Restorative Justice in the Youth Court

Speech to the LEADR 9th International Conference on Alternative Dispute Resolution
Wellington, New Zealand 19 September 2007

His Honour Judge A J Becroft
Principal Youth Court Judge, New Zealand Youth Court
Te Kaiwhakawa Matua o Te Kooti Taiohi o Aotearoa

Contents

Introduction 
Youth Justice in New Zealand

Police Alternative Action & Diversion
Family Group Conferences

Intention to Charge FGC
Court Ordered FGC

The Youth Court

Remand/Bail/Custody
Approve, modify, or monitor court ordered FGC plan when charge "not denied"
Factfinding
Offering Youth Court jurisdiction to young people charged with more serious offences
What orders, if any should be made?
Conviction and transfer — the highest Youth Court sentence
What to do when Youth Court orders break down? 
Timeliness is important

Restorative Justice
Restorative Justice and the Children Young Persons and their Families Act 1989
To What Extent are the Goals of Restorative Justice Achieved in the Youth Court?

Court Layout
Not Denied
Involvement of victims in the Youth Court
Young people's participation and comprehension
The "potential" use of lay advocates
Community involvement
Power Imbalance
Restorative outcomes
Maintaining dignity

Should restorative justice principles be practised more widely in the Youth Court?
Conclusion
Notes

Introduction[1]

New Zealand's system of Youth Justice has three main components:

• Police diversion for less serious offences
• Family Group Conferences (FGCs)
• The Youth Court

In 1997 Judge Carolyn Henwood said that FGCs, as instituted by the Children's, Young Persons and their Families Act 1989 (CYPFA), are the lynch pin, and the jewel in the Crown of Youth Justice in New Zealand. FGCs are also the jewel in the crown of New Zealand's restorative responses to offending, and youth offending in particular. Last year, in a speech to an International Conference on FGCs, Justice Durie went so far as to suggest that FGCs are not only a means to an end, but an end in themselves. FGCs, if done properly, are restorative by their very nature. There has been much said and written about New Zealand's FGCs, and their contribution to restorative justice. The question for this paper, however, is whether the Youth Court is, or should attempt to be, as restorative as its more celebrated partner in the Youth Justice system.

The New Zealand Youth Court is an institution born out of the Western world's common law adversarial approach to fact finding, the application of legal principles, and sentencing. Restorative justice is not a cloak that fits easily on its shoulders. This paper canvasses the extent to which those shoulders can, and indeed should, be expected to embrace restorative justice practices.

This paper will begin with a brief description of the three Youth Justice components mentioned above, then describe the relevant principles of restorative justice, comment on the extent to which the CYPFA expresses those principles, and review Youth Court processes for their contribution to restorative justice principles. Concluding comments will put the case for the defence of the Youth Court as an important associate of the New Zealand restorative justice community.

Youth Justice in New Zealand

Police Alternative Action, & Diversion

Section 208(a) CYPFA states the principle 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." Last year, Police dealt with more than 70% of young offenders without arresting, charging, or otherwise bringing them before the Court[2]. 23% were dealt with by issuing a formal warning then releasing the young person. 45% were dealt with by Police Youth Aid officers, who oversee alternative action plans designed to satisfy victims, prevent re-offending and re-integrate young people back into their community. Police Youth Aid officers also referred some of these young offenders to an 'intention-to-charge' Family Group Conference, with a majority of those cases being resolved without the need for a Court appearance. A majority of the young people dealt with by alternative action plans, diversion, and intention-to-charge FGCs never re-enter the criminal justice system. New Zealand has proved that the great majority of young offenders do not need to be charged, nor brought to Court. Indeed, to do so is counter productive. Most youth offending can be shut down with prompt, firm, and creative community based interventions.

Family Group Conferences (FGC)

The practice of family group conferencing was instituted by the introduction of the CYPFA in 1989, and began a completely new paradigm for dealing with young offenders[3]. The FGC is entrenched in the New Zealand Youth Justice system, and is the main arena for creating restorative approaches to offending. FGCs are meetings that take place away from the Courtroom, and preferably in a culturally appropriate setting, for example a marae. Under the legislation, they are charged with making decisions about the future of the young person in the Youth Justice system, or making recommendations to the Court. FGCs are convened by a Youth Justice co-ordinator from the Department of Child Youth and Family (CYF). The young person, their family or supporters and Youth Advocate, the victim and their supporters, the Police, and the Youth Justice Co-ordinator are all entitled to attend. The two most commonly held types of FGC are:

Intention to Charge FGC - This is required whenever a young person is alleged to have committed an offence and has not been arrested (or has been earlier arrested and released) and the Police intend to lay charges. The Police must first consult a YJC. If, after consultation, the Police still wish to charge the young person, an FGC must be convened.[4] This is the second most common type of FGC, and accounts for between one third and one half of all FGCs annually. At an intention to charge FGC, the group must determine whether the charge is admitted and, if so, decide what should be done. This may include completion of an agreed plan, which if successful will be the end of the matter, or a decision that a charge should be laid in Court.[5]

Court ordered FGC - Where a charge is "not denied" by the young person in the Youth Court, the Court must direct that a FGC be held.[6] This is the most common type of FGC. "Not denied" is a somewhat odd, but very useful, mechanism[7]. It triggers an FGC without the need for an absolute admission of culpability. It may indicate the young person's acceptance that they are guilty of something, although not necessarily the charge as laid. Invariably, in such cases, the details can be resolved at FGC. This is the most common type of FGC and accounts for at least half of all FGCs. At a Court ordered FGC, the group must determine whether the young person admits the offence, and, if so, what action and/or penalties should result.[8]

The Youth Court

The Youth Court is a division of the District Court and sits wherever there is a District Court. Youth Court judges are District Court judges with special Youth Court warrants, and are chosen for their particular understanding, and ability to communicate with young people. The Youth Court deals with a relatively small number of offenders and offences. Only 29% of those young people apprehended by Police in 2006 were prosecuted in the Youth Court[9]. Most of these prosecutions were for offences against property. In general, Police apprehension rates relative to population for all offences except serious assaults have been stable or dropping in the last 10 years[10].

The Youth Court is required to make a range of decisions. Far from simply rubber stamping FGC plans, the Youth Court is called on to make a wide range of important decisions affecting young offenders, their families and communities, victims, and various professional agencies:

Remand/Bail/Custody[11] — the Court has the power to release a young person, with or without bail conditions, or remand them into the custody of their family, or the community, or into the charge and custody of Social Welfare or into a Police cell if the nearest CYF residences are full.

