Consideration of the best interests of children with convicted parents : a new sentencing principle.

Type of content
Theses / Dissertations
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Thesis discipline
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Master of Laws
University of Canterbury
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Koosova, Kristyna

In May 2020, New Zealand imprisonment rate was 198 per 100,000 of population, which was the 5th highest in the OECD. This has raised some serious questions about the collateral effects of imprisonment on offender’s children. Several studies have indicated that these children face multiple difficulties and are exposed to a higher risk of harm than other children. They may suffer emotionally, develop health issues or challenging behaviour and be imprisoned themselves during their lifetimes. The purpose of this thesis is to establish the extent to which rights of these children are recognised and protected in sentencing in New Zealand.

Firstly, the thesis determines New Zealand’s obligations towards offenders’ children, which are established by the international human rights law. It highlights the importance of an evolving international legal standard establishing a requirement for criminal courts to systematically assess and consider the best interests of a child when sentencing a parent or a primary caregiver, and to take the impact of sentencing on children’s wellbeing into account, as a specific and independent legal consideration. It is also established that failure to do so is inconsistent with relevant international human rights instruments.

Secondly, the domestic legislation and case law is analysed in order to evaluate whether New Zealand meets its obligations towards offenders’ children under the international human rights law. The conclusion to the analysis is the finding that the way that New Zealand has chosen to implement the right to respect for family life and the right of the child to have his or her best interest taken into account as a primary consideration, has left gaps in how these rights are protected. The findings of the case law review also suggest that the best interests of children have not been appropriately integrated and consistently interpreted and applied when sentencing offenders with dependent children, as far too often these children and their needs are taken into account as “personal circumstances of the offender” rather than being treated as individual rights-holders and having their rights considered separately.

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