last Updated: 21 October 2014

Sentencing the Silent: Children’s Rights and the Dilemma of Maternal Imprisonment

Annaliese Johnston*

The effects of separating young children from their mothers through imprisonment are dramatic and costly. Such separation affects the children and their families, as well as wider society and the state, yet imprisonment is too often regarded as the first port of call rather than as a last resort. This becomes particularly pertinent at the sentencing stage for female offenders, who are often single mothers, first offenders, and in the courtroom for benefit fraud or other property and non-violent offences. There are, however, some signs of promise. New Zealand’s legislature has recently developed an opportunity for babies to live in specialised units in prison with their mothers for up to two years of age. Our sentencing regime also has some tools for Judges to constructively use their discretion to create more nuanced sentences that investigate, recognise and promote the rights and welfare of children. For example, Appellate Courts have begun to accept that in many cases, imprisonment is not appropriate. However at District Court level, there is less awareness of this changing direction and deterrence is still an overriding theme.

The approach taken by other jurisdictions, such as South Africa and the United Kingdom, show that international human rights obligations can be part of the sentencing evaluation. It is not necessarily the case that a sentencing assessment must choose between individual human rights and interests of the state: both can be balanced without either being sacrificed. As recognised by the UK Courts, it is not the sentencing of the primary caregiver in and of itself that threatens to violate the interests of the children. Rather, it is the imposition of the sentence without investigating or paying appropriate attention to children’s interests that threatens to do so. New Zealand Courts can, and should, recognise that not doing so is in effect, sentencing children, families and society to consequences that are likely to extend far beyond the original verdict.

Individually and collectively all children have the right to express themselves as independent social beings, to have their own laughter as well as sorrow, to play, imagine and explore in their own way, to themselves get to understand their bodies, minds and emotions, and above all to learn as they grow how they should conduct themselves and make choices in the wide social and moral world of adulthood. And foundational to the enjoyment of the right to childhood is the promotion of the right as far as possible to live in a secure and nurturing environment free from violence, fear, want and avoidable trauma.

S v M [2007] ZACC 18; 2008 (3) SA 232 (CC) per Sachs J.

  1. Introduction

It is estimated that at any one time, about 20,000 children in New Zealand will have a parent in prison.[1] This is likely to continue to be an issue, as New Zealand in particular appears to be following international trends of punitive justice. Organisations such as the Sensible Sentencing Trust have risen to new prominence and popularity in political discourse in recent years, pushing for a greater “protection” and “voice” for victims and citizens of society through tougher and longer sentences. This has been reflected in government policy which focuses on imprisonment as the prime response to crime, and “just desserts” sentencing, such as the Three Strikes Law. Until recently, in New Zealand and elsewhere, the ‘get tough on crime’ message has achieved almost hegemonic proportions.[2] A distinguishing feature of New Zealand is also that we imprison more people for minor offences.[3] Consequently, prison numbers are rising and are expected to continue to in the foreseeable future.[4]

In this context, the existence of prisoners who are mothers poses a particularly complex and difficult issue. Having children in prison with their mothers can be inherently problematic, as are the effects of children being separated from a primary caregiver, especially at a young age. This paper will examine the effects of imprisonment on dependent children and the law’s response to those who are mothers, particularly in the context of benefit fraud and the sentencing stage. Children of prisoners are often toted as an ‘inevitable consequence of crime’ and as a sad but normal repercussion of society’s punishment of its deviant. However I will seek to establish that the rights of children and their welfare under the current sentencing regime and our international human rights obligations need to be given, and can be given, greater recognition, significance and priority.

II Mothers in Prison: the Statistics

In keeping with international trends, the New Zealand female prison population is increasing at a greater rate than for males.[5] Despite only making up approximately 6.2 per cent of the prison population, they are more likely to be mothers, often solo parents, and often the fathers of their children are incarcerated.[6] Women offenders also tend to commit proportionally more crimes of property and fewer crimes of violence than men.[7] At the last Department of Corrections census, 35 per cent of female prisoners had dependent children at the time of their imprisonment.[8] The children of imprisoned fathers are more likely to be cared for by their mother or father’s partner, whereas the children of women prisoners tend to be looked after by extended family/whānau, her friends or placed in foster care.[9] This potentially means that the children of mothers who are sentenced to imprisonment are at a higher risk of being separated from a parent and suffering the resulting consequences of the severing of the important child/parent relationship.

Venezia Kingi in her 1999 thesis[10] recognised that it can be difficult to get a comprehensive or cohesive picture of the effect that parental imprisonment has on children, as information on the numbers of children of prisoners is not routinely collected internationally or here in New Zealand.[11] Experiences of children who have a parent in prison will also differ according to which parent is imprisoned.[12]

However despite the acknowledged difficulties in gaining a full picture in New Zealand, these figures still have significant short and long term implications for the children involved. It is recognised that children who have imprisoned parents in any country are more likely to likely to suffer health, developmental and psychosocial adversities: including being at a greater risk of infectious diseases, developing behavioural problems, and themselves becoming involved in the criminal justice system.[13] As well as these longer term implications, from a human rights perspective children’s rights are potentially threatened and ignored throughout the criminal justice process.

III Children of Prisoners: the Effects

Imprisonment has a number of effects on families, which are discussed below. Children, as particularly vulnerable members of society, are particularly affected by the imprisonment of a parent, and are even more affected if their rights, welfare and interests are not considered in the legal framework.

A Effects of Imprisonment on Prisoner’s Children

New Zealand studies have found that the impacts of imprisonment differ depending on the age of children.[14] It is significant and concerning that many of these behaviours are recognised as potential precursors to offending behaviours later in life:[15]

Age of Child
Impacts of Imprisonment
0-3 years
Low degree of attachment to imprisoned parent and loss of bond
Separation anxiety
4-7 years
Separation anxiety
Night terrors
Aggression and violence
Lack of engagement in school
8-10 years
Aggression and violence
Feeling depressed
11-15 years
Assuming the role of the absent parent or parenting the parent
Decreased academic achievement

B Effects on Health

Children of prisoners are also at a higher risk of negative health outcomes. In the “Invisible Children” report by Pillars, a charity for the children of prisoners, it was found that many suffer from diseases like asthma and eczema, psoriasis and other skin and nervous disorders. The report noted that although the problems displayed by these children probably differ little from those endemic across the large number of children living below the poverty line, the caregivers interviewed were adamant that, overall, the children’s health had got worse as a result of parental imprisonment.[16]

For babies, separation from their mother in particular can have significant health risks. The World Health Organisation states that lack of breastfeeding, and especially lack of exclusive breastfeeding during the first six months of life, are important risk factors for infant and childhood morbidity and mortality.[17] The life-long impacts are thought to include poor school performance, reduced productivity, and impaired intellectual and social development.[18]

C Psychological Effects

The separation of very young children in particular has significant implications for their development. A mounting body of research from developmental psychology and neuroscience confirms attachment relationships to be a “central axis of the child’s developmental pathway”.[19] Development psychologists are learning increasingly more about the importance of the early years of a child’s life and having a secure attachment with a primary caregiver. American research found that babies tend to have a “principal attachment figure.”[20] This does not mean that they do not have secondary attachments and derive security from them, but under certain circumstances such as stress or illness, they will show a preference for the principal, which is usually the mother figure.[21] The existence of a secure attachment with a principal in their first year had significant bearing on behaviour and development in later years. They were found to be more co-operative and empathetic with peers, less aggressive to unfamiliar adults, more explorative and self-directed, and in problem solving situations were better able to elicit and accept help, and performed better generally in language and development tests.[22] Lyons-Ruth, Alpern, and Repacholi also found that “disorganized attachment” earlier in life was the “strongest single predictor of deviant levels of hostile behaviour toward peers in the classroom.”[23] Thus attachment in the first two years of life, when the emotional right brain circuits are in a critical period of formation, is different from attachment in the third or fourth year of life, when the full cognitive system involved is maturing.[24] This confirms that attachment that is disrupted early in a child's life can have implications for future deviant behaviour, thus increasing the risk of ‘generational cycles of crime’.