Factfinding — if a charge is denied by the young person, and the case remains within the Youth Court jurisdiction, the Court must decide whether the charge is proved beyond reasonable doubt. In this role, the Youth Court, with some modifications, follows the same procedure as would a District Court.[12]

Approve, modify, or monitor court ordered FGC plan when charge "not denied" or proved after defended hearing [13]- this is the most common FGC, and must usually be completed within 21 days. The Court must consider every FGC plan, and though it is encouraged by the principles in the statute to accept agreed plans, the Court does have the power to order a FGC to be reconvened for modifications to be made, or to make additional orders not recommended in the original plan. When a FGC is unable to agree on a plan, the Court is then bound to adjudicate, and retains a monitoring role as long as the orders that emanate from the plan remain in force.

Offering Youth Court jurisdiction to young people charged with more serious offences — if a young person is charged with a "purely indictable" offence (a very serious category of offending which ordinarily can only be dealt with by a jury), and indicates a desire to plead guilty (without committing themselves at this early stage), the Court, after hearing recommendations from a FGC, must decide whether to offer the young person the benefit of having their case determined in the Youth Court[14]. If the young person does not indicate a desire to plead guilty, the Youth Court holds a depositions hearing to decide whether there is sufficient evidence to put the young person on trial[15]. If there is, then the Youth Court may then make one last offer of Youth Court jurisdiction[16], which, if not made, or made and rejected, will result in a remand to an adult Court[17].

What orders, if any should be made? — if a young person admits a charge, or a charge is proven against them in the Youth Court, the Court must preside over the process of holding the young person accountable for their actions. A FGC must be held to discuss possible outcomes, and any agreement will be passed on to the Youth Court as a recommendation on sentence as part of a wider plan for the restoration of the young offender, and the victim. The Court will usually accept a plan from a FGC[18], but will sometimes amend it with other conditions it considers are needed given the circumstances of the offender or the offending[19] . Once approved, the Court will keep a watching brief on the progress of the young person, and if they complete their plan satisfactorily, the Court will usually absolutely discharge the young person (so that a charge is deemed never to have been laid)[20]. If a FGC cannot agree on a plan (which may include the imposition of a Youth Court order), the Court is left to decide on the consequences for the young person. There are a range of sentencing options available to the Court[21]. At the less serious end of the scale a young person might be admonished, or asked to pay a fine, or reparation to the victim. More severe orders involve the young person being placed under the supervision of the Department of Child Youth and Family for periods up to 6 months. Supervision orders also vary in intensity. Some offenders can remain in their communities, while others may be ordered to undertake specific and tailored fulltime activity programmes, or secured in a Youth Justice residential facility for up to 3 months, with a 6 further months supervision.

whether to discharge the young person (partially or completely) without conviction[22], or make an order or orders against them by way of sentence.

Conviction and transfer — the highest Youth Court sentence — conviction and transfer to the District Court for sentencing[23] is the most severe order available to the Youth Court. If a young person (aged 15 or 16) is convicted and transferred to the District Court, they become exposed to the principles and rules of an adult court, as well as a wider range of harsher sentences, including imprisonment in an adult prison for up to 5 years[24]. Unlike the Youth Court, a criminal conviction will also be entered on their record. There is some debate about the extent to which Youth Justice principles can be applied to the sentencing of young people transferred to adult courts[25]. This is a concern because of the risk that a young person could end up spending many months in an adult prison, with an environment which is less than optimally rehabilitative, and may even increase the risk of re-offending[26]. On the other hand, Youth Courts often face the challenge of trying to deal meaningfully with a 17 year old, who has limited time left in the Youth Court jurisdiction. Although conviction and transfer is a more serious option for the young person, the adult court also opens up options for longer periods of supervision and monitoring.

What to do when Youth Court orders break down? — Youth Courts are often called on to deal with a young person who has not complied with a Court order. The Court has the power to make a declaration of non-compliance with any order of supervision[27], and also has the option to cancel the original supervision order, and substitute another. If young people breach bail conditions while awaiting sentence in the Youth Court, the Police have some limited powers of arrest for the purposes of bringing that young person back before the Court[28].

Timeliness is important — the CYPFA makes it clear that young people who are charged with offences should have their cases heard in the Youth Court quickly. Unfortunately, unforeseen events and scarce human resources can often result in delays to hearings that leave young people unsure of their future for many months. If the delays in bringing the case to Court are unnecessary or unduly protracted[29] a Youth Court judge may dismiss the charge.

Restorative Justice

The term "restorative justice" lends itself to a number of definitions, many of which will be familiar to this audience. For the purposes of this paper, the following definition is adopted as indicative of restorative justice 'practices':

Crime is not just an act against the state but against particular victims and the community in general. Offending, then is primarily a breach of human relationships and only secondarily a violation of the law. As such the community, family members, and supporters, rather than the state and its justice machinery, are considered the locus of crime control. Toward these ends, the restorative model seeks the active participation of victims, families, and community representatives to address the causes and consequences of offending.[30]

This active participation allows parties with a stake in a specific offence to collectively resolve how to deal with the aftermath of the offence and its implications for the future.[31] This requires a process that is judged by the extent to which responsibilities are assumed, needs are met, and healing (of individuals and relationships) is encouraged."[32] It also requires punishments focused on identifying needs and obligations so that things can be "made right" with the victim and the [33] community.

In determining the extent to which various Youth Court processes are restorative, it will be instructive to bear Luna's sub-principles in mind. These note that restorative processes involve:[34]

• Inclusion — all those with a stake in the criminal offence should participate in the process that responds to the offence.
• Parties should be included in decision-making and be included without improper coercion.
• Voluntariness.
• Participants, mostly victims and offenders, are entitled to support during the sanctioning process.
• The parties ability to control, to some extent, the process by which decisions are reached.
• Freedom of discourse amongst all participants.

Restorative justice allows offenders to be accountable for their offences and allows victims to participate and feel empowered as a result of their participation. It can lead to outcomes that address both victims' and offenders' needs and interests and increase the possibility of reintegration.[35] However, restorative justice has been criticised as being, amongst other things, insufficient in the face of serious crimes, leading to inconsistent results and inadequate in safeguarding the rights of young people.[36] Given these criticisms it is apposite to ask whether restorative justice is actually a statutorily mandated goal for the youth justice system at all.

Restorative Justice and The Children, Young Persons and Their Families Act 1989

The CYPFA does not specifically mention "restorative justice" in the Youth Court.[37] His Honour Judge FWM McElrea, noted:

".it is essentially the practice of youth justice, as experienced by practitioners, that is restorative, rather than the legislation underlying that practice. (Sections 4-6 and s208 spell out certain objectives of the Act and principles to be applied in youth justice. These are partly restorative, but mostly reflect a narrower emphasis namely the strengthening of the relationships between a young person and his family, whanau, hapu, iwi, and family group, and enabling such group whenever possible to resolve youth offending — see the short and long titles of the Act and ss408 and 208(c))."[38]

Judge McElrea went on, however, to say that the partly restorative aspects of the CYPFA should not be downplayed.[39]

"Section 4(f) propounds the principle that young people committing offences should be "held accountable, and encouraged to accept responsibility, for their behaviour" and should be "dealt with in a way that acknowledges their needs and that will give them the opportunity to develop in responsible, beneficial and socially acceptable ways". These provisions emphasise accountability and membership of a wider community:

(i) By making criminal proceedings a last resort (s208(a)), the Act encourages the solution to come from within the community.

