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University of Otago Law Theses and Dissertations |
Last Updated: 14 April 2024
CARE AND JUSTICE
Exploring the Complexities of Serious Youth Offending and the Urgent Need For An Integrated Support System
Samantha White 2023
A Dissertation Submitted in Partial Fulfilment of the Degree of Bachelor of Laws (With Honours) at The University Of Otago – Te Whare Wananga O Otago. 6 October 2023
Acknowledgements
This dissertation has been a labour of love, and one that I could not have done alone.
First, to my supervisor, Professor Nicki Taylor. Without you, this dissertation simply would not have been possible. Your expertise within family law has been incredible and I have been so grateful to learn from you. Thank you for your support, guidance, and reassurance throughout this year. You have always made time for me and my long drafts, constantly pushing me to be my best.
To Mum and Dad for your constant and unwavering belief in me, for your love, support and home-cooked meals. Thank you for supporting me for the past five years, all of which has allowed me to get to this point.
To my big brother, Tony, my best friend and an, at times, terrible role model. Thank you for the fun times that have let me forget about my dissertation even if just for a moment.
To my wider group of friends, family and loved ones who I have met over the last five years - you have all helped me to get to where I am today, to you I am forever grateful.
List of Abbreviations
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Children, Young Persons and Their Families Act 1989
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FASD
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Foetal Alcohol Spectrum Disorder
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FGC
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Family Group Conference
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OT
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Oranga Tamariki – Ministry for Children
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OT Act
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Oranga Tamariki Act 1989
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TBI
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Traumatic Brain Injury
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UNCRC
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United Nations Convention on the Rights of the Child 1989
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YJ
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Youth Justice
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YJ FGC
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Youth Justice Family Group Conference
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WSA
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Whole System Approach
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TABLE OF CONTENTS
I. Introduction
There has always been a very clear interface between the care and protection and the youth justice parts of the [Oranga Tamariki] Act, but in practice that has never been properly implemented to the very great cost of many children and young people who are the subject of proceedings.1
Serious youth offending has long presented challenges for New Zealand society and currently features prominently in the media.2 Such challenges have intensified the need to unravel the hidden nexus of complexities, including childhood adversities and neurodisabilities, experienced by youth who go on to commit serious offences. My research has been strongly influenced by a 2015 quote by the then Children’s Commissioner, and former Principal Youth Court Judge, Judge Andrew Becroft who noted that: 3
There is a really staggering and profoundly concerning link between care and protection issues and adverse life outcomes ... in the criminal justice system.
Yet, there remains a significant gap regarding this link within social policy and research literature both domestically and internationally.4 Thus this dissertation presents a unique opportunity to examine the findings and commentary that is available to better address the gap. This dissertation aims to contribute to filling this knowledge gap through two primary aims which involve unveiling:
1 New Zealand Police v JF [2021] NZYC 251 at [36].
2 See Andrew Hickey and Rachael Wallis “Why the media aren’t helping to solve the ‘youth crime crisis’ they’re reporting.” (27 July 2023) The Conversation. <www.theconversation.com> “Auckland crime: Another night of ram raids in the city, police hunting youths involved” (20 March 2023) NZ Herald
<www.nzherald.co.nz> and Nathan Morton and Chris Knox, “Youth Crime: Big increases in south Auckland and Canterbury, rife in Bay of Plenty.” (13 December 2022) NZ Herald. <www.nzherald.co.nz>
3 Interview with Andrew Becroft, Principal Youth Court Judge (Guyon Espiner, Morning Report, Radio New Zealand, 28 August 2015).
4 See Susan Baidawi and Rosemary Sheehan “Crossover kids’: Offending by child protection-involved youth.” (2019) 582 Trends and Issues in Crime and Criminal, 1–23. at 3;
II. Key Definitions
First, however, a brief explanation of the terminology used throughout this dissertation.
A. Young Offenders
The Oranga Tamariki Act 1989 (OT Act) defines ‘young people’ within both systems as those aged between 14 and 17 years.5 The conceptualisation of the terms ‘youth’ and ‘young people’ and the history which precedes them have gone through periods of rapid evolution. At its core, ‘youth’ is a social construct that is dictated by society, and policy, including popular culture and the media.6 Our current understanding of the term is based on a modern, western approach, influenced only partly by science. As Nessa Lynch, a leading New Zealand expert on youth justice law reform, noted:7
The drawing of age boundaries can involve questions of capacity, stage of brain development, or simply political assessments of what is palatable for the public. However New Zealand has a complex graduated system of age parameters which has developed somewhat haphazardly, rather than from a principled basis.
Furthermore for youth with a neurodisability, or prior care and protection concern, their stage of brain development and decision-making capacity can differ markedly from their legal age. As Judge Becroft noted:8
Whatever age is selected for criminal liability, an arbitrary age cannot reflect the fact that young people mature at different rates — nor that many do not fully mature psychologically until well into their 20s. Further, in New Zealand, a decision as to which Court is a more appropriate forum turns primarily on the age of the defendant rather than their needs.
5 Oranga Tamariki Act 1989 Children’s and Young People’s Well-being Act 1989 s 2(1).
6 Nessa Lynch, Youth Justice in New Zealand (2nd Ed, Thomson Reuters, Wellington, 2016) at 19.
7 Nessa Lynch, “The Youth Justice System A Site of Evolution and Reform” in Stanley, E., Bradley, T. and Monod de Froideville, S. (eds) The Aotearoa Handbook of Criminology, (Auckland University Press, Auckland, 2021) 180, at 182. (citations omitted, Nagin et al., 2006)
8 Andrew Becroft “A Report Card On How Our Legal Systems Deal With The Interrelationship Between Child Protection and Youth Crime” (Paper presented to AIJA Youth Justice and Child Protection Conference, Hobart, Tasmania, 3 April 2006.) at 15. See also Barbara Wallace “The Conference Morning Keynote Address of Dr.
Laurence Steinberg on the Age of Opportunity and Lessons from the New Science of Adolescence: With Introductory and Closing Commentary” (2016) 15(3) Infant Child Adolescent Psychology 155
Yet, despite this more contemporary understanding of the influences on juvenile offending, youth still appear in the Youth Court or, at times, the adult courts on the basis of their biological age alone.
Whilst young people remain mouldable, their experiences during childhood and adolescence shape them into the people they will later become. Thus exposure to the criminal justice system at this young age harms a youth’s ability to become a responsible, fully functioning member of society as their neurological pathways are still developing.9. Hence improving the youth justice system is key to ensuring long-term societal improvements.
B. Serious Offending
The Ministry of Social Development’s definition of serious offending is adopted – this includes charges that result in an intention to charge family group conference (FGC), Youth Court proceeding, youth who continually re-offend or a ‘referral by Police for Oranga Tamariki to consider pursuing an application for care and protection in the Family Court that a child is in need of care and protection as defined in section 14(1)(e).’10 The number of New Zealand cases which fit this definition are low. As reported in April 2023, the overall offending rate of young people from June 2021 to June 2022 was 224 per 10,000 young people, with only 9% of this deemed to be ‘serious offending.’11
Yet, these serious cases tend to be the most nuanced in terms of the nature of the offence and the attributes of the youth. Lynch agrees that, although the youth who commit serious offences are the most vulnerable, concerningly, there is far less discussion regarding what a child’s rights approach to these cases could look like.12 Similarly, she notes that ‘there is considerably less guidance on the principles, process and outcomes for children who commit very serious offences.’13 Yet, these youth are the ones who would benefit the most from the application of
9 Ibid. See also Tony FitzGerald “Changing young lives through a focus on the underlying causes of offending” (n.d) District Courts of New Zealand, <www.districtcourts.govt.nz>
10 Ministry of Justice, Youth Justice Indicators Summary Report. (April 2023. Wellington: Ministry of Justice.) at 10.
11 Ibid at 9.
12 Nessa Lynch “Youth Justice in New Zealand: A Children’s Rights Perspective” (2008) 8(3) Youth Justice 215 at 216.
13 Nessa Lynch and Ton Liefaard “What is Left in the “Too Hard Basket”? Developments and Challenges for the Rights of Children in Conflict with the Law.” (2020) The International Journal of Children's Rights, 28 at 99.
an appropriate range of principles, processes, and policies that could, in turn, change their lives and maximise their potential.
This dissertation comprises four chapters. Chapter One sets out New Zealand’s current legislative framework and closely examines the OT Act and its underlying purposes (s 4) and principles (s 5, 13, & 208). Chapter One also discusses New Zealand's international commitments, namely those located within the United Nations Convention on the Rights of the Child (UNCRC).
Chapter Two explains who the vulnerable youth at the centre of the youth justice and care and protection nexus are. This includes youth with neurodisabilities and those with early adversity, including abuse and neglect, who have experience of the care and protection system and who have offended.
Chapter Three reviews recent New Zealand case law to enable the impact of our legal landscape to be considered in relation to vulnerable youth. This includes the concerns relating to Youth Justice Family Group Conferences (YJ FGCs) as a resolution mechanism and the use of youth justice facilities. This chapter also considers the approaches taken internationally within Scotland, to consider whether this system may provide insight into an integrated system of care and justice that could have relevance for New Zealand.
Finally, Chapter Four discusses the key themes to have emerged across the dissertation and sets out three recommendations to address the artificial dichotomy which currently exists between the two systems. This includes the development of a more integrated system, which is then supported by the provision of extra support for neurodisabled youth and the disestablishment of youth justice facilities. Implementing these recommendations is critical if New Zealand is to ever truly commit to a more effective approach to dealing with youth offending.
The Legal, Policy and Practical Context
In New Zealand’s family law landscape, two fundamental systems attempt to safeguard the well-being of children and youth: the care and protection system and the youth justice system. Both are included within the OT Act 1989, also known as the Children’s and Young People’s Well-being Act 1989 and are overseen by Oranga Tamariki – Ministry for Children (OT) and a range of parties including the Family Court, Youth Court, the Police, and the Ministry of Justice.14
This chapter canvasses these two parts of the OT legislation, comparing and contrasting each, to identify their similarities and differences. Consideration is first given to the underlying philosophy of each part, commonly referred to as the welfare and justice models, to better understand the alternative drivers of each system. This chapter then considers the principles that guide the care and protection and the youth justice systems before reviewing what the legislation actually provides for. The chapter concludes by discussing the international law of the UNCRC, a document that New Zealand ratified in 1993 to understand how integration can help us meet our international obligations.
II. Theoretical Perspectives
Over the years, jurisprudential theorists have debated which model is best to underly these systems. Should these youth be dealt with under a therapeutically-oriented system given their underlying needs e.g., the welfare model, or a punitive approach given the harm they have caused e.g., the justice model?15
14 Alison Cleland and Kylie Quince Youth Justice in Aotearoa New Zealand (1st Ed LexisNexis, Wellington, 2014)
15 S Baidawi and R Sheehan, above n 4. See also Emily Watt A History of Youth Justice in New Zealand (Research paper, Department for Courts, January 2003), Roger Smith “Welfare versus Justice - Again!” [2005] 5, YJ. 3 and Louise Forde “Welfare, Justice, and Diverse Models of Youth Justice: A Children’s Rights Analysis,” (2021) 29 The International Journal of Children's Rights 920
A. The Welfare Model
The welfare model focuses on the young person’s background, their needs, and how society can help them. Its primary focus is on the welfare and best interests of the child, with the state often taking a paternalistic approach to help the youth. This model adopts:16
... the approach that regards offending by children and young people as a symptom of problems in their personal family or environmental circumstances. It is focused on the needs not deeds.
The principles that govern the care and protection system reflect a predominantly welfarist approach. Section 4A for example, states that when making decisions in relation to youth in need of care and protection their well-being and best interests are the ‘first and paramount consideration.’
B. The Justice Model
In contrast, the justice model, which young offenders in New Zealand are currently governed by, is focused on promoting accountability, punishment and retribution. It can be seen as the:17
...inversion of welfare ideals, focusing on: offending, not the offender; responsibility and free will, not determinism; equality of sanction, not individual treatment; and determinate sanctions rather than indeterminate rehabilitation.
In many jurisdictions, including New Zealand, the youth justice system has often run parallel and at times in conflict with social work and the care and protection system.18 For example, in comparison to the wording of s 4A, under the youth justice system the well-being and best interests of a young person is only a primary consideration, among many others.19 Furthermore s 4(1)(i) of the Act notes that ‘when responding to alleged offending and offending by young persons it is to be done in a way that— (i) promotes their rights and best interests and acknowledges their needs;...’ The language that Parliament uses is important: the words of acknowledge compared to address in section 13 (i)(ii), make it apparent that Parliament is not
16 N Lynch above n 6 at 76, see also R Smith above n 15 and L Forde above n 15.
17 E Watt above n 15 at 4.
18 Bill Whyte “Responding to Youth Crime in Scotland” (2004) 34 The British Journal of Social Work 395 at 396.
19 Oranga Tamariki Act section 4A(2).
as concerned with a potential offender's needs and best interests as they are with a child in need of care and protection, even though both youths share many similarities.
C. The Need for Integration
Although the justice model may hold the offender to account, the process will ultimately be ‘self-defeating if care and protection issues under the welfare model are not also addressed.’20 Our laws have ‘tended to be evaluated against ideal types of welfare or justice as if the two were incompatible.’21 However, the systems have historically always been linked to some degree. Following the passage of the Child Welfare Act 1925, ‘the distinction between offending and neglected children had finally been eradicated.’22 During this time, youth justice legislation dealt with both young people who required care and protection and those who had committed a criminal offence in the same court – the Children and Young Persons Court.23 This court took a predominantly welfarist approach to all youth ‘based on the belief that criminal behaviour in young offenders’ stemmed from various factors relating to undesirable upbringing and environment.’24 New Zealand was not alone in adopting this approach during the early centuries. In 1968, the Home Office of England noted that:25
It has become increasingly clear that social control of harmful behaviour by the young and social measures to help and protect the young are not distinct and separate processes. The aims of protecting society from juvenile delinquency and of helping children in trouble to grow up into mature and law-abiding persons are complementary and not contradictory. (emphasis added)
Yet, over time, these two models have grown apart in both countries. In New Zealand, the models split into two separate spheres, each reflecting a different model. Across our more recent legislative reforms, Parliament has continued to include the youth justice and care and protection systems in the same statute: the Children, Young Persons and Their Families Act 1989, renamed as the Oranga Tamariki Act 1989 in 2017. Despite this legislative integration,
20 Judge AP Walsh, “Youth justice model v the welfare model: have we got the balance right?” [2007] NZFLJ 249, at 250
21 R Smith above n 15 at 3.
22 A Cleland and K Quince above n 14 at 75.
23 E Watt, above n 15.
24 Judge AP Walsh, above n 22 at 249.
25 R Smith, above n 15 at 3.
officials continue to interpret these systems independently, finding them to be ‘utterly separate with no interface at all.'26 The Ministry of Social Development considered this issue in 2004:27
The structure of the legislation reinforces the separation between care and protection in youth justice proceedings. Dealing with the separation of what was previously seen as part of a comprehensive set of responses to young people in the welfare system has not been simple. The advantages of separating the two systems can be seen in a greater emphasis on accountability of young offenders than in the past. But the disadvantages can be seen in the difficulty of assessing, arranging and resourcing measures designed to respond to needs that have traditionally come under the welfare heading.
