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YOUTH JUSTICE MODEL v THE WELFARE MODEL

HAVE WE GOT THE BALANCE RIGHT?

His Honour Judge AP Walsh
District Court Judge, New Zealand

1. Introduction:

On 1 November 1989 the Youth Court was established following the enactment of the Children Young Persons and Their Families Act 1989 (the Act). This Court replaced the Children and Young Persons Court which operated under the Children and Young Persons Act 1974. The Act also introduced a significant change in dealing with young offenders; it removed the "welfare model" and introduced the "justice model".[1]

Under s 6 of the Act the welfare and interests of the child or young person are to be the first and paramount consideration when dealing with care and protection issues affecting the child or young person, but this paramount consideration does not apply to those provisions of the Act dealing with youth justice and procedures in the Youth Court.

As the Act has now been operating for seventeen years it is timely to review the operation of the justice model and consider how effective is the model when a young offender appears before the Youth Court and is also in need of care or protection.

2. Brief Historical Background:

In her article "A History of Youth Justice in New Zealand", Emilly Watt traced the development of Courts for young offenders. She noted the existence of a separate Court for young offenders was relatively recent in the western legal system. Historically young offenders were treated the same as adults; they were convicted and punished as adults in adult Courts. Age offered no exoneration. Justice systems were characterised by the "classical approach"; crime was seen as a rational act of freewill. Punishment was focused on deterrence rather than reform and applied equally to adults and children. In the latter part of the 19^th century it was acknowledged children were uniquely vulnerable. Consequently child-centred and welfare-based treatments were developed. In English Common Law the "doli incapax" rule was developed. Children under 7 were given immunity while those between the ages of 7 and 14 were presumed incapable of doing wrong unless there was evidence to the contrary. Children over 14 continued to be tried and convicted as adults.

By the end of the 19^th century, separate Youth Courts were being established. New Zealand formally established a Youth Court in 1925. These Courts were founded on the principle young offenders were victims of their environments; they needed help rather than punishment. This "positivist" approach is the basis of the "welfare model of youth justice".

The welfare model is based on the belief criminal behaviour in young offenders stems from various factors relating to undesirable upbringing and environment. At the start of the 20^th century the focus was on care and protection of young people rather than on accountability and punishment; the Youth Courts focussed on their "needs" not their "deeds".

Over time disquiet arose about the operation of Youth Courts. Critics argued the unfettered powers of the Courts ignored due processes, for example, the presumption of innocence and legal rights of the child. As the result of Judges having broad discretions as to how young people were dealt with there was class and racial discrimination in the treatment of young offenders. Rehabilitation was perceived as being used to justify unnecessary and significant intrusion in the lives of children.

Gradually a perception developed about the welfare model becoming ineffective; it was seen as being too permissive and did not hold young offenders accountable. There was a concern the model was unable to deal with persistent offenders leading to a demand to return to deterrent retributive models. Consequently many countries, including New Zealand, revamped their youth justice policies to allow for accountability and due process, and so developed the "justice model".

In her discussion of the "justice model", Emily Watt observed:[2]

The justice model is often posited at the opposite end of the justice spectrum from the welfare model. It promotes accountability, determinate sentences relative to the offence, respect for the legal rights of young people, and the establishment of more formal procedures. In some respects the justice model is an inversion of welfare ideals, focusing on: offending, not the offender; responsibility and freewill, not determinism; equality of sanction, not individual treatment; and determinate sanctions rather than indeterminate rehabilitation.

In the latter half of the 20th century there was a dramatic change in philosophy in the youth justice policies of many countries and this is reflected in the Act. The justice model also has its critics. The overriding concern is the lack of substantive justice; many argue the model deliberately ignores the causes of crime, especially issues of social disadvantage. Placing importance on punishment can lead to injustice in itself.

3. The Act - Some Fundamental Issues:

Much has been written about the philosophy of the Act and the introduction of the Family Group Conference process. In an article addressing restorative justice practices and family empowerment,[3] Mike Doolan observed:

The law was about restoring to family networks control over the decision-making about their young people who, for some reason or another, had come under the notice of the statutory child welfare agency. The history of such contacts, for Maori and Pacific peoples in particular, had seen the customs, values and beliefs of these communities as having little relevance alongside the customs, values and beliefs of the dominant white culture. Massive alienation of Maori and Pacific People's children from their families as a result of child rescue ideology imposed by the dominant culture, and the heavy concentration of Maori children in the welfare institutions and correctional facilities, all pointed to a system that was institutionally racist.