(ii) A "welfare" approach is discouraged by stipulating (s208(b) and (f)) that criminal proceedings should not be instituted solely for welfare reasons, and that any sanctions should take the "least restrictive form" that might be appropriate.

(iii) With almost breathtaking understatement, s208(g) requires that "due regard" should be had to the interests of victims of offending and s251 establishes the right of any victim or his/her representative to attend every FGC.

(iv) Young offenders are intended to be kept in the community, so far as that is consonant with public safety (s208(d)).

(v) And finally, the whole machinery of the Act that propels the FGC process is one that makes possible a restorative approach to justice."

The Long Title to the CYPF Act, the General Principles and Youth Justice Principles sections all stress the importance of rehabilitation through family involvement.[40] Importantly, section 5 of the CYPFA states that "any Court which, or person who, exercises any power conferred by or under this Act shall be guided by the following principles:

(a) The principle that, wherever possible, a child's or young person's family, whanau, hapu, iwi, and family group should participate in the making of decisions affecting that child or young person, and accordingly that, wherever possible, regard should be had to the views of that family, whanau, hapu, iwi, and family group:

The principles state that immediate and wider family groups should take part in decision-making, that where possible they should lend their support to exercises of CYPFA powers and that measures should be taken to strengthen family groups. The wishes of the young person should be determined "so far as those wishes can reasonably be ascertained"[41], and endeavours should be made to obtain the support of the young person to the exercise of powers under the CYPFA.[42 ]The interests of the victim, too, must be given due regard[43], and victims must be consulted regarding the time and place of the FGC, and their views taken into account by the Youth Justice co-ordinator convening the conference[44]. The Luna sub-principles of inclusion in decisionmaking, control of the process and, as participation is voluntary, voluntariness, are all addressed by the legislation.

Nevertheless, the radical transfer of decision-making to the FGC is only partial and the Youth Court retains the ultimate decision-making power and can, if it so chooses, override the decisions of the FGC. Haines describes attempts to provide an alternative restorative justice system in New Zealand as "haunted" by the formal Court-based, punitive criminal justice system that waits "to catch the failures of the 'more progressive system'".[45]

Restorative justice goals of inclusion and support for participants are further reinforced in the Youth Court through the CYPFA's focus on cultural sensitivity and being more accommodating to Maori. This is achieved through the emphasis of wider "family, whanau, hapu and iwi" involvement in decision-making and through a general understanding that facilities within the community should be "[a]ppropriate having regard to the needs, values, and beliefs of particular cultural and ethnic groups".[46] There is also provision for the appointment of lay advocates to assist in understanding cultural matters and to represent the interests of family groups.[47]

It is important to recognise that the development of restorative processes in New Zealand youth justice also came from the dissatisfaction by Maori with the previous paternalistic/welfare-based system. Youth justice processes contain some elements of the traditional Maori system of whanau decision-making, but also elements that are foreign to it (such as the presence of representatives of the State). Elements of the traditional system have also been modified, such as the roles played by the family and victims, to give them a more restorative flavour. This bicultural influence is an important feature of the system because Maori children and young people comprise around half of all youth apprehended by Police, having a youth justice FGC, or being prosecuted in Court.[48]

To what Extent are the Goals of Restorative Justice Achieved in the Youth Court?

The question, then, is to what extent are Luna's principles such as inclusion, accountability, voluntariness, group involvement in decision-making, support and freedom of discourse already in evidence in the Youth Court. A typical Court hearing involves youth advocates, police, social workers, the offender and their family and supporters and, of course, a Judge. Usually, Youth Court Judges encourage discussion and participation from these individuals and a key goal of Youth Court outcomes is accountability. At first glance, then, a Youth Court appears to display features of restorative justice, but levels of discussion and inclusion vary from Court to Court. What follows is an assessment of particular features of the Youth Court and whether the law and actual practice in the Court assist or hinder restorative justice in the Youth Court.

Court layout

The first issue is the layout and design of Courtrooms. To an extent, structure and form directly influence content and process. The structure and layout of Youth Courtrooms will have a direct impact ion the extent to which Luna's six sub-principles can be achieved. Few Youth Courts are purpose built, so the majority of hearings are held in adult courtrooms set up to operate in the traditional adversarial manner. Such courtrooms are arranged with rows of tables for prosecution and defence counsel, a public gallery at the rear, the "bench", and something approximating to a "dock" for the offender set to one side. New Zealand courtrooms vary in shape but the worst examples are long and thin making communication difficult. If a victim is permitted to be present, no direction is given as to where they should be seated. Despite the trepidation that some victims must feel facing their offender, they are likely to be seated in the public gallery amongst the offender's family and supporters.

In practice, it has proved almost impossible to alter adult courtrooms for Youth Court hearings due to in-built furniture and, for example, the placing of electrical fittings for microphones. This inhibits inclusion and freedom of discourse and may make it difficult for supporters to sit near the offender as they must be seated in the public gallery. The ideal Youth Court arrangement has the desks arranged in a "U" shape around which the social workers, youth advocates and police sit. Family and supporters of the offender are seated against one side wall and other interested parties are seated along the facing side wall. The offender stands behind the "U" shape of desks, facing the Judge. This layout has been successfully adopted in Courts such as the Wellington, Christchurch, and Tauranga Youth Courts.

Paradoxically, the two newest Courthouses which contain Youth Courts in Manukau and Albany are by far the least accommodating of restorative justice practices as they are little more than "junior" adult Courtrooms. Thus, while Youth Court Judges have attempted to adopt a more inclusive layout within the confines of their existing Courtrooms, architects within the justice system need a greater awareness of restorative practices and how they can be effected by Court layout.

"Not Denied"

The Western adversarial concept of putting the prosecution "to the proof" can be seen as a discouragement to people to plead guilty and accept responsibility for their actions.[49] As noted, the Youth Court avoids taking a guilty or not guilty plea and, instead, asks the young person whether the charge is "not denied". When a charge is "not denied" it is transferred to a FGC where the young person may nevertheless opt to deny the charge, but in the majority of cases the charge is proven by admission. The "not denied" mechanism allows the parties to meet and discuss the charge(s) before the offender commits themselves to a plea. Once matters are admitted, including finalisation of the proper charge(s), and the summary of facts, the parties can then move along the reconciliation path.[50] Thus, the formal Court process assists restorative justice processes, because, if the Youth Court insisted upon the making of a guilty or not guilty plea, this would inhibit prompt access to the FGC process.[51]

Involvement of victims in the Youth Court

The involvement of victims is an integral part of the restorative justice response. Their presence at FGCs forces offenders to face the often crushing impact of their offence and give a genuine apology — often an important and pivotal first step away from a life of crime. Restorative justice approaches encourage dialogue and mutual agreement between the parties to restore relationships between victim and offender. This can be an important part of healing for the victim and Youth Court Judge Carolyn Henwood has described the victim's presence as a "powerful event".[52]

However, victims are not currently even entitled to attend Youth Court![53] The CYPFA lists a range of people who may attend the Court including family, legal representatives and social workers but victims are excluded. The Judge may permit "any other person" to be present[54] but this is at the discretion of the Judge. Further, if the Judge allows a victim to be present, they are not entitled to address the Court as of right.

