Punishment or Child Protection?
Severe sanctions considered for abusive parents
NewstalkZB | 12:39pm Wed 06 Jun 2012
Forced sterilisation is off the table, but the Government is considering severe sanctions for people who have babies after committing serious crimes such as murder or abuse of children.
Social Development Minister Paula Bennett has been forced to defend herself after last week appearing to tell a media outlet Cabinet was considering sterilisation of women in such situations.
Today she says that’s not the case, but says as part of a White Paper on vulnerable children, all other options are being considered.
“Perhaps there are measures like saying quite clearly, if you do have future children, you will not be in a position where you are able to raise them on your own, or there could be a court sanction, for example, or a legislative change that means they cannot live or work within that,” she says.
Paula Bennett is stressing that no decisions have yet been made.
I apologise for the challenging nature of this material.
Our society must face up to all of the choices available and at times this may be very uncomfortable.
I seem to recall that compulsory sterilisation cases had previously been published on the familycaught$ website.
I looked again after reading of Paula Bennett’s comments, but the judgements seem to have been removed. Maybe it was just because I looked again, during dinner time?
Anyway, just to give you the essence of the situation, I put below a shortened extract, in case you didn’t see it on familycaught$ website a few years ago.
Many young people forget that simply partaking of a few glasses of wine ($20), while unknowingly being pregnant, might end up being child abuse. This may have long term costs for Government, in the $many hundreds of thousands, to say nothing of the human suffering and wasted opportunities. Although there is still debate about how much alcohol consumption is needed to damage a foetus, it is generally accepted that the only safe (for the foetus) consumption while pregnant is none at all, especially during the first 3 months.
Wikipedia Foetal Alcohol Syndrome
It appears to me that calling the sterilisation child protection, rather than punishment, might alter the impression conveyed?
IN THE FAMILY COURT FAM-2002-054-000818
AT PALMERSTON NORTH
Hearing: 12 March 2004
Appearances: C na Nagara for Applicant
R Walker – Counsel to Assist
M Wall for Subject Person
Judgment: 15 March 2004
RESERVED JUDGEMENT OF JUDGE G A FRASER
 A is a 29 year old single woman who is 12 weeks pregnant. Her father Mr B
is A’s Welfare Guardian under the Protection Personal & Property Act 1988 (‘the
Act’). He was appointed Welfare Guardian on 28 May 2003.
 B has sought directions from the Court pursuant to s 18(6) of the Act, for the
sterilisation of A and the aborting of the 12 week old unborn child.
 A suffers from an disorder called Trisomy 8. Trisomy 8 is an unbalanced
chromosome or rearrangement resulting in a ‘derivative chromosome 1’ in which
there is a very small amount of chromosome 1 material missing from the long arm of
chromosome 8. This is a rare congenital disorder with few previous recordings. It’s
common clinical features include infants born at term with early feeding difficulties
and jaundice, mild mental retardation, delayed development, hypertelorism, broad
nasal bridge, prominent filtren, thin downturned upper lip, mild micrognathia and
retrognathia, low set ears, short little finger, camptodactyly, clinodactyly and
bermatoglyphic abnormalities. In A’s case it has resulted in learning difficulties and
some subtle differences from normal.
 He also indicates the risk of the unborn child having inherited the genetic
disorder that A’s has. He maintains that if A’s disorder creates special needs for her
and the baby inherited the same disorder then A would have a much more
demanding baby, needing specialist assistance. He said A could not look after a
normal baby and the demands of a child with this disorder would make it literally
impossible for her to care for the child. He also expressed concerns that A was in
complete denial in relation to her disability and limitations and that she would not
cooperate with agencies or people support. He saw no future for the child of a
mother with her social and intellectual deficits.
 B acknowledged that sterilisation was an extreme intervention but considered
this to be a necessary one off intervention that would avoid the situation arising
again. He also maintained that sterilisation would avoid the difficulties that A has
had managing her menstrual periods.
 A gave evidence to the Court. She had also filed a brief affidavit. In her
affidavit she acknowledged her pregnancy and maintained it was a dream come true.