In regards to custody, overnight care is not essential to an infant or child’s ability to form a healthy attachment to the second parent, but repeated overnight stays away from the primary caregiver in the first year or two may strain the infant and disrupt formation of secure attachment with both parents.[25] This is particularly pertinent for young children of women in prison: they are often looked after by extended family such as grandparents, who can become important “secondary attachments”, but their “principal attachment figure” will usually be their mother.

D Social and Economic Effects

In addition to health and developmental implications, there are wider social and economic impacts. The families and whanau of prisoners tend to be among the poorest in society,[26] and can already be in crisis or suffering other adversities before the imprisonment of a parent. The children of prisoners are also far more likely to become prisoners themselves, than the children of non-prisoners.[27] It is also important to note the significant racial disparities in those who are imprisoned, and thus in those who are affected by the imprisonment. Māori are nearly eight times more likely to be given a custodial sentence than non-Māori, and Māori women are ten times more likely to be imprisoned.[28] Kim Workman argues that New Zealand has now reached the level, in relation to Māori, of mass imprisonment. He notes that “in these circumstances, prison becomes normalised.” Far from stopping crime, mass imprisonment creates unstable communities and families, poverty, and social alienation and can contribute to a breeding ground for a new generation of criminals.[29] Mass imprisonment is also expensive. The rising imprisonment rate in New Zealand means that over $800 million is spent on prisons each year.[30]

IV Current Law in New Zealand

A The Corrections (Mothers with Babies) Amendment Act

In 2008 the Act was passed, which formalised a recommendation of the 1989 New Zealand Ministerial Committee of Inquiry into the Prisons System to allow babies up to two years of age to live in prison with their mother.[31] This differed from the original Act which only allowed babies up to six months old.[32] Section 4 of the Act states its aim:[33]

The purpose of this Act is to amend the Corrections Act 2004 to provide for the best interests of the child by enabling young children of female prisoners to be placed with their mothers in prison until they turn 24 months old, for the purposes of bonding, feeding, and maintaining continuity of care, provided that certain criteria and conditions are met.

This acknowledges the significant problems associated with separating children from their mothers, particularly at a young age, and the importance of breast feeding and bonding. It also provides wider scope for babies remaining with their mother in the crucial first two years of life rather than separating them at six months. Allowing women to care for their child in prison also represents an opportunity to work with women prisoners to aid rehabilitation and reduce the risk of re-offending.[34] Retaining the bond with a child can be highly significant for the mother and baby when re-entering society. In a survey of female prisoners, nearly six out of ten agreed that mothers with children under 24 months should be able to have them in prison with them.[35] The World Health Organisation also notes that children with mothers living in special circumstances, such as in prison, should receive special attention and extra support, and that mothers and babies should remain together where possible.[36]

B Impacts of the Act

A Children’s Commissioner Report on the Corrections (Mothers with Babies) Amendment Bill before it was passed supported it in principle, and re-emphasised that the best interests of the child must be the paramount concern in making decisions about placement of children of prison inmates.[37] However, it also recommended that “imprisonment of parents should be avoided where possible through the use of non-custodial sentences or home detention.”

Thus the phrase “to provide for the best interests of the child” poses a difficult dilemma. Whilst there is clear evidence of the harm that can be caused to a child’s development by separation, the existence of babies in a prison, even in separate units is also potentially problematic in relation to their welfare and rights. The majority of the women prisoners who thought it was not a good idea for mothers to be able to have their children aged up to 24 months with them in prison simply reasoned that Children should not be brought up in prison”.[38]

This in part echoes the sentiment of the Children Commissioner’s report. There were noted concerns of developmental and social risks associated with children living in prison. The prison environment is associated with developmental decline in cognitive and locomoter skills of children aged over four months,[39] mixing solely with adults who may have social and psychological problems themselves,[40] and the child being “punished” alongside the mother by living in a restrictive prison environment.[41] The age limit is also problematic: whilst an improvement on six months, especially for bonding and secure attachment purposes, it is still a limit that will potentially result in a potentially traumatic and detrimental separation once the child reaches the allowed age if the mother has a longer sentence. Kingi found that mothers on release from prison struggled to reconnect with their children, and particularly younger children showed signs of insecurity, clinginess, fear of their mother leaving them again, anger and distrust.[42]

The report also recommended a thorough list of amendments that were needed before it would be appropriate to accommodate pre-school children. These included further consultation on the age limit of two years and one day, a requirement for the chief executive to receive advice from child development professionals before making a decision about the child’s best interests, provision for ongoing independent monitoring of the best interests of the child in prison and widening “appropriate facilities” to include broader parenting programmes and community support.[43] The current Amendment Act includes some of these recommendations, however some were not incorporated. Whilst the chief executive must be satisfied that the mother meets certain requirements under the parenting agreement under s 81(b), there is still little provision for ongoing independent monitoring[44] of the best interests of the child living in prison, apart from basic health checks.[45] And although the phrase “best interests of the child” is used repeatedly in the amendments, there is not a detailed specification of the matters that should be considered for this to happen.

The Amendment also requires provision for “appropriate facilities for the accommodation under the age of 24 months, and that those facilities support the developmental needs of children” for every prison in which female prisoners are imprisoned, “to the extent practicable within the resources”.[46] This limitation, whilst pragmatic, also reflects the reality of providing appropriate mother and baby units. New Zealand only has three women’s prisons located in Auckland, Wellington and Christchurch. This means that for women living away from any of these three areas, to have their baby in a self-care unit with them, both mother and baby are potentially separated from their family, community and support systems. This makes it much more difficult to implement any parenting and family support programmes, and increases the trauma of separation once a child reaches two years and must be placed with an “alternative caregiver”[47] who may live far away from the women’s prison.

The Amendment Act clearly attempts to address the harm that is caused by separating young children from their mothers especially in the first two years of life, and recognises the special attention and facilities needed to appropriately manage mothers and their babies in prison. It is a step forward for New Zealand in recognising the short term and long term effects of maternal imprisonment on children, families and society, and the value of retaining connections for rehabilitative purposes and reducing re-offending. However, it is largely still a mechanism that addresses the symptoms of imprisonment. It provides for those already sentenced but does not question whether this sentence itself is potentially inappropriate in some cases.

C The Sentencing Process
1 Principles and purpose

The Sentencing Act 2002 now governs the sentencing process in New Zealand. Section 7 contains the overriding principles of sentencing and s 8 sets out the principles that Judges are to take into account when dealing with offenders. There is no specific provision that mandates the consideration of the effect of prison sentences on offenders with children. However, there are several sections that provide potential for broad interpretation; such as an emphasis on imposing the least restrictive outcome that is appropriate in the circumstances in accordance with the hierarchy of sentences and orders,[48] a mandate to take into account any particular circumstances of the offender that mean that a sentence that would otherwise be appropriate would, in the particular instance, be disproportionately severe,[49] and the offender's personal, family, whanau, community, and cultural background in imposing a sentence with a partly or wholly rehabilitative purpose.[50] Thus although there is a need for consistency[51] and for sentences to be within the limits of the sentence for the offence, there is some scope for the judge to take account of other factors, including the circumstances and background personal to the offender. A significant feature of sentencing in New Zealand is that the sentencing Judge is vested with a discretion.[52] Section 16 also has a strong presumption against imprisonment, stating the desirability of keeping offenders in the community as far as that is practicable,[53] and that the Court must not impose a sentence of imprisonment unless it is satisfied by several requirements. [54]

