Pania has three children, Sofie (5 years old), and twins Iosefa and Tama (3 years old). Pania lived with Mark, the children’s father, until shortly after the twins were born, but Mark has since moved cities and is no longer in touch with the children.
Pania and her children have always had a good relationship: she is a caring mother and has worked hard to ensure she can provide for them. Pania’s neighbours, John and Margaret, are a retired couple who often care for the children once daycare finishes. This is great support for Pania as her family live in Samoa.
Pania has been charged with breaking into a car and has pleaded guilty. She is on bail pending sentencing with conditions of a curfew (8pm – 6pm) and not to associate with her co-offender. Pania received a sentence indication of one year’s imprisonment, which she accepted. Pania expects to be sentenced in eight weeks’ time. Given that her sentence is under two years, Pania knows that she will automatically be released after serving six months, subject to post-release conditions: she must not associate with her co-offender, and will remain under a curfew for six months.
Pania is very close to her children and does not want to lose touch with them. She wants to make sure that the children are cared for during her time in prison. She is particularly concerned about Sofie, as she has learning difficulties and Pania has been trying to get her into a smaller school that provides one-on-one tutoring.
What happens next?
Can Pania still take care of the children while she is waiting to be sentenced?
Yes. Pania’s bail conditions don’t prevent her caring for the children, and she can do that up until she enters prison.
Pania is remanded on bail to reside at home and has time to make care arrangements for the children pending her imprisonment.
Until she is sentenced (6-8 weeks, depending on availability of sentencing dates), Pania can care for the children as usual. Pania should use this time to make suitable care arrangements for the children. She should talk to family, whānau, friends or neighbours to see who would be able to become the children’s temporary caregivers while she is imprisoned.
Pania is currently the children’s principal caregiver and can make decisions regarding the children’s day-to-day care, such as who the children will live with while she is in prison. Mark is the children’s guardian (along with Pania) as he was living with Pania when the children were born. Mothers are automatically guardians of their children.
Even if Mark and Pania were not living together when the children were born, he could still be their guardian if he was still married to Pania, if he is on the children’s birth certificates, or if he has been granted guardianship by the Family Court. If he is a guardian, Pania should consult with him over any significant changes to the children’s care arrangements while she is imprisoned.
How much of the children’s day-to-day life can Pania have a say about once she goes to prison?
The restrictions in prison (i.e. communication and visiting) make it difficult for Pania to have any say about the children’s day-to-day life. Pania will need to rely on the plans she has made for the children’s care before she was imprisoned to ensure they are safe. Pania makes an agreement that John and Margaret will informally be the children’s caregivers while Pania is imprisoned. This means that they will need to make decisions regarding the children’s day-to-day care, such as what they wear and eat, getting them to and from school and other activities, and how they are disciplined. The children are all too old to be with Pania in a mothers and babies unit in prison.
It is useful to formalise temporary care arrangements. Pania, John, and Margaret could do that through a simple parenting agreement they each sign. They do not need to get that agreement formalised by the Family Court.
If Pania, John and Margaret wanted to formalise their agreement they could make a joint application to the Family Court for a Parenting Order. However, in this case that would probably be unnecessary and would expose Pania’s decisions about the children’s care to closer scrutiny. If Pania trusts John and Margaret to care for the children properly then they should record their temporary agreement in writing. If there are specific things Pania thinks John and Margaret should know about while caring for the children she should let them know to avoid any issues in the future.
Children changing homes is often a significant change. That would be even more significant if it occurred while Pania was imprisoned. It may be sensible if John and Margaret moved into Pania’s house and took care of the children there. The children would be more settled in their familiar home environment, and that would make it more likely the care arrangements can last until Pania is released.
If Pania was unable to find someone to care for the children, Oranga Tamariki would become involved.
While in prison, Pania remains the guardian of the children. This means that she should be consulted on any big decisions related to them – such as whether Sofie moves to the new school and what medical treatment they have. However, because Pania is in prison for such a short period of time, these are unlikely to become major issues.
Pania is worried about money – John and Margaret are on pensions and cannot afford to take care of all the children, let alone pay her rent. Can she get any financial assistance?
Short-term financial assistance may be hard to access without a formal parenting order. If the temporary arrangement is not financially viable for John and Margaret, it is likely the children’s care arrangements will change significantly (and outside of Pania’s control) while Pania is imprisoned.
Adult or household financial problems often cause significant problems for children’s care (i.e. problems with housing, health, and unstable schooling from frequent moves).
Once Pania is imprisoned, she will lose her income. If Pania doesn’t have enough money to pay the rent while she is imprisoned she could also lose her home. A landlord (even Housing New Zealand) is not obliged to keep a rental home available for an incarcerated mother if the rent is not paid, even if the children are still living there. It is therefore very important that Pania, John and Margaret ensure their temporary care arrangement is financially stable.
As Mark and Pania are separated, Mark may be paying child support to Pania for the costs of raising the children. Separated couples can make their own child support arrangements or ask Inland Revenue to calculate how much child support Mark should pay.
If Pania was receiving child support from Mark prior to going to prison, Mark may agree to continue paying the child support to John and Margaret. That may be enough money to help John and Margaret meet the children’s costs while Pania is imprisoned.
Given the short time frame Pania is imprisoned, if Mark refuses to keep paying child support there is probably nothing that could be done to make him pay before Pania is released. This is a good reason why Pania should consult with Mark over the temporary care arrangements so that she can ensure those arrangements are stable while she is incarcerated.
John and Margaret may be eligible for some additional help from Work and Income. John and Margaret will need to demonstrate that they are caring for the children before they could receive assistance. Work and Income may wish to see a formalised Parenting Order as evidence – the agreement recording their temporary arrangement may not be enough.
While she is imprisoned, Pania’s financial responsibilities for the children continue. She could do that using any savings she has available. Pania, John, and Margaret should clearly spell out their financial arrangements while Pania is incarcerated so that Pania meets her financial responsibilities for the children.
If Pania wasn’t the children’s primary caregiver before she was imprisoned and was paying child support, she would need to keep paying it if she were imprisoned for 13 weeks or less. Based on her length of sentence, Pania could ask IRD to exempt her paying child support.
Pania is concerned that the twins will not recognise her if they don’t see her for 6 months. Can they visit her in prison?
The Department of Corrections (the prison authority) determines who can visit a prisoner. Corrections generally supports family visits as part of a prisoner’s rehabilitation but visits are subject to Corrections’ visiting rules.
Children under 18 years old need to apply for visitor approval before they can visit. It is up to the prison authorities to decide who can visit a prisoner. Practical considerations (such as which prison Pania ends up in) can also make visits difficult. Corrections’ visiting rules can be found here.
If Pania is imprisoned in a region outside of where the children live then John and Margaret would have to make practical arrangements for visitation (like travel and accommodation). Pania could request a transfer to a closer prison so she can maintain her relationship with the children.
Is it likely that Pania will resume day-to-day care of the children after prison?
If Pania’s temporary care arrangement with John and Margaret runs smoothly, it is likely Pania will simply resume caring for the children when she is released as she was the primary caregiver before she was imprisoned. Pania’s release conditions could affect her ability to do that.
Thousands of children across New Zealand are raised under temporary or informal care arrangements. The Family Court is generally unaware of those arrangements because they operate smoothly and the parents making those arrangements can sort out any problems which arise.
That may change if problems developed with the children’s care while Pania was imprisoned. For example, Mark or someone else in the children’s family may not like the temporary care arrangement and may ask the Family Court to review it. John and Margaret may no longer be able to continue as caregivers because of health, financial or other reasons.
Pania and Mark may make a temporary agreement for Mark to look after the children until Pania is released. If Pania and Mark cannot agree, Mark is entitled (as the children’s father) to apply for the children’s day-to-day care. He may even do that without notice to Pania (and John and Margaret) if he believes the care arrangements should change urgently. If the Family Court granted Mark’s application, then the children’s care arrangements could change abruptly, and they could end up living with him.
Another member of the children’s family could take the same steps (such as a grandmother, aunty, or other whānau). That person would need to explain to the Family Court why they should be allowed to apply, and why the current arrangements are not satisfactory. If the Family Court agreed that the care arrangements should change, the children could be placed in that family member’s care.
Were either Mark or another member of the children’s family to apply to change the children’s care arrangements, Pania would be informed of the application and would be entitled to respond. The Court would also appoint a lawyer to represent the children (called Lawyer for Child). That lawyer’s role would be to ensure that whatever the court or the parents/parties decide is in the children’s welfare and best interests.
Practically speaking, it would be difficult for Pania to resist any change because she would be unable to provide better alternative care until she is released from prison. It is therefore best that Pania does everything she can before she enters prison to provide the children with a stable place to live with good caregivers until she is released.
There are some things that Pania could do maintain a good relationship with the children while she is in prison. The relationship between a guardian and child is an important factor in determining the child’s welfare and best interests. To maintain her relationship with the children, Pania could:
communicate regularly/see the children while she is in prison;
ensure that she has regular income (i.e. a job or benefit) and a place to live upon her release;
ensure she is willing and able to care for the children;
find good family and friends to support her and the children during her imprisonment; and
ensure she deals with any underlying causes of her offending while she is in prison, such as substance dependency.
Once Pania is released, Pania must continue to abide with her release conditions even where she resumes caring for the children. A breach of release conditions is a criminal offence and can lead to new charges and possibly even re-imprisonment.
Sometimes, release conditions can make it hard for a released prisoner to continue with their normal everyday life and relationships. Release conditions may stop them associating with certain people or going to certain places. The conditions may also require them to undergo treatment. If Pania thinks that any of her release conditions will make it hard for her to resume caring for her children, Pania can ask the Court (through her lawyer) to vary or remove problematic conditions. Pania will need to show that changing her release conditions is reasonable and won’t create risk to any victim, or otherwise undermine the purpose of the sentence (such as those outlined in s 7, Sentencing Act 2002).
Inevitably, there will be a period of readjustment for Pania and the children post-relase, especially given the children’s ages. Pania needs to realise that it will take time for her and her children to re-establish their relationship and the family’s daily routine.
Instead of leaving the children with John and Margaret, Pania asks her friend Sandra to care for them. Sandra is a recovering alcoholic and does not have day-to-day care of her own children. What if Pania does not make suitable care arrangements while she is imprisoned?
Oranga Tamariki may become involved if an Oranga Tamariki social worker believes that the children need care and protection living with Sandra. The social worker may form that belief if they do not think the care arrangements Pania made were adequate.
Sandra’s alcoholism will be very concerning for Oranga Tamariki. A person unable to manage their drinking will often have impaired ability to care for children. As Sofie, Iosefa, and Tama are so young, they will be at risk of harm if Sandra is drunk because they are too little to keep themselves safe. An Oranga Tamariki social worker aware of these circumstances would be obliged to take steps to ensure the children are adequately cared for, i.e. provide them with care and protection.
The Oranga Tamariki social worker will investigate the children’s living situation and the risks to their care or protection. If the social worker believes the children need care or protection, they will ask a Family Conference Coordinator to set up a Family Group Conference. If the social worker believes the children urgently need care or protection, the social worker may ask the Family Court for interim orders placing the children in Oranga Tamariki’s care until the Family Group Conference can decide what should happen.
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