Significant political and social change in New Zealand in the 1980s led to a determination to rectify unjust and culturally abusive professional practices. Changing the way decisions were made about children in the notice of the authorities was seen to be the key to this. The Family Group Conference puts the child, the child's parents and the child's extended family, at the centre of the decision-making process. The way that decisions are made will reflect the decision-making practices of the family's culture. This is where the notion of empowerment arises and unlike restorative justice principles, empowerment principles were explicit in the policy on which the new law is based. Up to this point in time, all the power about what happened to children under the notice of the statutory agency rested with the agency's professionals. I do not believe that professionals can give power to families - that is not the basis of the approach. Rather, families will take power and become "power-full" when professionals create the right conditions for this to occur, and this is far more likely when people are culturally safe than when they are struggling within an alien cultural context.

Further on in this article, Mike Doolan stated, in the context of the application of restorative justice principles to the youth justice system:

A youth justice system exists at all only because it is recognised that childhood is the period of life when life-course persistent offending potential is created or emerges, and that is the time of life where it is possible, through service provision to turn things around. If we did not believe this, we would have a common justice system for children and adults. While we might be prepared to abandon the disordered adult to sanction and custody as the sole response to their offending, we are less inclined to do so with young people.

The New Zealand approach to managing the young person who offends centres around the Family Group Conference, where it is possible to develop plans that address the offending and put matters right, as well as institute plans that address the chaos in young people's lives. The purpose of the Family Group Conference in youth justice is primarily related to offender management, with the aim of shutting down the development of offending careers by energising family systems as the change agent. It is a whole child, whole family approach. (emphasis added)

The observation "it is a whole child, whole family approach" may set the parameters of the approach but within those parameters the tension of the "Youth Justice Model v Welfare Model" still remains. While "the whole child" concept may fit within the justice model it is debatable whether "the whole family approach" can fit in the same way. When issues affecting the whole family arise they usually do so in a care and protection context. In this scenario the justice model considerations intercept with those of the welfare model. When this occurs a dilemma can arise as to which of those considerations should prevail.

The Principal Youth Court Judge of New Zealand, Andrew Becroft, addressed these issues recently.[4] He put the issue in this way:

... Most serious young offenders, in one way or another, bring with them past and/or present care and protection deficits. They present a difficult challenge to the criminal justice system. On the one hand their backgrounds of abuse and environmental dysfunction, categorise them as vulnerable victims in need of help. On the other, their offending demands accountability, creates damaged victims and all too often casts them indeed as "huge and threatening yobs" or worse. In reconciling these conflicts, two fundamental questions must be answered. They are the great imponderable questions that should dominate youth justice debates. We can never discuss them too much.

When and on what basis, should offences committed by young people be seen primarily as a result of care and protection failures (requiring resolution in the Family or Care Courts). Further, when and on what basis, should offences be dealt with as intentional breaches of the criminal law by autonomous, responsible individuals requiring resolution in the criminal courts. This raises the issue of how care and protection issues are to be recognised and importantly, how it is to be concluded that those issues have been causative of offending. It also raises the profound risk of criminalising what is essentially a welfare issue. More importantly still, it bears on the issue of the age of criminal liability because the younger an offender with care and protection issues is, the more they are seen as a product of their family and not fully culpable.

At the stage when the law does require that young offenders are dealt with in the criminal Court, to what extent should any underlying care and protection issues that may have contributed to their offending be addressed, in the criminal Court rather than the Care or Family Courts? Addressing such issues in the criminal Courts, especially to the extent necessary to fully resolve them, runs the risk of "welfarising" and prolonging the justice response, and compromising that principle of proportionality of response.

Judge Becroft observed these questions were answered in 1989 with the implementation of "a revolutionary new youth justice system". He observed one of the key features of the Act was that when young people were charged in the Youth Court the twin emphasis was on accountability and addressing the underlying causes of offending but there was a strong emphasis against "welfarising the response". He further observed while youth justice systems appeared philosophically sound in practice, it faced problems of adequate resourcing and difficulties in meeting adequately both the accountability and welfare needs of child and youth offenders.