2 Pre-sentence reports

If an offender pleads or is found guilty of an imprisonable offence, s 26 gives the Court the option to direct a probation officer to provide a pre-sentence report.[55] This report can include “information regarding the personal, family, whanau, community, and cultural background, and social circumstances of the offender”,[56] and “information regarding the factors contributing to the offence, and the rehabilitative needs of the offender”.[57] This section also provides the probation officer the opportunity to make a recommendation on the appropriate type of sentence, including alternatives such as supervision, home detention or community work and the conditions of those sentences.[58]

1 Alternatives to imprisonment

In 2007 the Sentencing Amendment Act[59] introduced additional community-based sentences[60] and elevated home detention to a stand-alone sentence.[61] The policy behind the amendment was expounded in the Explanatory Note to the Criminal Justice Reform Bill:[62]

The purpose of the Bill is to introduce a range of measures to arrest the sharp increase in the prison population in recent years. This increase is no longer sustainable, neither financially nor socially. New Zealand's imprisonment rate is considerably higher than countries that we habitually compare ourselves with, such as the United Kingdom, Canada, and Australia. The Bill, which includes some measures that will have an immediate effect and others that will take longer for their impact to be felt, is intended to contribute to a reduction in the imprisonment rate over time.

There was clearly a commitment at the time to providing alternatives, and a recognition that high rates of imprisonment are taxing on the economy, families, and society in general.

D Benefit Fraud, Mothers and the Courts

1 Hogan v Ministry of Social Development

There have been several cases in New Zealand concerning mothers with young children appealing against sentences of imprisonment for benefit fraud. In Hogan v Ministry of Social Development,[63] four of the five appellants were women who were first offenders, had up to three children and were sentenced to between six and and nine months imprisonment. Amounts dishonestly obtained ranged from $22,766 to $48,576 over a period of two years or more. In their interpretation of the Sentencing Act, the judges advocated a balancing exercise when weighing up the various factors of s 8, s 7 and s 16.[64] Despite the endorsement of the District Judge’s observation that there was “no presumption in favour of imprisonment” he believed that there was a “long standing support” for six to nine months imprisonment when fraud amounted to $15,000 or more over a significant period. The Court made the following statement in summary of the issue:[65]

Offenders ought not generally seek refuge from a sentence of imprisonment behind the tender age of their children if there is a need to deter other offenders from a view that prison would not be visited on them simply because they happen to have small children... The size of the benefit may be dependent upon that fact of children being in the family. The family situation of an offender including the wellbeing of children must of course form part of the personal circumstances being only one of a number of relevant factors that a judge must consider. The weight afforded to it must depend on all the circumstance of the case. As said in R v Prescott the effect on an appellant’s imprisonment on an offender’s children is a “sad but inevitable consequence of offending at this level”. Of course the effect of a sentence on children is a mitigating factor in relation to the length of any custodial term imposed, and the common granting of leave to apply for home detention illustrates an approach by District Court Judges to ameliorate against the severity of short terms of imprisonment.

This approach made clear that the fact that the offender is a mother of dependent children cannot in itself be a reason to prevent the sentence of a prison term. Despite the assurance that weight of various circumstances must depend on each individual case, there does appear to be a presumption in favour of the need to deter in welfare fraud cases because of its prevalence, and thus in favour of imprisonment. This was justified on the basis that the overall gravity and culpability reached the threshold that under the Act, any other sentence would be inappropriate.[66] The “granting of leave to apply for home detention” was justified as enough to “ameliorate” against the severity of terms of imprisonment. However the reality was that once the sentence was imposed, it was entirely up to the parole board. There was no guarantee that it will be granted.

The culpability of offenders in this context was also discussed in Hogan. It was acknowledged that those who obtain the Domestic Benefit fraudulently are usually young mothers who have young children, are otherwise of good character, and often have partners who do not support them and are thus dishonest about the existence of their partners for benefit purposes.[67] However the Court also stated that the fact that fraud may often happen in order to alleviate financial burdens of the family cannot be a general assumption, and that sometimes it is just “pure greed”.[68] Even if it was proved that it was to support children, this was not enough to justify a non-custodial sentence.[69] They endorsed the statement by the Court of Appeal in R v Osbourne:[70]

There is not much doubt that much, perhaps most, of the money Ms Osborne obtained went on what could broadly be regarded as the necessities of life for herself, her children and her partner. But likewise, it is clear that the Judges in the District Court and High Court recognised the nuances of the situation. Sentencing is often necessarily carried out without detailed inquiry into all the minutiae that collectively provide the context to the offending. Broad-brush assessments are necessary. A sentencing approach which treats as relevant the amount of money which was obtained by fraud seems to us to be acceptable.

A proposed need for deterrence and an emphasis on the amount of money defrauded, rather than the context and culpability of offending was a priority for the Court in their sentencing approach for these kinds of offences. It is certainly an approach that is consistent;[71] however, it arguably gives too much weight to deterrence as one factor rather than being a ‘balancing exercise’ of the factors in the Act. Despite the Court in Hogan asserting that because the “overall gravity and culpability reached the threshold that under the Act, any other sentence would be inappropriate”, that very “culpability”, or lack thereof, was largely dismissed. Robert Lithgow in commenting on Hogan passionately stated that:[72]

If appellate Judges do not take the lead and use all the variations of the Sentencing Act constructively then they are defaulting on their duty to use the legislation given. They are defaulting to the incessant one way auction of the Sensible Sentencing Trust and Crown submissions that every crime is worse than the one before, society is getting worse, criminals today are worse than criminals yesterday.

This approach of the full Court in Hogan had a significant influence on later decisions for similar fact scenarios such as Davey v Ministry of Social Development in 2009 in the High Court, [73] and a plethora of decisions including Ministry of Social Development v Joseph in the District Court. [74] Even though Hogan was decided before the 2007 Amendment, it was regularly used as an authority for dismissing home detention as an option in post-Amendment cases, because it had made clear that “a sentence of imprisonment is a usual and appropriate outcome for cases of substantial benefit fraud.”[75] Deterrence as a high priority was still evident in the attitude of Judge White in the District Court in Harris:[76]

You bear a card for others to read, Ms Harris. Defraud the revenue in this way in substantial sums and prison will be the outcome and everybody in Paeroa needs to know that.

This was not disputed in the failed appeal in the High Court, and the Judge in consideration of the appeal did not accept that an important factor was the District Court’s failure to consider the effect on the appellant’s young children.

This punitive approach has significant implications for mothers and their children. Kingi’s profile of women offenders identified that of those surveyed, they generally had limited educational skills and little or no work experience; and they were predominantly welfare dependent (86 per cent) before coming to prison, lived in rental accommodation or with family (80 per cent) and were often single parents (40 per cent).[77] This is indicative of the type of women that are more likely to be imprisoned; there is obvious vulnerability and severe financial hardship which would be exacerbated even further for their children once imprisonment takes place. A reliance on welfare is also an important factor; in these cases bizarrely those most vulnerable are attracting more punitive sentences. Issues of power imbalances for women in relationships with partners who do not support the family financially are also largely ignored. Under benefit regulations technically they are considered as in a relationship and thus to claim more as a single parent is considered fraud.[78]

E Promise of Change?

