Ria is the mother of Jack (12 years old) and Ana (9 months). Ria and her children live with Ria’s sister, Maia, in Porirua. Maia has three school-aged children herself and works during the day. Jack and Ana’s dads are both out of the picture and do not have contact with the children.
Ria has just been sentenced to four years' imprisonment for assisting a friend in some drug deals. She knows she will be eligible to apply for parole when she has served 15 months of her sentence. She is about to be sent to the women’s facility at Rimutaka Prison in Upper Hutt. She is concerned about what happens next for Jack and Ana while she serves her sentence.
Maia let Ria know that she is happy to look after Jack while Ria is in prison, but can’t manage Ana as she has a lot on her plate already. Ria’s mother has offered to look after Ana until Ria is released.
When Jack’s dad, Ricki, found out that Ria had been sentenced, he contacted Maia to tell her that he would be taking Jack and moving to his hometown in Taupo. Ria is worried about this and does not want Jack to live with Ricki. Ricki was emotionally abusive to Ria while she was pregnant with Jack. Ria did not list Jack’s dad on his birth certificate and has not been in contact with him since the birth.
What happens next?
Maia has offered to look after Jack while Ria is in prison. How will this work?
Assuming there are no major problems with Jack while Ria is imprisoned, Jack will be able to remain living with Maia until Ria is released. Maia is likely to face practical issues exercising authority for Jack unless Ria and Maia formalise their arrangement.
Ria can arrange for Jack to stay with Maia while she is in prison. Jack should be involved in that decision as he is old enough to understand some of Ria’s situation and how Ria going to prison will mean big changes in his life.
An informal care arrangement between Ria and Maia (and Jack) could last until Ria is released. However, 15 months is a significant time for Jack, so the impact on him of Ria being imprisoned could be quite significant. For example, Jack may become distressed at Ria’s imprisonment, he may lose respect for Maia and be difficult to parent, or the change may affect his schooling.
The success (or otherwise) of Jack remaining in Maia’s informal care for 15 months depends on how well Ria and Maia manage the changes. For example, Ria and Maia could discuss the situation with Jack’s principal so that the school is aware of the change and can help support Jack until Ria is released.
Ria and Maia should also consider whether to formalise Maia’s role. Under an informal parenting arrangement, Maia has all the responsibility of a parent without the legal rights which normally come with that. That may not present too many problems day-to-day, but sometimes schools, doctors, Work and Income and other organisations will want to know that Maia has legal responsibility for Jack before they will discuss matters regarding Jack with her. A formal parenting order between Maia and Ria will provide other people with reassurance that Maia is entitled to make decisions regarding Jack.
If Jack’s placement with Maia becomes unstable, Oranga Tamariki may become involved to ensure that Maia’s home is a good place for Jack to stay and that all of his needs will be met. Oranga Tamariki may also run a Family Group Conference with Jack’s family, including Maia and Ria, to ensure that Maia’s house is the best place for Jack to live. Jack’s views will be an important consideration
Can Ria be involved in important decisions about Jack and Ana?
Ria doesn’t stop being a guardian when she goes to prison. Ria retains all the responsibility for making decisions about important matters affected Jack and Ana.
As Jack and Ana’s mother Ria is automatically their guardian. This means that Ria will always be able to have a say about the important decisions in the children’s lives, even while she is imprisoned. Important matters include where the children live, medical treatment, education, culture and religion.
Jack’s and Ana’s fathers are not guardians as Ria did not list either father on the birth certificates. As the fathers are not guardians they do not have a say about where the children should live.
If Ricki wants to have a say about where Jack should live, he will first need to apply to the Family Court to become a guardian.
Jack has finished primary school and a decision needs to be made about his high school. Who decides where Jack goes to school?
Jack’s education is an important matter affecting him and therefore is a guardianship decision. Ria, as Jack’s sole guardian, is responsible for making the decision about Jack’s education, but Jack (because of his age) should also have input.
Because Ria is Jack’s guardian, she will always be able to have a say about big decisions for Jack, such as schooling. As Jack gets older, his views become more and more important, so it is important to get his input into this decision.
Maia will also have views on where Jack should attend school given she is responsible for Jack’s day-to-day care while Ria is imprisoned. For example, Maia may not want Jack to go to a school that is too far away or that separates him from his cousins.
Although Ria has the responsibility for Jack’s guardianship matters, she should try and agree with Maia what should happen. If Ria and Maia cannot agree, they may can ask a mediator from Family Dispute Resolution to assist them decide this issue
Ria doesn’t know anyone who can take care of Ana. Where will Ana live while Ria is in prison?