She said that she wanted to have a baby for some time because she loved children
and that she had looked after children and had worked in childcare. She said that she
had worked in three or four childcare centres and had looked after babies at Kohanga
 She said she wished to have more children with the father of this child.
Mental State Examination:
 He referred to A’s long term memory being very poor and fragmented. He
also referred to her short term memory as being very poor and that it was difficult for
A to focus her attention during the interview. He said that her thought process was
clear and coherent and she did not have any formal thought disorder. He reported:
‘She is thinking at a very concrete level and her abstract thinking is very
poor. She was very short tempered and at times irritable, and she found it
very hard to cope with the stress of the assessment’.
‘”¦She cannot reason rationally. She did not display any psychotic
symptoms during the interview’.
 Doctor D described her as follows:
‘Her abstract thinking is poorly developed and as a result most of her
thinking is at a concrete level. She finds it really hard to analyse the
situation and look at likely alternatives, and then base her decision on those
observations looking at consequences of the actions. She does not have that
abstract level of thinking which is important for rational manipulation of
information to reach a decision.
“¦It is also very difficult for her to understand the consequences of her
actions and her decisions; most of her decisions may not be based on rational
reasoning. She has been involved in sexual relationships and though she has
been informed of the high chances of getting Trisomy 8 children, she still is
not willing to use any contraception.
A has no concept of money either and she does not have the ability to
manage her financial affairs. She cannot do simple calculations and relies
totally on other people. She in this state is highly vulnerable to financial
abuse by others.
It is my opinion that A totally lacks capacity to manage her own financial
affairs, and if she is left on her own she will have no money to look after
In my opinion A partially lacks the capacity to make and communicate
decisions regarding her personal care. She can make fairly simple decisions
like eating when she is hungry, but she does not have the ability to make any
decisions which require abstract thinking. She will find it extremely difficult
to plan her personal life by looking at different options available to her and
making a choice based on rational grounds. She therefore will benefit from
a welfare guardian’.
 In conclusion his opinion was as follows:
‘Because of her intellectual disability she functions at a very concrete level
and she finds it very hard to analyse and look at different options available
and look at benefits or otherwise of different options and reach a rational
conclusion. She does not have abstract level of thinking needed to make a
rational decision. She gets stuck with whatever comes in her mind and she
wants that without thinking of any consequences for that decision. As a
result she may end up with decisions that are not based on logic and
“¦ I believe A totally lacks the capacity to properly look after herself. She
cannot make rational decisions for anything more complex than basic
survival decisions. This has been detailed in my previous report with respect
A has stopped using cannabis and has stopped drinking alcohol “¦”¦.
“¦ She however has no concept danger and has very poor abstract thinking.
That does make her quite unpredictable. With regard to her ability to
progress through her pregnancy, it is my opinion that given a very supportive
environment from people involved in her care, I would not see any major
problems in her psychological ability to progress through her pregnancy.
However, if she is not provided with that supportive environment she has
very low frustration tolerance and she can become very angry, irritable and
can make decisions which could make herself and the unborn baby at risk.
This could be sheer carelessness from her side and lack of appreciation and
danger and lack of proper judgment.
A in the past has found it extremely hard to look after herself. She has very
low frustration tolerance and minor things can irritate her and can make her
extremely angry. It is my opinion that A will not be able to look after her
baby at birth. She will find it extremely hard to cope with the demands of a
newborn baby puts on a mother. She could cope with seeing her child for a
short period of time but will not be able to cope with that child 24 hours a
day. That would in my opinion affect her mental health and that would put
the child also at risk of emotional abuse.
A does want to keep her baby and she wants to look after her baby after
birth. She believes that she has all the capabilities to do that. I believe it
will be extremely hard for the baby to be separated from her and she has
high chances of decompensation at that stage if the baby had to be removed
from her a birth. This will be a major stressor for her and she will find it
extremely hard to cope with.
If A goes for a termination of pregnancy it will a major stressor once again
and she will need a lot of support for some time after that. She will be prone
to angry outbursts. I however believe that the chances of her
decompensating with this will be a lot less than when her child is born and
then separated from her.
