THE HISTORY OF THE YOUTH COURT SINCE 1989
| J A Crockett |
Annex 1:
AMENDMENTS TO THE CHILDREN, YOUNG PERSONS AND THEIR FAMILIES ACT 1989
Listed below are key changes that have been made to the CYPF Act under each amending Act or new legislation. I have covered sections which relate to the Youth Court, namely the interpretation section and Parts IV and V, and have paraphrased when necessary. Other provisions which deal with care and protection issues under the Family Court and are beyond the scope of this topic. Acts that have not directly repealed or substituted CYPF Act provisions, but affect the operation of the Youth Court are listed separately.
CHILDREN, YOUNG PERSONS AND THEIR FAMILES AMENDMENT ACT 1989 (1989 No 70)
| Section | Amended from | Amended to | Reason |
| S 328A Payment of lay advocate | Inserted | The expenses of a lay advocate appointed to represent a child or young person in the Youth Court will be met by Parliament, but the Court retains a discretion to order any party to the proceedings to pay any or all of this amount if it sees fit. | Recognises the importance of a lay advocate in liaising, meeting and facilitating between groups in youth justice proceedings |
1 April 1990 SOCIAL WELFARE (TRANSITIONAL PROVISIONS) ACT 1990 (1990 NO 26)
| Section | Amended from | Amended to | Reason |
| S 293A Disqualification from driving | Inserted | The amendment enables the Youth Court to disqualify a young person from driving | Officials from Police National Headquarters expressed concern to representatives of the Department of Social Welfare at one of its monthly meetings over the restriction on the Youth Court to use disqualification from driving as a response to traffic offences. |
8 January 1995, CHILDREN, YOUNG PERSONS AND THEIR FAMILIES AMENDMENT ACT 1994 (1994 No 121)
| Section | Amendment from | Amended to | Reason |
| S 2 | Inserted | ["Child abuse" means the harming (whether physically, emotionally, or sexually), ill-treatment, abuse, neglect, or deprivation of any child or young person:] | Mandatory reporting of child abuse by certain professionals was inserted so that: a) action could be taken at the early stages of offending; and b) to make an unequivocal statement of the government's and community's disapproval - Plunket Society |
| S 2 "convene" | Inserted | (Regarding family group conferences in the youth court), "convene" means to take the appropriate steps under sections 247 and 253 of this Act and "reconvene" has a corresponding meaning | The meaning of "convene" was clarified to draw a distinction between "hold" and "convene" (which has a broader time-frame) as the most important issue is the time lapse before holding the conference and making decisions and plans regarding the young offender. |
| S 2 "Iwi Social Service" | "Cultural Authority" replaced | Iwi Social Services now require endorsement from the appropriate Iwi, and Cultural Social Services require endorsement from the appropriate cultural groups. Both continue to be prevented from undertaking sole guardianship roles under the Act, but may be appointed as additional guardians. | Tau Henare opposed the change in wording on the basis that cultural "social service" takes away the mana and mandate of a given iwi authority. |
| S 6 Welfare and interests of child or young person paramount NB: this provision does not relate to the Youth Court |
The welfare and interests of the child "shall be a deciding factor" in respect of care and protection matters substituted | The welfare and interests of the child shall be the first and paramount consideration in care and protection matters under the Act. | Concern that the Department of Social Welfare was misinterpreting the current provision by not placing enough emphasis on the interests of the child or young person. |
| S 215 (1) Child or young person to be informed of rights before questioned by enforcement officer | Words "in relation to the commission or possible commission of an offence" substituted | Specifies that an enforcement officer must inform a child or young person of his or her rights before asking any question which is intended to obtain an admission of an offence. | Police complained that young people were able to avoid answering questions or responsibility altogether because the police failed to carry out the performance of this duty in a manner satisfactory to the courts. |
| S 215 (3) | Subsection added | Defines the point during questioning when an enforcement officer is obliged to inform the child or young person of his or her rights; namely when an enforcement officer forms the opinion that there are reasonable grounds to suspect the child or young person of having committed an offence. | Designed to make clearer the point during questioning when a child or young person must be informed of his or her rights. The actual rights remained unchanged. |
| S 215A Rights to be explained to child or young person on request | Section inserted | Requires an enforcement officer, when questioning a child or young person in relation to a suspected offence; and when the child or young person makes an enquiry that relates to their rights, to explain those rights in relation to the circumstances of the particular case and in a way appropriate to the way the enquiry was made. | Balance struck so that children and young persons would be informed of their rights but police officers could go about their normal course of work. |
| S 222 (4) Persons who may be nominated for the purposes of section 221(2)(b) | Subsection added | [(4) It is the duty of any person nominated pursuant to subsection (1) of this section-(a) To take reasonable steps to ensure that the child or young person understands the matters explained to the child or young person under section 221(2)(a) of this Act; and (b) To support the child or young person-(i)Before and during questioning; and (ii) If the child or young person agrees to make a statement, during the making or giving of the statement.] | There was a need to clarify the role of nominated persons so that they could support the child or young person without interfering in the enforcement of youth justice. |