In R v Simanu Judge Woolford proved the discretion to sentence to home detention in place of imprisonment, [79] due to the specific circumstances of the two women as parents of young children. Alongside culpability considerations, he particularly took into account the pre-sentencing report of the parole officer. This acknowledged that whilst a sentence of imprisonment was usually imposed for offending of this particular seriousness, home detention was the “preferred option” for them and their families as it would enable them to care for their children.[80] The first convicted mother had a 16 day old baby, and it was noted by the Prison Service that an application to have her newborn accompany her to prison was possible.[81] However, it was accepted that she was “ill prepared” for this type of sentence.[82] The second mother who was convicted was also sentenced to home imprisonment and her sentence was reduced, despite the offence being more serious than the first, and involving significant amounts of money in money laundering offences. Instead of the seriousness being a barrier to a final sentence of home imprisonment as in Hogan, community service was included instead as an added punitive measure.[83]

Thus the gravity of the offence was not undermined; the Judge was able to impose a sentence that still reflected the need for accountability, promoted a sense of responsibility, denounced the conduct and deterred them and others from acting in the same way.[84] By using the old and new provisions constructively, the Judge was able to assist in rehabilitation and reintegration and achieved a balance with the equally important contrasting principles in sections 7 and 8 of the Sentencing Act:[85]

I must take into account the contrasting principles: the need to adopt the least restrictive outcome appropriate; the need to take account of anything that would make any otherwise proper sentence disproportionally severe and the need to recognise you in the context of your families.

All these outcomes were achieved, without resulting in a fragmentation of families and the separation of young children from their mothers. A similar conclusion was reached in the High Court decision of Beedell,[86] which was relatively rare in its commitment to home detention and community work as providing sufficient deterrence, especially when the existence of two young children was considered a strong mitigating factor.[87] This exemplifies that the rights of children can be considered under the framework of the Sentencing Act without significantly compromising factors so important to the Court in Hogan and Osbourne such as deterrence.

F Appellate level decisions

In the recent years there have been two Court of Appeal judgements that have considered the appropriate sentence for benefit fraud and have also concerned mothers with dependent children. Ransom v R [88] in 2010 addressed the issue of whether imprisonment was necessary to mark benefit fraud offending.[89] The fraud involved a sum of $127,985 over ten years.[90] The decision in the Court in part disagreed with the traditional assessment that a certain seriousness of fraud automatically warrants imprisonment. The Court made clear that there is no prescriptive or usual sentence in cases of this type and the assessment needs to be more nuanced:[91]

We have concluded that a sentence of home detention will, in conjunction with one of community work, adequately respond to the sentencing goals of accountability, denunciation and deterrence. While the remorse expressed by Ms Ransom is not as fulsome as one may have liked and there is no real ability to repay the dishonestly obtained money, the need for her to care for her child, the benefits of ensuring that her husband returns to paid employment (something we were assured by Mr. Laurenson he would do if the appeal were successful) and her acceptance of responsibility by entering pleas of guilty persuade us that home detention is an appropriate sentence and responds adequately to the sentencing goals to which we have referred.

It was also noted in the postscript of the judgement that a significant factor in the Court’s decision to allow the appeal and substitute home detention was concern over the care of their six year old child and the consequences of imprisonment. The child had considerable behavioural difficulties which had been exacerbated by his mother’s absence from the family home. This had also resulted in the husband having to give up work and go on a social welfare benefit to look after the child. [92]

The 2012 Court of Appeal judgement of Heta v R[93] allowed an appeal of 12 months imprisonment and reduced the sentence to eight months imprisonment for three charges of benefit fraud. The Court held that Judge made a material error of law by assessing on quantum alone, rather properly assessing culpability. It also found that the Judge insufficiently took into account the effect that imprisoning Ms Heta would have on her family, especially her two younger children, and was incorrect to assume she could rely on extended whanau in deciding what term of imprisonment was proper for her offences. Home detention would have been preferred to the eight months imprisonment; however it was found that Ms Heta’s address was no longer available for this purpose.[94]

This theme of the importance of taking into account and investigating personal circumstances such as the care of dependent children was picked up on in the High Court in 2013 with Maa v Ministry of Social Development[95] and Frost v Ministry of Social Development.[96] Toogood J tactfully challenged the District Court Judge’s decision on appeal in Frost:[97]

I have no doubt that the experienced District Court Judge who sentenced you turned his mind to home detention since it had been referred to by the probation officer and in the submissions of counsel for the informant as a possible alternative to imprisonment. But the problem is that he made no reference in his sentencing remarks to that possibility. That may have been an oversight, but it does appear that the Judge focused very much on deterrence at the expense of other factors.

The factors noted by his Honour included the needs of her two month old baby, who was being breastfed, the needs of her 15 year daughter who was living at home, the low risk of re-offending and the stable relationship with her partner and father of the baby. Thus it was indicated that “focusing on deterrence at the expense of other factors” was not an appropriate approach to take and indeed the absence of their discussion was significant. Toogood J went on to note that home detention is still a significant and punitive sentence and that it is not necessarily a ‘one or the other’ choice:[98]

After careful consideration of the present facts and the other cases, I am satisfied that the Judge's conclusion in this case was wrong and that, despite the factors indicating the appropriateness of a term of imprisonment, a less restrictive penalty should have been imposed. In my view, a period of home detention will serve adequately to punish you and deter you from further offending and to deter others from offending of this kind, while recognising that your prospects of rehabilitation and putting these matters behind you will be enhanced by your ability to remain at home caring for your baby and your teenage daughter.

Thus these appellate level judgements show significant promise in moving away from the approach in Hogan and Osbourne, and have made constructive use of the 2007 Home Detention Amendment. However Heta v R also stated that it could not make a binding authority on the issue of imprisonment versus home detention:[99]

Whether a short-term sentence of imprisonment or home detention was imposed called for specific analysis. Where the scales were finely balanced the appellate Court would normally defer to sentencing Judge and it was not for the Court to revisit merits of a decision to decline home detention in absence of material discretionary error.

The limits of the nature of an appellate Court in sentencing mean that it still largely discretionary for the lower Courts. Although this of course enables appropriate analysis on a case-by-case basis, it also means that the lower Courts can give significantly varying weights to the factor of the accused having dependent children. As the variety of outcomes in similar fact scenarios show, even after decisions like Ransom, it is still very mixed. The weight at District Court level still seems to be in favour of imprisonment and weight given to the pre-sentence reports and the alternative of home detention varies significantly, depending on the Judge. The new sections which provide a number of alternatives to imprisonment are not yet always being used constructively, especially when considering the interests and welfare of children appears to also be competing with populist and tax payer pressure.

V International Law Obligations

The issues and risks associated with young children being separated from their mother, and alternatively being in prison with them both raise questions of significant intrusion on or abuse of their rights. New Zealand is party to and has ratified a number of conventions and international human rights instruments that specifically (such as the United Nations Convention on the Rights of the Child) or generally protect children’s human rights and their right to family life (such as the International Covenant on Civil and Political Rights).

A Children in Prison

Despite the good intentions and the focus on the “best interests of the child” being behind the rationale of having prison units for mothers and their children, they are still potentially problematic in light of our international obligations. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was ratified by New Zealand on 10 December 1989.[100] The right not to be subjected to torture or cruel treatment is also affirmed under the Bill of Rights Act, s 9. Children spending significant times in prison, even in units that are slightly separate, could potentially be considered “degrading treatment” and “punishment” under the convention. The concerns of the Children’s Commissioner’s report especially noted the risks and concerns of children living in prison. From a children’s rights perspective, this highlights the importance in having thorough safeguards and continual review procedures in place for the Mother and Baby units. However it also illustrates the importance of reducing the need for these facilities at all, and moving towards a more proactive approach at the sentencing stage with the accommodation of children’s rights when possible.

The United Nations Convention on the Rights of the Child was ratified by New Zealand in 1993.[101] Under art 4, state parties are required to “undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised”, thus it is expected that serious attention is given to the Convention in the New Zealand legislative process. There are several articles that are particularly significant for children facing the prospect of a parent, particularly a mother, being imprisoned: Article 2 states that children’s rights are to be respected without discrimination, which includes on the basis of the status of the parent, art 3 mandates that the best interests of the child must be a primary consideration in all actions concerning children, art 6 states that every child has the inherent right to survival and development, and arts 7 and 8 state that as far as possible, the child has the right to know and be cared for by his or her parents, and to preserve family relationships. Finally, art 9 expresses that a child who is separated from their parents has a right to personal and direct contact with both parents on a regular basis. Where the state initiates separation, the child needs to know where the parent is being held.

