Key concepts explained

Bail

When waiting for their trial or for sentencing, an offender might be released with various conditions imposed on them. This is ‘remanded on bail’.

 

Bail occurs when an accused is released from court or from police custody on the condition that they will appear in court when they are next required to. If someone is charged with a crime, they have the right under the Bill of Rights to be released on bail on reasonable terms and conditions, unless there is a good reason for continuing to hold them in prison until their next court appearance. An accused might be granted bail subject to certain conditions, which they must comply with. These conditions might include, amongst other conditions, a curfew, the address the accused must live at, an order not to drink alcohol, or requirements that the individual does not contact certain people.

Best Interests

The child’s best interests are at the most important factor for any decision relating to them. Their best interests include what is best for their safety, care, development, familial relationships, relationships with whānau and iwi, culture and identity.

Care Agreement

A care agreement is a voluntary agreement, often between guardians, caregivers and parents. It can detail the day-to-day care of the child, arrangements for contact with the mother and any other parenting matters.

Caregiver

A caregiver is an individual who takes care of a child, whilst not necessarily being their guardian. They will make day-to-day decisions about the child’s life, including decision on what they will eat and wear.

Case Management Plan

A plan providing for managing and monitoring an offender’s needs while they are in prison.

The plan will address things like the offender’s needs, behaviour, education, work, health, well-being, support, housing and any other issues related to their time in prison.

Contact

Contact refers to the amount and type of contact a mother is permitted to have with her child, while she is in prison. Mothers can have contact with their children while imprisoned unless there is a parenting order in place preventing this

 

Contact used to be called ‘access’. Contact can be informal or formal, and supervised or unsupervised, depending on the circumstances. If a mother has a good relationship with the child’s caregiver and no parenting orders in place, that caregiver can bring the child in for visits, or help the child write letters or call the mother.

 

However, a court may have made a parenting order. This is an order stating who has day-to-day care of the child, and how the child may have contact with other adults in their life. If a parenting order exists, it will state what kind of contact a mother may have with her child (for example, visits, calls, writing). If a parenting order allows contact, the person with day-to-day care of the child must assist in arranging contact between the mother and child.  A parenting order may also state that the mother may have no contact with your child. You can challenge or change a parenting order by applying to the Family Court through a lawyer.

Court Order

A legally binding order given by the court.

Day-to-day care

A mother can choose who cares for her child when she is imprisoned, unless the child(ren) have another guardian who is not imprisoned. 

Day-to-day care used to be referred to as ‘custody’. It refers to the responsibilities and rights involved with looking after children on a daily basis. It includes decisions such as what they eat or wear.

Guardianship

As a guardian, you can be involved in the big decisions in your children’s life

Guardians have responsibility for the big decisions involved in looking after children. These decisions could include deciding about medical care, where the child lives and choosing their school. Even if the mother does not have day-to-day care or contact with her child, she is a guardian of her child and can have input into the big decisions in her child’s life alongside other guardians. The mother should be consulted about these big decisions.

 

A father is only a guardian if he was living with the mother when the child was born; or if he is married to the mother; or if he is on the child’s birth certificate; or if he was granted guardianship by the Family Court. Other family members, friends or Oranga Tamariki can apply to be the guardian of a child.

 

The Chief Executive of Oranga Tamariki may apply to the court to be appointed a guardian of the child, if a child needs to go into Oranga Tamariki Care.[1] This will allow Oranga Tamariki to make guardianship decisions about the child.

 

All guardians can be involved in the decisions about the child. If another guardian (or another person) disagrees with your decision about day-to-day care, or another big decision, they can apply to the Family Court for a Parenting Order. A mother can oppose this application if she disagrees (see “Family Court” information). The Court will only remove a parent as a guardian if there is a very serious reasons for doing so.

 

[1] s 113A Oranga Tamariki Act 1989

Lawyer for the Child

An independent lawyer that represents the child in the Family Court.

The lawyer will be appointed by the judge. The lawyer’s job is to represent the child (and their best interests) in the Court or in any negotiations; to explain the Court process and outcome to the child; and to explain the child’s perspective to the judge and ensure they are given effect to.

Parenting Order

This is an order granted by the Family Court stating who has day-to-day care of the child and how the child may have contact with other adults in their life. In certain situations, the order might state that a mother may not have contact with her child. A Parenting Order must be followed.

Parenting Agreement

This is an agreement between a parent and either the other parent, guardians, or caregivers of the children.

The agreement sets out who will provide day-to-day care for the child and how parents or other adults will have contact with the child. Parenting agreemens are not legally enforceable in court, however parents and guardians can apply to the Family Court to get the parenting agreement turned into a legally binding Parenting order. If a parenting agreement does not work, parents can apply to the Family Court for a parenting order.

Parole

Parole is when an offender is released from prison before their sentence has ended, and they serve the remainder of the sentence in the community.

The Parole Board usually sets conditions that the offender must comply with when they are released. If these conditions are breached, the offender might be sent back to prison.

Post-release conditions and Release Conditions

When an offender is released from prison, they may have conditions imposed on them.

These may include restrictions on employment and living arrangements, and potentially certain programmes or courses the offender must attend. A probation officer ensures that these conditions are met.

Protection Order

This is an order issued by the Family Court that protects the applicant (or a child) from physical, psychological or sexual abuse and harm.

Protection orders have standard conditions but are flexible and can be tailored to particular situations. They may contain non-contact conditions that prevent the respondent from contacting, hanging around and getting in touch with the applicant. Protection orders must be complied with and are enforceable in the Family Court.

Remand

Remand is when someone is held in custody while they wait for their trial or for sentencing.

Without Notice

This mechanism is used when an order is needed urgently, in particular when there is imminent danger. The other party will not know that there is an application against them until after a court has made a decision about them.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

Copyright 2019, Mothers Project