Each system aims to prioritise the best interests of young people, but their distinct purposes and approaches often create complex challenges in achieving a cohesive vision for youth justice in New Zealand. This chapter next explains the principles and purposes of the systems, before addressing their intricacies, exploring the current efforts to integrate them, and highlighting the need for a balanced and compassionate approach to support young offenders and foster a safer society.
III. Priorities, Conflicts, and Challenges within the Oranga Tamariki Act 1989
In 2019, the OT Act went through a series of reforms, including the addition of ‘new concepts to the already complex menu of principles that decision makers must consider when exercising power under the legislation.’28 The legislation now includes a range of guiding principles, some of which govern the whole of the Act,29 and others which are specific to the youth justice30 and care and protection systems respectively (see Appendix One).31
Competition and confusion across these principles is evident - can a young person's care and protection needs be addressed while simultaneously holding the young person to account?32 And can the victim's needs and interests still be addressed while imposing the least restrictive
26 New Zealand Police v JF [2021] at [42].
27 Gabrielle Maxwell and others, Achieving Effective Outcomes in Youth Justice (Ministry of Social Development, February 2004) at 243.
28 N Lynch above n 7 at 181.
29 Oranga Tamariki Act s 5.
30 Oranga Tamariki Act s 208.
31 Oranga Tamariki Act s 13.
32 Oranga Tamariki Act, s 208 (2)(fa) and s 4(1)(i) see also N Lynch, above n 6 at 31.
sanction on the young offender?33 Thus, we are faced with what may appear to be an insurmountable challenge in reconciling the ‘frequently incompatible views.’34 It is unsurprising therefore, that academics, such as Lynch, criticise the numerous principles embedded in the OT Act, noting that ‘where there are so many principles, some competing, there is a lack of a coherent vision for youth justice.’35 Without this clear vision, the system will remain fragmented and separated rather than act as one integrated whole. As will shortly be shown this can lead to the egregious treatment of youth who face further criminalisation within the system.
IV. The Care and Protection System
New Zealand’s care and protection system is a crucial mechanism for protecting children and young people who face difficult or abusive upbringings. It becomes engaged once an OT social worker or the Police become aware that a child or young person is at risk of being harmed either through violence, neglect, or abuse, or that their parents are unable or unwilling to provide care for them.36 A statutory response also occurs if a child acts in a way that has, or may, cause harm to themselves or another young person, or they have committed a crime with such magnitude that gives rise to concerns for their safety, and their parents are again unable or unwilling to control such actions.37 In 2021, there were just under 78,000 reports of concern made to OT regarding risk or harm to a child.38
Depending on the seriousness of the notification, the social worker may begin a ‘child and family assessment’ or refer the case for an ‘OT investigation.’39 These early investigations examine the young person’s living arrangements, support systems and general well-being. If OT still considers the youth to be in need of care and protection, an FGC may be held to discuss the issues with the whānau and decide on a plan of action to protect the young person. OT may alternatively take proceedings to the Family Court where the judge can make a range of orders
33 Oranga Tamariki Act s 208 (g) and s 208 (f)(ii) see also N Lynch, above n 6, at 31.
34 Review of the Children and Young Persons Bill: Report of the Working Party on the Children and Young Persons Bill (Department of Social Welfare, Wellington, 1987) at 6.
35 N Lynch above n 7 at 2.
36 Oranga Tamariki Act s 14AA (1), (2)
37 Oranga Tamariki Act s 14(1)(e).
38 Oranga Tamariki Ministry for Children, “The statistics” (8 September 2023) <www.orangatamariki.govt.nz> 39 N Lynch above n 13. The difference between the two is that a child and family assessment occurs only when there is no concern that there is any criminal investigation, or police presence required. Most youth who fall within the scope of this dissertation will therefore have been involved with an OT investigation, given their offending.
dependant on what they believe to be in the best interests of the young person.40 These orders can include ordering an FGC to be held if one has not already been, counselling, providing support services, monitoring, restraining orders against parents or caregivers or, at the extreme, custody - a young person may be removed from their parent’s custody when the court is satisfied that they are being ill-treated, neglected, abused or harmed or it is suspected that this is likely to occur and there is no other way of protecting the young person.41
V. The Youth Justice System
The youth justice system is an independent sector within the wider criminal justice system. It provides guidance on how to deal with children (10-14 years) and youth (aged 14 – 17 years) who offend. The goal is to keep most young offenders out of court and dealt with via community mechanisms. The youth justice system commonly splits young offenders into four categories.42
These categories are closely linked to the criminal justice categories of class, 1, 2, 3 and 4 offences.43 Most youth offending in New Zealand falls within category 1 as low-level offending. These minor offences are typically dealt with out of court via Police services such as diversion and warnings, or through Youth Aid officers who create Alternative Action plans.44 Offences that are slightly more serious, i.e., category 2 offences, often lead to a Youth Justice FGC (YJ FGC) being convened. This involves the offender, victim, community members, Police and social workers working out how best to address the offending and go forward.45 The commission of a category 3 offence will likely be one that reaches the Youth
40 Oranga Tamariki Act s 68, and s 83.
41 Community Law “When your child can be taken from you immediately” <https://communitylaw.org.nz>
42 Oranga Tamariki Ministry for Children “Youth Justice Te Manatika Taiohi” (2021)
<www.orangatamariki.govt.nz> see also Lucy Elizabeth Haines “Are New Zealand’s Judicial Processes Meeting or Obstructing the Needs of Offenders with FASD?” (Bachelor Of Laws (Honours), Dissertation, the University of Auckland, 2023) at 24.
43 Criminal Procedure Act 2011, s 71, 72, 73, and 74.
44 Community Law “The Youth Justice System” <www.youthlaw.co.nz>
45 Ibid.
Court. Youth who have committed the most serious of all crimes, category four offences, which include murder manslaughter or rape, are transferred from the Youth Court to the District or High Court for sentencing and are therefore prosecuted and sentenced within the adult criminal justice system.46 It is these latter two classes that are the focus of this dissertation.
Since 2010, serious offending has not abated at the same rate as lower-level youth crime. As Dr. Ian Lambie notes ‘the proportion of youth crime considered to be of a serious nature has actually risen.’47 He continues by stating:48
the overall number of young people proceeded against for offences that were deemed to be of medium-high or high-level seriousness reduced by 44% from 2010 to 2018. In 2018, however, 35% of the young people who had offended were proceeded against by the police for offences that were of medium-high or high-level seriousness, compared to 25% in 2010.
This recent increase is of concern. These youth are under-researched and there is little guidance as to who these children are, what leads them to offend and how we can better support them.49 It is therefore important to research these individuals in particular, given that serious or persistent offending at a young age is a strong indicator as to whether a young person will continue to offend as they grow.50 As Chapter Three will show, our current youth justice system is inadequate in meeting the needs of our vulnerable youth and a change is therefore needed.
VI. Current Integration Between the Two Systems
Whilst the care and protection and youth justice systems largely operate separately, there have been recent developments in the law to begin bridging the gap between them. These have included, for example, the development of cross-over lists, information-sharing protocols between the Youth Court and Family Court, and improved case management.51
Cross-over Lists: The judicial initiative of cross-over lists began in 2011 following the request of Judge Fitzgerald, a senior family and youth court judge of Auckland. These lists allow a
46 Ibid.
47 Liam Polglase and Ian Lambie “A sharp decline in youth crime: reviewing trends in New Zealand’s youth offending rates between 1998 and 2019” [2023] 0 Current Issues in Criminal Justice 1 at 9.
48 Ibid.
49 N Lynch and T Liefaard, above n 13, at 99
50 L Polglase and I Lambie, above n 47 at 7.
51 Katherine Werry, “Crossover kids in New Zealand” [2021] NZLJ 312
Judge who is trained in both the youth justice and care and protection systems to deal with both aspects of a young person’s concerns at once. As Katherine Werry noted:52
The aim of the lists are twofold: first, to coordinate what is happening for the children and young people with proceedings in both courts, and second to address the serious dysfunction in how these cases were being dealt with previously.
Despite their positive beginnings, issues remain within these courts in relation to the lack of dual warranted judges in some centers, leading to ‘no crossover time for a year; or a large region having crossover time only occurring once a fortnight.’53 As positive as this initiative may be, if court resourcing means judges are unavailable then their benefit cannot be widely felt.
Information-sharing protocols: These protocols were introduced to assist the development of cross-over lists and act as a key linking mechanism between the Family Court and the Youth Court. They allow Judges from either court to request information relating to a proceeding they are presiding over. The information may include the stage of the proceeding, specialist reports which have been requested, and any order, sentence or direction that has been made.54 These protocols enable Judges to have a more holistic picture of what the young person is currently experiencing and to ‘synchronize and align interventions between jurisdictions.’55
However, stakeholders still refer to the ‘lack of a ‘joined-up’ approach between the two systems within OT.56 Those who work within this field often struggle to align their interventions, appearing to battle against one another rather than work together.57 There is no collaboration, everything is very siloed and independent, leading one youth advocate to comment:58
52 Ibid at 313.
53 Ian Lambie, and others, How we fail children who offend and what to do about it: ‘A breakdown across the whole system’. Research and recommendations. , (The Michael and Suzanne Borrin Foundation, the New Zealand Law Foundation & the University of Auckland. 2022) at 10.
54 District Courts of New Zealand “Protocol for the Sharing of Information Between the Family and Youth Courts” (13 July 2020) <www.districtcourts.govt.nz>
55 A Becroft above n 50 at 27. See also Oranga Tamariki “Information Sharing” Oranga Tamariki – Ministry of Children, Practice Centre <https://practice.orangatamariki >
56 I Lambie, and others above n 54 at 92.
57 Ibid.
58 Oranga Tamariki Evidence Centre Young people remanded into youth justice residences – What are the driving factors? Research study: (Oranga Tamariki—Ministry for Children, December 2018) at 27
Sometimes I feel like... -- the YJ branch of Oranga Tamariki is saying, "Well, you guys in Care and Protection should be doing it", and then Care and Protection is going, "Well, you guys, this is YJ."
The two agencies seldom operate in a unified manner, despite the needs of youth often necessitating the use of both services.59
Legislative tools: The legislation itself also provides for a range of integrated provisions such as s 261 and 280 of the OT Act. Section 261 notes that when an FGC is convened following a young person’s offending, the conference may ‘make decisions, recommendations, and plans relating to care or protection [or well-being] of child or young person.’ However, it is clear from the wording that this is a voluntary addition to offence-based concerns and its success is dependent on the particular FGC convenor. As Dr. Lambie found:60
Family Group Conferences (FGCs), once children had offended, were of variable quality, could be overly focused on offending (instead of wider welfare concerns) and produced plans that were often not well-implemented nor adhered to.
Section 280 of the OT Act then grants the court the power to refer cases to a care and protection coordinator when they believe the youth is in need of care and protection and that the case should be dealt with under the care and protection system, thus adjourning the youth justice proceedings. However, as Judge Becroft noted:61
While this was a sound provision in principle, regrettably the references appeared to take too long to be addressed and were frequently subject to delays. Too often Youth Courts felt compelled to retain the matter in the Youth Court where it could be resolved more quickly and where such resources as were available in the Youth Court could be directed to the young person in his/her family more quickly.
Family Court and child welfare procedures are characterised by substantial delay, limited cooperation, and minimal monitoring of cases.62
59 Ibid.
60 I Lambie, and others above n 54 at 4.
61 Andrew Becroft Principal Youth Court Judge “Youth Justice in New Zealand: Future Challenges” (Paper presented at the New Zealand Youth Justice Conference “Never Too Early, Never Too Late,” Wellington, May 2004) at 42.
62 I Lambie, and others above n 54 at 4
On 6 April 1993, New Zealand ratified the UNCRC, a document that sets out specific rights of children and young people.63 This convention applies to all young people up to the age of 18, one year older than what New Zealand currently recognises as the age of a youth.64 For the purpose of this dissertation, the UNCRC is important as it sets out clear procedures for youth who have been accused of committing a crime, including the presumption of innocence, the right to silence, and the right to know the charges they face alongside others that are further detailed in Chapter Three.65
Additional principles relevant to this dissertation include the right to be free from discrimination on any basis, and for youth to have their best interests upheld.66 The United Nations Committee has noted that in the context of youth offending, to uphold the best interests of youth must require that ‘the traditional objectives of criminal justice such as punishment and deterrence give way for rehabilitative and restorative justice objectives.’67 Importantly, the UNCRC does not see the welfare and justice models as discussed earlier as antithesis of each other. Rather it presents the two principles as sitting side by side, as ‘important elements that must both be present in a rights-compliant youth justice system’.68 Therefore, to best conform with the legal requirements of the UNCRC, New Zealand should prioritise the integration between the two systems of care and justice. As Louise Forde has noted:69
Without a focus on co-ordination between agencies responsible for justice and for broader children’s services at the level of law and policy, and in the co-ordination and delivery of services, it is extremely difficult for States to effectively implement their international obligations.
VIII. Summary
The interplay between New Zealand's care and protection system and the youth justice system within the framework of the OT Act 1989 reveals the need for complex balancing between the
63A Cleland and K Quince above n 14 at 3. See Oranga Tamariki Act s 5 (1)(b)(i)
64 A Cleland and K Quince above n 14 at 3-5. See also N Lynch above n 13.
65 United Nation Convention on the Rights of the Child GA Res 44/25 (1989) Article 40.
66 Ibid Article 3, 37 and 40.
67 United Nations Committee on the Rights of the Child, General Comment No 10: Childrens rights in Juvenille Justice CRC/C/GC/10 (2007) available at <www2.ohchr.org> at 5.
68 L Forde above n 15 at 927.
69 L Forde above n 15 at 937.
welfare and justice paradigms. These systems, despite their shared origins and legislative inclusion within the same statute, often appear as distinct entities that lack a common purpose rather than cohesive components of a unified approach.
To foster a safer society and better support the well-being of young individuals, a more nuanced and balanced approach is required—one that acknowledges the individual complexities of young offenders, addresses their needs and holds them accountable while recognising the importance of compassion, rehabilitation, and diversion. Although the early stages of an integrated approach can be seen through the information-sharing protocols, legislative tools and crossover lists, more must be done.
By re-evaluating prevailing perceptions and policies, as well as embracing evidence-based practices, New Zealand can pave the way for a system that upholds our international obligations and provides a genuine opportunity for transformation and reintegration, ultimately contributing to the betterment of young lives and society as a whole.
Chapter Two delves deeper into who the offending youth are and examines their vulnerabilities, including both care and protection concerns and neurodisability issues.
The Vulnerable Youth
In the complex realm of youth justice, the vulnerabilities and challenges faced by young offenders have come into sharp relief. This chapter explores the intricacies of their experiences within the legal system, shedding light on the links between their unique circumstances and the justice system. It addresses the hurdles young people encounter, the potential for misinterpretation of behaviour, and the profound implications of their overlapping vulnerabilities. Chapter Two highlights the nuances of vulnerable youths’ experiences with a focus on those with a neurodisability or prior care and protection concern, aiming to forge a just and equitable path forward for these young people at the crossroads of vulnerability and the law.
