New Zealand Law Society - Primary caregivers facing restrictive sentences – information for defence counsel

Primary caregivers facing restrictive sentences – information for defence counsel


On 23 November 2022, Dame Karen Poutasi’s report on the ‘Joint Review into the Children’s Sector: Identification and response to suspect abuse’ was released. The Joint Review was commissioned by the Chief Executives of six government departments that had contact with Malachi Subecz and his family. Malachi was five years old when he was murdered by the person his mother trusted to care for him while she was incarcerated.  

The Joint Review sought to identify whether more could have been done to prevent the harm experienced by Malachi. The Department of Corrections (Corrections) Office of the Inspectorate also undertook a review of the management of Malachi’s mother. It made 12 recommendations, which were accepted by Corrections. These recommendations included review of the process for induction into prison, and the process for raising a report of concern about a child.  

Following the Joint Review, the judiciary established a working group with members of the profession and relevant government agencies. The working group identified points throughout the court process where judges should be made aware that a defendant is a sole caregiver, advised of the potential impact of a restrictive sentence on the defendant and their whānau, and informed of arrangements that have been made. This work has been driven by concerns about the impact of parental incarceration on children, including the risk associated with incarceration of a sole caregiver and the impact on the bond between children and their primary caregiver(s).   

The following information brings together key points from the revised Corrections’ policies and the work of the judiciary, to assist counsel working with primary caregivers potentially facing restrictive sentences.

Information at the early stages of proceedings 

Counsel can expect judges to ask questions about parental responsibilities at an early stage, including at the time of bail and when setting bail conditions. The Duty Solicitor form has been amended to prompt and record this information. 

All counsel should consider making inquiries of their client, to understand whether they are the sole or primary caregiver of a dependent child or vulnerable adult and to obtain information around factors such as: 

  • whether the client’s whānau and family are aware of the prospect of a custodial sentence, and if arrangements for care of the client’s dependent child(ren) has been discussed; 
  • if arrangements for care of the client’s dependent child(ren) have been discussed, the nature of those arrangements (relationship to the intended carer, intended location of residence, others who may reside in the residence, who will meet financial needs, schooling arrangements, provision of health care, visitation arrangements, etc.); 
  • if care of the client’s dependent child(ren) has not been discussed with family and whānau, whether the client is willing to undertake such discussions and, if not, whether this means there is not arranged and/or available caregiver for the children; 
  • whether additional support is required for the client, intended caregiver(s), and/or the children. 

Instructions should be sought from the client, at any early stage, if it is identified that information should be brought to the attention of the court. 

Information at sentencing – PAC stage 

The Department of Corrections has shared a copy of its practice guidance, ‘Working with Caregivers of Dependent Children or Vulnerable Adults at the PAC Stage. This guidance sets out what is required of Corrections staff at the Provision of Advice to Courts (PAC) stage. 

Key points: 

  • Probation officers will ask defendants whether they have care responsibilities, and this will now be indicated on the front page of the PAC report.  
  • Corrections’ role is to consider caregiver responsibilities when making sentence recommendations, as well as to support defendants to prepare for the possible impacts of their sentence. 
  • The client will be interviewed, and Corrections may engage with whānau, during the process of preparing the PAC report. They will ask about things like care responsibilities, any plans that have been made in the event of a restrictive sentence, whether additional support is sought by the client or their whānau, and whether there is existing engagement with Oranga Tamariki. 

The PAC must record information about the client’s caregiver responsibilities, and include a summary of how the dependent child or vulnerable adult may be impacted by possible sentence outcomes, as well as what support or alternative care arrangements have been made. 

What this means for counsel: 

  • The client’s disclosure of information about their caregiver responsibilities is voluntary, however it will be of benefit to defendants to raise this at the earliest opportunity following charges being laid. 
  • It may be beneficial to prepare clients for this discussion, and make them aware that Corrections may seek to speak with whānau and family members. 
  • Counsel may wish to encourage clients to think about how their dependents can and will be cared for in the event of a custodial sentence, and whether any additional support is required. 
  • If your client is a sole caregiver or has significant child care responsibilities, you may also wish to prepare them for when a report of concern will be made to Oranga Tamariki (see below). Information obtained at this time, and any further arrangements made, may assist in demonstrating whether the proposed care arrangements will provide for the safety and wellbeing of the client’s dependent children. 

Reports of concern to Oranga Tamariki 

If a child protection concern is identified during the PAC process, Corrections’ Practice Guidance requires that a report of concern is made to Oranga Tamariki. 

If your client is the sole caregiver of a dependent child or has ‘significant child care responsibilities’, and receives a custodial or home detention sentence, the Practice Guidance requires that Corrections must make a Report of Concern to Oranga Tamariki. 

What this means for counsel: 

  • Some clients are likely to be alarmed or distressed about a Report of Concern being made. Counsel may wish to prepare clients in advance, so they are aware this will occur in the event they are sentenced to a term of imprisonment or home detention, and know that the focus is on the safety of their children. 
  • It may be beneficial to discuss with clients the potential concerns that could be raised during an assessment of any proposed care arrangements, and how those concerns might be addressed.  

Entering custody 

When a client is taken into custody and arrives at the prison receiving office, they will be asked about any immediate childcare needs or other support required. 

If a client discloses at this stage that they have caregiver responsibilities, a case manager will later meet with them to obtain more information about their circumstances. 

Read the Practice Guidace - Working with Caregivers of Dependent Children or Vulnerable Adults at the PAC Stage

The impact of parental incarceration on children: Resources for lawyers 

There is a growing body of case law recognising the negative impact of parental incarceration on children and young people, and supporting the courts’ consideration of this as a factor relevant to the type and length of sentence that an offender receives. More recently, the Supreme Court has cited with approval, the Court of Appeal’s statement in Campbell v R that: 

‘It is uncontroversial that the effect imprisoning an offender’s children has on those children is a factor that may be taken into account in considering the appellant’s personal circumstances.’1 

In October 2023, Her Honour Justice Susan Thomas, Fiona Guy Kidd KC and Stacey Shorthall presented a webinar on the ‘Impact of Parental Incarceration on Children”. The webinar aims to increase practitioners’ awareness of the impacts on children of the incarceration of their caregivers, whether at bail or sentencing. 

“We know that when Judges are provided with information about and are able to carefully consider the impact of imprisonment on dependent children, there may be a significant impact on bail and sentencing decisions.  But all too often Judges do not have the relevant information.” 

A recording of the webinar is available online and free of charge. 

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