Hana is four months pregnant with her first child, a girl. She lives in Auckland with her boyfriend of two years, Tyler. Over the past year Tyler has been getting into a lot of trouble with the police. He has struggled to hold down a job and started looking for other ways to make money. He asked Hana to help him rob a high-end restaurant in Auckland. She agreed because she was worried about the extra costs of having a baby.
Hana carried a bat with her in case anything went wrong. Unfortunately, Hana used the bat against one of the bouncers who tried to stop them as they left the restaurant. The robbery was captured on the restaurant’s video cameras.
Hana’s lawyer has advised her that she is facing up to 10 years in prison. She is pleading not guilty to the charge because Tyler threatened to hurt her if she did not help him. She managed to negotiate bail so that she can live with her mum until her trial. She is worried about what prison will mean for her and the baby on the way.
What happens next?
How will Hana give birth if she is in prison?
Most women’s prisons have mothers and babies units, where mothers with children under two can reside. Hana will need to apply to have her child in the unit.
To be granted entry into a unit Hana must meet certain criteria, sign a parenting agreement about taking responsibility for the child, and agree to attend programmes as required by the prison. Hana will also need to identify an alternative caregiver who will care for the child in an emergency or after the placement ends.
If Hana is able to be transferred to a prison with a mothers and babies unit, her baby should be able to remain with her for her first 1-2 years. The baby will need to be placed elsewhere (such as with family members) shortly after that.
When the baby leaves the unit, will Hana get to make decisions about her child?
As a mother, Hana is automatically her baby’s guardian and will retain responsibility for making important decisions regarding her baby until the Family Court changes orders otherwise.
Hana will always be able to have a say about the important decisions in the child’s life (such as where they live) until they become an adult. If Tyler is also a guardian (if he is on the birth certificate, married to Hana, or ordered by the Court to be a guardian), he will have an equal say.
What will the long term impacts of Hana’s sentence be on her child?
The long term impacts of Hana’s sentence on her child could be significant, and will depend largely on her child’s living situation and the support she has growing up.
It is very hard to predict the long-term impacts of Hana’s sentence on her child. A lot will be dependent on the child’s living situation, supports in place and relationship with her guardians and caregivers. Children with parents in prison are vulnerable to experiencing isolation, trauma, grief and loss. They also tend to have more emotional and physical health problems, impeding their ability to achieve in school and socially. Children placed with families with good resources and support tend to do best
Can Hana get her child back after prison?
Hana’s daughter will need to form significant new relationships with her caregivers during the period of Hana’s imprisonment. The longer Hana’s daughter has to form those relationships the harder it will become for Hana to resume a caregiving role for her once Hana is released.
New Zealand child welfare law places the child’s welfare and best interests at the centre of any decisions made affecting a child. This means that, during Hana’s imprisonment, her daughter should be permitted to grow and develop in a normal way as much as possible.
One of Hana’s daughter’s most important needs will be to form a secure and nurturing relationship with her caregiver. Hana’s daughter may experience developmental and psychological problems later in life is she is not able to do this.
The implications of this for Hana’s relationship with her daughter may be significant. For example, upon Hana’s release it may not be in her daughter’s welfare and best interests to change caregiver – it may be best for her daughter if Hana maintains contact with her but does not resume her day-to-day care. Even were Hana to be released from prison and receive effective treatment for any underlying driver to her offending (such as drug, alcohol, or psychological problems), it does not automatically follow that it is in her daughter’s best interests for Hana to resume caring for her.
Hana needs to prepare herself to accept that her imprisonment may fundamentally shift her relationship with her daughter.
Hana’s role may change from being an active day-to-day caregiver to that of regularly seeing her daughter, but not necessarily being responsible for her day-to-day care.
Tyler’s view will also be relevant, as will that of any other caregiver of the child. If the adults in the child’s life cannot agree, they may apply to the Family Court for a parenting order
What should Hana’s and Tyler’s relationship be after Hana is released?
Hana needs to demonstrate that she can keep her daughter safe from Tyler’s violence once she is released. If she fails to do that (for example, by resuming a relationship with Tyler), her contact with her daughter may become restricted.
If Hana and Tyler stay together when they are released from prison, Hana will need to consider the impact this could have on her relationship with her child. The profound detrimental effects on a child from witnessing domestic violence is well recognised by the Family Court, and New Zealand domestic violence and child welfare law. A court or other agency involved in the child’s life will look very negatively on an environment where there is known violence. Hana must prioritise the welfare of her child, including any potential domestic violence, if she wishes to care for them upon her release.
Hana should seriously consider applying for a protection order upon her release so that she does not become subject to Tyler’s violence once they are both released.
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