II. Vulnerable Offenders
Young people differ from adult offenders due to their ‘physical and psychological developments.’70 In comparison to adults, young people are risk-takers and respond to situations differently. They cannot comprehend culpability or consequences as an adult would. Young people by their very nature are vulnerable as they are reliant on those around them to provide them with life’s essentials. Thus young people are vulnerable simply due to their frontal cortex developing, and those who have additional risk factors can be significantly more vulnerable.71 These include youth who have a neurodisability, a cultural disconnection, and those who have previously engaged with the care and protection system.72 The OT Act importantly recognises the vulnerability of offending youth stating that:73
70 United Nations Committee on the Rights of the Child above n 68 at [2].
71 New Zealand Police v JF [2021] NZYC 251 at [31]
72 John Walker, Principal Youth Court Judge for New Zealand “When the Vulnerable offend – whose fault is it?” (Northern Territory Council of Social Services Conference Darwin, 27 September 2017).
73 Oranga Tamariki Act s 208(h)
The vulnerability of children and young persons entitles a child or young person to special protection during any investigation relating to the commission or possible commission of an offence by that child or young person.
This chapter now considers what these vulnerabilities are, their prevalence within our youth justice system and how well the system recognises these vulnerabilties.
A. Neurodisabilities
In examining the statistics of young people in the youth justice system it is first necessary to clearly define the term ‘neurodisability.’ For this purpose, I have adopted The British Psychological Society's definition:74
Childhood neurodisability occurs when there is a compromise of the central or peripheral nervous systems due to genetic, pre-birth or birth trauma, and/or injury or illness in childhood. This definition includes a wide range of specific neurodevelopmental disorders or conditions, with common symptoms including muscle weakness, communication difficulties, cognitive delays, specific learning difficulties, emotional and behavioural problems and a lack of inhibition regarding inappropriate behaviour.
It is difficult to provide an accurate picture of how many young people, within both the general population and the youth justice sector, suffer from a neurodisability in New Zealand. This is due to the invisibility of many of these disabilities, which can leave many youths undiagnosed. International research, however, estimates that between 60% - 90% of all youth within the youth justice sector have a communication disorder of sorts (see Appendix Two).75 This leads to reports that ‘the rates of neurodevelopment disorders amongst New Zealand youth offenders are ‘sky high.’76
The lack of assessments for these neurodisabilities is a key issue in itself - if a disability has not been diagnosed then it cannot be treated. Care and protection services often argue that they
74 Children and Young People with Neuro-Disabilities in the Criminal Justice System (The British Psychological Society, March 2015) at 7.
75 Nessa Lynch, Neurodisability in the Youth Justice System in New Zealand: How Vulnerability Intersects with Justice (Dyslexia Foundation of New Zealand, Report summarising the 2016 Neurodisabilities Forum, 30 May 2016) at 7
76 Ibid at 16.
cannot afford the complex neuro assessments needed for each child who is referred to them.77 However once these youth come to the attention of the Police, they are also not explicitly screened for neurodisabilities, as the screening tool used by Police only locates basic risk factors.78 Yet, these youth have a far greater likelihood of offending, leading to tens of thousands of dollars being spent on their incarceration within the youth justice system.79 Therefore if the true barrier to a diagnosis is financial, it would be far more economical to redistribute funding from the youth justice sector to the care and protection system to allow for a diagnosis, and treatment to be provided, avoiding the need for incarceration entirely.
Young people with a neurodisability experience life much differently to their peers, they tend to have limited literacy skills, slower cognitive processing speeds, issues with retaining information, understanding consequences, and a reduced ability to comprehend authority and instructions.80 Consequentially, they are significantly more at risk than their peers to offend. It is no surprise therefore, that the words ‘serious’, ‘persistent’ or ‘violent’ often occur in the literature alongside research on youth offenders with a mental impairment.81
These young people also face further difficulties once they enter the youth justice system as their behaviour can be mistakenly interpreted as hostile, dishonest, or guilty. Young people with a neurodisability can also be easily influenced by authority, leading them to falsely and quickly confess so as to be compliant with the officer for whom they see as the authority. These vulnerabilities can thus be manipulated by authorities who seek to lure out an admission of guilt.82
A further concern for many is that when youth with a neurodisability enter the criminal justice system they are systematically denied a range of guaranteed UNCRC rights, especially articles 37 and 40.83 These articles are important as Hughes notes: 84
77 Anita Gibbs, “We are not doing enough for children with neuro-disabilities” [2022] 34, Aotearoa New Zealand Social Work, 90 at 90.
78 N Lynch, above n 76, at 12.
79 As per Jennifer George Crossover Youth Scoping Study (Henwood Trust, April 202) at 21 to fill one bed at youth justice residence costs the taxpayer $267,881 a year.
80 N Lynch, above n 76, at 4.
81 A Cleland and K Quince, above n 14, at 210 and N Lynch, above n 76 at 10.
82 Anita Gibbs “If only Teina Pora had a MedicAlert bracelet” (2018) 131 NZMJ 85
83 United Nation Convention on the Rights of the Child above n 66 Article 37 and 40.
84 Nathan Hughes, Neurodisability in the youth justice system: recognising and responding to the criminalisation of neurodevelopmental impairment (The Howard League for Penal Reform, 2015) at 2.
...they establish the need for children and young people in the criminal justice system to be dealt with in ways that take account of their specific developmental needs, including through interventions that promote care, guidance and support.
By denying youth these rights academics such as University of Otago Professor Anita Gibb, have referred to our system as ‘ableist’ as the courts do not consider their specific developmental needs. Instead, the courts assume that all offenders are rational, reasonable free thinkers.85 This is especially problematic for youth who have an undiagnosed neurodisability. FASD for example is an invisible disease, leaving many youths suffering with their disability without the support and education that they require.86 When Judges give neurodisabled youth complicated and strict bail conditions that are left unexplained to the young person for example, it can lead to an increase in the possible failure to comply with the court order and can set the young person up for failure. Often leading them to return to court for additional and harsher sentencing.
Even if a youth is fortunate enough to have been diagnosed earlier in their life, this is often minimised through their contact with the criminal justice system:87
Institutional mechanisms, diagnostic processes and professional narratives turn cognitive dis- ability and distress into ‘challenging behaviour’, serving to erase disability and characterise the experiences and trajectories of young people as individual, ahistorical and asocial.
Because of this, youth disengage and self-exclude from support systems, accepting the criminal label that the system has given them. Commenting on these problems further, Gibbs noted that:88
Our youth justice system punishes those who do not learn from repeated mistakes even when this lack of learning is a strong indicator of neurodisability alongside communication, impulsivity, executive and adaptive functioning difficulties. These same children who come
85 Anita Gibbs “We are not doing enough for children with neuro-disabilities” (2022) 34 Aotearoa New Zealand Social Work 90 at 92
86 Paula Penfold and Louisa Cleave “Forsaken. New Zealand’s shameful mismanagement of FASD.” (6 March 2022) <www.stuff.co.nz>
87 Ruth McCausland and Leanne Dowse, “From ‘at risk’ to ‘a risk’: The criminalization of young people with cognitive disability in residential care” (2022) 3, Incarceration, 1 at 10
88 A Gibbs, above n 86, at 92.
from care backgrounds, who are both victims and offenders, are often those with lifelong, fixed disabilities and they need accommodations, not a negative judgment.
Without these accommodations, it is unsurprising that academics have noted that for offending neurodisabled youth, we ask too much of them yet provide them with too little support. Because of this Lynch has commented that:89
We can look back on our contemporary laws, policy and practice for children in conflict in the law as being akin to asking a person in a wheelchair to run up the stairs.
B. The Care and Protection to Criminal Pipeline
This dissertation covers both youths who have engaged with the care and protection system, or who are currently engaged with it, simultaneous to their youth justice proceedings. With the definition of care and protection proceedings encompassing any form of FGCs, out-of- home placements, or family/whānau agreements.
Many young people with prior involvement in the care and protection system will not necessarily go on to engage with the youth justice system. In 2020, OT stated that, of the ‘3,220 18-year-olds who had care and protection statutory involvement, 2,630 never went on to have youth justice statutory involvement.’90 However, 88% of youth who committed a serious offence, and were referred for an FGC, had previously been engaged by the care and protection system at one point. Judge Becroft reflected this finding stating, in his experience, ‘the serious persistent offenders particularly almost always present with care and protection issues.’91 Additionally Baidawi and Piquero found that:92
Aside from their over-representation in the youth justice system, the available data indicates that crossover children experience earlier onset of youth justice system contact, greater
89 N Lynch above n 13 at 94.
90 Oranga Tamariki Evidence Center Youth Justice Insights: Separating Misconceptions from Facts. (Oranga Tamariki – Ministry for Children, 2 April 2020) at 9.
91 Andrew Becroft, Signed, Sealed – (but not yet fully) Delivered an analysis of the “revolutionary” 1989
legislative blueprint to address youth offending in New Zealand, particularly by young Māori, and a discussion as to the extent to which it has been fully realised (Paper delivered at the “Healing Courts, Healing Plans, Healing People: International Indigenous Therapeutic Jurisprudence Conference” (Vancouver, Canada 2014) at 32
92 Susan Baidawi & Alex R. Piquero, “Neurodisability among Children at the Nexus of the Child Welfare and Youth Justice System” [2020] 50, Journal of Youth and Adolescence, 803 at 803
likelihood of violent offending, greater continuation of offending into mid-adulthood, and higher recidivism compared to other justice-involved children
Often the crimes committed by these youths are crimes of necessity such as armed robbery or theft. Some crimes are trauma and mental health responses such as willful damage, whilst others are related to a young person's desire to find a family where they feel they can belong, such as joining a gang.93 Each crime with a different motivation that is linked closely to their vulnerability. For youth who come from a violent home, fuelled by tough love, Judge Walker’s address to the Northern Territory Council of Social Services Conference in 2017, reveals an important truth:94
If you bring a child up in a war zone, you end up with a warrior.
To blame these young people for their crimes without fully considering and understanding their history of care and protection is therefore mistaken. In many cases, however, this is exactly what occurs. For example, correctional therapists who work with young offenders often prioritize ‘offender treatment’ ignoring the young person's care and protection history and focusing solely upon their criminal actions.95 In this way, any discussions of their ‘past lives of family violence, institutional abuse, endemic disadvantage or long-term trauma are seen as attempts by offenders to avoid responsibility.’96 Youth within these systems do not experience what has brought them within the youth justice system and what has brought them within the care and protection system as two separate things - the causes of both are all combined into one life.97
C. The Intersectionality of Youth Offenders
Offending youth often straddle both sides of the vulnerability spectrum with many care and protection youth suffering from neurodisabilities and vice versa, thus compounding the
93 Ministry of Justice, above n 10 at 10
94 J Walker, above n 73.
95 Elizabeth Stanley “From Care to Custody: Trajectories of Children in Post-War New Zealand” [2016] 17, YJ, 57 at 69
96 Ibid.
97 Police v JF [2021] NZYC 251 at [40]
problem. At times care and protection concerns can lead to a neurodisability, whilst in other situations a neurodisability can cause care and protection concerns.
First, there is a strong association between continual child abuse and neglect, and the development of a neuro disability or mental illness. These disabilities may range from the development of depression, heightened anxiety, and suicidal tendencies to lifelong disabilities such as PTSD, or FASD.98 A child who is a victim of a particularly violent household, for example, may suffer from a traumatic brain injury (TBI), a disability that is caused by a violent jolt or hit to the head.99 The effects of this include a higher risk of engaging in violent or sexual offending and they are often at a much younger age for their first appearance.100 The diagnosis of a TBI is also strongly associated with reoffending. Youth who are born with FASD, are also often born into an unstable family that suffers from alcohol and other forms of substance abuse. Similarly, a member of the young person’s family may suffer from a neurodisability leading to a difficult upbringing. FASD, for example, can be intergenerational and cause disruption during a young person’s childhood.101 A range of publications across the globe have found that care and protection-involved youth are significantly more likely to become engaged in the criminal justice sector when they have a disability.102 Thus this intersectionality creates a new plethora of difficulties for the young person and the criminal justice system following an offence.
Secondly, by virtue of their needs, young people with a neurodisability provide additional challenges for their parents and caregivers, often presenting with issues relating to attention, aggression, and social cues. Thus, this can lead to a breakdown in adult relationships, leading to exacerbated family members and negative responses of violence and neglect from those around them.103 Australian research has found that close to one-half, 48.1% of all cross-over
98 S Baidawi and others above n 40.
99 “Traumatic Brain Injury (TBI)” National Institute of Neurological Disorders and Stroke
100 Katherine M, Ineson and others “Traumatic brain injury and risk of subsequent attempted suicide and violent crime.” (2022) 53 Psychological Medicine 4094 at 4098.
101 Anita Gibbs Best practices for justice: Practitioner views on understanding and helping youth living with fetal alcohol spectrum disorder (FASD) (Aotearoa New Zealand Association of Social Work, December 2022) at 12.
102 Susan Baidawi and others, Criminal Justice Involvement of Children with Disability in Child Protection Systems: A scoping review (Research report commissioned by the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability) at 49 See also Sarah Watt “Crossover Young Adults”: The Case for a Neurodevelopmentally-Aware, Trauma-Informed Approach to Sentencing Young Adults with Criminal Justice and Care and Protection Involvement” (Master of Laws, Thesis, the University of Auckland, 2022) and Dr. Ian Lambie What were they thinking? A discussion paper on brain and behaviour in relation to the justice system in New Zealand (Office of the Prime Minister’s Chief Science Advisor, January 2020).
103 S Baidawi & A R. Piquero, above n 92 at 805
youth also had a neurodisability.104 These youth were found to have offended up to two years earlier than their peers within care and protection who did not suffer a neurodisability and were more often relinquished from the custody of both their parents and foster carers.105 When these youth enter state care, few come with any formal diagnosis that may explain their behaviour to the support staff, leading to further tensions within the facilities.
III. Summary
In conclusion, Chapter Two has discussed who New Zealand’s most vulnerable youth are, canvassing the challenges they face on a daily basis, and showing how their underlying needs contribute significantly to their higher risk of offending. The youth who come into contact with the youth justice system are frequently the same ones as those who have come to the attention of the care and protection system. Why then do we therefore retain such an unnecessary and unhelpful division between the two systems?
Chapter Three elaborates on these issues further, and expands upon the descriptions presented in Chapter Two. Its primary focus is to discuss how our current legal landscape further hinders these vulnerable youth by enforcing an artificial dichotomy.
104 Susan Baidawi and others Care criminalisation of children with disability in child protection systems (Monash University Melbourne University of Western Sydney Centre for Evidence and Implementation, May 2023) at 56.
105 Ibid at 27.
The Current Judicial Approach to Youth at the Nexus
Most serious young offenders, in one way or another, bring with them past and/or present care and protection deficits. They present a difficult challenge to the criminal justice system. On the one hand, their backgrounds of abuse and environmental dysfunction, categorise them as vulnerable victims in need of help. On the other, their offending demands accountability creates damaged victims and all too often casts them indeed as “huge and threatening yobs” or worse. 106
This chapter therefore delves deeper into these challenges, examining the treatment of youth offenders, how professionals and the judiciary currently apply the OT Act, and how their responses - including their interpretation of the Act - affect the young people at the very heart of these cases. As this chapter illustrates, whilst care and protection and neurological concerns for young people in the youth justice system are extremely prevalent, these two systems are often perceived as entirely separate.107 The artificial division within the legislation is problematic as the outcomes for our young people are lacking in areas where they could be improved. One of the major concerns is that the OT Act does provide safeguards to protect against ‘the criminalisation of care and protection’ through the purposes and practices of both sections earlier discussed, yet, in practice, these are not upheld.108
Additionally, this chapter scrutinises the concerns pertaining to FGC’s, remand and custodial sentences, given that it is often the serious offenders with additional vulnerabilities who experience these stages. Thus Chapter Three aims to highlight the inherent flaws in the youth justice framework and shed light on how these processes disregard the legal rights of youth, particularly as defined in international conventions such as the UNCRC.
