THE HISTORY OF THE YOUTH COURT SINCE 1989

JA CROCKETT

Part I: Introduction

This paper traces the history of the Youth Court since its establishment under the Children, Young Persons and Their Families Act 1989 (the Act). The Youth Court is a separate division of the District Court,[1] with jurisdiction over young people of or over 14 but under 17 who are charged with an offence other than murder, manslaughter, or a traffic offence not punishable by imprisonment.[2] Where a young person is charged with murder or manslaughter, the preliminary hearing takes place in the Youth Court.[3] Children of or over the age of 10 and under 14 who have committed an offence or offences the number, nature or magnitude of which is such as to give serious concern for the wellbeing of the child are dealt with under the care and protection sections of the Act.[4] The District Court has jurisdiction over persons aged 17 and over. These divisions ensure that care and protection principles are applied to children through the Family Court, while youth justice principles are applied to young people through decisions made under the jurisdiction of the Youth Court, related youth justice proceedings, and appeals from Youth Court decisions.[5]

The Youth Court represents a radical and welcome departure from the monocultural, welfare approach under the Children and Young Persons Court,[6] where large numbers of children were placed in institutions for indeterminate periods due to parental neglect or problem behaviour.[7] Instead, the Youth Court applies youth justice principles which look beyond the welfare / justice dichotomy to take into account objectives such as "the importance of diversion, empowering victims, strengthening families, and offering culturally appropriate law".[8] New Zealand's innovative youth justice experiment is internationally recognized as an exemplar of an effective and progressive way of dealing with young people who offend.

A recent assessment of the youth justice system concludes that the underlying framework for youth justice in New Zealand is fundamentally sound.[9] This echoes a series of reports that do not challenge the fundamentals of the Youth Court, but suggest ways to improve its practice. However, implementing youth justice often involves a balancing exercise between potentially conflicting objectives, such as reconciling victim and offender rights, and accountability versus welfare priorities. Underlying many recommendations is a discernable trend for the balance to be struck in favour of holding the young offender accountable, rather than having consideration to the vulnerabilities and social malleability that accompany youth. A 'tough on crime' approach, coupled with the scarcity of resources under which the Youth Court continues to operate, challenge the Court's ability to achieve its original goals.

Footnotes

1 S 433 Children, Young Persons and Their Families Act 1989 (all references are to this Act unless otherwise specified).

2 The Youth Court does not have jurisdiction over young persons charged with traffic offences not punishable by imprisonment unless the young person is charged with another offence that the Youth Court has jurisdiction over and the Court considers that it is desirable and convenient that the two charges are heard together ss 272(3)(c) and 272(5).

3 S 272(4). See Part IV for discussion of the "jurisdictional decision".

4 S 14(1)(e).

5 S 208.

6 Established under the Children and Young Persons Act 1974.

7 GM Maxwell "Family Decision-Making in Youth Justice: The New Zealand Model" (Office of the Commissioner for Children and Institute of Criminology, Victoria University of Wellington, 1992) 1.

8 E Watt "A History of Youth Justice in New Zealand" (Department for Courts, Wellington, 2003) 26.

9 Ministerial Taskforce Youth Offending Strategy (Ministry of Justice and the Ministry of Social Development, Wellington, 2002) 4.