1. On 26 June 2006, the Ministry of Justice (“The Ministry”) issued legal advice to the Attorney-General on the Corrections (Mothers with Babies) Amendment Bill (“the Bill”), as regards its consistency with the New Zealand Bill of Rights Act 1990 (BORA).
2. Their advice was that the Bill appeared to be consistent with BORA.
3. The purpose of the Bill was to amend the Corrections Act 2004 in order to enable a baby, whose mother is imprisoned, to be cared for, breastfed by, and to bond with, his or her mother, as far as this is in the best interests of the child and if certain other conditions are met.
4. The Bill proposed to amend the Corrections Act 2004 to increase the age limit until which a child is entitled to be accommodated in the prison with his or her mother from 6 months to 24 months. This 24 months age limit is based on the World Health Organisation’s resolution regarding the appropriate period for continuation of breastfeeding. It introduced an obligation for prisons to provide for appropriate facilities for the accommodation of children under 24 months and to give these children sufficient opportunities to be breastfed. It ensured that imprisoned mothers of children accommodated in prison enter into parenting agreements, including an obligation for the mother to care for her child and a reciprocal obligation to be provided with and participate in parenting education.
5. The Ministry stated: “Arguably the point could be raised that the Bill favours imprisoned women with children up to 24 months old over imprisoned women with older children or imprisoned men with children. This could be viewed as giving rise to a prima facie issue of inconsistency with section 19(1) of the Bill of Rights Act which provides the right for everyone to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993. The prohibited grounds of discrimination that could be considered relevant are sex, which includes pregnancy and childbirth, and family status.”
6. However, the Ministry took the view that this Bill should not be analysed in terms of the rights of the parents, but instead should be considered from the perspective of the best interests of the child.
7. The Ministry’s argument ran as follows: “Support for this approach can be found in the United Nations Convention on the Rights of the Child (CRC) which has been ratified by New Zealand. Article 7(1) CRC provides that the child shall, as far as possible, have the right from birth to be cared for by his or her parents. Article 3 CRC further stipulates that in respect of all actions by a State concerning children the best interests of the child shall be the primary consideration.”
8. The Ministry went on to state: “A similar approach, focussing on the best interests of the child, can be noted in limiting the scope of the Bill to children up to the age of 24 months which is considered by the World Health Organisation to be the appropriate period for continuation of breastfeeding. The Bill thus enables the child to be breastfed up to this age. Necessarily, in this respect, the Bill focuses on accommodating children with their imprisoned mothers and not with their imprisoned fathers, and does not include children over the age of 24 months.”
9. The Ministry continued: “In the timeframe available, we have not been able to fully consider all the literature on imprisoned mothers, bonding, and the effect of imprisonment on babies. We note, however, that new section 81A(2)(a)(i) imports these considerations by requiring placement of a baby with his or her imprisoned mother if inter alia, it is in the best interests of the baby. The placement of the baby with the imprisoned mother can be ended if that is in the best interests of the baby. “
10. The Ministry concluded: “It is doubtful whether the Bill raises an issue of discrimination under section 19 of the Bill of Rights Act. If section 19 is engaged, our view is that it is justifiable that priority is given to accommodating children with their imprisoned mothers to enable on-going breastfeeding up to 24 months where this is in the best interests of the child. We can for that reason conclude that the Bill appears to be consistent with the Bill of Rights Act.”
11. The Ministry does not cite any judicial authority for the notion that a ratified Convention, such as the CRC, can trump BORA to the extent of preventing even an issue of BORA-consistency from being raised. I do not currently have access to an electronic legal database, but I doubt that such legal authority exists. As is well-known, BORA is a constitutional act which is as near to supreme law as anything on the New Zealand statute-books.
12. The Ministry’s fall-back position is that the Bill’s BORA-consistency can be established on the basis of its constituting a justified limitation on the right that appears to be breached, as per s. 5 of BORA. However, its argument on this point is sketchy, to the point of prima facie negligence.
13. Article 7(1) CRC does provide, as the Ministry points out, that the child shall, as far as possible, have the right from birth to be cared for by his or her parents. However, there is nothing in that article that gives preference to the mother over the father, and nothing that implies that placing the child with the mother in an environment where the father is likely to have almost no access – and certainly no quality access -- to the child would be in that child’s best interests. In other words, Article 7(1) CRC is irrelevant to the Ministry’s argument.
14. In essence, the Ministry’s case relies on the fact that Article 3 CRC stipulates that in respect of all actions by a State concerning children the best interests of the child shall be the primary consideration. The Ministry would have had to have argued that breastfeeding during the period in question was so important to the child that it far outweighed all other considerations relating to the welfare of children in a prison environment, with a criminal mother, and virtually devoid of contact with the child’s father, child playmates, and other relatives. This balancing exercisde does not seem even to have been attempted.
15. If the Ministry had managed to establish that breastfeeding was a far more important consideration that all the potential negative repercussions for the child of being in that environment, then it would still have had to argue that the remaining surplus benefit (of breastfeeding over the negative aspects of that environment) was sufficient to constitute a justified limitation on a s. 19 discrimination against male prisoner parents on the basis of sex.
16. However, as stated above, instead of carrying out that second balancing exercise, the Ministry pleaded lack of time, in the following words: ““In the timeframe available, we have not been able to fully consider all the literature on imprisoned mothers, bonding, and the effect of imprisonment on babies.” This constitutes prima facie negligence, in my view, since more time (or more staff) should have been made available in order for certainty as to BORA-consistency to be achieved. The issue with the Ministry was obligated to resolve could not have been properly resolved without fully considering that evidence.
17. The new section 81A(2)(a)(i) gives the power to decide what is in the baby’s best interests to the Chief Executive of the Corrections Department (“the Chief Executive”), and does not provide for any input from the father (whether separated, divorced or otherwise), his legal representative, or anyone else. No guidelines are laid down to guide the decision-making of the Chief Executive in this regard. In other words, the Bill gave the Chief Executive unfettered discretion to interpret the vague phrase “the best interests of the child” as he sees fit, and in an ex parte environment, where only input from the mother needs to be considered. This is a prima facie breach of the natural justice provisions of s. 27 of the Bill of Rights Act 1990. A procedure arguably more likely to produce a result tailored to the best interests of the child would be to stipulate that the decision-making take place in the Family Court, which has expertise in making decisions relating to the best interests of children.
18. In conclusion, the Ministry seems to be imbued – in this case, if not endemically – with an approach whereby only the needs of women need to considered. It can hardly be a coincidence that the conclusion reached by the Ministry in its advice on this Bill, which was introduced by a female MP, is obviously the one that mothers would prefer and fathers not prefer.

Last Update: 16 December 2006