The commitment to international instruments is to a degree recognised by direct ratification into domestic statutes. For example, under the Children’s Commissioner Act 2003, part of its purpose is to confer additional functions and powers on the Commissioner to give better effect in New Zealand to the UN Convention.[102] The Bill of Rights Act 1990 also affirms New Zealand's commitment to the International Covenant on Civil and Political Rights. However what is less clear is the legal status of these instruments in the Courts.[103]

B The Right to Family Life

The right to respect for family life is a right that is not often looked at from the perspective of prisoners, as prisoners have had their right to liberty removed by the state. However, every other interference with their rights must be justified as a necessary and proportionate consequence of their imprisonment.[104] The children of prisoners, as a consequence of their parent’s loss of liberty are even more vulnerable. The United Nations has proclaimed that childhood is entitled to special care and assistance:[105]

The family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,
Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding.

The analysis in Tavita v Minister of Immigration suggests the substantive significance of the UN Convention and other human rights obligations pertaining to family life for New Zealand domestic jurisprudence.[106] Despite Cooke P’s reluctance to make a binding statement at the time, he suggested that legitimate criticism could extend to NZ Courts if they accepted that the Executive could ignore international rights, norms or obligations because a domestic statute giving general discretionary powers did not mention them.

The context of the case was an appeal of a discretionary immigration decision that declined to revoke a removal order of a father from New Zealand, and which also prevented him from returning for five years. The appellant placed reliance on the International Covenant of Civil and Political Rights and the United Nation Convention on the Rights of the Child. Article 23(1) of the ICCPR in particular affirms the centrality and importance of the right to family life and as a unit in society:[107]

The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Cooke P looked to the European Court of Human Rights for guidance on the issue as to whether against the background of powers available under the Immigration Act, the Minister and the department should have had regard to the international obligations concerning the child and the family.[108] Both cases[109] related to art 8 of the European Convention on Human Rights:[110]

1. Everyone has the right to respect for his private and family life, his home and his correspondence
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

They also placed an emphasis on balance when weighing up legitimate public interests such as economic wellbeing and prevention of crime, with the seriousness of the interference with the applicants' right to respect for their family life. There was a need for proportionality between the means employed and the legitimate aims that were pursued. In both cases it was determined that this balance was disproportionate. Cooke P summarised the significance for the appeal in Tavita:[111]

It would appear therefore that under the European Convention a balancing exercise is called for at times. A broadly similar exercise may be required under the two international instruments relevant in the present case, but the basic rights of the family and the child are the starting point.

Thus under these instruments, legitimate aims of the state are still recognised, such as the importance of preventing and deterring crime. However, they also call for an approach that does not disproportionately infringe on the fundamental rights pertaining to the family and of children.

Following Tavita, it was generally thought that it implied that the international obligation of considering the child’s best interests was a mandatory relevant consideration in accordance with administrative law principles.[112] The more recent case of Ye v Minister of Immigration[113] posed a similar question to Tavita, and considered the status of the interests of New Zealand citizen children in a decision to remove their “overstayer” parents from New Zealand. The Supreme Court seemed to go slightly further in their interpretation of provisions of the Immigration Act. Section 58 is highly discretionary, and denies any obligation to even consider cancellations of deportation orders.[114] However, the Court held that the “competing public interest” question would only outweigh humanitarian and “undue harshness” concerns if that public interest went beyond the general interest in the integrity of the immigration system.[115] This was justified largely by the principle that the Act should be interpreted consistently with New Zealand’s international obligations, particularly under art 3 of the UN Convention.[116] Article 3(2) provides that all actions concerning children, by public and administrative authorities, the best interests of the child shall be “a primary consideration”.[117] Although Elias CJ noted that “a primary consideration does not mean “the” or a “paramount consideration”[118] as in the Care of Children Act,[119] the Court was prepared to go quite a long way to read qualifications into the words of the relatively strict provision in order to comply with international obligations.[120] The later case of B v G, in the context of adoption, affirmed that unless the words of a statute rule out such an interpretation, a Court should favour an interpretation that is in line with the UN Convention and New Zealand’s international obligations.[121]

This suggests some move away from taking a strict dualist approach to international human rights obligations; there is potentially much more expected of Courts and Executive powers when making discretionary decisions. It appears to follow the stronger approach as suggested in different contexts such as in Sellers v Maritime Safety Authority[122] and Zaoui v Attorney General[123] of reading the statutory power subject to the substantive limit that they cannot be used in breach of relevant international obligations. This may go beyond just giving effect to international conventions if they are specifically ratified in the statute concerned.

However whilst these cases are significant for a creating a general picture of how the rights of children should be complied with in domestic law, they are in the context of immigration and adoption law, which does differ from the sentencing context. As of yet there have not been cases in New Zealand which employ international obligations regarding children at the sentencing stage of their parents, thus we must look to other jurisdictions.

VI Lessons from Other Jurisdictions

A South Africa

Jurisdictions such as South Africa have taken a significantly more rights-based approach in their legislative framework. There is a developing child’s rights jurisprudence that is beginning to emerge more substantially with the UN Convention and the African Charter on the Rights and Welfare of the Child. African Nations have been leaders in a sense, adopting a uniquely “African” approach with their own Charter, and thirty four constitutions on the continent mention the rights of children.[124] An example of their unique approach is the small but significant difference in wording between the UN Convention and The African Charter. The Convention refers to the bests interests of the child as “a primary consideration”, whilst the African Charter uses “the primary consideration” (a difference picked up by Elias CJ in Ye). This subtle but important distinction gives different weight to the interests of the child; in the latter, the child’s interests are to be paramount over other interests or rights.[125] The Charter is also unique in that it has a provision that specifically provides for the interests of children of imprisoned mothers:[126]

States Parties to the present Charter shall undertake to provide special treatment to expectant mothers and to mothers of infants and young children who have been accused or found guilty of infringing the penal law and shall in particular:
(a) ensure that a non-custodial sentence will always be first considered when sentencing such mothers;
(b) establish and promote measures alternative to institutional confinement for the treatment of such mothers;
(c) establish special alternative institutions for holding such mothers;
(d) ensure that a mother shall not be imprisoned with her child;
(e) ensure that a death sentence shall not be imposed on such mothers;
(f) the essential aim of the penitentiary system will be the reformation, the integration of the mother to the family and social rehabilitation.

There is an emphasis on alternatives to imprisonment in the provisions, and generally on the purpose of the prison system as having a reformative and rehabilitative purpose. The Charter was referred to in S v M, which involved a single mother of four children who was convicted of various counts of fraud and theft.[127] The case was an appeal in the South African Constitutional Court, under a framework of a constitutional provision that mandates that in all matters involving children, the children’s interests should be paramount. Article 30 of the Charter as well as other international instruments were used in the judgment of the Court to suggest that a new direction needs to be taken, and it stated the “best interests of the child need to be considered by every judicial officer when considering the sentence to be imposed on a primary caregiver”.[128] The Court awarded the appeal and replaced the prison sentence with a suspended sentence and correctional supervision.[129] It emphasised that as well as M herself; her children, the community and the victims (who will be repaid from her earnings) stood to benefit more from her being placed under correctional supervision than from her being sent back to prison.[130] Thus alternatives to imprisonment were considered an advantage, rather than a disadvantage to society and to victims.