106 Andrew Becroft Principal Youth Court Judge 10 Suggested Characteristics of a Good Youth Justice System
(Paper presented at the Pacific Justices’ Conference, Auckland, March 2014) at 13.
107 K Werry, above n 52 at 313
By examining the approach of Scotland by way of a comparative process, this chapter then showcases the necessity of aligning the systems more effectively to mitigate the repercussions faced by vulnerable youth. This chapter ultimately posits that the prevailing system, in light of its evident inadequacies and detrimental consequences, requires a comprehensive reconsideration that prioritises the well-being and future prospects of the young individuals it affects, taking into consideration their care and protection concerns and their neurodisabilities.
II. Case Law
There are a range of cases within New Zealand involving a young person who comes to the attention of the Youth Court and also has a neurodisability or a prior care and protection history. However, the analysis of cases such as Police/Oranga Tamariki v [LV], New Zealand Police v XA, and New Zealand Police v JF in particular, are important demonstrations of the criminalisation of care and protection trend in action. These cases reveal critical judicial commentary that their presiding judge, Judge Fitzgerald, provided on the artificial dichotomy that exists between the youth justice and care and protection systems.
A. Police/Oranga Tamariki v [LV] [2020]
In Police/Oranga Tamariki v [LV], the young person presented to the Auckland crossover court with both youth justice and care and protection issues that were ‘impossible to separate.’109 LV had 13 offences that she had committed the year earlier at the age of 14, all of which were discharged under s 282 of the OT Act, allowing her to leave with no criminal conviction.110 During the hearing Judge Fitzgerald also had to consider whether LV’s current care and protection plan was adequate, which he decided it was not. LV also suffered from mental health concerns including PTSD and Reactive Attachment Disorder which meant it was very difficult for her to form healthy attachments.111
LV was a young person who had experienced an incredibly hard life. She was one of the youngest of 10 siblings and, at just 14 months old, ‘due to their extensive exposure to neglect, physical and emotional abuse, sexual abuse of some siblings, parental substance abuse and
109 At [134].
110 At [9].
111 At [24].
family violence,’ LV and all of her siblings were uplifted by OT.112 Due to these prior care and protection concerns, LV’s life was in a state of constant upheaval. By the age of 14 she had transferred across 8 schools, lived in both Australia and New Zealand across 29 different placements, and had lost contact with the majority of her siblings and biological parents.113
Youth, including LV, who have gone through the care and protection custody process remain some of our most vulnerable. Although the numbers have decreased (from 2,000 being uplifted in 2018 to 1,021 in 2022) youth who experience such upheaval face a range of traumatic difficulties.114 One of which, as seen in the case of LV, is that they often pass through multiple homes inclusive of family members or the states due to the difficulties that these young people present with. In doing so the young person is met with instability, denying them the ability to form attachments to friends or family, and further cementing their belief that they need to fend for themselves. Constant disruptions can also harm a young person's education and employment opportunities, decreasing their long-term prospects of being reintegrated into society.115 A 2022 report recently confirmed that ‘youth who had an out-of-home placement before their 5th birthday were more likely to offend (across all age groups) compared to their peers who did not.’116 LV seemed to feel that she did not belong anywhere, that she was already an outsider and that therefore committing crimes had no repercussions as she could not be expelled from a community she was not already accepted within.
Within LV’s case, Judge Fitzgerald was critical of the general treatment of those youth who enter the youth justice system who have prior care and protection concerns:117
When young people enter the youth justice system, care and protection step back and youth justice powers and facilities are used to manage that concerning behaviour. This “take[s] highly traumatised children and further traumatise[s] them.”
112 At [15].
113 At [19], [20].
114 Michelle Duff “The number of kids being taken from their parents has plummeted. History tells us the pendulum could swing back.” (17 December 2022) Stuff, www.stuff.co.nz
115 E Stanley above n 95 at 59
116 Ian Lambie, Jerome Reil, Andrew Becroft, and Ruth Allen, How we fail children who offend and what to do about it: ‘A breakdown across the whole system’. Research and recommendations. , (The Michael and Suzanne Borrin Foundation, the New Zealand Law Foundation & the University of Auckland. 2022) at 151.
117 At [113].
For example, once a child becomes of age to be criminally responsible, in an instant they go from being “at risk” to “a risk” and our legislation does little to appreciate the complex vulnerabilities and history of the individual. Factors such as running away from an abusive home which were previously seen to be ‘concerning features of one's care and protection status’ under the welfare model are now seen as a reason for opposing bail and allowing the police to exercise their powers of arrest and detention under a justice model.118 As the 2017 Principal Youth Court Judge, Judge John Walker noted:119
At one time they are vulnerable children in need of care and protection and then their offending behaviour, emerging out of the very same vulnerability, changes the game. Suddenly, it is all their fault.
LV, with a history of absconding from foster homes, was herself denied bail and remanded in custody. Judge Fitzgerald recounted 218 missing person incidents prior to her involvement in the Youth Court, with the Police describing her as ‘a flight risk’.120 LV spent months within these facilities leading Judge Fitzgerald to note that LV’s time in secure custody ‘dragged on’ solely because of her care and protection status.121 Young people who experience additional vulnerabilities often experience higher rates of custody due to the stigma of their care history.122 Further, some judges have actually passed a sentence of imprisonment for a vulnerable young person's welfare, essentially to give youth a break from being homeless, or to allow them time to detox from their potential substance abuse. 123 However as will shortly be discussed, youth justice residences are certainly not the place to experience welfare.
B. New Zealand Police v JF [2021]
In New Zealand Police v JF Judge Fitzgerald continued to grapple with the issues of the two opposing systems. In this case, JF, was incredibly vulnerable both due to his potential FASD and being a ‘cross–over kid.’ JF’s care and protection status stemmed from an application by the Police to the Family Court for a care and protection order due to his constant offending and
118 New Zealand Police/Oranga Tamariki v LV [2020] NZYC 117 at [31].
119 J Walker, above n 73.
120 At [31].
121 At [76].
122 E Stanley above n 95 at 57.
123 E Stanley above n 95 at 60.
the magnitude of it, which led to the Police having serious concerns for his welfare.124 JF appeared before the District Court on six charges of burglary and aggravated burglary at the age of 13, as well as having active proceedings occurring in the Family Court due to his care and protection concerns.125
Judge Fitzgerald was very vocal in expressing his dismay at the lack of integration between the care and protection system and the youth justice system:126
As was mentioned in Police/Oranga Tamariki v [LV], in the context of crossover and dual- status kids generally, this deeply entrenched practice of keeping care and protection and youth justice completely separate comes at a high cost to the children and young people concerned.
The primary concern within this case was that both the Family Court and the Youth Court could offer identical plans, such as FGCs, education orders, and decisions about JF's living situation, all subject to review within 12 months. However, the Police's desire to retain arrest and detention powers, which could only be done under youth justice legislation, led to parallel proceedings.127 JF continuously appeared before different judges, and different lawyers, within different courts on different days with each professional erroneously interpreting the Act in a way that found the care and protection system and the youth justice system to be read as utterly separate.128 This reflected ‘the lack of a ‘joined-up’ approach between the two systems previously discussed. Judge Fitzgerald commented that:
[JF] and his whānau have been drawn into an uncoordinated, dysfunctional process involving an unnecessary, inappropriate doubling up of professionals which is nonsense; it simply makes no sense (emphasis added).
However given the key provisions in the Act, including that ‘criminal proceedings should not be instituted against a child if there is an alternative way of dealing with the matter’129 and that ‘criminal proceedings should not be instituted solely for the purpose of providing any
124 At [2].
125 In the present case JF was not a young person as per the above definition, rather at the age of 13 he was still a child. However, I have still chosen to include this case given the judicial commentary and the closeness in age to youth.
126 At [43].
127 At [11].
128 At [42].
129 Section 208(2)(a) Oranga Tamariki Act 1989
assistance or service needed to advance the well- being of the child or whānau, hapū and iwi,’130 Judge Fitzgerald denied the request of allowing the case to continue in the Youth Court and advised that these matters should be dealt with under one court, the Family Court.
Judge Fitzgerald continued by noting that there is already an interface between the two systems, ‘but in practice that has never been properly implemented to the very great cost of many children and young people who are the subject of proceedings.’131 The way that practitioners interpret the Act is important as they are capable of ‘interacting with each other in a way that transforms and shapes youth justice policy in practice.’132 Therefore, when social workers, police, lawyers and other professionals interpret the Act in a way that lacks appreciation of the current integration it further cements the artificial dichotomy.
C. New Zealand Police v [XA] [2020]
Similar issues relating to the criminalisation of welfare occurred within New Zealand Police v XA. The young person, XA, aged 14, had committed a range of crimes including aggravated robbery and wilful damage, and was a youth with mental health and prior care and protection concerns. Following his arrest, XA was remanded in custody within a youth justice facility on 31st January 2019 and remained there for four months whilst further information, such as a s 333 report, was requested.133 This, in itself, took three months to occur. Judge Fitzgerald again found that in relation to custody, XA was a youth with care and protection concerns and ‘there was no suitable placement to be bailed to in the community.’134 XA lacked a whānau to go home to through no fault of his own, yet it was he who was punished because of it. Often youth in custody will experience substantial delays in being released, as Ben Hannifin, OT regional manager for youth justice, found:135
The remand time often extends because you pick up a lot of other complexities that can’t be identified in a short amount of time - things like mental health, neurodisabilities or head injuries.
130 Section 208(2)(b) Oranga Tamariki Act 1989
131 At [36].
132 L Forde above n 15 at 925.
133 A s 333 report refers to an order for a medical, psychiatric, and/or psychological assessment as per Kanchana Subedi and others, Young People’s Engagement in Remand Decisions: Research Study (Oranga Tamariki— Ministry for Children, December 2018) at 5.
134 At [5].
135 Katie Doyle “Oranga Tamariki putting children in care with young offenders when options run out” (5 August 2022) <www.stuff.co.nz>
Importantly, the OT Act notes that youth should be kept within the community, so far as it is consistent with public safety and that they should not be held in a youth justice facility unless they pose a risk to the community.136 However, research has shown that not only do serious young offenders pass through a remand facility but also that, ‘young people with mental health needs and care and protection histories [like XA] are much more likely to be remanded in custodial detention in secure residences.’137 As one OT employee commented:138
Often I think the [Care and Protection] kids... seem to spend significantly longer in [youth justice residence] than young people who are not in our custody and who have whānau that they can go home to... It's about that whānau member or group or family passing caregiver assessment which can take months and then often the family [fail] particularly if they've had a colourful past.
Additional reasons as to why a vulnerable young person’s time in custody can extend, include professionals not being available on the court dates, issues with the FGCs including those that are not held, new issues coming to light, or incomplete welfare reports.139
The predominant concern with this case was that, following the conclusion of the Youth Court proceedings and the judge being satisfied that XA could be released, OT requested that the youth justice proceedings be continued ‘solely for the purpose of detaining XA in the youth justice residence so that they can continue to search for a suitable place for XA to stay.’140 This request by OT reflected their erroneous interpretation of the Act and their inability to come to terms with the legislation. As the Judge noted, this: 141
Inappropriate attitude that Oranga Tamariki have brought to this, that it is acceptable to be using the youth justice powers and facilities to address care and protection problems, clearly still prevails.
136 See Oranga Tamariki Act s 208 (2)(d) & C Johnston “Are We Failing Them? An Analysis of the New Zealand Criminal Youth Justice System: How Can We Further Prevent Youth Offending and Youth Recidivism.” (Master of Arts, Thesis, Massey University, Auckland, 2015) at 113.
137 Oranga Tamariki above n 58 at 5.
138 Oranga Tamariki above n 58 at 31.
139 K Subedi and others above n 134 at 27.
140 At [14].
141 At [18].
This is occurring despite the principles of the OT Act, which include that criminal proceedings must not be instituted against a young person to provide assistance or services to address welfare–related issues,142 and that a young person must not remain in the youth justice jurisdiction once the allegations of offending have been dealt with.143 Given these principles, the Judge declined OT’s request and allowed XA to go free.144
III. Concerns with Current Youth Justice Processes
Across the criminal justice system, serious youth offenders experience a range of processes. However, as exemplified by the three above cases, offending youth regularly come into contact with two processes in particular - the FGC, and youth justice residences - two areas where improvements can be made.
A. Family Group Conferences
One of the key processes within both the youth justice and the care and protection space is the FGC. These conferences are designed in a way that allows key stakeholders such as the youth, their family/whānau, social workers, police and the victim (if convened under the youth justice system) to discuss the issues at hand and come to a resolution about the best way forward for the future.145
Recently, FGCs have attracted academic attention due to their emphasis on oral and verbal techniques. This has raised concerns that youth who suffer from a neurodisability find it incredibly difficult to authentically engage in the youth justice procedures that our legislation provides for.146 Young people in New Zealand have the right to effective and meaningful participation in all procedures that affect them.147 However this right is systematically denied
142 Oranga Tamariki Act 1989 Section 208(2)(b)
143 Oranga Tamariki Act 1989 Section 208A
144 At [16].
145 There are a range of variations of FGCs within the youth justice system, these include, an intention to charge FGC, a court-referred FGC, a child offender FGC, an FGC convened for the purpose of establishing custodial placement and an FGC at the discretion of the Youth Court. See N Lynch, above n 6 at 152.
146 See N Hughes above n 85, N Lynch above n 6, 7, 13, and 12; A Gibbs above n 102, 86.
to them when the court is unwillingness to alter their practices.148 Hughes, writing in the Australian context, has noted that:149
Youth justice interventions often seek to ‘tap into important metacognitive skills, that is, ‘thinking about one’s own thinking’, so that unhelpful beliefs can be identified and modified. ’ Such approaches assume typical levels of verbal and cognitive competence and may therefore be inappropriate for some young people with neurodevelopmental impairment.
Youth with a neurodisability lack the same cognitive functions as their peers. They struggle with showing remorse in the conventional way as ‘a young person affected by neurodisability may appear sullen or defiant’ rather than remorseful.150 Additional observations have been made that these youth struggle with eye contact, often grunt instead of responding coherently and have the propensity to make sudden statements without thinking the subtext through.151 When a youth presents to a FGC or the court in this way, and their disability is unknown, officials can take this as a sign of deliberate non-compliance which can lead to a return to court for additional sanctions.
While the OT Act aims to strengthen family bonds, FGCs often involve dysfunctional whānau members who may not grasp the causes or severity of the young person's offenses due to their own troubled upbringing. 152 Youth from unsupported backgrounds are less likely to express remorse, seek forgiveness, or commit to not re-offend, often responding negatively to FGCs compared to those with more stable backgrounds. 153 These participants and their whānau often lack an understanding of the link between their offenses and their care and protection issues, hindering their ability to provide needed support.