4. The Act - Objects and Principles:

The Act's objects, which apply to care and protection and youth justice matters are set out in s 4 which provides:

4 Objects

The object of this Act is to promote the wellbeing of children, young persons, and their families and family groups by -

(a) Establishing and promoting, and assisting in the establishment and promotion, of services and facilities within the community that will advance the well-being of children, young persons, and their families and family groups and that are -

(i) Appropriate having regard to the needs, values, and beliefs of particular cultural and ethnic groups; and

(ii) Accessible to and understood by children and young persons and their families and family groups; and

(iii) Provided by persons and organisations sensitive to the cultural perspectives and aspirations of different racial groups in the community:

(b) Assisting parents, families, whanau, hapu, iwi, and family groups to discharge their responsibilities to prevent their children and young persons suffering harm, ill-treatment, abuse, neglect, or deprivation:

(c) Assisting children and young persons and their parents, family, whanau, hapu, iwi, and family group where the relationship between a child or young person and his or her parents, family, whanau, hapu, iwi, or family group is disrupted:

(d) Assisting children and young persons in order to prevent them from suffering harm, ill-treatment, abuse, neglect, and deprivation:

(e) Providing for the protection of children and young persons from harm, ill-treatment, abuse, neglect, and deprivation:

(f) Ensuring that where children or young persons commit offences, -

(i) They are held accountable, and encouraged to accept responsibility, for their behaviour; and

(ii) They are 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:

(g) Encouraging and promoting co-operation between organisations engaged in providing services for the benefit of children and young persons and their families and family groups.

Section 4(f)(i) enshrines the youth justice model of an object that where children or young persons commit offences they are held accountable and are to be encouraged to accept responsibility for their behaviour. Under s 4(f)(ii) they are to be dealt with in a way which acknowledges their needs and that will give them the opportunity to develop in responsible, beneficial and socially acceptable ways. It can be argued there is a blurring of the parameters of the youth justice model in s 4(f)(ii) by reference to acknowledging "the needs" of children or young persons committing offences. What are the parameters of these "needs". In identifying such needs, if any, how are care and protection issues to be addressed?

Section 5 sets out six principles, subject to s 6 of the Act, which are to be applied in the exercise of powers conferred by the Act. Those principles can be summarised as follows:

1. The principle that wherever possible a children or young person's family[5] should participate in making of decisions affecting that child or young person and wherever possible regard should be had to such views.

2. Wherever possible the relationship between a child or young person in his or her family should be maintained and strengthened.

3. Consideration must always be given as to how a decision affecting a child or young person will affect -

The welfare of that child or young person.

The stability of that child or young person's family.

4. Consideration should be given to the wishes of the child or young person so far as those wishes can be reasonably ascertained and those wishes should be given such weight as is appropriate in the circumstances having regard to the age, maturity and culture of the child or young person.

5. Endeavours should be made to obtain the support of -

The parents or guardians of young persons having the care of a child or young person.

The child or young person.

to the exercise or proposed exercise in relation to that child or young person of any power conferred by the Act.

6. Decisions affecting a child or young person should where practicable be made and implemented within a timeframe appropriate to that child's or young person's sense of time.

As already noted s 6 provides that the welfare and interests of a child and young person are the first and paramount consideration except when dealing with matters of youth justice and the procedures of the Youth Court.

5. The Act - Care and Protection:

Part II of the Act deals with the care and protection of children and young persons. The principles relating to the application of the care and protection provisions are set out in s 13 and can be summarised as follows:

1. Children and young persons must be protected from harm, their rights upheld and their welfare promoted.

2. The primary role in caring for and protecting a child or young person lies with the child or young person's family; and -

A child or young person's family should be supported, assisted and protected as much as possible; and

Intervention into family life should be the minimum necessary to ensure the safety and protection of the child or young person.

3. It is desirable a child or young person live in association with his family and that his or her education, training or employment be allowed to continue without interruption or disturbance.

4. Where a child or young person is considered to be in need of care and protection, wherever practicable, the necessary assistance and support should be provided to enable the child or young person to be cared for and protected within his or her own family.

5. A child or young person should be removed from his or her family only if there is a serious risk of harm to the child or young person.

6. Where a child or young person is removed from his or her family -

He or she should be returned to, and protected from harm within that family; and

Where he or she cannot be immediately returned to and protected from harm within his or her family then until such time as that goal can be achieved the child or young person should wherever practicable live in an appropriate family-like setting where appropriate which is in the same locality as that in which the child or young person was living and the links with his or her family are maintained and strengthened; and

Where he or she cannot be returned to the family then to live in a new family group in an appropriate family-like setting to enable a sense of belonging to be developed and his or her personal and cultural identity being maintained.

