SUBMISSIONS ON CORRECTIONS (MOTHERS WITH BABIES) AMENDMENT BILL
To: Law and Order Select Committee
Introduction
1. YouthLaw Tino Rangatiratanga Taitamariki is a community law centre, located in Auckland, vested under the Legal Services Act 2000. We provide a free, nation-wide legal service to people aged below 25 years. Our service includes the provision of advocacy, advice, information and legal education in the form of publications and outreach work, to young people. 2. YouthLaw supports the Bill’s proposal to amend the Corrections Act 2004 to provide that every child under 24 months of age whose mother is imprisoned is entitled to be accommodated in the prison in which his or her mother is imprisoned, provided certain conditions are met, for the purpose of being cared for and breastfed by his or her mother.
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Comments from the Office of the Children’s Commissioner on the draft discussion paper by the Human Rights commission The right to breastfeed (2004). 3. As you will be aware, the Children’s Commissioner is statutorily appointed and the position’s powers, functions and responsibilities are contained in the Children’s Commissioner Act 2003 and the Children, Young Persons, and Their Families Act 1989. 4. The Children’s Commissioner made comment on the draft discussion paper by the Human Rights Commission The right to breastfeed in 2004. The Children’s Commissioner makes the following points: that in the majority of situations, breastfeeding is in the best interests of the child. that the rights of both mother and child should be considered in laws and practice around breastfeeding.
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United Nations Charter on the Rights of the Child (UNCROC)
6. New Zealand ratified UNCROC in 1993, along with more than 190 other countries. There are a number of relevant articles contained in UNCROC that address the beneficial nature of breastfeeding for mother and child and the issue of whether children of parents in prison ought to have them in prison.
7. Article 6 supports the right of the child to breastfeed by ensuring survival and development. Article 19 provides the child with protection from abuse and neglect and Article 24 requires a child have the right to the enjoyment of the highest attainable standards of health with procedures in place to diminish the rate of infant and child mortality, fight disease and malnutrition, ensure pre and post natal health care for mothers and ensures the need to educate all
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society about the nutritional and general health advantages of breastfeeding for a child.
8. Article 9 makes governments responsible for the right of children not to be separated from their parents except when competent authorities determined that the separation is in the best interests of the child. This of course is subject to judicial review. That same article also includes the proviso that children who are separated from their parents shall regularly maintain direct contact through personal relations with both parents, tempered by primary consideration of the child’s best interests.
9. We also wish to support the proposed amendments set out in paragraph 34 of Robert Ludbrook’s submissions on the Bill, being:
(a) a proviso to proposed section 81A requiring the chief executive to obtain independent advice from an independent paediatrician or child psychologist to determine the best interests of the child, before reaching a determination not to approve on a best interests basis.
(b) Development of a standard parenting agreement, under Corrections regulations, that incorporates the ability to set special conditions relating to the protection of the best interests of the child where necessary.
(c) The right of a mother who has been refused approval to seek review. This is consistent with both UNCROC and the natural justice requirements of the New Zealand Bill of Rights Act. We consider that the review mechanism should be
independent of the Department, easily accessible and speedy given the need to address any issues relating to the welfare of
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a child in a timely manner. High Court judicial review would also provide a further remedial avenue, if necessary. Conclusion
We consider that, if enacted, the amendments proposed in the Bill will enhance the ability of breastfeeding mothers in prison to provide essential care for their children. This is in the best interests of both mother and child.
In addition, the proposed amendments are not radical and reflect practice in comparable overseas jurisdictions. The Bill also enhances New Zealand’s compliance with the abovementioned provisions of UNCROC and is
commendable for doing so.
Harvena Hudson
For YouthLaw Tino Rangatiratanga Taitamariki 6 September 2006
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