Ana may be able to stay with Ria at a mothers and babies unit in prison, or Ria may ask a social service agency (such as Open Home, Barnados or Oranga Tamariki), to help find a short-term caregiver for Ana while Ria is imprisoned.
Ria needs to consider all options for Ana’s care. One option is that Ria may be able to apply to keep Ana with her in a mothers unit in prison. Ria is eligible for parole after 15 months imprisonment. Mothers and babies units operate at Christchurch and Auckland Women's Prisons, and (if the prison agrees) babies can stay with their mother until they are 2 years old.
Ria also needs to consider who in Ana’s family can look after Ana. Although Ria has been Ana’s primary caregiver, other members of Ana’s paternal family may be able to assist, even if Ria doesn’t know them or get on with them.
Another short-term caregiving option may be Open Home, Barnados, or a similar social service agency. Care arrangements for children take a lot of planning and preparation so Ria may not have enough time to do that before she is sentenced (although the Court may be prepared to delay sentencing if a promising short-term caregiving option is available but just needs some more time to be finalised).
Unless Ria makes suitable arrangements for Ana’s care while she is imprisoned, it is very likely Oranga Tamariki will be notified about Ana’s predicament. This is because Ana is so young and unable to care for herself once Ria is imprisoned. Ana will need care or protection if Ria doesn’t make good arrangements for her. Oranga Tamariki are required to take steps to ensure she is safe once they are aware of any risk, which includes holding a Family Group Conference to decide where Ana will live. Oranga Tamariki will explore care options within Ana’s paternal family, even if Ria does not support care options from those family members.
If a Family Group Conference is held, Oranga Tamariki may find a non-family caregiver for Ana, or ask Ana’s other family members if they can look after Ana.
Oranga Tamariki may want to get court orders making the Chief Executive of Oranga Tamariki Ana’s custodian and guardian, to allow Oranga Tamariki to oversee her upbringing. At the Family Group Conference, Ria can talk about what kind of contact she wants to have with Ana while she is in prison, and what Ria intends to happen when she is released. A plan will be made from this Family Group Conference, and may become court orders.
Any arrangements for Ana including contact between Ana and Ria will be based on Ana’s best interests, and what is appropriate for her age.
How will Ria know how Ana is developing and how Jack is doing at school?
Whoever is caring for Ana and Jack will need to keep Ria regularly updated on the children’s circumstances. Even while she is in prison, Ria should remain involved in any important matters affecting the children.
Apart from in exceptional circumstances, a caregiver must keep all of the children’s guardians updated on the children’s circumstances and development. As a general principle, parents should be kept updated regarding young children more frequently than older children. This is because young children develop quickly and undergo more significant changes in their earlier years.
In Jack’s situation, were his father to succeed in obtaining responsibility for Jack’s day-to-day care, he would be obliged to keep Ria updated on Jack’s progress, and important matters affecting him. If Oranga Tamariki become responsible for the children’s care, Oranga Tamariki will have the responsibility to communicate with Ria on a regular basis.
Where Oranga Tamariki have court orders in respect of the children, an Oranga Tamariki social worker must formally report to the Family Court each 6 months (for children under 7 years) or each 12 months (for children 7 years or older). Oranga Tamariki is required to file a report and plan giving details of each child’s care arrangements, covering any important issues which have occurred in the last 6 months, and give details of the plan for the next 6 months. The report must also include the Oranga Tamariki social worker’s views on whether a child can be returned to their parent's/parents’ care, and if so, how and when that may occur.
The Oranga Tamariki Act 1989 does not permit Oranga Tamariki to miss the reporting timeframe, although that does not mean Oranga Tamariki always keeps to those timeframes. If Oranga Tamariki delays filing a report, or files an incomplete report, the child/ren will be significantly disadvantaged. This is because the child/ren often has/have no direct mechanism for communication with their family and whānau, and therefore become isolated from them. Once Oranga Tamariki has court orders for children, the report and plan are often the only way an incarcerated mother may receive important information about their child/ren.
Ria can call (or ask a Mothers Project volunteer to call) Oranga Tamariki for these updates if she does not receive them. Ria is able to communicate her views about how Ana is being raised while she is in prison.
Where a report and plan are filed late, or not at all, Oranga Tamariki should notified of its failure. This is can be done by filing a memorandum with the Family Court asking for the matter be set down urgently for a directions conference where Oranga Tamariki can explain its failure to report. The Family Court won’t necessarily be aware a report has not been filed or has been filed incomplete/late, and will be concerned about the impact of this on the child/ren.