| S 231(4) Persons who may be nominated for the purposes of section 229(1)(a) | Subsection inserted | [(4) It is the duty of any person nominated pursuant to subsection (1) of this section-(a)To take reasonable steps to ensure that the child or young person understands the matters explained to the child or young person under section 221(2)(a) of this Act; and (b) To support the child or young person- (i)Before and during any questioning; and (ii)If the child or young person agrees to make a statement, during the making or giving of the statement.] | There was a need to clarify the role of nominated persons so that they could support the child or young person without interfering in the enforcement of youth justice. |
| S 248 Family group conferences not required in certain cases | A high-threshold conjunctive requirement for waiving family group conferences. | A family group conferences can be waived when: a) the previous FGC has been held no more than 6 weeks before the referral for the new FGC; and b) the previous FGC has had the opportunity to consider how the offence in respect of which the conference was convened should be dealt with; and c) the YJC consults with and obtains agreement to waive the conference from all those entitled to attend a FGC were it to be held. The agreement of the offender is not required. The YJC must also consider the child or young person's response to the plans from the previous FGC and the seriousness and extent of the more recent offending or alleged offending. | Allowing family group conferences to be waived in more situations would help overcome the "sense of futility among professionals working in youth justice about holding successive family group conferences for persistent offenders." - Jenny Shipley Introductory Speech. |
| S 249 (6) Time limits for convening family group conferences | Substituted | Unless there are special reasons why a longer period is required, when a child is held in custody or detention a family group conference must be completed within 7 days, or for every other family group conference, within one month. | Time limits had been regularly exceeded. |
| S 250 Consultation on convening of family group conference | Substituted | Before a family group conference takes place, all participants should be given information that relates to: the purpose of the conference; the date on which, and the time and place at which, the conference is to be held; the persons who should attend the conference; and the procedure to be adopted at the conference, and, so far as it is practicable give effect to the wishes of the child's or young person's family, whanau, or family group in relation to those matters. | A lack of information available to FGC participants before the conference led to misunderstandings, confusion about roles and discomfort about cultural differences, including where the conference was to be held. Although victims have no mandatory right to choose the location of the FGC, a practice of consultation by YJCs would ensure that the victim is not deterred from attending. |
| S 251 (2) Persons entitled to attend family group conference | A victim could only bring one supporter | Amended to allow a victim to bring "any number of persons" to the conference to support him or her. | To promote greater victim participation in the process. |
| S 281A and B Court to consider whether family group conference should be held | Added | Allows the court to direct a family group conference at any stage of the hearing of proceedings, if the court considers this to be necessary or desirable. | Provides a back-stop where a family group conference has been waived. |
1 October 1999, DEPARTMENT OF CHILD, YOUTH AND FAMILY SERVICES ACT 1999 (1999 NO 82)
| Section | Amended from | Amended to | Reason |
| S 2 | Inserted | ["Chief executive" means, subject to any enactment, the person holding office as chief executive of the Department:] | All administrative responsibilities of the Director-General of Social Welfare were transferred to the chief executive of the Child, Youth and Family Services. |
| S 2 | "Director-General" Repealed | "Chief executive" | The term "Director General" was considered to be outdated: "It is appropriate that we move from talking about the Director-General of Social Welfare to the chief executive. Director-General tends to be a word of yesteryear. Chief executive is probably more appropriate." - Joy Quigley (NZ National). |
| S 2 | Definition substituted | ["Department" means the department that is, with the responsibility of the Prime Minister, for the time being responsible for the administration of this Act:] | The merging of Child, Youth and Family Agency with Community Funding Agency was considered necessary to relinquish a corporate structure and focus on key Government strategic objectives. |
| S 2 (c)(iv) | Words "within the meaning of the Children's Health Camps Act 1972" substituted | "Residence" (c) Does not include-(iv) A children's health camp [operated by Children's Health Camps - The New Zealand Foundation for Child and Family Health Development] | S 8 of the Children's Health Camps Dissolution Act 1999 |
1 November 1999, CHILDREN, YOUNG PERSONS AND THEIR FAMILIES (TRANS-TASMAN TRANSFER OF PROTECTION ORDERS AND PROCEEDINGS) AMENDMENT ACT 1999 (1999 No 116)
This Act addressed the need for formal measures to be put in place for children with care and protection orders who move between New Zealand and Australia, but mainly affected the Family Court.
