Setting parental standards through criminal prosecutions: criminality and co-sleeping in Aotearoa New Zealand

Abstract

Since 2012, four criminal prosecutions have been brought in the New Zealand courts against parents for charges relating to the deaths of their babies while co-sleeping. Co-sleeping is a common and widely valued parenting practice, but it has been demonstrated to raise the risk of Sudden Infant Death Syndrome (‘SIDS’) and Sudden Unexpected Death in Infancy (‘SUDI’). Official child health advice in New Zealand and other developed countries advises against the practice because of these risks. These prosecutions suggest the criminal law is being used to solidify official advice into a formal parenting standard. This paper presents the cases, along with the response of the criminal law in England and Wales and recent developments relating to child protection policy in Illinois, USA, and examines what parental standards they can be taken to establish. We argue against the use of the criminal law to set parental standards in relation to a practice that is consistent with reasonable accounts of parental obligations.