In practice, victims are always welcomed by judges and asked if they want to speak. Perhaps the reason why the CYPFA does not allow the victims the right of attendance is because it was assumed by the drafters that, having attended a FGC and communicated their views there, it would be unnecessary for victims to come to Court. Even if this view is correct, there is still no reason why victims should be specifically not included, and especially in circumstances where a FGC may not have reached agreement, and the victims feels as if their views have not been properly understood.

The victim's input into the discussion is vital in the restorative setting where the goal is the restoration of relationships and property. In the Youth Court the goal is to restore the young person as a law-abiding citizen, but also to denounce, deter and punish. The victim's input is less relevant in this context and the principle that "due regard" should be had to the interests of any victims of offending[55] may, in fact, conflict with the goal of rehabilitating the young person. For example, in cases of sexual offending, the victim may argue that a harsh penalty is warranted but the Court may instead opt for a therapeutic residential program to ensure the young person is rehabilitated and does not re-offend.[56]

Youth Court Judges have a duty to take "the effect of the offence on any victim of the offence, and the need for reparation to be made to that victim"[57] into account in sentencing. However, at a FGC, if a victim disagrees with the proposed plan for the young person, they will force the case back to Youth Court for the judge to make the decision, with the resulting ongoing stress and delay to the parties. For this reason it is sometimes suggested victims may agree to plans that they feel are inadequate. In 1990/91 only 49% of victims were satisfied with FGC outcomes and a quarter said they felt worse after the process.[58] In a more recent survey[59], 90% of respondents said they felt they were treated with respect as victims, and 86% said they felt they had the opportunity to say what they wanted.

Consequently, there are situations where the victim's input would be useful and yet they are excluded from Youth Court even where the defendant admits the charge. Thus, the Youth Court does not follow the restorative model in terms of its treatment of victims. To allow their participation at this stage would give victims a new voice in the criminal justice process and give new emphasis to "the healing and restoration of victims".[60] In recognition of this a law change is proposed to allow victims to attend Youth Court hearings as of right.[61]

The commentary to the proposed new legislation also states that measures for dealing with offending by children and young persons should not merely (as currently) have regard to, but should instead recognise properly, the interests of any victims of that offending. This would include, for example, consideration of whether reparation should be made to those victims.[62] However, even the proposed new legislation does not give victims an express right to address the Youth Court.

Victims rights have received recognition in New Zealand law with the passing of the Victims' Rights Act 2002. This aims, among other things, to improve provisions for the treatment and rights of victims of offences, provide information for victims about services available to them or about the progress of the case through the Courts, and place restrictions on giving information in evidence to the Court that would identify or lead to the identification of a victim's address.[63]However, the vast majority of this Act does not apply to the Youth Court. For example, the sections providing for the provision of victim impact statements to the Court do not apply.[64]Youth Court Judges often have limited information as to the effect of an offence on a victim. Availability of victim impact statements would be useful. Also, ss29 and 30 of the Victims' Rights Act, obligating the police to inform the Court of the victim's views as to bail being granted to an accused person facing charges of serious violence, including sexual violation have not been seen by the Police as applying to the Youth Court. Arguably, therefore, although victims are able to take part in a FGC, they have fewer rights in the Youth Court than in the adult jurisdiction. This seems anomalous as it is of little consequence to a victim whether the law considers the offender is a "young person" of 16 or an "adult" of 18.

The Youth Court could improve its treatment of victims and thus improve restorative processes by finding ways to encourage victims to attend its hearings and to participate in the proceedings. Participation is currently encouraged by Youth Court Judges but there is no standard procedure to ensure the victim's voice is heard in Court proceedings.

Young people's participation and comprehension in the Youth Court

The Youth Court has a duty to explain proceedings to a young person in a manner and in language they can understand.[65] And if the Court makes an order against the young person it must explain that order to the young person and to any parent, guardian or person who takes care of that young person.[66] Further, the Court is under a duty to encourage and assist the child or young person to participate in proceedings.[67] These are vital provisions for achieving the goals of restorative justice but they are too easily reduced to bare minimum requirements. There are a number of reasons for this including:

• Youth Court Judges, although chosen for their special attributes and understanding, are not full-time specialists, and Youth Court work is a small part of their caseload — usually under 15% of their work. Typically, Youth Court cases make up only 5% to 6 % of total cases coming before the District Court annually.[68]
• Time and resource constraints.
• Some Youth Court professionals are less adept than others at communicating with young people.

The duty to explain and encourage participation is a statutory requirement and the Youth Court should make time to explain proceedings at every stage of the process and encourage participation "where necessary and appropriate".[69] What is "necessary and appropriate" may differ from case to case but certainly the input of the child or young person should be sought before a decision is made. The extent to which these goals are achieved ultimately depends upon the approach taken by the presiding Youth Court Judge.

The "potential" use of lay advocates

The CYPFA contains provision for the appointment of lay advocates.[70] Lay advocates must ensure that the Court is aware of all cultural matters that are relevant to proceedings and represent the interests of the young person's whanau, hapu, and iwi (or equivalent) to the extent that those interests are not otherwise represented in the proceedings.[71] Lay advocates may provide a voice for families and foster dialogue between families and young offenders, thus assisting in the restoration of those relationships. This is vital given that section 208(c) CYPFA states 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."

As noted, section 5 states that "wherever possible" the family group should participate in the making of decisions affecting that child or young person, and regard should be had to their views."[72] Wherever possible, the relationship between a child or young person and his or her family group(s) should be maintained and strengthened.[73] Lay advocates are potentially a powerful tool in achieving these goals. In fact, lay advocates are rarely appointed. Attempts to introduce lay advocates into three New Zealand Courts in 2004 at the initiative of the Principal Youth Court Judge, received a disappointingly lukewarm response from the various professionals involved.