These FGCs often result in plans for the young people that only include temporary solutions, such as writing an apology, removing the youth from the parent's care for six to eight weeks, or providing the young person with a caregiver for a few months.154 While beneficial at times,
148 John Walker, Principal Youth Court Judge “Barriers to engagement: enabling full participation in the justice system for young people” (Speech presented at the Justice for Young People Conference, Adelaide Australia, 7 November 2018)
149 N Hughes above n 85 at 9 (citations omitted, Snow and Powell, 2012: 4)
150 N Lynch above n 76 at 13.
151 Ibid
152 Section 4 (1)(h).
153 G Maxwell above n 27 at 210.
154 G Maxwell above n 27; I Lambie and others above n 117; J Walker, above n 73
these outcomes miss the fact that these youth will otherwise face a lifetime of difficulties and therefore require long-term solutions.
B. Youth Justice Residences
New Zealand has five youth justice residences; two of which are located in South Auckland, and one each in Rotorua, Palmerston North, and Christchurch for the entire South Island.155 These residences provide 155 beds for young people.156 As of May 26th 2023, 135 of these beds were occupied.157
These residences were originally designed only for those young people whose charges had been proven. 158 However, the most recent figures show that 80% of youth within these facilities have not been sentenced.159 This leads to concerns relating to due process and the violation of youths’ rights. Given their biological differences, youths are guaranteed a range of rights specific to their age, intended to ensure the appropriate development of a young person. Some of which stem from the Treaty of Waitangi and the OT Act itself, and others from the UNCRC. The principles outlined in the UNCRC and the Beijing Rules emphasise that the detention of youth in anticipation of their trial ought to be employed sparingly and for the briefest duration feasible.160 These sentiments are echoed by the findings of the 2016 Modernising Child, Youth and Family Expert Panel report, which proposed the reduction of youth held in juvenile justice facilities during the remand process.161
Additional rights include concepts such as a youth's right to participate and be heard,162 their right to have their well-being put first in decisions that affect them163 and their right to have their sense of time respected.164
155 Sections 364 – 366 of the Oranga Tamariki Act govern the establishment and placement of these residences.
156 Oranga Tamariki “Youth justice residences” <www.orangatamariki.govt.nz>
157 Nathan Morton “The inside story of New Zealand’s youth justice residences” (30 May 2023) NZ Herald. www.nzherald.co.nz
158 Melanie Reid and Bonnie Summer “‘Bullying and nepotism’ - Who’s running our Youth Justice residences?” (6 July 2022) Newsroom, www.newsroom.co.nz
159 Baz MacDonald, “Vast majority of young people in OT detention facilities not yet sentenced” (9 July 2021) One News, <www.1news.co.nz>
160 United Nation Convention on Rights of the Child above n 66 article 37; United Nations Standard Minimum
Rules for the Administration of Juvenile Justice (The Beijing Rules) GA Res 40/43 1989 rule 19.
161 Modernising Child, Youth and Family Expert Panel Expert Panel Final Report, Investing in New Zealand’s Children and their Families (Ministry of Social Development, December, 2015) at 9.
162 United Nation Convention on Rights of the Child above n 66 Article 12. 163 United Nation Convention on Rights of the Child above n 66 Article 3. 164 Oranga Tamariki Act 1989 section 5 (1)(b)(v).
In examining the right to have a trial according to the young person’s sense of time, it is important to note that youth experience the passage of time differently to adults. An extended time in custody, or a lengthy trial, will feel much longer to a youth than it would to an adult.165 This is crucial as the legislation recognises that when proceedings encounter significant delays there are a range of potentially damaging effects on the young person.166 These include the great stress imposed on a young person, and the reduced ability to effectively and credibly engage in the remainder of the trial, through recounting important facts or feeling remorse for their actions, due to them feeling like it happened so long ago.167 However, for many vulnerable youths, these rights are often dismissed, as Judge Fitzgerald commented in the case of Police v LV:168
The rights of dual-status crossover kids are regularly and routinely breached. Although in theory, their rights are enforceable, that never happens. Although in theory there should be accountability for the breaching of their rights, that never happens either.
Within these facilities high incarceration rates, staff shortages and poor management, has also led to youth justice residences being unable to meet their obligations of rehabilitation and stopping youths from reoffending. Rather, staff at these facilities have referred to them as ‘holding pens for serious young offenders.169 That young offenders enter ‘a revolving door that welcomes youth set to face court for serious charges and then dumps them back into society.’170 As recently as July 2023, we have seen boredom and anger within residences leading to youth protests, defiance and rooftop sit-ins.171
In July 2021, reports broke of these residences being unsafe places for young people to be. As one staffer noted, ‘Bullying, intimidation, dysfunction, power, control and nepotism are rife.’172 Thus mirroring the finding of Judge Becroft who remarked that:173
165 A Becroft above n 106 at 6.
166 Oranga Tamariki Act s 5(1)(b)(v).
167 A Becroft above n 106 at 6.
168 At [73].
169 N Morton above n 158.
170 Ibid.
171 Aphiphany Forward-Tau, “The kids are shouting from the rooftops – it’s time for youth justice residences to go” (11 July 2023) <https://thespinoff.co.nz>
172 M Reid and B Summer above n 159
173 “Some stark injustices in our youth justice system need fixing – and here’s how” (13 October 2021) Children and Young Peoples Commission <www.manamokopuna.org.nz>
Segregating young people from the mainstream community and aggregating them together in large numbers is not a recipe for enduring rehabilitation. It simply increases the risk of violence, bullying and abuse.
For young people who reside within these facilities, they face a daily struggle. For them, their best chance at survival is to make friends with their peers within the residences which leads to internal gangs, rivalries and criminal cooperation. This reflects the shortcomings that vulnerable youth experience during their childhood as Judge Becroft noted, ‘Youth gang affiliation gives these young people a sense of family/whānau, friendship, identity and belonging that they may not otherwise have had.’174
The impact that these institutions can have on a young person’s mental health and life course is substantial. Within both care and protection and youth justice facilities, a young person’s mental health and social skills can deteriorate exponentially. As Tutt remarked over 40 years ago, ‘The paradoxical situation has arisen that the more residential treatment a child gets because [they are] deprived or delinquent, the more deprived or delinquent [they are] likely to become.’ 175
The more recent youth justice literature mirrors Tutt’s finding, widely documenting that ‘custodial detention of young people has detrimental effects, in particular on their behaviour, mental health, and further offending.’176 A 2016 report prepared for the Ministry of Justice found that the suicide rate of youth in these facilities is four times higher than the general youth population, many youths within these residences self-harm, and many develop a mental health illness during their stay.177
Thus, living within a youth justice residence only exacerbates young people's prior vulnerabilities further and increases their stigma from the outside world. One prior resident,
174 A Becroft, above n 8 at 31.
175 E Stanley above n 95 at 57.
176 Oranga Tamariki Evidence Centre Young people remanded into youth justice residences – What are the driving factors? Research study: (Oranga Tamariki—Ministry for Children, December 2018) at 10.
177 Dr Ian Lambie Youth Justice Secure Residences: A report on the international evidence to guide best practice and service delivery (Ministry of Social Development, May 2016) at 23.
who experienced care and protection concerns, said their hope for a good life ended within those four walls:178
Once we [care-leavers] do gaol time that’s it, forget about it, we’re stuffed for the rest of our lives because society is such that it’ll never forgive us. So we’re trapped in a way, we’re never ever going to be free, ever to be ‘normal’ people.
Once youth enter custodial care, the state formally drops its parental role. Instead, it prioritises criminalisation over the need to address vulnerable youth’s needs and in doing so the state disregards their obligations towards victimised youth. 179 In acting in this way, the youth justice system works in a way that is ‘entirely contrary to the purposes and principles of the Oranga Tamariki Act 1989.’180
Yet, in spite of this evidence, the Government has recently announced the potential development of two new youth justice facilities creating 30 new beds and implementing tougher ‘rules’ within the facilities.181 Both the current and previous Children’s Commissioners have been firmly opposed to such policies. Chief Children’s Commissioner, Judge Frances Eivers, said that she is ‘frustrated’ to see the Government’s plans to build more ‘prison-like facilities’ for young offenders.182 Judge Eivers, has been unequivocal in stating that these youth justice residences must close:183
I have been clear that the current residential care system is not therapeutic, or rehabilitative. At the core of the new investigation is the fact that residences are not even safe. I believe the residences need to be shut down and replaced with a system that’s fit for purpose
Tough-on-crime strategies that promote custodial sentences, harsh punishments and boot camps do not benefit the at-risk youth or the community nor reduce offending. This is because youth who commit serious offences due to either their trauma or neurodisability are seeking sensations and are not thinking rationally about the consequences.184 Hence young people are
178 E Stanley above 95 at 69
179 E Stanley above 95 at 69
180 K Werry above n 52 at 313
181 Beehive “Youth Justice system to be strengthened” (Press Release, 18 July 2023)
182 Michael Neilson “Youth crime crackdown: Children’s Commissioner ‘frustrated’ at Government plans for more youth ‘prison-like facilities’” (19 July 2023) NZ Herald <www.nzherald.co.nz>
183 “New Oranga Tamariki investigation a time to make a once in a generation change” (21 June 2023) Mana Mokopuna - Children and Young Peoples Commission <www.manamokopuna.org.nz>
184 C Johnston above n 137 at 66.
undeterred by the prospect of long sentences in tough remand facilities as they likely have not even considered the possibility.
IV. International Approaches to Youth at the Nexus
Unfortunately, these challenges are not unique to New Zealand. Youth across the world commit serious offences and many suffer from an underlying vulnerability. Engaging in an international legal comparison can help with the search for innovation and the location of systems of integration that may have relevance in New Zealand. Thus, this chapter next considers the integrated approach of Scotland, to consider an alternative approach to youth offending.
A. Scotland’s Integrated System
In comparison to New Zealand, ‘Scotland’s integrated care and justice system for children and young people has successfully been in operation’ for over 30 years.185 Scotland’s youth justice practice is based on both principles of welfare and justice, prioritising a Whole System Approach (WSA). It emphasises the provision of multi-agency, multi-disciplinary support and assistance to young people and their families prior to their offending.186 This approach was built predominantly from the hugely influential Kilbrandon Report (1964) which found that:187
...offending and other forms of troublesome behaviour during childhood were manifestations of deeper-rooted problems at both the individual and familial level and that young people should be dealt with on the basis of their ‘‘needs’’ and not their ‘‘deeds’’
By adopting a tribunal-based approach to youth offending in the 1960s, Scotland departed from the remainder of the United Kingdom which retained a standard court-based approach to youth offending.188 There are no Youth Courts in Scotland, unlike New Zealand. Instead, youth who commit the most serious of offences, such as homicide or rape, are referred to Scotland's
185 Nico Juetten “Enough of ‘tough’: Youth Justice in Scotland” [2009] 16, PPR, 180 at 180.
186 Ibid, and Scottish Government “Preventing offending: getting it right for children and young people” (17 June 2015) www.gov.scot
187 Susan McVie “Alternative models of youth justice: Lessons from Scotland and northern Ireland.” (2011) 6 Journal of Children's Services 106 at 107
188 Ibid.
mainstream legal system.189 The remainder who commit less serious offences are primarily dealt with via the children’s hearing system.190
The children’s hearing system, established via the Children (Scotland) Act 1995 and regulated by the Children’s Hearing (Scotland) Rules 2013, have since become a touchstone of the Scottish youth justice system. In 2022/2023, 22,341 hearings were held.191 Youth are referred to these hearings by Police, educators, social workers, parents, and other sources within the community, including Prosecutors based upon statutory requirements.192 Within these hearings, there are no judges, no prosecutors, and no police. Those who attend include the youth, an adult of the youths choosing if they wish, a social worker, a child's reporter who convenes the hearing, and three specially trained panel members.193 These people work as ‘the child’s guarantors, often directing social work departments and schools to put in place tailored support and services.’194 The key to these hearings is their full integration of the care and protection system with the youth justice system.195 Speaking to this welfare-driven approach, Neil Hunter, the Chief Executive of the Scottish Children’s Reporter Administration, noted that:196
A young person involved in offending or other harmful behaviours is a manifestation of other issues in their wider life – education, social, psychological or emotional. It is a manifestation of something which needs a welfare-based approach; it is about trying to get to the root cause.
In practice, this means there is one agency dealing with all youth, with the guiding principle that the best interests of each child be paramount in their decision-making, regardless of whether they have come from youth justice or care and protection.197
189 Nicola Louise, Benbow “Preventing Youth Crime in Scotland: The Practices of Early Intervention and Diversion under ‘Whole System Approach’ Implementation” (Doctor of Philosophy, Thesis, the University of Stirling, 2019) at 21
190 Ibid.
191 Children Hearings Scotland “The Children Hearings System” (2023) www.chscotland.gov.uk
192 Bill Whyte “Responding to Youth Crime in Scotland” [2004] 34, The British Journal of Social Work, 395 at 396.
193 Scottish Government “Children's Hearings”(2 December 2019) <www.mygov.scot>
194 Severin Carrell “How Scotland's youth justice system puts welfare at its heart.” (7 November 2019) The Guardian <www.theguardian.com>
195 Nicholas Bala and others Juvenile Justice Systems. An International Comparison of Problems and Solutions.
(1st Ed, Thompson Educational Publishing Inc, Toronto 2001) at 6.
196 S Carrell above n 194
197 Ibid; Scottish Government above n 193; Children Hearings Scotland above 191.
The outcome of a hearing may include a discharge of the hearing, a continuation to allow more information to come forward or a compulsory supervision order.198 This sets out rules which a youth must follow and may include duties which the local authority must provide to support the youth, or that the youth must live at a secure care facility for a duration of time. Across Scotland there are 78 available beds within these facilities. These are maintained by independent charitable organisatons and are positive, therapeutic, and nurturing environments for both youth within the care and protection system and the youth justice system. One youth speaking of their experience reported that ‘...it's actually like being locked in your home [the staff] treat you like you're their bairn [child] I'd go back in no time.’ 199
It is worth noting that Scotland do have ‘Youth Offender Institutions’ which are places akin to New Zealand's youth justice system. However, Scotland, a country committed to the integration of care and justice has recognised that these are traumatising places for youth to be and have promised ‘to end the placement of all 16 and 17 years old’s in Young Offenders Institutions without delay.’200
In comparison to New Zealand and in reference to the UNCRC, ‘this approach has many of the hallmarks of a system with clear potential to realise the promise of the UNCRC and other international instruments.’201 This approach has also seen considerable success over the years, with recorded youth crime figures significantly falling from around the mid-2000s.202 Over the past ten years there has been a 78% reduction in the number of young people prosecuted in court, an 83% reduction in the number of youth referred to the Children’s Reporter on offence grounds and a 64% reduction in the number of 16- and 17-year-old’s being held in custody.203 In 2022 Maureen McKenna, Scotland’s executive director of education reflected on the success of the WSA:204
198 Young Scot “What Happens at a Children's Hearing?” (30 May 2019) <www.young.scot.com>
199 Deborah Nolan, Fiona Dyer & Nina Vaswani, “Just a Wee Boy Not Cut out for Prison': Policy and Reality in Children and Young People's Journeys through Justice in Scotland” [2018] 18 Criminology & Crim. Just. 533 at 539.
200 Dr Iain Matheson International Best Practice and Models for Youth Justice Residences (Oranga Tamariki— Ministry for Children, March 2023) at 77.