The attitude of the Court in S v M in coming to this conclusion was still pragmatic, as it acknowledged some of the potential criticisms of this type of approach. It was not denying that family breakdown is entirely preventable or something that can be completely fixed by the state. But what the state can do is minimise the negative effects of its agencies on those who are vulnerable when possible:[131]

No constitutional injunction can in and of itself isolate children from the shocks and perils of harsh family and neighbourhood environments. What the law can do is create conditions to protect children from abuse and maximise opportunities for them to lead productive and happy lives. Thus, even if the State cannot itself repair disrupted family life, it can create positive conditions for repair to take place, and diligently seek wherever possible to avoid conduct of its agencies which may have the effect of placing children in peril... in situations where rupture of the family becomes inevitable, the State is obliged to minimise the consequent negative effect on children as far as it can.

It also picked up on the criticism that this attitude would unfairly “excuse” parents from punishment:[132]

It is not the sentencing of the primary caregiver in and of itself that threatens to violate the interests of the children. It is the imposition of the sentence without paying appropriate attention to the need to have special regard for the children’s interests that threatens to do so. The purpose of emphasising the duty of the sentencing court to acknowledge the interests of the children, then, is not to permit errant parents unreasonably to avoid appropriate punishment. Rather, it is to protect the innocent children as much as is reasonably possible in the circumstances from avoidable harm.

New Zealand can potentially glean principles from this progressive approach. The Court discussed how the new provision is one way of responding more expansively to South African’s obligations as a state party to the UN Convention of the Rights of the Child.[133] New Zealand is also such a state party, and currently has little to prove its commitment to it besides limited incorporation into domestic legislation. New Zealand also has the tools to implement home detention and non-custodial sentences under the Act, which provide opportunities “to protect children as much as reasonably possible in the circumstances from avoidable harm”. The Court also advocated a balancing approach that is similar to New Zealand’s sentencing principles under s 7 of the Sentencing Act, endorsing the “triad” of balancing the nature of the crime, the personal circumstances of the criminal and the interests of the community:[134]

The elements of the triad contain an equilibrium and a tension. A court should, when determining sentence, strive to accomplish and arrive at a judicious counterbalance between these elements in order to ensure that one element is not unduly accentuated at the expense of and to the exclusion of the others. This is not merely a formula, nor a judicial incantation, the mere stating whereof satisfies the requirements. What is necessary is that the Court shall consider, and try to balance evenly, the nature and circumstances of the offence, the characteristics of the offender and his circumstances and the impact of the crime on the community, its welfare and concern.

The purpose of not giving undue weight to certain elements at the expense of others has significant similarities to s 7(2) of the Sentencing Act. Balancing different factors such as accountability, protection of the community, rehabilitation and reintegration and taking account of the context of the offender is also echoed in ss 7 and 8.

It is also an approach that is consistent with the evolving attitude of New Zealand Courts towards international obligations as demonstrated in Tavita and Ye; certain rights should not simply be dismissed by competing interests such as the deterrence of crime. These are still valid interests, but the approach embraces the fact that they should not have the effect of interfering significantly with the basic rights of the child and the family.

Thus having regard to the significant and costly effects imprisonment can have on children in the context should be part of the sentencing evaluation, rather than assuming it is a way for parents to “seek refuge from a sentence of imprisonment behind the tender age of their children” as feared in Hogan.[135]

B United Kingdom

Human Rights jurisprudence in the United Kingdom is arguably significantly more evolved than in the New Zealand context. However it is a jurisdiction that can have significant influence on or applicability to New Zealand law because our legal system finds its roots in the English Common Law. New Zealand jurisprudence is also still heavily influenced by English Common Law developments. The Human Rights Act 1998 gave further effect to rights and freedoms guaranteed under the European Convention on Human Rights,[136] generally increased the ability of the Courts to interpret domestic legislation in light of Convention rights,[137] protected against public authorities from acting in a way which is incompatible with those rights,[138] and provided powers of remedial action.[139]

R v Secretary of State for the Home Department engaged the art 8 European Convention rights of the child to family life under the Act when reviewing the decision to not provide places for mothers and their babies in a Mother and Baby Unit.[140] Lord Phillips MR described the ‘balancing exercise’ to be carried out when a mother is convicted of an imprisonable offence; art 8 rights had to be weighed against the seriousness of the offence:[141]

It goes without saying that since 2nd October 2000 sentencing courts have been public authorities within the meaning of s 6 of the Human Rights Act. If the passing of a custodial sentence involves the separation of a mother from her very young child (or, indeed, from any of her children) the sentencing court is bound by s 6(1) to carry out the balancing exercise identified by Hale LJ in In re W & B... before deciding that the seriousness of the offence justifies the separation of mother and child. If the court does not have sufficient information about the likely consequences of the compulsory separation, it must, in compliance with its obligations under s 6(1), ask for more. It will no longer be permissible, if it ever was, for a court to choose a custodial sentence merely because the mother's want of means and her commitments to her children appear to make a fine or community sentence inappropriate, if the seriousness of the offence does not itself warrant a custodial sentence. In such circumstances it must ensure that the relevant statutory authorities and/or voluntary organisations provide a viable properly packaged solution designed to ensure that the mother can be punished adequately for her offence without the necessity of taking her into custody away from her children.

The “balancing exercise” referred to is very similar to the one identified by Cooke P in Tavita; recognizing the legitimate aims of the state under art 8(2) whilst still using an approach that does not disproportionately infringe on the fundamental rights pertaining to the family and children. In determining whether the interference with the convention right outweighed a legitimate aim of the state, Lord Phillips also created a relatively high test for these contexts: [142]

...the more serious the intervention in any given case (and interventions cannot come very much more serious than the act of separating a mother from a very young child), the more compelling must be the justification.

He acknowledged European cases where it was stated that a prisoner separation from family is an inevitable consequence of detention, and that only in exceptional cases would the detention of a prisoner a long way from home constitute a violation of art 8.[143] But, he went on to distinguish situations of mothers being separated from young children as “exceptional” cases, where “special considerations are always likely to apply”.[144] It was made clear that the sentencing court has a duty under s 6 of the Human Rights Act to obtain information on the likely consequences of the separation on the child, and if need be, provide alternatives to a custodial sentence. Lord Phillips’ emphasised that a “mother's want of means and her commitments to her children” cannot be an excuse to give a prison sentence instead of alternatives such as a fine or community service. This demonstrates a commitment to moving beyond the attitude of using prison as an easy tool to deal with those who are financially and otherwise vulnerable, and also suggests that it has been used too readily in the past.

The later case of R (on the application of Aldous) v Dartford Magistrates' Court challenged the approach that Lord Phillips warned against of using prison as a tool rather than as a last resort. The claimant was originally sentenced to prison for 90 days for failure to pay Council Tax arrears amounting to approximately £7,000 for the period 2003 to 2009.[145] She was the mother of five children, the youngest of whom had been diagnosed with autism, and she had been the victim of domestic violence.[146] The claimant had been asked outside court what her income and liabilities were and she had filled in a standard form. She made an offer to pay £20 per week, and some calculations were undertaken as to how long it would take her to pay off £7,000 at that rate.[147] It was clear that the local authority sought the committal of the claimant to prison. The Judge on appeal to the High Court applied the principle from R v Secretary of State for the Home Department and concluded that amongst other grounds, the Magistrates had failed to make enquiries in order to assess the effect of the parent's imprisonment on the claimant’s children:[148]

She went to court apparently not aware, or not fully aware, that the result of the day's proceedings might be that she would go immediately to prison, but that is what happened. There were two children at school who had no idea that that might happen. Whilst she was in prison they had to be looked after, and I understand that it was the claimant's husband who took most of the duties, but the youngest child is a person with a number of disadvantages, one of which is that he does not relate very well to his father because his father does not understand his speech.