There could be a number of reasons for this reluctance to adopt lay advocates in the Youth Court. Firstly, legal professionals are competent at arguing their point of view and fail to see why young people who are represented by a youth advocate need a lay advocate to put forward the point of view of the offender's family and culture. In a busy and sometimes under-resourced Court system that already has to accommodate the input of youth advocates, police, social workers, the young person and their family, yet another voice is considered unnecessary. Secondly, the majority of people in the Court system are white and the system operates according to pakeha culture. It may be difficult for key players within this system to understand the significance of cultural factors to other racial groups and therefore to make time to accommodate them. It is also argued that the Youth Justice System has developed significantly since the introduction of the 1989 Act, and that those within the system are now far more attuned and alert to cultural issues and perspectives.

Restorative justice is flexible enough to allow the incorporation of cultural or religious practices within the conferencing process. Researchers who have studied the CYPFA and FGCs acknowledge that there is considerable potential for cultural and ethnic accommodation.[74] Yet research in the mid 1990s has demonstrated that the New Zealand youth justice system remains "largely unresponsive to cultural differences".[75] The failure to appoint lay advocates is particularly galling considering that an express object of the CYPF Act is to establish and promote services that are "appropriate having regard to the needs, values, and beliefs of particular cultural and ethnic groups."[76] The Youth Court has struggled with the concept of giving weight to cultural values in its decision-making.[77] An appropriate lay advocate would assist the Court in understanding cultural matters and incorporating them into any orders made. This would bolster the values of inclusiveness, support and control and enhance restorative justice values within the Youth Court system.

Community Involvement

A truly restorative Court process would ensure that all stakeholders were full participants at hearings. One stakeholder that is difficult to adequately represent is the community which becomes weakened or embattled through apparently rising crime levels. A large number of meanings can be ascribed to "the community" depending on whether the context is a large city, a small town, a particular community of interest or an indigenous community. It could be argued that the police, Judges or social workers represent the community in some sense and certainly victims and offenders are community members. Lay advocates potentially represent a sector of the community and this inclusion of a non-professional as a community representative has been encouraged by some commentators.[78]

Whether the involvement of particular individuals as "community" is sufficient can be answered by questioning whether "the community [is] stronger after the criminal justice intervention than it was before the crime was committed?"[79] Community representatives should ensure the offender understands the harm done to the community, and puts forward the needs of the community in particular situations. A number of parties, particularly Judges, are likely to express the harm done to the community but whether the needs of the community are adequately expressed is a more difficult question. If these needs are expressed, responses such as appropriate community work may be imposed in response.[80] Further, sufficient community representation is useful in educating people about the need for preventative social policies, to which community members can contribute.[81] Representation may ensure that needs are recognised and that parties are galvanized into instituting social reforms.

Power Imbalance

Consensus decision-making is important to achieve the goals of inclusion and voluntariness in restorative justice. However, particularly where young people are concerned, there is a danger that power imbalances may lead young people to feel unable to contribute. This is particularly pronounced in the formal setting of the Courtroom where a collection of lawyers, social workers, police, a Court taker and a Judge all turn to watch the young person respond to questions. Haines notes that, from a young person's perspective, both the traditional courtroom and the FGC involve facing "a room full of adults".[82] It is not surprising, then, that young people tend to agree with charges or plans that are presented. This thwarts the goals of restorative justice because rather than emerging from the hearing with a commitment to change, young people may leave such proceedings with a sense of injustice or dissatisfaction. In order to re-establish their sense of identity, they make use of a variety of adaptive mechanisms to distance themselves from the experience.[83] At a FGC the primary stakeholders are empowered. In contrast, under "conventional" adversarial processes they are largely in the control of professionals.[84]

The young person's family may also feel daunted by a courtroom full of professionals, particularly if they are uneducated or hail from a non-Western culture. They are likely to be unsure as to whether they may speak or how to interject if, for example, incorrect information is given. To achieve meaningful participation by the parties it is vital that Judges make families and supporters feel welcome and regularly give them opportunities to contribute. Similarly, offenders must be encouraged to participate. If the parties are mute throughout proceedings they will not take ownership of the outcomes and the process cannot be described as restorative.

Youth Court Judges will work hard to restrict those present in a Courtroom to only those directly involved in a case.

Restorative Outcomes

Outcomes of restorative justice processes are focussed on the victims and perpetrators of crime. A change in re-offending is not one of the primary goals of restorative justice[85], but certainly changes in re-offending behaviour are an expected outcome of the restorative process.[86] This is often achieved in both restorative and conventional criminal justice responses by the referral of offenders to appropriate treatment programmes. The difference with restorative justice is that offenders are active participants in deciding what the reparative and rehabilitative outcomes should be.[87] Research shows that individuals who participate in the process are more likely to comply with outcomes.[88] However, the young person is unlikely to be an active participant in determining the outcome in the Youth Court. It is vital, then, that the young person is heard at the FGC level and in the Youth Court in order to ensure the process is truly "restorative".

For victims, restorative justice outcomes have three objectives, the restoration of a sense of security, the restoration of a victims' self-respect and dignity, and the restoration of a sense of control.[89] As described above, victim's needs are insufficiently accounted for in the Youth Court and this part of the process cannot be described as restorative.

In circumstances where the Youth Court deems it necessary to impose a punishment on a young person, there are a number of orders open to it.[90] Responses such as reparation, restitution, community work and forfeiture of property appear more conducive to the restorative process. However, ,[91] punishments in the more traditional sense which are contrary to some definitions of restorative justice are also open to the Youth Court. These may involve a custodial sentence or conviction and transfer to the District Court for sentence. While best practice dictates that young people are offered therapeutic treatment during supervision with residence, in practice they may receive no more than "babysitting" in the relevant institution. Difficulties with custodial arrangements for young people spring from a shortage of residential youth justice beds in New Zealand. This shortage has the result that, prior to the final determination of their case, young people may be remanded in custody in Police cells for a significant period. There is certainly nothing restorative about this incarceration which is in a cell with no regular visitation, improper hygiene and poor food.

Maintaining the dignity of participants

The Youth Court aims to uphold the dignity of participants and thereby maintain an atmosphere conducive to restorative justice through a number of statutorily based measures. Firstly, the courtroom must be arranged so that participants are not brought into contact with people attending any other Court.[92] This ensures that youth offenders are kept away from adult offenders and assists in maintaining their privacy. Further, the extent to which children and young people are able to associate within the Court premises and the extent to which parents must congregate in common areas while awaiting their hearing should be "reduced to a minimum".[93] This is assisted in that Youth Court proceedings must be arranged in a manner that keeps waiting times to a minimum[94], and that the time stated in a summons must be a time that "accords with the reasonable expectation of the Registrar of the Court of the time when the proceedings in respect of which the summons is issued will be heard".[95]

The dignity of participants is further maintained by the prohibition on the publication of any information about the young person including their name, school, or any other details likely to lead to the identification of the young person or their school.[96] Along with upholding the dignity of young people and their families, these measures maintain the faith of participants in the system. They also ensure that young people are not overtly criminalised by the process.

Should Restorative Justice principles be practiced more widely in the Youth Court?