7. Where a child or young person cannot remain with or be returned to his or her family, in determining whose care the child or young person should be placed priority should be given to a person who is a member of the child's family, or if that is not possible has the same tribal, racial, ethnic or cultural background as the child or young person and who lives in the same locality as him or her.

8. Where a child or young person cannot remain with or be returned to his or her family, he or she should be given an opportunity to develop a significant physiological attachment to the person in whose care the child or young person is placed.

9. When a child is considered to be in need of care or protection on the grounds specified in s 14(1)(e) of the Act, the principles set out in s 208(g) that any measures for dealing with offending by children or young persons should have regard to the interests of any victims of that offending.

Section 14 defines a child or young person in need of care or protection. Given the importance of this provision s 14(1) is set out in full:

14. Definition of child or young person in need of care or protection

(1) A child or young person is in need of care or protection within the meaning of this Part of this Act if -

(a) The child or young person is being, or is likely to be, harmed (whether physically or emotionally or sexually), ill-treated, abused, or seriously deprived; or

(b) The child's or young person's development or physical or mental or emotional wellbeing is being, or is likely to be, impaired or neglected, and that impairment or neglect is, or is likely to be, serious and avoidable; or

(c) Serious differences exist between the child or young person and the parents or guardians or other persons having the care of the child or young person to such an extent that the physical or mental or emotional wellbeing of the child or young person is being seriously impaired; or

(d) The child or young person has behaved, or is behaving, in a manner that -

(i) Is, or is likely to be, harmful to the physical or mental or emotional wellbeing of the child or young person or to others; and

(ii) The child's or young person's parents or guardians, or the persons having the care of the child or young person, are unable or unwilling to control; or

(e) In the case of a child of or over the age of 10 years and under 14 years, the child has 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; or

(f) The parents or guardians or other persons having the care of the child or young person are unwilling or unable to care for the child or young person; or

(g) The parents or guardians or other persons having the care of the child or young person have abandoned the child or young person; or

(h) Serious differences exist between a parent, guardian, or other person having the care of the child or young person and any other parent, guardian, or other person having the care of the child or young person to such an extent that the physical or mental or emotional wellbeing of the child or young person is being seriously impaired; or

(i) The ability of the child or young person to form a significant psychological attachment to the person or persons having the care of the child or young person is being, or is likely to be, seriously impaired because of the number of occasions on which the child or young person has been in the care or charge of a person (not being a person specified in subsection (2) of this section) for the purposes of maintaining the child or young person apart from the child's or young person's parents or guardians.

6. The Act - Care and Protection Key Provisions:

Where a Family Court is satisfied on any of the grounds specified in s 14(1) in respect of a child or young person, it has the power to make a declaration that the child or young person is in need of care or protection. Section 73 stipulates the Court is not to make such a declaration unless satisfied the child's or young person's need for care or protection cannot be met by other means.

Section 83 specifies what orders a Family Court can make when a s 67 declaration is made. The Court may do one or more of the following things:

Discharge the child or young person or any parent or guardian or person having care of the child from the proceedings without further order.

Order the child or young person or any person or guardian or person having care of the child to come before the Court if called upon within 2 years.

Order specific counselling for the child or young person or parent or guardian or any person in whom in respect of whose conduct a restraining order has been made.

Make any of the following orders:

a services order (s 86)

Restraining order (s 87)

Support order (s 91)

Custody order (s 101)

Guardianship order (s 110)

"Young persons" and "child offenders" are dealt with differently and on a different philosophical basis under the Act. "Child offenders", those aged 10 - 13 years, are specifically deemed to be in need of care and protection when s 14(1)(e) applies. When the Court is required to consider the application of s 14(1)(e) it must have regard to s 198 which provides it shall not make a declaration unless -

It would have found the child guilty of an offence if the proceedings had been pursuant to an information laid under the Summary Proceedings Act 1957 charging the child with the offence; and

The Court is satisfied the child knew either that the act or omission constituting the offence was wrong, or that it was contrary to law.

It has been suggested, given the requirements of s 198, in particular whether the child knew the act or omission was wrong, the other grounds for a declaration under s 14 are more likely to be relied upon by Courts faced with a child offender.[6]

The process relating to care and protection applications under s 14(1)(e) is complex. Under s 18(2) where any social worker suspects the child is in need of care and protection on the grounds contained in s 14(1)(e), that social worker may refer the matter to the appropriate enforcement agency. Under s 18(3) where any enforcement officer believes, after inquiry any child is in need of care and protection on the grounds contained in s 14(1)(e), that enforcement officer must report the matter to a Youth Justice Co-ordinator and consult with the co-ordinator. If that enforcement officer believes the making of an application for a s 67 declaration is required in the public interests, then the Youth Justice Co-ordinator must convene a Family Group Conference. If that conference agrees a s 67 declaration should be made on the grounds contained in s 14(1)(e), apart from the other orders the Court can make under s 83, it also has additional powers under s 84 to make a variety of orders including -

An order admonishing the child.