The Judge also identified that the sentence had been used inappropriately; the option of imprisonment for failure to pay Council Tax was for those who could pay but were wilfully and culpably neglecting to.[149] It was clear that the Magistrates had also failed to determine whether there were other ways to persuade the claimant to make payment, such as by attachment of the earnings of the claimant's husband. This case shows that the power to imprison mothers of dependent children, especially at a lower Court level, is still a reality. However, it does show a strong willingness of higher courts to protect the rights and interests of those children and recognition of the detrimental consequences of imprisoning mothers. The recognition of these consequences is now being established as an essential part of the sentencing equation and the duty of the Court in the UK:[150]

The existence of children cannot of course keep a person out of prison who should properly be sent to prison, but a sentencing court needs to be able to bear in mind what the effect on the children will be, and, if there are children and if the court does not have the information it needs in order to assess the effect of the parent's imprisonment on them, then the court must make enquiries so that it is properly informed.
  1. Lessons for New Zealand

New Zealand does not have the same powerful framework of the full ratification of international human rights instruments into legislation such as the Human Rights Act in the UK. The South African example also implies some limitations for the New Zealand context: The statement in S v M that it “was necessary to take account of the fact that the traditional aims of punishment had been transformed by the Constitution”[151] demonstrates that it took a substantial constitutional, and perhaps ideological, reform for this change to happen. New Zealand does not have a binding constitutional statute to that level with a specific provision protecting and supporting the rights and welfare of children. Thus, much of the bearing of covenants such as the ICCPR and the UN Convention on the Rights of the Child on domestic legislation is still largely discretionary for the Courts.

However, despite not having as full a toolbox as other jurisdictions, New Zealand still has the opportunity to extend a rights-based approach to the sentencing of mothers of dependent children. It is a party to several core human rights instruments that create a responsibility for the legislature and judiciary to ensure and protect the child’s right to family and healthy development if possible. The Sentencing Act 2002, despite having no explicit mention of the interests of children of parents being sentenced to imprisonment, still has principles that support the accommodation of other family interests or circumstances and thus can be interpreted in light of New Zealand’s international obligations to children. The Amendments in 2007 introduced the option of home detention and more non-custodial sentences, which provide avenues for Judges to provide for these interests in many cases.

New Zealand has made some progress in recognizing the importance of the mother/child relationship and the costly and significant effects of separation with the Corrections (Mother and Child) Amendment Act. However this only provides for women who are already imprisoned. It is less evident that, at the sentencing stage itself, the international human rights of dependent children are a significant factor.
VII Possibilities for Reform

In order for the rights of children to be given the elevation and priority that they need, there is potential for recognition under the New Zealand Bill of Rights Act 1990 (NZBORA). The NZBORA was designed:

(a) to affirm, protect, and promote human rights and fundamental freedoms in New Zealand; and
(b) to affirm New Zealand's commitment to the International Covenant on Civil and Political Rights

Subsection (b) of the purpose is particularly significant, as it confirms the importance of fundamental human rights, and in particular the ICCPR, to New Zealand. However, the Bill of Rights Act does not fully incorporate the ICCPR. There is no section in the Bill of Rights Act that protects the right to “family life” or the right of the child to have protection without discrimination.[152] As the United Kingdom examples show, the Courts in the UK have a greater ability to protect these rights because they are enshrined by virtue of the European Convention in the Human Rights Act 1998. In order for a more rights-based approach to evolve, it is possible that these two articles of the ICCPR could be incorporated into the Bill of Rights Act. If these rights were enshrined in domestic legislation, and interpretation in light of them was preferred, it would enable Courts to give fuller effect to the rights of children and consider their welfare when interpreting domestic legislation. This would mean, as in the UK, that there is a greater duty on the Courts in their sentencing calculations to bear in mind the short and long term consequences on children, and to give greater attention to the options under the Sentencing Act that provide for alternatives to imprisonment. It would also perhaps remove some of the uncertainty and variety shown in the approach of the District Courts when considering the sentences of mothers of dependent children, and promote a greater investigation into how their welfare would be affected.

VIII Conclusion

The impacts of separating young children from their mother through imprisonment are clearly dramatic and costly; on the children themselves, on families, on society, and on the state. These consequences highlight the importance of moving towards an approach that does not use imprisonment as a first port of call, but rather one that treats it as a last resort. New Zealand’s sentencing regime has some tools for Judges to constructively use their discretion and to create more nuanced sentences that investigate, recognise and promote the rights and welfare of children. The Court of Appeal and in some cases the High Court have begun to show more of a willingness that accepts that in many cases, imprisonment is far from appropriate. However at District Court level, there needs to be more awareness of this changing direction, and greater attention needs to be given to the provisions that provide alternatives. There especially should not be a presumption in favour of imprisonment purely for deterrence purposes alone. Examples from other jurisdictions show that our duty under international human rights obligations does not necessarily imply a sentencing assessment of having to choose rights versus interests of the state: both can be balanced without either being sacrificed. As recognised by the UK Courts, it is not the sentencing of the primary caregiver in and of itself that threatens to violate the interests of the children. It is the imposition of the sentence without paying appropriate attention to the need to have special regard for the children’s interests that threatens to do so. New Zealand Courts can, and should, recognise that not doing so is fundamentally sentencing children, families and society to consequences that are likely to extend far beyond the original verdict.

Every child has his or her own dignity. If a child is to be constitutionally imagined as an individual with a distinctive personality, and not merely as a miniature adult waiting to reach full size, he or she cannot be treated as a mere extension of his or her parents, umbilically destined to sink or swim with them.
- S v M [2007] ZACC 18; 2008 (3) SA 232 (CC) per Sachs J.

* Annaliese Johnston is in her final year of a BA/LLB(Hons) degree at the University of Auckland. She wrote this paper as part of the honours component of her law degree.