1 January 2001, BAIL ACT 2000 (2000 NO 38) AMENDED UNDER S 74 (2)
| Section | Amended from | Amended to | Reason |
| S 234 (b) Custody of child or young person following arrest | Reference to section 51 of the Summary Proceedings Act substituted | [(b)Where the child or young person may be released on bail under section 21 of the Bail Act 2000, release the child or young person on bail; or] | |
| s 240 (2) Conditions of bail | Reference to section 49 of the Summary Proceedings Act substituted | [(2) The power conferred by subsection (1) is in addition to the power conferred on a Court by section 31 of the Bail Act 2000.] |
30 June 2002, SENTENCING ACT 2002 (2002 No 9)
| Section | Amended from | Amended to | Reason |
| S 2(e) Nothing in this subsection shall- | "Section 4 of the Criminal Justice Act" replaced | Derogate from the provisions of [[section 6 of the Sentencing Act 2002]] | |
| S 238 (1A) to (1C) Custody of child or young person pending hearing | Inserted | [(1A) Subsection (1) is subject to subsection 1(B). [(1B) Subject to section 239(3), if a young person appears before a Youth Court the Court may, instead of dealing with the young person in any of the ways described in subsection (1), order the young person to be remanded in a penal institution. [(1C) If the Court makes an order under subsection (1B), section 171(1) of the Summary Proceedings Act 1957 applies as if the Youth Court were a District Court. | |
| S 239 (3) | Inserted | [The Youth Court must not make an order under section 238(1B) remanding a young person to a penal institution unless-(a) the young person is at least 15 years of age; and (b) the young person is charged with or has been convicted of a purely indictable offence (within the meaning of section 18 of the Sentencing Act 2002); and (c) the young person is being remained to the District Court or the High Court for trial or sentencing in respect of that offence; and (d) if the remand is pending trial, the Court is satisfied that the period that the young person is likely to be on remand pending trial is less than 2 months; and (e) the chief executive, or an officer of the department authorised in that behalf by the chief executive, has furnished to the Court a certificate stating that detention of the young person in the custody of the chief executive under an order under section 238(1)(d) for the likely period of remand would be likely to prejudice the ability of the department to meet demands to detain other young persons in the department's residences under similar orders; and (f) the Court is satisfied that remand to a penal institution in all the circumstances is appropriate.] | |
| S 239A. Expiry of sections 238(1A) to 1(C), and 239(3) | Inserted | [Sections 238(1A to 1(C) and 239(3) expire at the close of 30 June 2004.] | |
| S 251 (1)(j) Persons entitled to attend family group conferences | Substituted | (1) Subject to subsection (2) of this section, the following persons are entitled to attend a family group conference convened under this Part of this Act: [(j) if the young person is subject to a community-based sentence (as that term is defined in section 4(1) of the Sentencing Act (2002),-(i) a probation officer: (ii) in the case of a young person who is subject to a sentence of community work (within the meaning of that Act), a representative of the agency on whose behalf the young person is required to perform any work for the purpose of the sentence: (iii) in the case of a young person who is subject to a sentence of supervision (within the meaning of that Act), any person or agency, or representative of any person or agency, that provides any course or conducts any programme that the young person is required to undertake as a condition of the sentence or to undergo the sentence.] |
RELATED LEGISLATION AND KEY PROVISIONS
AMENDMENTS TO THE CHILDREN, YOUNG PERSONS AND THEIR FAMILIES RULES 1989
26 May 1995 CHILDREN, YOUNG PERSONS AND THEIR FAMILIES RULES 1989, AMENDMENT
No 1 (SR 1995/91)
| Rule | Amendment | Amended to | Reason |
| PART I r 3(1) | substituted | ["District Court Rules" means the District Court Rules 1992] | |
| PART IX r 60 | Expression "rule 198" substituted | The fact that any examination is pending under [rule 378] of the District Court Rules, as applied to proceedings to which these rules apply, shall not suspend or prevent the exercise by any Judge or Registrar of any power or jurisdiction that the Judge or Registrar would otherwise possess in respect of the application. |
1 JULY 1995, DEPARTMENT of JUSTICE RESTRUCTURING ACT 1995 (1995 NO 39)
| Rule | Amendment from | Amendment to | |
| PART II r 8(1) | "Secretary for Justice" | The Registrar of every District Court shall keep the following records: (a) Children, Young Persons and Their Families Records in such a form as the [chief executive of the Department for Courts] directs from time to time |
