The importance of recognising dependent children
Children of incarcerated parents often experience significant emotional, social and financial challenges. Children of parents in the criminal justice system have often been overlooked and remain largely invisible in New Zealand, as they are in other similar jurisdictions. Last year, Victoria's Parliament tasked its Legal and Social Issues Committee with investigating this issue. In their findings, they described these children as the "invisible victims of crime."
Dame Karen Poutasi’s report on the Joint Review into the Children’s Sector: Identification and Response to Suspected Abuse, in relation to Malachi Subecz’s death, highlighted a critical gap in New Zealand’s system. It found that when sole parents are charged and prosecuted, the needs of their dependent children are often overlooked.
Research suggests children are at higher risk of suffering from stigma, educational disruptions and long-term negative outcomes. Providing the court with better information about caregiving responsibilities can help mitigate these effects by allowing earlier interventions and more considered judicial decisions.
A more structured approach
This change, approved by the Heads of Bench, involves updates to several court forms to formally capture and share information about dependent children. These updates complement existing processes, such as oral submissions, which can also be used to alert the court to a defendant’s caregiving responsibilities.
Making this information available earlier will allow judges to focus on identifying alternatives to custody at the first appearance rather than delaying proceedings to make further inquiries. It will also help ensure bail and sentencing decisions take dependent children into account. Additionally, the process will act as a prompt for agencies present in court to check care arrangements and ensure appropriate support services are in place if needed.
Impact on practice
All counsel should consider making inquiries of their client, to understand whether they are the sole or primary caregiver of a dependent child or vulnerable adult. With consent from their client, Counsel has opportunity to bring this information to the attention of the court through written or oral submission and should inform the court of the existence of dependent children where the defendant is potentially facing a custodial remand or sentence.
Counsel can expect judges to ask questions about parental responsibilities at an early stage, including at the time of bail and when setting bail conditions.