201 L Forde above n 15 at 936.
202 Kath Murray and others, Evaluation of the Whole System Approach to Young People who Offend in Scotland
(The Scottish Centre for Crime & Justice Research, April 2015) at 17
203 Scottish Government “Youth justice strategy: progress report” (21 June 2017) www.gov.scot
204 Martin Silva Ray “A Sum of its Parts: The Whole System Approach” (24 January 2022) Salzburg Global Seminar, www.salzburgglobal.org
Ten, 12 years ago, the government was talking about building new jails for young people... All those plans were shelved because we now have fewer and fewer young people [convicted].
The benefits of Scotland’s integrated approach are clear. Less youth are offending, the community feels safer, funding that would ordinarily be used for jails can be used elsewhere, and those youth who do offend are given a second chance at life.
V. Summary
Despite the two parts of New Zealand’s system being situated in the same piece of legislation, family and youth justice professionals have consistently misinterpreted the OT Act in a way that further traumatises, criminalises, and harms our most vulnerable youth. Judge Fitzgerald was crystal clear across all three cases reviewed that New Zealand’s current practices must change for the sake of our Rangatahi.
Academic, and judicial commentary has also established that the way in which we respond to youth following an offence is inadequate. FGCs, although heralded internationally as a revolutionary tool and the ‘lynchpin’ of New Zealand's youth justice system, may be overly focused on the offence and ineffective in responding to youth with additional vulnerabilities.205 Whilst punitive reactions, such as utilising youth justice residences, do not address the young person’s underlying needs and instead encourages reoffending in the future. 206 Both responses also jeopardize the fundamental rights of young individuals, rights that are of utmost importance to safeguard. Ultimately, ‘The performance of the current system, as measured by the outcomes it is achieving, is clearly well below what New Zealanders want for our most vulnerable children.’207
In comparison, Scotland provides an example of what a successful integrated approach could look like. Scotland recognises that the youth within both systems are by and large the same, and therefore should be dealt with the same. By utilising a WSA that prioritises both welfare and justice and deals with all youth under one system, we can see better outcomes emerging for both the youth and the community through the reduction of crime.
205 N Lynch above n 5 at 142
206 See Modernising Child, Youth and Family Expert Panel above n 162 at 7; Youth Justice Indicator report above n 11 found that the proportion of 14 to 16-year-olds who appeared in the Youth Court, and were proven to have reoffended in any court within 24 months prior to 2019 was 49%.
207 See Modernising Child, Youth and Family Expert Panel above n 162 at 7.
In summary, Chapter Three has critically analysed the issues within New Zealand's youth justice system, emphasising the need for a more holistic and integrated approach to address the underlying vulnerabilities of young offenders. Young offenders are simply reflections of their environment and when the professionals within the system consistently fail to recognise this, the harmful outcomes for the youth are only cemented further, leading to increased trauma and more reoffending.
Chapter Four next considers what steps can be taken to provide a holistic and integrated system of law for these vulnerable young people who commit serious offences, taking heed from Scotland's integrated system.
Discussion and Recommendations
If New Zealand is truly committed to helping our most vulnerable youth who commit the most serious offences, then our approach to youth crime must change. The punitive measures that political parties are currently advocating for ahead of the 2023 General Election simply sideline the contextual factors, such as social inequality, abuse, violence, and the impact of trauma and social disadvantages, that these young people often experience during childhood and adolescence. These political debates are not properly informed by neuroscience, sociological or legal research, but rather represent the epitome of the ‘criminalisation of social policy.’208 This is the shifting of focus from the inequality of social resources and extreme power imbalances to problems of criminal order and youth delinquency. Goldson has summarised this aptly:209
To ‘adulterise’ children in trouble, to ‘responsibilise’ them, to neutralise the aetiological complexities of juvenile crime might ... save us the messiness of knowing too much about delinquents, their families, their lives, their opportunities, their backgrounds or their experiences. More importantly, it might secure electoral victory in a country where the punitive thirst seems to be almost unquenchable.
But this approach won't help them. It was therefore important for this dissertation to unveil the ‘messiness’ and explore how young people’s backgrounds and experiences influence their offending, particularly in the context of care and protection and neurodisability concerns, so as to find a better way to prevent and respond to their serious offending.
Young people with prior care and protection concerns are one of the highest overrepresented groups of young offenders. However, these young people are victims too and this is an overlap which our legalisation does not currently reflect. Despite the two systems’ shared history, the structure of the legislation discussed in Chapter One has reinforced an artificial dichotomy
208 R Smith above n 15 at 12
209 Barry Goldson “New Labour, Social Justice and Children: Political Calculation and the Deserving- Undeserving Schism” (2002). 32 British Journal of Social Work, 683 at 693.
between care and protection and youth justice, leading to a system that overlooks an offender’s underlying needs.
As discussed in Chapter Two some youths with neurodisabilities remain undiagnosed for 17 years, only receiving a diagnosis after entering the youth justice system. Despite persistent requests for assessment through the care and protection system, these young people are routinely denied this due to the complexities of neurodisabilities, the lack of assessments, and the under-resourcing of agencies.210 Without a diagnosis, these youths face a higher risk of offending than their peers and, without proper support, they struggle to navigate the already intricate justice system.
Ultimately the young offenders discussed within this dissertation are products of their environment. Those from abusive homes view crime as a norm, while those with neurodisabilities struggle to grasp the serious consequences of their actions. Nevertheless, the law often perceives them as deliberate criminals. Many social workers, for example, are ‘still not trained in the nuances of what a neurodisability looks like,’ and regard youth who offend as engaging in ‘deliberate and wilful misconduct.’211 Case law reviewed in this dissertation, including Judge Fitzgerald's critique, vividly demonstrates the high cost of maintaining a strict separation between care and protection and youth justice for these vulnerable young people. Further education is therefore crucial for all those who act within this system so as to ensure that what integration there currently is within the system is recognised and enhanced.
Offending youth are also the ones who most often face the extremity of state power within a youth justice residence - an institution which OT describes as ‘providing a safe, secure and supportive environment where young people can get their lives back on track and improve their prospects for the future.’212 This statement could not be further from the truth. As Chapter Three discussed, these facilities breach many of the OT Act principles, children and young people's rights and, sadly, further traumatise New Zealand's most vulnerable youth. Therefore such facilities must be disestablished and replaced by smaller community homes.
210 A Gibbs above n 86 at 91.
211 A Gibbs above n 86 at 91.
212 “Youth Justice, Te Manatika taiohi” Oranga Tamariki <www.orangatamariki.govt.nz>
As Whyte notes, ‘Responses to youth crime need to be set within a child protection framework, building on whatever strengths the young person has.’213 Effectively addressing serious youth offending necessitates an integrated approach from multiple agencies, aimed at supporting these vulnerable youth to break free from the cycle of incarceration. Scotland provides one successful example of how this approach can work. It requires the ability to see the young person as a human first and as an offender second.This chapter now sets out three specific recommendations that I consider to be important in helping to respect and uphold the rights of young people who commit serious offences.
It is important to recognise that normative tensions can arise throughout these recommendations, since the commission of a serious offence will result in a victim who must carry, and recover from, the weight of that offence. They also need support and assistance. Therefore, any recommendation for new policies and law reform must be cognisant and respectful of ensuring that both victims and young offenders are supported. Undertaking an independent and critical evaluation is important to ensure that any recommendation is put forward in a way that balances the various rights and interests of the victim (who may be a child themselves) against those of the offender.
213 Bill Whyte “Change, Evidence, Challenges: Youth Justice Developments in Scotland” in Hill, M.,, Lockyer, A., and Stone. F., (eds) Youth Justice and Child Protection (Jessica Kingsley Publishers, London, 2006) 158. At 171.
II. Recommendation One: Legislative Reform to Achieve Greater Integration
The key recommendation that this dissertation advocates for is deeper integration between New Zealand’s care and protection system and youth justice system. The research traversed in the earlier chapters has shown that it may well be time to radically rethink our overall youth justice system. Meeting this challenge will require substantial strategic planning, however, the Scottish model, which operates under a unified care and justice framework for all youth, offers a vision that New Zealand could benefit from exploring further.
As highlighted in Chapter One, New Zealand's current legislative framework already possesses the potential for integration. Presently, we have a single legislative framework that addresses both young offenders and those in need of care and protection, all overseen by a central authority – Oranga Tamariki, the Ministry of Children and Young People. Thus, the foundation already exists that New Zealand can build further upon.
In doing so consideration must be given as to how best OT, the Family and Youth Courts, Police, healthcare, education, and welfare systems can collaborate cohesively to better prioritise the well-being of our youth over purely punitive responses. By ensuring that the welfare and best interests of all young individuals are given equal weight to the concept of justice, we can begin to better align our youth justice system with the principles of the UNCRC and, in turn, create a better society through the reduced risk of reoffending.
The road to achieve this milestone will be long. However, one of the first steps in achieving this integrated approach can occur through simple legislative reform. In particular, this involves improving the way referrals are made to the care and protection system to ensure flexibility to deal with both needs and deeds of youth offenders. This can occur through amending s 261 and s 280 of the OT Act.
A. Amend section 261 of the OT Act:
Section 261 applies when a FGC is convened under the youth justice legislation and the youth has underlying care and protection concerns. Presently, the section’s language stipulates that the FGC ‘may' provide recommendations pertaining to the care and protection concerns during this meeting. However, as discussed in Chapter Three, these FGCs often place excessiveemphasis on the youth’s offences, neglecting the intricate web of vulnerabilities they face due to the absence of a duty to consider them.
Revising the wording of this section to become mandatory would ensure that all youth referred for a FGC, regardless of their offending history, receive equal recognition of their needs. Acknowledging a young person’s underlying vulnerabilities is a pivotal step in making them feel supported and reinstating their sense of belonging within a community. In turn, this recognition can contribute to reducing the risk of their reoffending.
B. Amend s 280 of the OT Act
Likewise, this dissertation also advocates for legislative reform to optimize the utilization of section 280 referrals. This section empowers a Youth Court Judge to refer a case to a care and protection coordinator if they believe that the youth requires care and protection under section14. In such cases, youth justice proceedings are temporarily suspended pending the outcome of this referral. This provision holds significant importance, as it offers youth an avenue to circumvent the criminal justice system entirely and instead undergo a comprehensive evaluation of their circumstances and fulfilment of their needs.
However, the current discretionary nature of this provision leads to the possibility of divergent outcomes for different youths, contingent on whether the Judge opts to transfer the case to a care and protection coordinator or not. Hence, by making this section mandatory, offending youth will be given another opportunity to have their underlying needs met and vulnerabilities recognised.
III. Recommendation Two: Support Neurodisabled Youth
Police and social workers alike would benefit from adhering to this advice from the United Nations so far as possible:214
Children with developmental delays or neurodevelopmental disorders or disabilities (for example, autism spectrum disorders, foetal alcohol spectrum disorders or acquired brain injuries) should not be in the child justice system at all, even if they have reached the minimum
214 United Nations Committee on the Rights of the Child General above n 68 at [28].
age of criminal responsibility. If not automatically excluded, such children should be individually assessed. (emphasis added).
This is because these young individuals are not deterred by the criminal justice system; they act impulsively. To address their medical needs, avoid stigmatisation, and address potential care and protection issues, it is preferable to keep them out of the current youth justice system altogether and to instead provide diagnostic and welfare assistance through an integrated approach.
A. Early Diagnosis
To transform the system in this way, we first need a disability rights-based approach in our court processes. This would better embody the spirit of collaboration through introducing specialist teams that advocate for neurodisability assessments, support, and participation opportunities. Crucially, every youth entering the court system, regardless of appearance, should undergo neurodisability screening. This may involve mandatory educational and developmental psychologist reports to uncover neurodisabilities. While assessments are costly, the expense pales in comparison to the taxpayer's burden of months of youth custody, as noted by Gibbs:215
We waste so much money by not acting earlier, and we harm children by denying them the right to be assessed, and for disabled children especially, the right to live a good life.
By prioritising these assessments it explains to everyone within the court why a youth may be acting the way they are, and why they may have committed the crime in the first place.
However, as this dissertation has highlighted, merely providing a diagnosis is insufficient. Altering the system in a way that ensures we take into account each youth’s specific developmental needs is also needed. For example, if an FGC is requested and it is known that the young person has a neurodisability, then the coordinator should be trained in neurodisabilities and a communications assistant should also be requested to attend the conference.216 Alternatively, if the court is advising the youth about their bail conditions the communications assistant may use a visual reference, or physically assist the young person in
215 A Gibbs above n 86 at 90.
216 Talking Trouble “Specialised communication assistance in justice contexts” (2023) <talkingtroublenz.org>.
setting an alarm on their cell phone, to advise them when to be at a certain address.217 By reprioritising a welfare-based approach we can give these youth the best chance at success in life.
ReconnectNZ provides youth with assisted bail, thus ensuring they can stay with their whānau in the community. Within this six-week programme, the youth, while on bail, are supported in their education, completion of their FGC plans and with their physical, emotional, health and well-being needs.220
Ngāpuhi provides a community-based alternative for remand services, ‘Mahuru’, for those within their iwi.221 In conjunction with OT, the iwi:222
engages the offenders in a programme that includes exploring their connections to Ngāpuhi, providing drug and alcohol workshops, health checks and outdoor living skills in an effort to stop reoffending.
Mahuru supports these young people by providing them with caregivers who delve deep into their underlying vulnerabilities and steer them away from further reoffending.223 However, this particular resource is in its infancy and currently remains confined to the Far North. Across the
217 N Lynch above n 76 at 12.
218 See B Whyte above n 213; D Nolan, F Dyer & N Vaswani above n 199.
219 L Forde above n 15 at 928.
220 “Supported Bail” Reconnect Family Services <https://reconnect.org.nz>
221 Mauhaere Kake, Tā Te Heamana O Ngāpuhi Iwi Social Services Chair’s Report (Ngāpuhi Iwi Social Services, 2019).
222 Bayley Moor “Ngāpuhi based remand service launched to keep young offenders in the north” (15 October 2018) Stuff <www.stuff.co.nz>
223 M Kake above n 221 at 60.
country, there are then 16 additional community youth homes led by a range of iwis and charitable trusts which adopt a similar structure and provide 551 spaces for youth. Although a great start, many more such services are needed. This is because ‘there are consistent examples of positive support and outcomes for rangatahi, including reconnection to culture and self’ within these programmes.224
It is therefore recommended that in partnership with OT, further funding and support be given to other iwis and organisations across New Zealand who can use these successful blueprints to provide similar services to their own youth and keep them out of youth justice facilities. These partnerships must involve long-term contracts to provide stability and certainty, and be well advertised to ensure youth, their whānau, the Police and Judges are aware of their availability.225 Supporting Māori engagement and facilitation in making these decisions will always be important as almost two-thirds of the youth within these facilities currently identify as Māori.226
V. Summary
As Judge John Walker has summarised, a strong first step in improving the youth justice system is to take ‘collective responsibility for all children who fall onto paths of crime.’227 This chapter has therefore set out three primary recommendations that I believe will help New Zealand to achieve this goal. These recommendations, while brief, are evidence-based and aim to address the major gaps in our current legislation, policies, and procedures. Implementing them will enable New Zealand to adopt an integrated approach between the care and protection system and the youth justice system. This will reprioritise the wellbeing of youth regardless of their complex underlying needs. Currently, only youth who are in need of care and protection get to experience a system that aims to meet their needs and help them, not punish them. By affording offending youth the same rights and protections, and responding to their long-term needs through these recommendations they, too, will have a greater likelihood of success in their later lives and a reduced risk of reoffending.