1 OCTOBER 1999, DEPARTMENT OF CHILD, YOUTH AND FAMILY SERVICES ACT 1999 (1999 No 82)
| Rule | Amendment | Amended to | Reason |
| r 39(a) | Words "Director of Social Welfare for the District" substituted to "Principal manager of the Department for the Area" | When the chief executive is party to any proceedings, any document that is required to be served on the chief executive shall be served - (a) By delivering the document to the [Principal manager of the Department for the area] in which the child or young person who is the subject of the proceedings resides; or |
21 OCTOBER 2002 (SR 2002/253)
| Rule | Amendment | Amended to | Reason |
| PART I r (2)(a) | substituted | Subject to rule 29, these rules do not apply to [(a)criminal proceedings; or | |
| PART I r (2)(aa) | inserted | [(aa) proceedings under the Act to which the Family Court Rules 2002 apply, namely - (i) proceedings in a Family Court; and (ii) proceedings in a District Court acting under section 151 of the Act or under section 15 of the Family Courts Act 1980 | |
| PART I r 3(1) | substituted | ["Court",- (a) means a Youth Court; and (b) in the case of proceedings under Part VII of the Act, includes a District Court] | |
| PART I r 3 | Substituted | ["Judge"- (a) means a Youth Court Judge; and (b) in the case of proceedings under Part VII of the Act, if neither a Family Court Judge nor a Youth Court Judge is available, includes a District Court Judge:] | |
| PART II r 9 (1)(c) |
Revoked | ||
| PART III r 13 (1),(2) |
Revoked | ||
| PART III r 13 (4) |
Substituted | [Every application must be filed together with the number of copies the Registrar directs (which must not exceed the number of persons intended to be served) of the following documents: (a) the application; and (b) if the application is an application under s371 of the Act, the information sheet required by riles 16(10 and 69(2) to accompany the application] | |
| PART III r 15 | Revoked | ||
| PART III r 16 (1) | Substituted | [(1) Every application under section 371 of the Act must be accompanied by a duly completed information sheet in form CYPF 5.] | |
| PART III r 16 (2) | Revoked | ||
| PART III r 17 3(b) | Revoked | ||
| PART III r 18 | Revoked | ||
| PART III rr 22-24 | Revoked | ||
| PART III r 26 | Revoked | ||
| PART III r 27 (1)(a) | Revoked | ||
| PART III r 27 (2) (a) | Words "and to rule 26" omitted | Subject to subclause (1)...-(a) the application shall be set down for a gearing on the filing of an application for a fixture in form CYPF 8 and not otherwise; and | |
| PART III r 29 (1)(a) | Words "Part II or Part III or" omitted | Where - The making of any order, or the imposing of any condition, under...Part IV of the Act requires the consent of any person or ogranisation; or | |
| PART III r 29 (1)(b) | Revoked | ||
| PART III r 29 (2) (a) | Words "Part II or Part III or" omitted | Where - The Court proposes to make any order under...Part IV of the Act; and | |
| PART IV r 33(b) | Revoked | ||
| PART V r 35 | Revoked | ||
| PART V r 41(2) | Revoked | ||
| PART V r 42(1)(b) | Revoked | ||
| PART VI rr 47,48 | Revoked | ||
| PART VIII r 54(2) | Revoked | ||
| PART VIII r 54(3) | Words "or subclause (2)" omitted | Any person against whom an order has been made ex parte under subclause (1)...may at any time apply to rescind or vary the order | |
| PART VIII r 54(4),(5) | Revoked | ||
| PART VIII r 55(1) | Words "section 200 of the Act and to" omitted | Subject to...these rules, and any of the times fixed by these rules for- | |
| PART VIIIA rr 55A, 55B | Revoked | ||
| PART IX r 56(3) | Revoked | ||
| PART IX r 56 (5) | Revoked | ||
| PART IX r 58 | Revoked | ||
| PART X rr 64-67 | Revoked |
BAIL ACT 2000
KEY PROVISION
S 15 Granting of bail to defendant under 20 years of age - (1) If a court remand or commits for trial or for a sentence a defendant who appears to the court to be of or over the age of 17 years but under the age of 20 years, it must release the defendant on bail or otherwise subject to such conditions as it thinks fit.
(3) Subject to sections (1) and (2) of section 142 of the Criminal Justice Act 1985 and to the Children, Young Persons and Their Families Act 1989, this section applies in respect of a defendant who is under the age of 17 years and who is charged with or convicted of any offence in a District Court or the High Court
PENDING LEGISLATION
CHILDREN, YOUNG PERSONS AND THEIR FAMILIES AMENDMENT BILL (NO 2) 2000
Following the Waitangi Tribunal "Te Whanauo Waipareira" Report, which found that the application of rangatiratanga is no longer limited to kin-based tribes, the Bill proposes to amend the Act to provide more equal treatment of kin-based and non-kin-based Maori groups, and to allow any organization appointed under s 396 of the Act to be appointed by the Family Court as sole or additional guardian of the child or young person.
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