The CYPF Act principles are consistent with, but do not explicitly mandate, restorative justice processes in the youth justice system. The extent to which such processes should be in evidence in the Court setting, in light of CYPFA principles, is difficult to determine. Given that the out-of-Court processes are practiced in such a profoundly restorative way, there are strong arguments, if only for reasons of consistency, to adopt restorative practices wherever possible inside the Youth Court. The Youth Court is based on the traditional adversarial system and the retention of this system is vital to safeguard individual rights, and properly carry out the determination of guilt or innocence. Decisions on matters such as bail, top end sentences and Youth Court jurisdiction are properly decisions for the Court. These decisions may see a young person receive a criminal record or a custodial sentence, and an experienced and impartial Judge is vital to ensure the rights of these individuals are upheld.

However, a sharp distinction is made in the Youth Court between (a) adjudication upon liability, that is, deciding whether a disputed charge is proved, and (b) disposition of admitted or proved offences.[97] All the safeguards are in place for the former.[98] It is vital that the adversarial process is retained for the determination of liability. The Youth Court has an important role in dealing with offenders who are unwilling to participate in FGCs, where an FGC cannot agree or where the young person denies responsibility. Also, where an offence is very grave the need to deter and/or incapacitate remains.[99] In these circumstances, arguably the traditional Court process is preferable in maintaining the rights of individuals through impartial legal processes.

The Youth Court is important in guarding against a number of potential short-comings in the restorative justice process. For example, critics argue that restorative justice is too "soft" but in the New Zealand youth justice system the Youth Court oversees parts of the process to ensure FGC plans impose a level of sanction that is appropriate in light of the crime. The Youth Court itself can impose heavy penalties including a custodial sentence, or a conviction and transfer to the District Court for sentence. The Youth Court also assists in ensuring there is no disparity of outcomes — a criticism often levelled at restorative justice.[100] Proportionality is vital in upholding positive public perceptions of the justice system and the Youth Court is mindful of legal precedent to ensure like penalties are met with generally like responses.

Conclusion

It must be asked whether restorative justice techniques can ever truly "fit" in the more traditional Youth Court setting.

Of course, the greatest opportunity for reconciliation occurs in the FGC process, and this is essentially the "power-house" of restorative justice in the youth justice system. Commentators have argued that the CYPFA envisages that all the important restorative work be done outside the Court and that the Court's role is to fact find in contested cases, to safeguard the quality of FGCs, and to add official backing to the decisions of the family.[101]

Interactions surrounding individual plans prepared following FGCs represent the best opportunity for the FGC and the Court to actively collaborate on the promotion of restorative justice. Because the FGC plan is only a recommendation, the Judge may opt for any outcome that he or she considers more appropriate. In considering the FGC plan, the Judge may be assisted by dialogue with the offender, their family and other participants to clarify matters such as progress made on the case or changes in the offender's situation. However, such "restorative" dialogue is only carried out at the discretion of the Judge. Further, family and supporters of the offender and, if attending, the victim often feel overawed by the solemnity of the Court and unsure when they may speak. For this reason, making regular opportunities for the parties to engage in dialogue would be a useful part of Youth Court practice and would bolster restorative practice in the Youth Court.

However, the Youth Court is not only a "referee" to FGCs, but has a number of important roles and responsibilities. Our view is that restorative justice, while not a statutorily mandated goal, is nevertheless a process that may, and should, usefully be embraced by the Youth Court wherever possible. The involvement of offenders, victims and other stakeholders has a number of positive effects including a sense of "owning" the process and hopefully even reducing recidivism.

The actual process used to arrive at many decisions could take more of a restorative tone. This is already in evidence to an extent in Youth Courts where Judges actively involve the parties in discussion, allow victims to attend and participate or on the rare occasions when lay advocates are appointed. As discussed, there is room for considerable improvement in making processes more restorative, particularly in encouraging participation, in Courtroom layout and in improving the treatment of victims.

Making Youth Court processes more restorative should result in:

• Better court design;
• More communication between bench and non-professional participants;
• Better recognition of victims' needs ie restoring their senses of security, dignity, and control;
• More engagement from young offenders and non-professionals;
• Better use of lay advocates;
• Better articulation of community needs in the Court setting;
• Greater demand for Supervision with Activity — the most restorative order.

Restorative justice has a key role to play in an effective youth justice system — and restorative practices should be incorporated, where possible, into Youth Court systems. Restorative justice is also a good "fit" with young people, and it should be made to "fit" in the Youth Court, at least in part. This is not accommodating "a square peg in a round hole". Appropriate use of restorative processes, even where decisions must be the prerogative and responsibility of the Court, are perfectly compatible within Youth Courtrooms and need not detract from the authority, dignity and mana of the Court. Rather, their adoption will allow a flexible, meaningful, holistic and inclusive response to deal with the needs of young people who have broken the law, their victims and, indirectly, community interests as a whole.

Notes

1 This paper was adapted by Principal Youth Court Judge Andrew Becroft and Tim Hall from Judge Andrew Becroft and Rhonda Thompson Restorative Justice in the Youth Court: A Square Peg in a Round Hole? A paper prepared for the Institute of Policy Studies, Wellington, 10 October 2005.

2 Jin Chong, Youth Statistics in NZ: 1992 - 2006, Ministry of Justice, August 2007, 51.

3 Morris and Maxwell (1990) Juvenile Justice in New Zealand: A New Paradigm, Victoria University of Wellington, Wellington. McElrea, FWM (1993) A New Model of Justice, in Brown and McElrea (eds.). The Youth Court in New Zealand: A New Model of Justice. Legal Research Foundation, Auckland.

4 Children, Young Persons and the Families Act 1989 s245.

5 Children, Young Persons and Their Families Act 1989, s258(b), s259(1).

6 Children, Young Persons and Their Families Act 1989, s246.

7 Judge A J Becroft Youth Justice Family Group Conferences: A Quick 'Nip and Tuck" or Transplant Surgery- What Would the Doctor Order in 2006? Paper for the International Conference on Family Group Conference — "Coming Home — Te Hokinga Mai", Wellington 27 November 2006, 5.

8 Children, Young Persons and Their Families Act 1989, s258(d), s259(1).

9 Jin Chong, Youth Statistics in NZ: 1992 - 2006, Ministry of Justice, August 2007, 14.

10 Jin Chong, Youth Statistics in NZ: 1992 - 2006, Ministry of Justice, August 2007, 13.

11 Children, Young Persons and Their Families Act 1989, s238.

12 Children, Young Persons and Their Families Act 1989, Schedule 1; Summary Proceedings Act 1957 Part

13 Children, Young Persons and Their Families Act 1989, s246.

14 Children, Young Persons and Their Families Act 1989, s276.

15 Children, Young Persons and Their Families Act 1989, s275.

16 Children, Young Persons and Their Families Act 1989, s275(4).

17 S ummary Proceedings Act 1957 s153A(6), District Courts Act 1947 s28F.

18 http://www.justice.govt.nz/youth/youngpeople/#8 (last accessed 4 September 2007)

19 http://www.justice.govt.nz/youth/fgc.html (last accessed 4 September 2007).