224 Kataraina Pipi and others Evaluation of Community-based Remand Homes Report Prepared for Oranga Tamariki. (May 2022) at 15.
225 Oranga Tamariki “Supported Bail Pilot Programme” (31 August 2021) Oranga Tamariki – Ministry for Children < www.orangatamariki.govt.nz>
226 Jessica Tyson “New Kaupapa Māori approach for high-risk youth offenders” (1 October 2018) Te Ao Māori News <www.teaonews.co.nz>
227 J Walker above n 73.
Conclusion
In conclusion, the purpose of this dissertation has been twofold. First, it has aimed to contribute to the knowledge gap regarding serious youth offending and their underlying vulnerabilities; and secondly, it has presented evidence that the current youth justice system is unfit to meet the needs of these youth.
This dissertation has demonstrated that youth with neurodisabilities or prior care and protection concerns have a significantly higher likelihood of involvement in the youth justice sector. Yet, unfortunately, New Zealand's existing systems have failed to acknowledge this crucial connection. This dissertation has revealed that our policies, practices, and procedures have perpetuated an artificial divide between the care and protection system and the youth justice system for too long.
This division has come at a considerable cost to young individuals like LV, XA, and JF, all of whom have experienced further criminalization and trauma within the criminal justice sector. These young people's needs were not met, their underlying vulnerabilities were not understood and their backgrounds were not accepted. This is ultimately because ‘the system is fragmented, lacks accountability, and lacks a clear common purpose.’228 When two systems continue to push and pull against each other it is difficult for any real positive outcome to occur. This is evident through the use of FGCs which place excessive focus on the offending rather than the underlying needs, and the extensive use of youth justice residences which turns vulnerable youth into hardened criminals. All of which leads to negative outcomes for the youth, their future, their family, society, and even at times the victim.
However, New Zealand is currently at a crossroads and the recommendations that this dissertation has advocated for are critical. This is in light of the 2023 General Election, where both major parties have called for increased division between the two systems and a stronger emphasis on accountability and punishment. However, my findings indicate that these arguments lack persuasiveness and effectiveness, leading me to advocate for alternative evidence-based reforms. This includes the development of a more integrated legislative system
that utilizes both the welfare model and the justice model. This is then supported by the provision of additional support for neurodisabled youth and the disestablishment of youth justice facilities. These recommendations reflect only a small stepping stone to creating an integrated system for what will be New Zealand's youth care and justice system. In doing so New Zealand can improve the lives of youth, reduce reoffending, and create a better society for all. New Zealand must consider these recommendations seriously, because as one young person has said:229
... New Zealand has the opportunity to become a world leader in taking care of its young people and developing their futures... Don’t compromise for anything, because you have the lives and emotions of young people in your hands.
Bibliography
Chief Executive of Oranga Tamariki-Ministry for Children v GS [2021] NZYC 82
New Zealand Police/Oranga Tamariki v LV [2020] NZYC 117.
New Zealand Police v DH [2021] NZYC 47 New Zealand Police v JF [2021] NZYC 251 New Zealand Police v XA [2020] NZYC 271
B. Legislation
Care of Children Act 2004 Crimes Act 1961
Criminal Procedure Act 2012
Oranga Tamariki Act 1989, the Children’s and Young People’s Well-being Act 1989 Sentencing Act 2002
Children and Young People (Scotland) Act 2014 Criminal Justice (Scotland) Act 2016
The Children (Scotland) Act 1995 The Social Work (Scotland) Act 1968.
Youth Justice Act 1992 (Qld)
C. United Nation Materials
United Nation Convention on the Rights of the Child GA Res 44/25 (1989)
United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) GA Res /40/33 1985
United Nations Committee on the Rights of the Child. (2019). General comment No. 24 on children’s rights in juvenile justice. CRC/C/GC/24
D. Books And Chapters In Books:
Alison Cleland and Kylie Quince Youth Justice in Aotearoa New Zealand (1st Ed LexisNexis, Wellington, 2014)
Bill Whyte “Change, Evidence, Challenges: Youth Justice Developments in Scotland” in Hill, M.,, Lockyer, A., and Stone. F., (eds) Youth Justice and Child Protection (Jessica Kingsley Publishers, London, 2006) 158.
Kathleen Marshall “Human Rights and Children’s Rights in the Scottish Children’s Hearings System” in Hill, M.,, Lockyer, A., and Stone. F., (eds) Youth Justice and Child Protection (Jessica Kingsley Publishers, London, 2006) 266.
Lorraine Waterhouse “The Scottish Children’s Hearings System: Thinking about Effectiveness” in Hill, M.,, Lockyer, A., and Stone. F., (eds) Youth Justice and Child Protection (Jessica Kingsley Publishers, London, 2006) 193.
Nessa Lynch “The Youth Justice System A Site of Evolution and Reform” in Stanley, E., Bradley, T. and Monod de Froideville, S. (eds) The Aotearoa Handbook of Criminology, (Auckland University Press, Auckland, 2021) 180.
Nessa Lynch Youth Justice in New Zealand (2nd Ed, Thomson Reuters, Wellington, 2016)
Nicholas Bala and others Juvenile Justice Systems. An International Comparison of Problems and Solutions. (1st Ed, Thompson Educational Publishing Inc, Toronto 2001)
Ursula Kilkelly Advancing Children's Rights in Detention, A Model for International Reform
(1st Ed Bristol University Press, Bristol, 2021)
E. Journal Articles;
Allison Morris and Gabrielle Maxwell “Juvenile Justice in New Zealand: A New Paradigm” (1993) 26 Aust & NZ J Crim 72.
Alison Morris “Youth Justice in New Zealand” [2004] 31, Crime and Justice, 243.
Andrew Becroft “Access to Youth Justice in New Zealand: ‘The Very Good, the Good, the Bad and the Ugly’” [2012] AukULawRw 2; (2012) 18 Auckland U L Rev 23.
Andrew Becroft “Are there Lessons to be Learned from the Youth Justice System?” (2009) 5(2) Policy Quarterly 9.
Anita Gibbs “If only Teina Pora had a MedicAlert bracelet” (2018) 131 NZMJ 85
Anita Gibbs “We are not doing enough for children with neuro-disabilities” (2022) 34 Aotearoa New Zealand Social Work 90
Barry Goldson “New Labour, Social Justice and Children: Political Calculation and the Deserving-Undeserving Schism” (2002). 32 British Journal of Social Work, 683
Deborah Nolan, Fiona Dyer & Nina Vaswani, “Just a Wee Boy Not Cut out for Prison': Policy and Reality in Children and Young People's Journeys through Justice in Scotland” [2018] 18 Criminology & Crim. Just. 533
Elizabeth Stanley “From Care to Custody: Trajectories of Children in Post-War New Zealand” (2016) 17 Youth Justice, 57
James Howell and others “Integrating Child Welfare, Juvenile Justice, and Other Agencies in a Continuum of Services.” (2004) 83, Child Welfare, 143
Judge AP Walsh “Youth justice model v the welfare model: Have we got the balance right?” [2007] NZFLJ 249
Katherine M, Ineson and others “Traumatic brain injury and risk of subsequent attempted suicide and violent crime.” (2022) 53 Psychological Medicine 4094
Katherine Werry “Crossover kids in New Zealand” [2021] NZLJ 312
Liam Polglase and Dr. Ian Lambie “A sharp decline in youth crime: reviewing trends in New Zealand’s youth offending rates between 1998 and 2019” [2023] 35, CICJ,
Louise Forde “Welfare, Justice, and Diverse Models of Youth Justice: A Children’s Rights Analysis,” (2021) 29 The International Journal of Children's Rights 920
Nessa Lynch “Youth Justice in New Zealand: A Children’s Rights Perspective” (2008) 8(3) Youth Justice 215.
Roger Smith “Welfare versus Justice - Again!” [2005] 5, YJ. 3
Ruth McCausland and Leanne Dowse “From ‘at risk’ to ‘a risk’: The criminalization of young people with cognitive disability in residential care” (2022) 3, Incarceration, 1
Susan Baidawi, Alex R. Piquero “Neurodisability among Children at the Nexus of the Child Welfare and Youth Justice System” (2020) 50 Journal of Youth and Adolescence 803
Susan McVie “Alternative models of youth justice: Lessons from Scotland and northern Ireland.” (2011) 6 Journal of Children's Services 106
G. Reports;
Anita Gibbs Best practices for justice: Practitioner views on understanding and helping youth living with fetal alcohol spectrum disorder (FASD) (Aotearoa New Zealand Association of Social Work, December 2022)
Claire Lightowler, David Orr and Nina Vaswani Youth Justice in Scotland: Fixed in the past or fit for the future? (Centre for Youth and Criminal Justice, September 2014)
Emily Watt A History of Youth Justice in New Zealand (Research paper, Department for Courts, January 2003)
Gabrielle Maxwell and others, Achieving Effective Outcomes in Youth Justice (Ministry of Social Development, February 2004)
Iain Matheson International best practice and models for youth justice residences. Evidence Brief (Oranga Tamariki – Ministry of Children, March 2023)
Ian Lambie, Jerome Reil, Andrew Becroft, and Ruth Allen, How we fail children who offend and what to do about it: ‘A breakdown across the whole system’. Research and recommendations. , (The Michael and Suzanne Borrin Foundation, the New Zealand Law Foundation & the University of Auckland. 2022)
Ian Lambie What were they thinking? A discussion paper on brain and behaviour in relation to the justice system in New Zealand (Office of the Prime Minister’s Chief Science Advisor, January 2020).
Ian Lambie Youth Justice Secure Residences: A report on the international evidence to guide best practice and service delivery (Ministry of Social Development, May 2016).
James McDougall and Dandolo Partners Putting children first: A rights respecting approach to youth justice in Australia (Save the Children, April 2023)
Kanchana Subedi and others, Young people remanded into youth justice residences – What are the driving factors? Research study: (Oranga Tamariki—Ministry for Children, December 2018)
Kanchana Subedi and others, Young People’s Engagement in Remand Decisions: Research Study (Oranga Tamariki—Ministry for Children, December 2018)
Mauhaere Kake Tā Te Heamana O Ngāpuhi Iwi Social Services Chair’s Report (Ngāpuhi Iwi Social Services, 2019)
Ministry of Justice Youth Justice Indicators Summary Report. (April 2023. Wellington: Ministry of Justice.)
Modernising Child, Youth and Family Expert Panel Expert Panel Final Report, Investing in New Zealand’s Children and their Families (Ministry of Social Development, December, 2015)
Nathan Hughes Neurodisability in the youth justice system: recognising and responding to the criminalisation of neurodevelopmental impairment (The Howard League for Penal Reform, 2015)
Nessa Lynch Neurodisability in the Youth Justice System in New Zealand: How Vulnerability Intersects with Justice (Dyslexia Foundation of New Zealand, Report summarising the 2016 Neurodisabilities Forum, 30 May 2016)
Susan Baidawi and others Care criminalisation of children with disability in child protection systems (Monash University Melbourne University of Western Sydney Centre for Evidence and Implementation, May 2023)
Susan Baidawi and Rosemary Sheehan Crossover kids: Offending by child protection involved youth (Criminology Research Advisory Council. Canberra: Australian Institute of Criminology December 2019
H. Dissertations and Theses:
C Johnston “Are We Failing Them? An Analysis of the New Zealand Criminal Youth Justice System: How Can We Further Prevent Youth Offending and Youth Recidivism.” (Master of Arts, Thesis, Massey University, Auckland, 2015)Lucy Elizabeth Haines “Are New Zealand’s Judicial Processes Meeting or Obstructing the Needs of Offenders with FASD?” (Bachelor Of Laws (Honours), Dissertation, the University of Auckland, 2023)
Nessa Lynch “The Rights Of The Young Person In The New Zealand Youth Justice Family Group Conference” (Doctor of Philosophy, Thesis, the University of Otago, December 2008)
Nicola Louise Benbow “Preventing Youth Crime in Scotland: The Practices of Early Intervention and Diversion under ‘Whole System Approach’ Implementation” (Doctor of Philosophy, Thesis, the University of Stirling, 2019)
Rebecca Parton “Tensions in Youth Justice: Young Offender in Need of Care and Protection”, (Master of Laws, Research Paper, Victoria University, 2005)
Sarah Watt “Crossover Young Adults”: The Case for a Neurodevelopmentally-Aware, Trauma-Informed Approach to Sentencing Young Adults with Criminal Justice and Care and Protection Involvement” (Master of Laws, Thesis, the University of Auckland, 2022)
I. Internet Resources:
Aaron Hendry “There are no bad kids, only hurt ones.” (3 May 2022) NewsRoom
Andrew Hickey and Rachael Wallis, “Why the media aren’t helping to solve the ‘youth crime crisis’ they’re reporting.” (27 July 2023) The Conversation. <www.theconversation.com>
Aphiphany Forward-Tau “The kids are shouting from the rooftops – it’s time for youth justice residences to go” (11 July 2023) <https://thespinoff.co.nz>
Australian Government “Youth justice” Australian Institute of Health and Welfare
Baz MacDonald “Vast majority of young people in OT detention facilities not yet sentenced” (9 July 2021) One News, <www.1news.co.nz>
Edward Gay “'Degrading, harmful, inappropriate': Human Rights Commission criticises continued use of 'secure care' for children” (30 May 2021) Stuff <www.stuff.co.nz>
Ian Hyslop “Violence simply breeds violence at youth justice facilities” (11 July 2023) University of Auckland, <www.auckland.ac.nz>
Jessica Tyson “New Kaupapa Māori approach for high-risk youth offenders” Te Ao Māori News <www.teaonews.co.nz>
John Campbell “Tough Love” (6 December 2022) OneNews, <www.1news.co.nz>
Katie Doyle “Oranga Tamariki putting children in care with young offenders when options run out” (5 August 2022) <www.stuff.co.nz>
Laura Walters “Court pilot aims to break cycle for young offenders” (4 August 2020) NewsRoom <www.newsroom.co.nz>
Lucy Warhurt “Neurologically disabled overrepresented in prison” (12 May 2016) Newshub
Melanie Reid and Bonnie Summer, “‘Bullying and nepotism’ - Who’s running our Youth Justice residences?” (6 July 2022) Newsroom, <www.newsroom.co.nz>
Michael Neilson “Youth crime crackdown: Children’s Commissioner ‘frustrated’ at Government plans for more youth ‘prison-like facilities’” (19 July 2023) NZ Herald
Michelle Duff “The number of kids being taken from their parents has plummeted. History tells us the pendulum could swing back.” (17 December 2022) Stuff, <www.stuff.co.nz>
Nathan Morton “The inside story of New Zealand’s youth justice residences” (30 May 2023) NZ Herald. <www.nzherald.co.nz>
National Party “Combatting youth offending” (2023) National Party <www.national.org.nz>
“New Oranga Tamariki investigation a time to make a once in a generation change” (21 June 2023) Mana Mokopuna - Children and Young Peoples Commission
Oranga Tamariki “The statistics” (8 September 2023) <www.orangatamariki.govt.nz>
Oranga Tamariki “Information Sharing” Oranga Tamariki – Ministry of Children, Practice Centre <https://practice.orangatamariki>
Oranga Tamariki “Supported Bail Pilot Programme” (31 August 2021) Oranga Tamariki – Ministry for Children < www.orangatamariki.govt.nz>
Paula Penfold and Louisa Cleave “Forsaken. New Zealand’s shameful mismanagement of FASD.” (6 March 2022) <https://interactives.stuff.co.nz>
“PM announces youth crime 'crackdown', says system needs 'shake-up'” (17 July 2023) One News, <www.1news.co.nz>
Severin Carrell “How Scotland's youth justice system puts welfare at its heart.” (7 November 2019) The Guardian, <www.theguardian.com>
“Some stark injustices in our youth justice system need fixing – and here’s how” (13 October 2021) Mana Mokopuna - Children and Young Peoples Commission
“'Staggering link' between CYF care and crime” (28 August 2015) Radio New Zealand,
Talking Trouble “Specialised communication assistance in justice contexts” (2023)
<talkingtroublenz.org>.
“The Children Hearings System” Children Hearings Scotland <www.chscotland.gov.uk>
“The Front Page: Do our politicians have the right answers for tackling youth crime?” (8 August 2023) NZ Herald, <www.nzherald>
“The Youth Justice System” Youth Law Aotearoa (2023) <youthlaw.co.nz>.
Tony FitzGerald “Changing young lives through a focus on the underlying causes of offending” District Courts of New Zealand, <www.districtcourts.govt.nz>
“Traumatic Brain Injury (TBI)” National Institute of Neurological Disorders and Stroke
“Youth justice residences” (13 March 2017) Oranga Tamariki <www.orangatamariki.govt.nz>
J. Speeches
Andrew Becroft Principal Youth Court Judge 10 Suggested Characteristics of a Good Youth Justice System (Paper presented at the Pacific Justices’ Conference, Auckland, March 2014)
Andrew Becroft Principal Youth Court Judge “A Report Card On How Our Legal Systems Deal With The Interrelationship Between Child Protection and Youth Crime” (Paper presented to AIJA Youth Justice and Child Protection Conference, Hobart, Tasmania, 3 April 2006.)
Andrew Becroft Principal Youth Court Judge Signed, Sealed – (but not yet fully) Delivered. An analysis of the “revolutionary” 1989 legislative blueprint to address youth offending in New Zealand, particularly by young Māori, and a discussion as to the extent to which it has been fully realised (Paper delivered at the Healing Courts, Healing Plans, Healing People: International Indigenous Therapeutic Jurisprudence Conference Vancouver, Canada 2014)
Andrew Becroft Principal Youth Court Judge “Youth Justice in New Zealand: Future Challenges” (Paper presented at the New Zealand Youth Justice Conference “Never Too Early, Never Too Late,” Wellington, May 2004)
John Walker, Principal Youth Court Judge “Barriers to engagement: enabling full participation in the justice system for young people” (Speech presented at the Justice for Young People Conference, Adelaide Australia, 7 November 2018)
John Walker, Principal Youth Court Judge “When the Vulnerable offend – whose fault is it?” (Speech to Northern Territory Council of Social Services Conference Darwin, 27 September 2017).
Purposes and Principles in the Oranga Tamariki Act 1989
Section 4: Purposes
(1) The purposes of this Act are to promote the well-being of children, young persons, and their families, whānau, hapū, iwi, and family groups by—
(a) establishing, promoting, or co-ordinating services that—(i) are designed to affirm mana tamaiti (tamariki), are centred on children’s and young persons’ rights, promote their best interests, advance their well- being, address their needs, and provide for their participation in decision making that affects them:(ii) advance positive long-term health, educational, social, economic, or other outcomes for children and young persons:
(iii) are culturally appropriate and competently provided:
(b) supporting and protecting children and young persons to—
(i) prevent them from suffering harm (including harm to their development and well-being), abuse, neglect, ill treatment, or deprivation or by responding to those things; or
(ii) prevent offending or reoffending or respond to offending or reoffending:
(c) assisting families, whānau, hapū, iwi, and family groups to—
(i) prevent their children and young persons from suffering harm, abuse, neglect, ill treatment, or deprivation or by responding to those things; or
(ii) prevent their children or young persons from offending or reoffending or respond to offending or reoffending:
(d) assisting families and whānau, hapū, iwi, and family groups, at the earliest opportunity, to fulfil their responsibility to meet the needs of their children and young persons (including their developmental needs, and the need for a safe, stable, and loving home):
(e) ensuring that, where children and young persons require care under the Act, they
have—
(i) a safe, stable, and loving home from the earliest opportunity; and
(ii) support to address their needs:
(f) providing a practical commitment to the principles of the Treaty of Waitangi (te Tiriti o Waitangi) in the way described in this Act:
(g) recognising mana tamaiti (tamariki), whakapapa, and the practice of whanaungatanga for children and young persons who come to the attention of the department:
(h) maintaining and strengthening the relationship between children and young persons who come to the attention of the department and their—
(i) family, whānau, hapū, iwi, and family group; and
(ii) siblings:
(i) responding to alleged offending and offending by children and young persons in a way that—
(i) promotes their rights and best interests and acknowledges their needs; and
(ii) prevents or reduces offending or future offending; and
(iii) recognises the rights and interests of victims; and
(iv) holds the children and young persons accountable and encourages them to accept responsibility for their behaviour:
(j) assisting young persons who are or have been in care or custody under the Act to successfully transition to adulthood in the ways provided in the Act.
(2) In subsection (1)(c) and (d), assisting, in relation to any person or groups of persons, includes developing the capability of those persons or groups to themselves do the things for which assistance is being provides
Section 5: Principles to be applied in exercise of powers under this Act
(1) Any court that, or person who, exercises any power under this Act must be guided by the following principles:
(a) a child or young person must be encouraged and assisted, wherever practicable, to participate in and express their views about any proceeding, process, or decision affecting them, and their views should be taken into account:(b) the well-being of a child or young person must be at the centre of decision making that affects that child or young person, and, in particular,—
(i) the child’s or young person’s rights (including those rights set out in UNCROC and the United Nations Convention on the Rights of Persons with Disabilities) must be respected and upheld, and the child or young person must be—
- (A) treated with dignity and respect at all times:
- (B) protected from harm:
(ii) the impact of harm on the child or young person and the steps to be taken to enable their recovery should be addressed:(iii) the child’s or young person’s need for a safe, stable, and loving home should be addressed:
(iv) mana tamaiti (tamariki) and the child’s or young person’s well-being should be protected by recognising their whakapapa and the whanaungatanga responsibilities of their family, whānau, hapū, iwi, and family group:
(v) decisions should be made and implemented promptly and in a time frame appropriate to the age and development of the child or young person:
(vi) a holistic approach should be taken that sees the child or young person as a whole person which includes, but is not limited to, the child’s or young person’s—
- (A) developmental potential; and
- (B) educational and health needs; and
- (C) whakapapa; and
- (D) cultural identity; and
- (E) gender identity; and
- (F) sexual orientation; and
- (G) disability (if any); and
- (H) age:
(vii) endeavours should be made to obtain, to the extent consistent with the age and development of the child or young person, the support of that child or young person for the exercise or proposed exercise, in relation to that child or young person, of any power conferred by or under this Act:(viii) decisions about a child or young person with a disability—
- (A) should be made having particular regard to the child’s or young person’s experience of disability and any difficulties or discrimination that may be encountered by the child or young person because of that disability; and
- (B) should support the child’s or young person’s full and effective participation in society:
(c) the child’s or young person’s place within their family, whānau, hapū, iwi, and family group should be recognised, and, in particular, it should be recognised that—
(i) the primary responsibility for caring for and nurturing the well-being and development of the child or young person lies with their family, whānau, hapū, iwi, and family group:
(ii) the effect of any decision on the child’s or young person’s relationship with their family, whānau, hapū, iwi, and family group and their links to whakapapa should be considered:
(iii) the child’s or young person’s sense of belonging, whakapapa, and the whanaungatanga responsibilities of their family, whānau, hapū, iwi, and family group should be recognised and respected:
(iv) wherever possible, the relationship between the child or young person and their family, whānau, hapū, iwi, and family group should be maintained and strengthened:
(v) wherever possible, a child’s or young person’s family, whānau, hapū, iwi, and family group should participate in decisions, and regard should be had to their views:
(vi) endeavours should be made to obtain the support of the parents, guardians, or other persons having the care of the child or young person for the exercise or proposed exercise, in relation to that child or young person, of any power conferred by or under this Act:
(d) the child’s or young person’s place within their community should be recognised, and, in particular,—
(i) how a decision affects the stability of a child or young person (including the stability of their education and the stability of their connections to community and other contacts), and the impact of disruption on this stability should be considered:
(ii) networks of, and supports for, the child or young person and their family, whānau, hapū, iwi, and family group that are in place before the power is to be exercised should be acknowledged and, where practicable, utilised.
(2) Subsection (1) is subject to section 4A.
Section 13 Principles specific to the Care and Protection of Young People
(1) Every court or person exercising powers conferred by or under this Part, Part 3 or 3A, or sections 341 to 350, must adopt, as the first and paramount consideration, the well-being and best interests of the relevant child or young person (as required by section 4A(1)).
(2) In determining the well-being and best interests of the child or young person, the court or person must be guided by, in addition to the principles in section 5, the following principles:
(a) it is desirable to provide early support and services to—(i) improve the safety and well-being of a child or young person at risk ofharm:
(ii) reduce the risk of future harm to that child or young person, including the risk of offending or reoffending:
(iii) reduce the risk that a parent may be unable or unwilling to care for the child or young person:
(b) as a consequence of applying the principle in paragraph (a), any support or services provided under this Act in relation to the child or young person—
(i) should strengthen and support the child’s or young person’s family, whānau, hapū, iwi, and family group to enable them to—
- (A) care for the child or young person or any other or future child or young person of that family or whānau; and
- (B) nurture the well-being and development of that child or young person; and
- (C) reduce the likelihood of future harm to that child or young person or offending or reoffending by them:
(ii) should recognise and promote mana tamaiti (tamariki) and the whakapapa of the child or young person and relevant whanaungatanga rights and responsibilities of their family, whānau, hapū, iwi, and family group:
(iii) should, wherever possible, be undertaken on a consensual basis and in collaboration with those involved, including the child or young person:
(c) if a child or young person is considered to be in need of care or protection on the ground specified in section 14(1)(e), the principle in section 208(2)(g):
(d) a power under this Part that can be exercised without the consent of the persons concerned is to be exercised only to the extent necessary to protect a child or young person from harm or likely harm:
(e) assistance and support should be provided, unless it is impracticable or unreasonable to do so, to assist families, whānau, hapū, iwi, and family groups where—
(i) there is a risk that a child or young person may be removed from their care;
and
(ii) in the other circumstances where the child or young person is, or is likely to be, in need of care and protection (for example, where a family group conference plan provides for assistance to be given to a child or parent to address a behavioural issue that may lead, or has led, to the child’s removal from the family):
(f) if a child or young person is identified by the department as being at risk of removal from the care of the members of their family, whānau, hapū, iwi, or family group who are the child’s or young person’s usual caregivers, planning for the child’s or young person’s long-term stability and continuity of living arrangements should—
(i) commence early; and(ii) include steps to make an alternative care arrangement for the child or young person, should it be required:
(g) a child or young person should be removed from the care of the member or members of the child’s or young person’s family, whānau, hapū, iwi, or family group who are the child’s or young person’s usual caregivers only if there is a serious risk of harm to the child or young person:
(h) if a child or young person is removed in circumstances described in paragraph (g), the child or young person should, wherever that is possible and consistent with the child’s or young person’s best interests, be returned to those members of the child’s or young person’s family, whānau, hapū, iwi, or family group who are the child’s or young person’s usual caregivers:
(i) if a child or young person is removed in circumstances described in paragraph (g), decisions about placement should—
(i) be consistent with the principles set out in sections 4A(1) and 5:(ii) address the needs of the child or young person:
(iii) be guided by the following:
- (A) preference should be given to placing the child or young person with a member of the child’s or young person’s wider family, whānau,
hapū, iwi, or family group who is able to meet their needs, including for a safe, stable, and loving home:
(j) a child or young person who is in the care or custody of the chief executive or a body or an organisation approved under section 396 should receive special protection and assistance designed to—(i) address their particular needs, including—
- (A) needs for physical and health care; and
- (B) emotional care that contributes to their positive self-regard; and
- (C) identity needs; and
- (D) material needs relating to education, recreation, and general living:
(ii) preserve the child’s or young person’s connections with the child’s or young person’s—
- (A) siblings, family, whānau, hapū, iwi, and family group; and
(iii) respect and honour, on an ongoing basis, the importance of the child’s or young person’s whakapapa and the whanaungatanga responsibilities of the child’s or young person’s family, whānau, hapū, iwi, and family group:
(iv) support the child or young person to achieve their aspirations and developmental potential:
(k) if a child or young person is placed with a caregiver under section 362, the chief executive, or, if applicable, a body or an organisation approved under section 396, should support the caregiver in order to enable the provision of the protection and assistance described in paragraph (j).
Section 208: Youth Justice Specific Principles
(1) A court or person exercising powers under this Part, Part 5, or sections 351 to 360 must weigh the 4 primary considerations described in section 4A(2).
(2) When weighing those 4 primary considerations, the court or person must be guided by, in addition to the principles in section 5, the following principles:
(a) that, unless the public interest requires otherwise, criminal proceedings should not be instituted against a child or young person if there is an alternative means of dealing with the matter:(b) that criminal proceedings should not be instituted against a child or young person in order to provide any assistance or services needed to advance the well- being of the child or young person, or their family, whānau, hapū, or family group:
(c) that any measures for dealing with offending by children or young persons should be designed—
(i) to strengthen the family, whanau, hapu, iwi, and family group of the child or young person concerned; and(ii) to foster the ability of families, whanau, hapu, iwi, and family groups to develop their own means of dealing with offending by their children and young persons:
(d) that a child or young person who commits an offence or is alleged to have committed an offence should be kept in the community so far as that is practicable and consonant with the need to ensure the safety of the public:
(e) that a child’s or young person’s age is a mitigating factor in determining—
(i) whether or not to impose sanctions in respect of offending by a child or young person; and(ii) the nature of any such sanctions:
(f) that any sanctions imposed on a child or young person who commits an offence should—
(i) take the form most likely to maintain and promote the development of the child or young person within their family, whanau, hapu, and family group; and(ii) take the least restrictive form that is appropriate in the circumstances:
(fa) that any measures for dealing with offending by a child or young person should so far as it is practicable to do so address the causes underlying the child’s or young person’s offending:
(g) that—
(i) in the determination of measures for dealing with offending by children or young persons, consideration should be given to the interests and views of any victims of the offending (for example, by encouraging the victims to participate in the processes under this Part for dealing with offending); and
(ii) any measures should have proper regard for the interests of any victims of the offending and the impact of the offending on them:
(h) that the vulnerability of children and young person’s entitles a child or young person to special protection during any investigation relating to the commission or possible commission of an offence by that child or young person.
(3) If a court or person is exercising a power for the purpose of resolving alleged offending or offending by a child or young person, the court or person must be guided by, in addition to the principles listed in subsection (2) and section 5, the following principles:
(a) the principle that reasonable and practical measures or assistance should be taken or provided to support the child or young person to prevent or reduce offending or reoffending; and(b) the principle that the child or young person should be referred to care, protection, or well-being services under this Act, if those services would be of benefit to them.
(4) Subsection (3) does not apply to a Police employee unless the employee is employed as a specialist in resolving offending by children and young persons.
Table of the Prevalence of Neurodevelopmental Disorders in UK.
230
230 N Lynch above n 100 at 9.
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