Can Jack and Ana visit Ria while she is 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.
Ria will need to ask Maia to bring Jack in to visit Ria. It is important that Jack’s view on visiting Ria in prison is sought. If he does not want to visit Ria, he does not have to. Maia will need to fill in certain forms, make a booking, and be approved by the prison to bring Jack in. If Maia refuses to bring Jack in, Ria may need to discuss her options with a family lawyer.
Ana may also be able to visit Ria while she is in prison with her new caregiver. Visits with Ana will be discussed at the Family Group Conference. Because Ana is so young, Ria may be able to request daily visits.
Ria can write letters and make phone calls to Jack and Ana while she is in prison. This is a great idea to keep up to date with how they are doing and let them know that Ria cares for them.
If there is a court order prohibiting contact (such as a protection order), the children will be unable to visit Ria in prison. Even if there is no court order, the children must be approved as visitors before they can visit prison.
If there was a disagreement about visitation and the Family Court was involved, the Court would want to be sure that bringing the children for visits would be in their best interests. For example, the Court would consider whether the visits were necessary for the children to maintain a relationship with their mother. If the visits would unsettle or upset the children, the Court may consider that letters, photos and phone calls would be enough. The Court would also look at the ages of the children – it would not be in their best interests to visit Ria if dealing with the new environment would upset them. As a slightly older child, the Court would consider different aspects in relation to Jack’s visits.
If the children were in Oranga Tamariki’s care, Ria should be provided with information about the children’s progress.
Ria is concerned about Jack’s dad coming back into his life, and thinks he is dangerous. How can Ria protect Jack from his father?
If Ria or Maia believes Jack is at risk of harm from Ricki they can apply for a protection order on Jack’s behalf. Ana could also be covered by that application.
Protection orders are designed to a protect a person (the protected person) from domestic violence by another person (the respondent). Protection orders cover a broad range of circumstances, and include anyone in a ‘domestic relationship’. Domestic relationships can include flatmates and relatives, but certainly cover parents and children, even where are not living in the same house.
Anyone can apply on behalf of a potential protected person where the person is too young to apply themselves for a protection order. Maia could make an application, as could Ria.
If the threat from Ricki were real and neither Maia nor Ria took steps to protect him, Jack would also be in need of care and protection. A failure by the adults in Jack’s life to keep him safe from Ricki could trigger a referral to Oranga Tamariki and lead to an Oranga Tamariki social worker investigating the care and protection concerns.
Although anyone can apply to the Family Court (you don’t need a lawyer to do it), Ria or Maia should seek assistance from an experienced family lawyer.
What happens when Ria is released?
Whether or not Ria can resume caring for the children once she is released depends on whether the children’s placements remain stable while she is incarcerated, and whether her parole conditions restrict her doing so.
A sentenced prisoner released on parole is released subject to conditions. Parole conditions are set by the Parole Board. The conditions are intended to assist a prisoner’s reintegration to their community while also protecting the community from any risk the prisoner may reoffend. Parole conditions invariably include a residential condition (stating where a prisoner may live), and reporting conditions (to a Parole Officer).
Parole conditions imposed by the Parole Board may impact a mother’s relationship with her children. While on parole, a prisoner is liable to recall if they breach their parole conditions (which is also a separate criminal offence). This situation means a released mother is not free to do what she wants when she is released, and she must ensure that arrangements for caring for her children are consistent.
Jack: As Oranga Tamariki is not involved in Jack’s life, and Ria had day-to-day care of him before prison, it is likely that Ria will simply resume caring for him when she is released. However, there are factors that could complicate this. For example, Jack may decide that he does not want to live with Ria, or that he wants to have a relationship with his father. If Maia is unable to accept Ria back living with her, Ria also may be unable to secure suitable housing.
Given Jack’s age, his opinion on where he should live is important, and the adults in his life should listen to him. If there is no agreement about where Jack should live the parties can attempt Family Dispute Resolution to work out the best place for Jack. If the disagreement is deep, the parties can ask the Family Court to help. Oranga Tamariki can also sometimes become involved in serious disagreements between a child’s parents.
Ana: If there are Family Court Orders or care agreements in place, those documents will state if and when Ria could take back care of Ana from Oranga Tamariki. An order may say that Ria can have contact with Ana for the first few months until she becomes settled, before taking over day-to-day care. It is important to remember that because Ana is so young, she may form a strong bond with her new caregiver, and it may not be in her best interests to go back into Ria’s care for a while.
If Ria gets care of both Jack and Ana back there will be a period of readjustment. Ria and her children will need to re-establish their relationship and the family’s daily routine
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