20 Children, Young Persons and Their Families Act 1989, s282.

21 Children, Young Persons and Their Families Act 1989, s283(a)-(o).

22 Children, Young Persons and Their Families Act 1989, s282, s283(a).

23 Children, Young Persons and Their Families Act 1989, s283(o).

24 R v P (18/9/2003. Keith, Hammond and Patterson JJ, CA 59/03).

25 X v Police (11 February 2005) HC, Auckland, CRI 2004-404-374; R v Patea-Glendinning (29 March 2006) HC, Wanganui, CRI 2005-483-17.

26 Aaron Kupchik, Judging Juveniles: Prosecuting Adolescents in Adult and Juvenile Courts, New York University Press 2007, 18-19.

27 Children, Young Persons and Their Families Act 1989, s309.

28 Children, Young Persons and Their Families Act 1989, s214.

29 Children, Young Persons and Their Families Act 1989, s322.

30 Erik Luna (2000) Reason and Emotion in Restorative Justice, NZIDR Lecture, 5 July 2000, available at http://www.scoop.co.nz/archive/scoop/stories/51/19/200007051755.74daa57b.html> (last accessed 1 October 2005).

31 Tony F Marshall (1999) Restorative Justice: An Overview, (HMSD, London) 5 quoted in D J Schmid (2003), Restorative Justice: A New Paradigm forCriminal Justice Policy, (2003) 34 VUWLR 91, available at www.austlii.educ.au/nz/journals/VUWLRev/2003/4.html (last accessed 17 September 2005).

32 H Zehr (May 1995) Rethinking Criminal Justice: Restorative Justice, 9, reprinted in Judge FWM McElrea (ed) (1995), Re-thinking CriminalJustice, Vol 1, Legal Research Foundation, Auckland, 211.

33 H Zehr (May 1995) Rethinking CriminalJustice: Restorative Justice, 9, reprinted in Judge FWM McElrea (ed) (1995), Re-thinking CriminalJustice, Vol 1, Legal Research Foundation, Auckland, 211.

34 Erik Luna (2000) Reason and Emotion in Restorative Justice, NZIDR Lecture, 5 July 2000, available at <http://www.scoop.co.nz/archive/scoop/stories/51/19/200007051755.74daa57b.html> (last accessed 1 October 2005).

35 L Walgrave (1998) Van Ness & Strong, 1997; H Zehr, 1990 quoted in Maxwell and Morris (2002) Restorative Justice and Reconviction, Contemporary Justice Review, Vol 5(2), 133-146.

36 L Walgrave (ed) (1998) Restorative Justice for Juveniles: Potentialities, Risks and Problems, A selection of papers from the International Conference of the International Network for Research on Restorative Justice for Juveniles, Belgium, Leuven University Press, 12.

37 Judge FWM McElrea (1994), The New Zealand Youth Court: A Model for Development in Other Countries? A paper presented for the National Conference of District Court Judges, Rotorua, New Zealand, (19941995) 4 JJA 33.

38 Judge FWM McElrea (1994), The New Zealand Youth Court: A Model for Development in Other Countries? A paper presented for the National Conference of District Court Judges, Rotorua, New Zealand, (19941995) 4 JJA 33, 45.

39 Judge FWM McElrea, (1994) 'The Intent of the Children Young Persons and Their Families Act 1989 -Restorative Justice?", Youth Law Review, July/August/September 1994, 4.

40 Children, Young Persons and Their Families Act 1989, Long Title (b) and (c), s5(a), s5(b), s5(e)(i), s208(c), s208(f)(i).

41 Children, Young Persons and Their Families Act 1989, s5(d).

42 Children, Young Persons and Their Families Act 1989, s5(e)(ii).

43 Children, Young Persons and Their Families Act 1989, s208(g).

44 Children, Young Persons and Their Families Act 1989, s250(2).

45 K Haines (1997), Some Principled Objections to a Restorative Justice Approach to Working with Juvenile Offenders, in L Walgrave (ed) (1998) Restorative Justice for Juveniles: Potentialities, Risks and Problems, A selection of papers from the International Conference of the International Network for Research on Restorative Justice for Juveniles, Belgium, Leuven University Press, 105.

46 Children, Young Persons and Their Families Act 1989, s4(a)(iii).

47 Children, Young Persons and Their Families Act 1989, s326-s328.

48 Ministry of Justice (2002) 'Youth Offending Strategy: Preventing and Reducing Offending and Re-offending by Children and Young People. Te Haonga" Wellington, 11. Statistics suggest that in some regions (eg. Rotorua, Gisborne and Kaikohe) the rate of Maori youth offending is significantly higher, comprising 80-90% of total youth offending.

49 Judge FWM McElrea (2001) Restoring Justice, Address to Law Forum 2001, Organisation of Commonwealth Caribbean Bar Associations' Fourth Conference, 4.

50 Judge FWM McElrea (2001) Restoring Justice, Address to Law Forum 2001, Organisation of Commonwealth Caribbean Bar Associations' Fourth Conference, 4.

51 Judge FWM McElrea, Restoring Justice, Address to Law Forum 2001, Organisation of Commonwealth Caribbean Bar Associations' Fourth Conference, 4.

52 Judge C Henwood (1997) The Children, Young Persons and Their Families Act 1989 — The New Zealand Situation 1997 — A Judicial Perspective, 17.

53 Children, Young Persons and Their Families Act 1989, s329(1).

54 Children, Young Persons and Their Families Act 1989, s329(1)(m).

55 Children, Young Persons and Their Families Act 1989, s208(g).

56 See, for example, R v Carmicha^l (23 March 1995) CA521/94, Eichelbaum, Gault, Williamson JJ; summary available on the New Zealand Youth Court website at

http://www.iustice.govt.n2/youth/decisions/years/1995/r-v-carmichael-23-03-1995-ca-52-94.html (last accessed 2 October 2005).

57 Children, Young Persons and Their Families Act 1989, s284(1)(f).

58 Maxwell and Morris (1996: 100) quoted in L Walgrave (ed) (1998) Restorative Justice for Juveniles: Potentialities, Risks and Problems, A selection of papers from the International Conference of the International Network for Research on Restorative Justice for Juveniles, Leuven University Press, Belgium, 81.

59 Maxwell, Kingi, Robertson, Morris & Cunningham, Achieving Effective Outcomes in Youth Justice Ministry of Social Development, February 2004, 155.