Apart from A’s ability to look after a normal child the matter would get
further complicated if the child is also born with disabilities. I have read the
report from the geneticist who has indicated that there is a high chance of A
having a baby with the same disorder. Of course if that happens then it will
be extremely difficult for A to look after a baby who also has special needs’.
 The Court is grateful to My Brother Judge Inglis for the Decision In re H
 NZFLR 225. In that Decision His Honour Judge Inglis reviewed the various
overseas authorities in relation to issues relevant to sterilisation and termination in
situations where the parties lacked capacity to make decisions for themselves.
 In the present case the Court is not required to make a decision concerning
capacity, given that that has been previously determined by His Honour Judge
Callinicos in his Decision of 28 May 2003.
 In re H, Judge Inglis proposed a three step procedure, summarised as follows:
1. Determine the least restrictive intervention possible in the life
of the disabled person having regard to the degree of disability
2. s 18(3), describes a prescription as to how the welfare guardian
is to exercise the powers conferred by the Court:
(3) In exercising those powers, the first and paramount
consideration shall be the promotion and protection of the
welfare and best interests of the person for whom the welfare
guardian is acting”¦
3. The welfare guardians decision should have the same affect as
it would have had if it had been made or done by the person for
whom the welfare guardian is acting and that person had had
full capacity to make or do it. (s 19(1)).
 In exercising the powers referred to in Step 3 there is a governance by steps 1
 In re B (a minor)  AC 199 (HL) the Court with respect to issues of
sterilisation was dealing with a party who had no capacity to understand how she
became pregnant, what was happening to her and her complete inability to parent her
 The Lord Chancellor at p 204 in that Decision said:
‘To talk of the ‘basic right’ to reproduce of an individual who is not capable
of knowing the casual connection between intercourse and childbirth, the
nature of pregnancy, what is involved in delivery, unable to form maternal
instincts or to care for a child appears to me wholly to part company with
 The House of Lords referred to the need to sterilise as ‘extreme’, ‘a last
resort’ and ‘the grave affect on the quality of the minor’s life if pregnant’ and ‘an
 Lord Oliver of Alymerton In re B (a Minor) (at p 212) added:
‘”¦ this case is not about sterilisation for social purposes; it is not about
eugenics, it is not about the convenience of those whose task it is to care for
the ward or the anxieties of their families; and it involves no general
principle of public policy. It is about what is in the best interests of this
unfortunate young woman and how best she can be given the protection
which is essential to her future wellbeing so that she may lead as full a life as
her intellectual capacity allows. That is and must be the paramount
The Law and the Facts/Conclusion:
 In this case it is clear that A is suffering from intellectual disability.
 Doctor D has concluded that A totally lacks the capacity to properly look
after herself. She cannot make rational decisions for anything more complex than
basic survival decisions.
 The psychiatric evidence demonstrates that A would not be able to cope with
a child 24 hours a day. It refers to the impact on her mental health and the risks of
emotional abuse to the child in the event that she had permanent care of the child.
 Clearly any termination of the child will be a major stress for A. The Court
in no way underplays the significance of that for her but that must be weighed
against the clear psychiatric evidence that any decompensation associated with
termination will be a lot less than if A carries the child to term and then the child is
separated from her.
 In summary given that the same principles are to be applied with respect to
the making of personal orders under Section 10 the Court’s directions are now made
pursuant to Section 10 (1)(f).
 Medical procedures are sanctioned pursuant to Section 10(1)(f) for
sterilisation and termination of the unborn child and personal orders are made
 The order is not to be suspended pending the determination of an appeal. The
issue of time is critical with respect to termination and any delay would defeat the
effect of the decision made.
G A Fraser
FAMILY COURT JUDGE
Signed at …………… am on 16 March 2004
Broadway Legal Chambers, PO Box 146, Palmerston North
Fitzherbert Rowe, Private Bag 11016, Palmerston North
Martin Wall, P O Box 12-048, Palmerston North