The treatment of women in prison and the impact on children
The Hon. Justice Thomas recently spoke at a conference about the treatment of women in prison and the impact on children. Her Honour has kindly provided some notes on the main points that she covered.
The United Nations Rules on the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (the Bangkok Rules) were adopted in 2010. (1) The Rules were created on the basis that women prisoners are a vulnerable group with specific needs; many existing prison facilities were designed primarily for male prisoners, but the “number of female prisoners has significantly increased over the years”. (2)
Rule 64 is of particular relevance:
Non-custodial sentences for pregnant women and women with dependent children shall be preferred where possible and appropriate, with custodial sentences being considered when the offence is serious or violent or the woman represents a continuing danger, and after taking into account the best interests of the child or children, while ensuring appropriate provision has been made for the case of such children.
In New Zealand, the Government's position is that women offenders are managed in a manner that takes into consideration their specific needs and family circumstances. (3) The Department of Corrections 2021-2025 Women’s Strategy states a commitment to ensuring alignment with the expectations set out by the United Nations in the Bangkok Rules.
The statistics on women on remand and serving short sentences of imprisonment or being sentenced to time served are of concern. Often their addresses are not deemed suitable for bail, for EM sentences or for parole because the other occupants of the address, frequently their male partner, are not deemed suitable.
Women are remanded in custody on a higher proportion of offences such as fraud, traffic and drug offences relative to men. Men on remand have a higher proportion relative to women of being remanded for alleged sexual offending and violence.
The Bangkok Rules address the issue of women prisoners with children and seek to minimise negative impacts on these children. This includes highlighting the importance of regular and extended contact between imprisoned women and their children. (4)
There are only three women’s prisons, and rehabilitative programmes are not available at all 3 prisons. This means women prisoners are frequently located at distance from their families and are moved around for programmes. The situation has been exacerbated by COVID-19 restrictions in prisons and the recent relocation of women from Arohata to help manage the Corrections staffing situation.
The implications for dependent children whose primary caregiver is on remand or sentenced to imprisonment in a place that is potentially very far away from their home are obvious.
Children at risk and involved in criminal behaviour is closely linked to the subject of women in prison. Environmental risk factors, including parental involvement with the justice system, are directly associated with childhood behavioural problems which may in turn lead to criminal offending. And, of course, into care.
Data shows that involvement with the justice system is often intergenerational. Children with at least one justice-involved parent are more likely to offend, and these rates increase if both parents have had justice involvement: 9% of children as compared to 1.6%. (5) Because a child’s primary caregiver is more likely to be their mother, there is evidence to suggest that impacts on children are more severe when the imprisoned parent is their mother.(6)
With the relevant information, judges can consider the impact of the realities of a prison sentence or refusal of bail on women or primary caregivers and the impact on their children.
Section 8 of the Bail Act includes any matter that would make it unjust to detain the defendant and the presumption in section 13 of the Bail Act yields to the interests of justice. Judges need information about family, dependent children in particular, in order to inform their decision on whether to remand in custody or on bail. Section 13(3)(c) refers to the defendant’s immediate family. These matters can displace s 8 considerations.
The principles of sentencing in the Sentencing Act, Section 8(i) and (h) are particularly relevant.
The Chief High Court Judge and Chief District Court Judge have requested of Corrections that probation officers include information about dependent children in pre-sentence reports where the offender to be sentenced is either the primary caregiver or plays a substantial role in caregiving. And, where there is a recommended or likely sentence of imprisonment, that information is also provided as to what will happen to dependent children.
They encourage counsel to consider what assistance they can provide judges on this issue.
References:
(1) United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (the Bangkok Rules) GA Res 65/229 (2011).
(2) At 2.
(4) Rule 26
(5) Ian Lambie, Jerome Reil, Andrew Becroft and Ruth Allen How we fail children who offend and what to do about it: ‘A breakdown across the whole system’. Research and recommendations (The Michael and Suzanne Borrin Foundation, the New Zealand Law Foundation and the University of Auckland, 2022) at page 52.
(6) Joseph Murray and David P Farrington “The Effects of Parental Imprisonment on Children” (2008) 37 Crime and Justice 133 at 167.