60 D J Schmid (2003), Restorative Justice: A New Paradigm for Criminal Justice Policy, (2003) 34tVUWLR 91, available at www.ausriii.educ.au/nz/journals/VUWLRev/2003/4.htrnl (last accessed 17 September 2005).

61 Children, Young Persons and Their Families Amendment Bill (No 4) 2004 (2004B159-1).

62 Children, Young Persons and Their Families Amendment Bill (No 4) 2004 (2004B159-1), cl. 6.

63 Victims Rights Act 2002, s16.

64 Victims Rights Act 2002, s17-s27.

65 Children, Young Persons and Their Families Act 1989, s10.

66 Children, Young Persons and Their Families Act 1989, s10(1)(c).

67 Children, Young Persons and Their Families Act 1989, s11.

68 Youth Courts exercise jurisdiction as a specialist division of the District Court under the Children, Young Persons and Their Families Act 1989, s433.

69 Children, Young Persons and Their Families Act 1989, s11.

70 Children, Young Persons and Their Families Act 1989, s326-s328.

71 Children, Young Persons and Their Families Act 1989, s327.

72 Children, Young Persons and Their Families Act 1989, s5(a).

73 Children, Young Persons and Their Families Act 1989, s5(b).

74 See for example Olsen, Maxwell and Morris Maori and Youth Justice in New Zealand in KM Hazlehurst (ed) Popular Justice and Community Regeneration: Pathways of Indigenous Reform (Praeger, Westport, 1995) quoted in D J Schmid (2003), Restorative Justice: A New Paradigm for Criminal Justice Policy, (2003) 34 VUWLR 91, available at www.austlii.educ.au/nz/journals/VUWLRev/2003/4.html (last accessed 17 September 2005).

75 Maxwell and Morris (1996: 96) quoted in K Haines, Some Principled Objections to a Restorative Justice Approach to Working with Juvenile Offenders in L Walgrave (ed) (1998) Restorative Justice for Juveniles: Potentialities, Risks and Problems. A selection of papers from the International Conference of the International Network for Research on Restorative Justice for Juveniles, 105.

76 Children, Young Persons and Their Families Act 1989, s4(a)(i).

77 See for example Police v S and M (1993) 11 FRNZ 322 summary available on the New Zealand Youth Court website at http://www.justice.govt.nz/youth/decisions/years/1993/police-v-s-m-1993-11-frnz-322-yc.html (last accessed 2 October 2005).

78 J Trepanier, Restorative Justice: A Question of Legitimacy, in L Walgrave (ed) (1998), Restorative Justice for Juveniles: Potentialities, Risks and Problems, A selection of papers from the International Conference of the International Network for Research on Restorative Justice for Juveniles, 68.

79 K Pranis, Restorative Justice Planner in the Minnesota Department of Corrections quoted in L Walgrave (ed) (1998) Restorative Justice for Juveniles: Potentialities, Risks and Problems. A selection of papers from the International Conference of the International Network for Research on Restorative Justice for Juveniles, 85.

80 Children, Young Persons and Their Families Act 1989, s283(l).

81 M Wright Victim/Offender Conferencing: The Need for Safeguards, in L Walgrave (ed) (1998) Restorative Justice for Juveniles: Potentialities, Risks and Problems. A selection of papers from the International Conference of the International Network for Research on Restorative Justice for Juveniles, May 1997, 85.

82 K Haines (1997), Some Principled Objections to a Restorative Justice Approach to Working with Juvenile Offenders, in L Walgrave (ed) (1998) Restorative Justice for Juveniles: Potentialities, Risks and Problems, A selection of papers from the International Conference of the International Network for Research on Restorative Justice for Juveniles, Belgium, Leuven University Press, 99.

83 Blagg, 1985, Pratt & Grimshaw, 1985 quoted in K Haines, Some Principled Objections to a Restorative Justice Approach to Working with Juvenile Offenders in L Walgrave (ed) (1998), Restorative Justice for Juveniles: Potentialities, Risks and Problems, A selection of papers from the International Conference of the International Network for Research on Restorative Justice for Juveniles, 101.

84 Judge FWM McElrea, Restoring Justice, Address to Law Forum 2001, Organisation of Commonwealth Caribbean Bar Associations' Fourth Conference.

85 Morris (2002) quoted in J P Beven, G Hall, I Froyland, B Steels and D Goulding (2005) Evaluating Restorative Justice Outcomes Psychiatry, Psychology and Law, Vol. 12, No. 1, 194-206, 195.

86 J P Beven, G Hall, I Froyland, B Steels and D Goulding (2005) Evaluating Restorative Justice Outcomes Psychiatry, Psychology and Law, Vol. 12, No. 1, 194-206, 195.

87 J P Beven, G Hall, I Froyland, B Steels and D Goulding (2005) Evaluating Restorative Justice Outcomes Psychiatry, Psychology and Law, Vol. 12, No. 1, 194-206, 195.

88 Roche (2003) quoted in J P Beven, G Hall, I Froyland, B Steels and D Goulding (2005) Evaluating Restorative Justice Outcomes Psychiatry, Psychology and Law, Vol. 12, No. 1, 194-206, 195.

89 J P Beven, G Hall, I Froyland, B Steels and D Goulding (2005) Evaluating Restorative Justice Outcomes Psychiatry, Psychology and Law, Vol. 12, No. 1, 194-206, 198.

90 Youth Court orders are reproduced on page 4 of this paper.

91 L Walgrave (ed) (1998) Restorative Justice for Juveniles: Potentialities, Risks and Problems, A selection of papers from the International Conference of the International Network for Research on Restorative Justice for Juveniles, Belgium, Leuven University Press, 82.

92 Children, Young Persons and Their Families Act 1989, s331(a).

93 Children, Young Persons and Their Families Act 1989, s331(b)

94 Children, Young Persons and Their Families Act 1989, s332(1).

95 Children, Young Persons and Their Families Act 1989, s332(2).

96 Children, Young Persons and Their Families Act 1989, s438(3).

97 Judge FWM McElrea (1994), The New Zealand Youth Court: A Model for Development in Other Countries? A paper presented for the National Conference of District Court Judges, Rotorua, New Zealand, (19941995) 4 JJA 33, 35.

98 Judge FWM McElrea (1994), The New Zealand Youth Court: A Model for Development in Other Countries? A paper presented for the National Conference of District Court Judges, Rotorua, New Zealand, (19941995) 4 JJA 33, 35.

99 H Goodyear Rethinking Justice in New Zealand — A Critical Assessment of Restorative Justice (2003) 9 CantLR, 179, 196.

100 D J Schmid (2003), Restorative Justice: A New Paradigm for Criminal Justice Policy, (2003) 34 VUWLR 91, available at www.austlii.educ.au/nz/journals/VUWLRev/2003/4.html (last accessed 17 September 2005).

101 Judge Carruthers quoted in Restoring Youth Justice,(unreferenced Paper held at Principal Youth Court Judge's Office) 34.