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Hon Justice Susan Thomas outlines court reforms addressing the impact of parental incarceration on children, inspired by cases like 5-year-old Malachi Subecz. From March 2025, judges must consider a defendant's dependent children in bail and sentencing decisions. This update explores the implications for legal professionals and the justice system.
In November 2021, 5-year-old Malachi Subecz was brutally beaten and murdered by his caregiver, a young woman ill-equipped to deal with the demands suddenly placed on her of caring for a young child. Malachi’s mother was refused bail after pleading guilty to drugs charges.
Many defendants, primarily women, are caregivers of dependent children. Women are in prison on remand at a higher rate than men (currently 55 per cent compared to 42 per cent). Nineteen per cent of women in prison are sentenced to time served. As at December 2024, 79 per cent of women who were sentenced prisoners were starting a short sentence of imprisonment. The statistics are particularly striking for Māori women, who currently make up 67 per cent of women prisoners. One recent study found that 82 per cent of wāhine Māori leaving prison have children, with an average of 2.9 children per prisoner. Historically, these children have often been overlooked by the court process. That can have tragic consequences, as Malachi’s death illustrates.
Malachi’s death led to Dame Karen Poutasi’s Independent Review of the Children’s Sector’s Response to Abuse. Dame Karen found that Malachi might still be alive today if the justice system had not allowed Malachi to be invisible at a moment when he needed to be visible.
In a parallel process, in late 2022 Judge John Walker convened a cross-agency working group to investigate operational changes to improve the information available to the criminal courts about the existence of dependent children when a primary caregiver is made subject to a custodial remand or sentence. The group included representatives of the Judiciary, Department of Corrections, New Zealand Police, Oranga Tamariki, Crown Law, New Zealand Law Society, Public Defence Service and the Ministry of Justice.
As a result of the group’s recommendations, from 3 March 2025, various forms have been modified to prompt judges, prosecutors, public defence lawyers and Corrections staff to inquire and record whether a defendant has dependent children.
By ensuring courts are aware that a defendant has dependent children, those children’s interests can be taken into account in bail and sentencing decisions. Even when a custodial remand or sentence is unavoidable, the inquiries will serve as an important prompt to ensure appropriate care arrangements are in place for any children in the defendant’s care.
For defence counsel, the changes mean you can expect judges to ask questions about your clients’ parental responsibilities at an early stage. If your client is facing the prospect of a custodial remand or sentence, you should enquire well in advance whether they have any dependent children and, if so, what arrangements have been made for those children’s care should your client be placed in custody. If your client consents, you should disclose that information to the court.
Counsel should tell their clients that Corrections will file a “Report of Concern” to Oranga Tamariki if a person entering or about to enter custody has significant childcare responsibilities.
We know that defendants are often reluctant to face reality and make alternative childcare arrangements on their own initiative. If appropriate arrangements are put in place for the care of children prior to a parent entering custody, the negative impact on their children will be reduced and it might well avoid the need for state involvement in the arrangements.
It is worth emphasising sentencing law in this area. The court should consider the impact on a child when sentencing a parent. Under s 8(i) of the Sentencing Act 2002, the offender’s personal, family and whānau background must be taken into account. Section 8(h) requires the court to consider any particular circumstances of the offender that would mean an otherwise appropriate sentence would be disproportionately severe. Lastly, under s 9(4)(a), the court can take into account any other mitigating factor, enabling consideration of the impact of imprisonment on both parent and child.
In Philip v R [2022] NZSC 149, the Supreme Court confirmed the Sentencing Act allows for recognition of the impact imprisonment has on an offender’s dependent children. The Court said:
We do not find it helpful to characterise such discounts as “rare” or to emphasise, to the exclusion of other factors, whether the defendant is the primary caregiver or the seriousness of the offending. What is required is a consideration of all of the relevant circumstances which must include the child’s interests. (at [56])
These considerations are not only relevant at sentencing. Bail decisions can result in an unexpected and unplanned for remand in custody, with considerable impact on a child of a defendant.
Section 8(1)(b) of the Bail Act makes it mandatory for the court to take into account any matter that would make it unjust to detain the defendant and s 8(2)(h) permits consideration of any other special matter that is relevant. The presumption in s 13 that a defendant found guilty or who has pleaded guilty will not be granted bail yields to the interests of justice and s 13(3)(c) allows the court to take into account the personal circumstances of the defendant and the defendant’s immediate family.
Counsel should ensure that the court receives all relevant information so that impacts on children can be taken into account. In Malachi’s case for example, it does not appear the Court was told about his developmental difficulties and that his proposed caregiver had no experience caring for children and no stable accommodation.
Bringing your client’s dependent children to the court’s attention might well make a critical difference.
However, it would be naive not to recognise the challenges associated with obtaining better information about defendants’ dependent children. The Royal Commission’s Report on Abuse In State and Faith-based Care is a stark reminder of why defendants might be reluctant to provide information about their dependent children. Some defendants will have themselves been in state care and will not want their children exposed to that risk.
It is acknowledged that the changes should be coupled with a wider justice system response in future, such as the introduction of more community-based support services.
The changes have implications for other participants in the court process too, such as judges, prosecutors, probation officers and Bail Support Services. In general, the court should be informed when a defendant has dependent children. That information should also be recorded to ensure those children’s interests are considered throughout the court process. Role-specific guidance has been issued to those affected.
The changes reflect international recognition of the specific needs of women prisoners and the impact of parental incarceration on children. Practitioners should familiarise themselves with recent developments in this area. Key resources include: