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Last Updated: 4 September 2016
Submission to the Social Services Committee on the Children, Young Person
and their Families (Advocacy, Workforce and Age Settings)
Amendment
Bill
28 July 2016
Contact Person:
John Hancock
Senior Legal Adviser
Submission of the Human Rights Commission on the Children, Young Persons
and their Families (Advocacy, Workforce and Age Settings)
Amendment
Bill
To: Social Services Committee
28 July 2016
Introduction
1. The Human Rights Commission (‘the Commission’) welcomes the
opportunity to provide this submission to the Social
Services Committee on the
Children, Young Persons and their Families (Advocacy, Workforce and Age
Settings) Amendment Bill (‘the
Bill’).
2. The Bill is the first tranche of legislation to arise from the
recommendations of the Modernising Child, Youth and Family Expert
Panel. It
seeks to introduce the following amendments to the Children, Young Persons and
their Families Act 1989 (‘CYPF Act’):
a. Extension of the provisions of the care and protection system under Part 2
of the
CYPF Act to young persons aged 17 years;
b. Strengthened obligations to support the participation of children and young persons:
c. A new duty imposed on the Chief Executive of the Ministry of Social Development to support the establishment of independent advocacy services, with a particular focus on children and young persons in care;
d. Provisions that enable a broader range of professionals to perform a
wider set of functions.
Summary of the Commission’s positions and
recommendations
3. The Bill is the first stage in the development of a reformed statutory
framework for the child protection and youth justice sectors.
It therefore has
significant human rights implications, most notably as regards New
Zealand’s obligations under the UN Convention
on the Rights of the Child
(UNCROC).
4. However, as result of its preliminary nature, the Bill is somewhat
lacking in detail. The
Commission understands that further CYPF Amendment Bills are likely to follow which
will provide the detail necessary to fully implement the reforms arising from
the Expert
Panel’s reports.
5. The Commission makes a number of recommendations aimed at bringing the
Bill into greater alignment with UNCROC. These recommendations
can be summarised
as follows:
a. That the Committee ascertain whether the Government can confirm that
it will bring the upper age of the youth justice system into
conformity with
UNCROC. If such confirmation is received it is recommended that the Committee
note this assurance in their report
on the Bill.
b. That, if the Government will not confirm any commitment to raise the
upper age of the youth justice system, that the Committee
amend Clause 4(b) of
the Bill to bring the upper age into conformity with UNCROC.
c. That the Committee amend Clause 8 of the Bill in order to better
reflect the participation right of the child under Article 12
of UNCROC and
introduce a basis for the development of practice guidelines and training
programmes for persons who undertake functions
under the CYPF
Act.
d. The Commission recommends that Clause 6 of the Bill is amended to
provide that the independent advocacy service is both accessible
to children and
young people and confidential. The Commission also endorses the recommendations
of the Office of the Children’s
Commissioner as regards the specific
functions of that service.
e. The Commission endorses the submission of the Office of the
Children’s Commissioner that a publicly transparent mechanism
should be
established to ensure a professional’s competence to exercise delegated
statutory powers under new section 7C(2)(a).
The Commission recommends that such
a mechanism contains Child Rights Impact Assessment and human rights due
diligence components.
Raising the upper age of the CYPF Act
6. The Commission welcomes the Bill’s extension of the provisions of
the care and protection system to young persons aged 17
years. The upper age of
the CYPF Act has been out of step with New Zealand’s international
obligations under the UN Convention
on the Rights of the Child (UNCROC) for over
two decades, ever since the UNCROC was ratified by the New Zealand Government in
1993.
7. There have been previous attempts to rectify this fundamental
inconsistency. The Children, Young Persons and the Families (No
6) Amendment
Bill (No.6 Bill), introduced in 2007, attempted to bring the upper age of the
CYPF Act into conformity with UNCROC (in
respect of both the care and protection
and youth justice jurisdictions). However, despite the UN Committee on the
Rights
of the Child’s statement of concern at the delay in enacting the
No. 6 Bill1, the Bill failed to progress beyond its second reading in
the House and it was eventually removed from the Parliamentary Order
Paper.
8. While the Bill is a step in the right direction, the Commission considers
that urgency must be given to bringing the upper age
of the youth justice system
into line with the UNCROC. Failure to do so will not only perpetuate an UNCROC
inconsistency in respect
of the youth justice system, it will have obvious
problematic implications for initiatives such as the “interface”
case
management approach developed by the Youth Court in order to effectively
respond to the complex needs of young people with dual care
and protection and
youth justice status under the CYPF Act.
9. Furthermore, the Courts have affirmed the application of UNCROC principles when interpreting criminal law legislation. In the recent case of DP v R2, the Court of Appeal found that “the UNCROC principles [mandate] a different approach”3. The Court went on to hold that when the High Court (or the District Court) is dealing with a child or young person under its criminal jurisdiction, the Court must recognise the rights of the child or young person to special protection under both the UNCROC and under s 25(i) of the New Zealand Bill of Rights Act 1990 (BORA), which provides for the right to dealt with in accordance with their age.4 The Court of Appeal also found that the articles of
the UNCROC should be adopted when interpreting criminal law legislation
within the
1 Committee on the Rights of the Child, Concluding Observations: New Zealand, CRC/C/NZL/3-4, 4 February
2011, para 10
2 DP v R [2015] NZCA 476 [2016] 3 NZLR 206
3 DP v R at [38]
4 At [10]
terms of section s 25(i) of the BORA, noting that “Courts can be
expected to interpret
legislation consistently with international treaties”.
10. The English case of CC v Secretary of State for the Home
Department and Commissioner of Metropolitan Police5 has similar
significance. In this case, the Queen’s Bench division of the High Court
ruled that the failure to accord differential
youth justice protections to 17
year olds in police custody6 was unlawful on the basis that the
State’s human rights obligations7 “requires a 17
year-old in detention to be treated in conformity with the principle that his
best interests were a primary consideration”8.
11. The Queen’s Bench also noted that the failure to extend youth
justice protections to
17 year olds has serious systemic implications. Not only does it
“undermine the very purpose” of a youth justice system9,
it is indicative of an incoherent approach to policy leading to “an
uncomfortable dissonance” amongst the relevant legal
and policy
instruments10.
12. Against this context, the Commission notes that in September 2016 the New
Zealand Government will appear before the UN Committee
on the Rights of the
Child as part of the UN Committee’s examination of New Zealand’s 5th
periodic report under the UNCRC.
In its List of Issues for the New Zealand
Government, the UN Committee has asked for “updated information on
measures taken
to ensure the compliance with the Convention of the State
party’s juvenile justice legislation and policies” including
“information on measures taken to raise the minimum age of criminal
responsibility and... the age limit under the Children,
Young Persons, and Their
Families Act”11.
13. In its response to the UN Committee, the Government has stated it
is:
“investigating the benefits and costs of extending the youth justice jurisdiction to include 17 year olds. This will better align the youth justice jurisdiction with the
5 CC v Secretary of State for the Home Department and Commissioner of Metropolitan Police High Court, Queens Bench, 25 April 2013, per Moses LJ and Parker J
6 UK Police and Criminal Evidence Act 1984, and the Code of Practice that sits underneath it
7 Article 8 of the European Convention on Human Rights, read together with UNCROC
8 Ibid at [98]
9 At [93]
10 At [37]
11
Convention which recognises that children under 18 require special
protection. The Minister of Justice and the Minister for Social
Development will
report back to Cabinet in June 2016 on operational, funding, policy, and
legislative changes necessary to give
effect to any future decisions to amend
age settings for the youth justice system.”
14. While the Commission is encouraged by the Government’s commitment
to investigate this matter further, this Bill (as its
title indicates) is
clearly an appropriate vehicle with which to raise the upper age of the youth
justice jurisdiction. It is crucial
that the opportunity is not
missed.
15. The Commission accordingly recommends that the
Committee:
a. Ascertain from the Ministry of Social Development and Justice whether
the Government has committed to raising the upper age of
the youth justice
system following the Ministerial report to Cabinet of June 2016.
b. If such a commitment has been made, to reference this assurance in its
report on the Bill and note the need to ensure future CYPF
Act reform measures
give effect to the change.
c. If not convinced that the matter will be addressed in further upcoming
tranches of CYPF Act reform, amend clause 4(b) of the Bill
to state
“young person...in Parts 4 and 5, means a person of or over the age of
14 years but under the age of 18 years.”
Strengthened obligations to support the participation of children and
young persons
16. Clause 8 amends s 11 of the CYPF Act to introduce a duty to encourage and
assist the participation of children and young people
in processes under the
CYPF Act that directly regard them, such as court proceedings, family group
conferences, meetings and hearings
to prepare and review care or youth justice
plans and other statutory interventions that “significantly affect”
them.
17. Clause 8 goes on to provide that the duty to do so rests with the
presiding Judge or
the child/young persons’ lawyer (in court proceedings), with the FGC Co-ordinator (in
FGCs), with the social worker (in respect of plans) and, in respect of other
matters, the responsible statutory officer.
18. The Commission broadly supports the intention of clause 8, which is
aligned with the right of the child to participate in judicial
and
administrative proceedings that affect them under Article 12 of UNCROC. The
right of the child to participate and have their
views ascertained and heard is
a fundamental UNCROC principle, one that has been described by the Courts as the
“linchpin”
of the Convention.12
19. However, it is important that clause 8 is not used as a means to compel
participation from a child or young person in circumstances
where they clearly
do not wish to participate, or where doing so may be contrary to their best
interests (for example, as a result
of the child or young person’s
psychological profile, or their experience of trauma arising from the subject
matter of the
proceeding). Children and young people also have the right under
Article 12 not to participate or express their views in this respect. In
their General Comment No. 12 on the right of the child to be heard, the
UN
Committee on the Rights of the Child state that:
The child, however, has the right not to exercise this right. Expressing
views is a choice for the child, not an obligation. States
parties have to
ensure that the child receives all necessary information and advice to make a
decision in favour of her or his best
interest13
20. In its current form, clause 8 does not contain a best interests
provision, nor a provision that expressly acknowledges the right
of the child to
decline from expressing their views. As such, implementation of clause 8 in its
current form may have the unintended
consequence of enabling practices that are
contrary to the rights and best interests of children and young people who are
subject
to it.
21. The Commission accordingly recommends that:
a. Clause 8 (in respect of new s11(2)(a)) is amended to state:
“the child or
young person is encouraged and assisted to participate in the
proceedings
12 Hollins v Crozier [2000] NZFLR
13 UN Committee on the Rights of the Child (CRC), General comment No. 12 (2009): The right of the child to be
heard, 20 July 2009, CRC/C/GC/12 at [16].
or process to the degree appropriate for his or her age and level of maturity unless:
(i) the child or young person declines to participate;
or
(ii) in the view of a person specified in subsection (3), that
participation is not appropriate, having regard to the best interests
of the
child or young person and the matters to be heard or
considered.”
b. That practice guidelines for supporting the child or young person to
participate are developed for the persons specified in new
s11(3) of the CYPF
Act
c. That training programmes are developed for the persons specified in
new s11(3) of the CYPF Act to ensure best practice.
Establishment of a new independent advocacy service
22. Clause 6 of the Bill introduces new s7(2)(bb) to impose a duty upon the
Chief Executive of MSD to establish “independent
services” for
children and young people subject to the jurisdiction of the CYPF Act (Parts 2
to 7 inclusive) to provide them
with an opportunity to express their views on
“matters that are important to them” in relation to actions or
services
provided under the Act and “the operation and effectiveness of
processes and services under this Act, for the purpose of contributing
to the
improvement of these.”
23. The Explanatory Note provides some context, indicating that the
Bill avoids “constraining the design of the service,
which is currently
being developed in partnership with the philanthropic sector”. The
Explanatory Note then goes on to state
“Any additional legislative
amendments to establish the advocacy service will be considered once the design
of the service
is more advanced.”
24. However, the Commission notes that Clause 6 of the Bill does not provide any further elaboration on the status, functions or constitution of the service or services. For example, there is no indication as to how the proposed new service will intersect with the complaints and Grievance Panel procedures under the Children, Young Persons
and their Families (Residential Care) Regulations
199614.
14 Clauses 15-16, Children, Young Persons and their Families
(Residential Care) Regulations 1996
25. In addition, Clause 6 does not prescribe any requirements
concerning the confidentiality or accessibility of those services,
nor any
requirement that the advocacy service operate a child-centred/child rights
compliant practice model.
26. The Commission accordingly recommends that Clause 6 (new section
7(2)(bb)) is amended to state that:...confidential and accessible services
are available to children and young persons who are subject to any action or
receiving any service
under Parts 2 to 7 (with particular consideration to be
given to the needs of those in care) that provide them with an opportunity
and
support to express their views...
27. Furthermore, the Commission endorses the recommendations of the Office
of
the Children’s Commissioner that:
a. The service includes the functions of connecting children in care
together, advocating for individual children, and empowering
children in
care.
b. The second tranche of CYPF Act legislation includes the establishment
of a fully child-centred complaints mechanism, separate
from, but connected to,
the new advocacy services.
c. Clause 6 (new section 7(2)(bb)) is amended to include a specific
provision to enable children to express concerns about their
experience in the
care and protection and youth justice systems, including maltreatment, abuse,
neglect or miscarriage of justice.
Providing for a broader range of professionals
28. Clause 7 of the Bill (new sections 7A-7E) provide that the Chief Executive of MSD may delegate his or her statutory responsibilities under the CYPF Act to persons who are not social workers, by virtue of their powers of delegation under s 41 of the State Sector Act 1988.
29. Clause 7 of the Bill has potentially significant implications, the main
being the potential outsourcing of statutory child protection
and youth justice
operations outside the state sector. This follows the terms of reference of the
Modernising Child, Youth and Family
Expert Panel which included, within its
scope, outsourcing of some CYF services and stronger partnerships between CYF
and external
government and non-government organisations.15. The Bill
has attempted to address the clear accountability issues that arise by providing
that any delegate is “appropriately
qualified to perform the function or
exercise the power, taking into account the person’s training, experience,
and interpersonal
skills” and, if the delegate is outside the state
services, they “will be bound by contractual obligations that are
sufficient
to support the appropriate exercise of the
delegation.”
30. The rationale provided in the Bill’s Explanatory Note is that this
amendment enables “other professionals to play
core roles in helping to
identify and meet the needs of vulnerable children and young persons where they
are equally or better placed
to do so.” However, the Bill provides scant
detail as to how this would occur in practice.
31. It is therefore likely that the use of delegations will be primarily guided by non- legislative policies that establish the fiscal and operational criteria. The Commission accordingly endorses the recommendation of the Office of the Children’s Commissioner that a publicly transparent mechanism is developed to ensure a professional’s competence to exercise delegated statutory powers under new section
7C(2)(a).
32. Such a mechanism ought to include a child’s rights impact assessment (CRIA), in order to ensure that the rights, welfare and best interests of the child are the primary consideration in the use of delegations. This could be built into clause 7 of the Bill, via a new section 7(2)(c) that requires the Chief Executive to consider the impact of the delegation on the welfare and best interests of the child. The Commission notes that the UN Committee on the Rights of the Child have considered that CRIAs have an important function in ensuring that budgetary and fiscal decision-making focused on
vulnerable children is
rights-consistent.16
15 Terms of Reference for the Modernising Child, Youth and Family Expert Panel, pages 2-3
16 General Comment No 19 (2016): On Public Spending and the Rights of the Child, Draft Version 11 June 2015,
CRC/C/GC/19 paragraph 55
33. The mechanism could also include a children’s rights due diligence
and monitoring components to assess and monitor the competence
of delegates
outside the State sector to meet the State’s human rights obligations as
regards children, young people and their
families. This would broadly accord
with the UN Guiding Principles on Business and Human Rights (UNGPs). The UNGPs
provide that:
States should exercise adequate oversight in order to meet their
international human rights obligations when they contract with, or
legislate
for, business enterprises to provide services that may impact upon the enjoyment
of human rights.17
34. The UNGPs further provide that:
“States should encourage and, where appropriate, require human rights
due diligence by the agencies themselves and by those
business enterprises or
projects receiving their support. A requirement for human rights due diligence
is most likely to be appropriate
where the nature of business operations or
operating contexts pose significant risk to human
rights”.18
35. It is difficult to think of a social service operating environment that
poses more risk to human rights outcomes in New Zealand
than child protection.
Due diligence on the human rights competence of delegates will therefore be
essential.
36. It is notable that the UN Committee on the Rights of the Child has
observed that the New Zealand Government is yet to adopt corporate
social
responsibility parameters based on the UNGPs and has encouraged the
establishment of regulations to do so. In its 2016 List
of Issues for the New
Zealand Government, the UN Committee has reiterated this concern, and has sought
“information on measures
taken to ensure that the State party’s
possible outsourcing of the provision of essential services...is compliant with
the
provisions of the Convention.”
37. The New Zealand Government is yet to take any concrete steps towards
enabling the incorporation of the UNGPs within its policy
and regulatory
frameworks. Many other States have developed National Plans of Actions for
Business and Human Rights or
17 UN Guiding Principles on Business and Human Rights, Pillar 1 p 8
18 Ibid p 7
for Responsible Business. New Zealand has not. These reforms, insofar as
they may result in outsourcing of services, provide a basis
to consider doing
so.
38. In addition, in 2015 New Zealand agreed to the 2030 Agenda for
Sustainable Development (the SDG Agenda). The New Zealand
Government has
identified the need to develop a clear plan for the implementation of the SDG
Agenda, that “identifies actions,
builds ownership and measures
results”.19
39. Many of the SDG Agenda’s Goals, Targets and Indicators are directly
relevant to the realisation of children’s human
rights in New Zealand and,
more specifically, outcomes for children and young people who have contact with
the care and protection
and youth justice systems. These SDG targets
include:
• ensuring access for all to
adequate, safe and affordable housing21,
• reducing under five mortality rate22,
• reducing victims of intentional homicide23
• meeting education related targets
in SDG Goal 4,
• meeting gender equality targets in SDG Goal 5, and;
19 Speech of Minister Bennett - https://www.mfat.govt.nz/en/media-and-resources/ministry-statements-and- speeches/statement-on-achieving-sustainable-development-goals/
20 SDG Target 1.2
21 SDG Target 11.1
22 SDG Target 3.2.1
23 SDG Target 16.1.1
24 SDG Target 16.1.3
25 SDG Target 16.2.1
26 SDG Target 16.3.1
40. The Commission considers that the development of a plan to implement the
SDG Agenda in New Zealand’s policy and legislative
framework has
considerable potential to drive enhanced outcomes for children, particularly
vulnerable children. The Commission recommends
that the Committee give
consideration to this matter as part of its examination of the Bill and
subsequent reforms of the CYPF Act
that are to follow.
41. The Commission therefore:
a. Endorses the recommendation of the Office of the Children’s
Commissioner that a publicly transparent mechanism is developed
to ensure a
professional’s competence to exercise delegated statutory powers under new
section 7C(2)(a).
b. Recommends that such a mechanism contains Child Rights Impact
Assessment and human rights due diligence and monitoring
components.
c. Requests the Select Committee to consider and recommend
the development of a plan, with a particular focus on improving
outcomes for
improved outcomes for children, that identifies actions, builds ownership and
measures results and enables the implementation
of the UNGPs and the SDG Agenda
within New Zealand’s policy and regulatory frameworks.
d. Recommends that new section 7C(2) is amended as follows: Before making a delegation to a person who is not a social worker, the chief executive must be satisfied that, in addition to any relevant requirements of section 41 of the State Sector Act 1988 being met -
(a)That the person is appropriately qualified to perform the function or exercise the power, taking into account the person’s training, experience, interpersonal skills and capacity to respect, uphold and promote children’s rights in the course of their duties; and
(b) That the delegation will not adversely impact on the rights, welfare and best interests of children and young people; and
(c) if the person is outside the State services, the person will be
bound by contractual obligations that are sufficient to support
the appropriate
exercise of the delegation, including an obligation to meet the State’s
relevant human rights commitments.
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