1 National Health Committee. Health in Justice: Kia Piki te Ora, Kia Tika! – Improving the Health of Prisoners and Their Families and Whānau (Ministry of Health, July 2010) at 5.
[2] Ministry of Maori Development A Study of the Children of Prisoners: Findings from Maori Data (June 2011)
at 12.
[3] Kim Workman “Politics and Punitiveness- Limiting the Rush to Punish” (presented to the Australian & New Zealand Association of Psychiatry, Psychology and Law Conference “The Rising Punitiveness”, Wellington, November 2011) at 3.
[4] Liz Gordon Invisible Children: First Year Research Report “a Study of the Children of Prisoners” (Pillars, November 2009), at 3.
[5] Venezia Kingi and others Mothers with Babies in Prison: Some Women Prisoner’s Perspectives (Department of Corrections, August 2008) at 4.
[6] Kingi, above n 5, at 4.
[7] Julia Tolmie “Women and the Criminal Justice System” in Warren Brookbanks and Julia Tolmie (eds) Criminal Justice in New Zealand (LexisNexis, Wellington, 2007) 295 at 298.
[8] Department of Corrections “Living With Children” Census of Prison Inmates and Home Detainees (November 2003) <> .
[9] Venezia Kingi “The Forgotten Victims – the Effects of Imprisonment on Families/Whānau” (paper presented to the Institute of Policy Studies Forum ‘Addressing the Underlying Causes of Offending: What is the evidence?’, Wellington, 26 February 2009) at 4.
[10] Venezia Kingi “The children of women in prison” (Doctoral thesis, Victoria University of Wellington, 1999).
[11] Kingi, above n 9, at 4.
[12] Kingi, above n 9, at 4.
[13] Simon Quilty and other “Children of Prisoners: a Growing Public Health Problem” (2004) 28 Australian and New Zealand Journal of Public Health 339, at 339 and 342.
[14] National Health Committee, above n 1, at 115.
[15] F Chauvel and M Roguski The Effects of Imprisonment on Inmates’ and their Families’ Health and Wellbeing (Litmus Ltd, Wellington, 2009).
[16] At 49.
[17] World Health Organisation Global Strategy for Infant and Young Child Feeding (World Health Organisation Geneva, 2003) at V.
[18] World Health Organisation, above n 17, at V.
[19] Jennifer McIntosh “Family Law and the Neuroscience of Attachment, Part 1” (2011) 49 Family Court Review 418 at 418.
[20] Mary Ainsworth “Infant-Mother Attachment” (1979) 34 American Psychologist 932 at 936.
[21] Ainsworth, above n 20, at 936.
[22] Ainsworth, above n 20, at 936.
[23] Cited in NE Fearn and K Parker “Washington State’s Residential Parenting Program: An Integrated Public Health, Education and Social Services Resource for Pregnant Inmates and Prison Mothers” (2004) 2 Californian J of Health Promot 34 at 39.
[24] McIntosh, above n 19, at 423.
[25] McIntosh, above n 19, at 424.
[26] National Health Committee, above n 1, at 122.
[27] Gordon, above n 4, at 58.
[28] Ministry of Maori Development, above n 2, at 12.
[29] Ministry of Maori Development, above n 2, at 12.
[30] David Lomas “The Problem with Prisons” (30 July 2011) The Listener <>.
[31] Kingi, above n 5, at 5.
[32] Kingi, above n 5, at 5.
[33] Corrections (Mothers with Babies) Amendment Act 2008, s 4.
[34] Kingi, above n 5, at 5.
[35] Kingi, above n 5, at 21.
[36] World Health Organisation, above n 17, at 10 and 12.
[37] Children’s Commissioner “Submission to the Law and Order Committee on the Corrections (Mothers with Babies) Amendment Bill 2006” at [1] and [2].
[38] Kingi, above n 5, at 22.
[39] At [4.17].
[40] At [4.18].
[41] At [4.19].
[42] Venezia Kingi “The Children of Women in Prison: A New Zealand Study” (paper presented to the Women in Corrections: Staff and Clients Conference, Adelaide, October 2000) at 6.
[43] At [5].
[44] At [6].
[45] Section 81B(d)(ii).
[46] Section 81C(1) (emphasis added).
[47] Section 81(b)(b).
[48] Section 8(g).
[49] Section 8(h).
[50] Section 8(i).
[51] Section 8(e).
[52] Geoff Hall “Sentencing” in Warren Brookbanks and Julia Tolmie (eds) Criminal Justice in New Zealand (LexisNexis, Wellington, 2009) 249 at 253.
[53] Section 16(1).
[54] Section 16(2).
[55] Section 26(1).
[56] Section 26(2)(a).
[57] Section 26(2)(b).
[58] Section 26(2).
[59] Sentencing Amendment Act 2007.
[60] Section 10A.
[61] Section 15A.
[62] Criminal Justice Reform Bill 2007 (93-1) (Explanatory Note) at 1.
[63] Hogan v Ministry of Social Development (2005) 23 CRNZ 500 (HC).
[64] At [24].
[65] At [40].
[66] At [40].
[67] At [31].
[68] At [31].
[69] At [35].
[70] R v Osborne CA468/04, 14 February 2005 at [6].
[71] Sentencing Act, s 8(e).
[72] Robert Lithgow “Hogan v Ministry of Social Development: Criminal Practice” [2005] NZLJ 435.
[73] Davey v Ministry of Social Development HC Palmerston North CRI-2009-454-47, 15 December 2009.
[74] Ministry of Social Development v Joseph DC Palmerston North CRI-2009-054-4281, 9 February 2010.
[75] At [15].
[76] Harris v Ministry of Social Development HC Rotorua CRI-2010-463-22 at [8].
[77] Kingi, above n 42, at 3.
[78] Social Security Act 1964, s 127.
[79] R v Simanu HC Auckland CRI-2008-004-20453, 16 December 2010.
[80] At [58].
[81] At [27].
[82] At [26].
[83] At [74].
[84] At [43].
[85] At [44].
[86] Beedell v Ministry of Social Development HC Wanganui CRI-2010-483-9, 11 February 2010.
[87] At [25].
[88] Ransom v R [2010] NZCA 390, (2010) 25 CRNZ 163.
[89] At [1].
[90] At [1].
[91] At [42].
[92] At [47].
[93] Heta v R [2012] NZCA 267.
[94] At [40].
[95] [2013] NZHC 1846.
[96] [2013] NZHC 1239
[97] At [15].
[98] At [16].
[99] At [21].
[100] Human Rights Commission “Convention Against Torture” (2008) New Zealand’s International Obligations <>.
[101] Human Rights Commission “United Nations Convention on the Rights of the Child” (2008) New Zealand’s International Obligations <>.
[102] Children’s Commissioner Act 2003, s(3)(c).
[103] Grame Austin (1994) “The UN Convention on the Rights of the Child and domestic law” 1 BFLJ 63 at 64.
[104] Nuala Mole and Maryam Tabib Imprisoned parents and the right to family life” [2006] IFL 97 at 97.
[105] United Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990) (Preamble).
[106] Graeme Austin (1994) “The UN Convention on the Rights of the Child and domestic law” 1 BFLJ 87 at 92.
[107] International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 19 December 1966, entered into force 23 March 1976), art 23(1).
[108] Tavita v Minister of Immigration [1994] 2 NZLR 257 at 8.
[109] See Berrehab v Netherlands [1988] ECHR 14; (1988) 11 EHRR 322 and Beldjoudi v France [1992] ECHR 42; (1992) 14 EHRR 801.
[110] European Convention for the Protection of Human Rights and Fundamental Freedoms 005 CETS (opened for signature 4 November 1950, entered into force 3 September 1953).
[111] At 13.
[112] Thomas Reuters and Contributors New Zealand Supreme Court Confirms Importance of International Obligations in Domestic Law: Immigration Statute Interpreted in Light of United Nations Convention on the Rights of the Child” [2010] Public Law 201, at 201.
[113] Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104.
[114] Immigration Act 2009, s 58.
[115] Reuters, above n 112, at 202.
[116] Reuters, above n 112, at 202.
[117] Article 3(2).
[118] At [24].
[119] Care of Children Act 2004, s 4.
[120] Reuters, above n 112, at 202.
[121] B v G [2002] NZCA 169; [2002] 3 NZLR 233 (CA) at [43].
[122] Sellers v Maritime Safety Authority [1999] 2 NZLR 44 (CA).
[123] Zaoui v Attorney General [2005] NZSC 38, [2006] 1 NZLR 289.
[124] Ann Skelton “The Development of a Fledgling Child Rights Jurisprudence in Eastern and Southern Africa Based on International and Regional Instruments” (2009) 9 African Human Rights Law Journal 482 at 486.
[125] Skelton, above n 124, at 486.
[126] African Charter on the Rights and Welfare of the Child OAU CAB/LEG/24.9/49 (opened for signature 11 July 1990, entered into force 29 November 1999), art 30.
[127] Skelton, above n 124, at 490.
[128] S v M [2007] ZACC 18; 2008 (3) SA 232 (CC) at [122].
[129] At [77].
[130] At [76] per Sachs J.
[131] At [20].
[132] At [35].
[133] At [16].
[134] At [10].
[135] At [40].
[136] Human Rights Act 1998 (UK).
[137] Section 3.
[138] Section 6.
[139] Section 10.
[140] Rona Epstein, Isla Masson and Ian Wise “R (on the application of Aldous) v Dartford Magistrates' Court: Imprisonment for Debt - a Case Study” (2011) 16 Cov LJ 57 at 57.
[141] R (on the application of P and Q) v Secretary of State for the Home Department R v Secretary of State for the Home Department [2001] EWCA Civ 1151 at [79].
[142] At [78].
[143] At [76].
[144] At [78].
[145] R (on the application of Aldous) v Dartford Magistrates' Court [2011] EWHC 1919 (Admin) at [3].
[146] Epstein, above n 140, at 59.
[147] At [6].
[148] At [15].
[149] At [14].
[150] At [16].
[151] At [10].
[152] See International Covenant on Civil and Political Rights arts 23(1) and 24(1).

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