Where the Court is satisfied any person suffered any emotional harm or any loss or damage to property through the child's offending, an order directing the child or any parent or guardian of the child to pay to the victim such sums it thinks fit by way of reparation.

An order directing the child or any parent or guardian or other person having the care of the child to deliver to the person who appears to the Court to be entitled to it any property in the possession of the child or in the possession of any person for the child.

7. The Act - Youth Justice Principles:

The principles pertaining to youth justice are set out in Part IV of the Act under s 208 which provides:

208 Principles

Subject to section 5 of this Act, any Court which, or person who, exercises any powers conferred by or under this Part or Part 5 or sections 351 to 360 of this Act shall be guided by the following principles:

(a) 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:

(b) The principle that criminal proceedings should not be instituted against a child or young person solely in order to provide any assistance or services needed to advance the welfare of the child or young person, or his or her family, whanau, or family group:

(i) To strengthen the family, whanau, hapu, iwi, and family group of the child or young person concerned; and

(ii) To foster the ability of families, whanau, hapu, iwi, and family groups to develop their own means of dealing with offending by their children and young persons:

(d) The principle that a child or young person who commits an offence should be kept in the community so far as that is practicable and consonant with the need to ensure the safety of the public:

(e) The principle that a child's or young person's age is a mitigating factor in determining -

(i) Whether or not to impose sanctions in respect of offending by a child or young person; and

(ii) The nature of any such sanctions:

(f) The principle that any sanctions imposed on a child or young person who commits an offence should -

(i) Take the form most likely to maintain and promote the development of the child or young person within his or her family, whanau, hapu, and family group; and

(ii) Take the least restrictive form that is appropriate in the circumstances:

(g) The principle that any measures for dealing with offending by children or young persons should have due regard to the interests of any victims of that offending:

(h) The principle that the vulnerability of children and young persons entitles a child or young person to special protection during any investigation relating to the commission or possible commission of an offence by that child or young person.

7. The Act - Disposal of Youth Justice Matters:

When a young person appears before the Youth Court, as the result of the prescribed procedures set out in the Act, the Court has to make a determination about final disposition of the proceedings. A young person can be discharged under s 282 of the Act. If the Court determines the young person should be sentenced then it can make any of the orders set out in s 283 subject to ss 284 to 290.

Section 284 is a significant provision as it sets out a number of factors which the Court must have regard to on sentencing. It provides:

284 Factors to be taken into account on sentencing

(1) In deciding whether to make any order under section 283 of this Act in respect of any young person, the Court shall have regard to the following matters:

(a) The nature and circumstances of the offence proved to have been committed by the young person and the young person's involvement in that offence:

(b) The personal history, social circumstances, and personal characteristics of the young person, so far as those matters are relevant to the offence and any order that the Court is empowered to make in respect of it:

(d) The response of the young person's family, whanau, or family group to -

(i) The offending by that young person; and

(ii) The young person himself or herself as a result of that offending:

(e) Any measures taken or proposed to be taken by the young person, or the family, whanau, or family group of the young person, to make reparation or apologise to any victim of the offending:

(f) The effect of the offence on any victim of the offence, and the need for reparation to be made to that victim:

(g) Any previous offence proved to have been committed by the young person (not being an offence in respect of which an order has been made under section 282 of this Act or section 35 of the Children and Young Persons Act 1974), any penalty imposed or order made in relation to that offence, and the effect on the young person of the penalty or order:

(h) Any decision, recommendation, or plan made or formulated by a family group conference.

(2) The Court shall not make an order under any of paragraphs (k) to (o) of section 283 of this Act merely because the Court considers that the young person is in need of care or protection (as defined in section 14 of this Act).

It is important to note under s 284(2) the Court cannot make any order under s 283(k) to (o) which relate to supervision, community work, supervision with activity order, supervision with residence or transfer for sentence to the District Court, merely because the Court considers the young person is in need of care and protection as defined in s 14.

One of the key features of the justice model incorporated in the Act is the emphasis on appropriate timeframes. Proceedings can be dismissed if it is considered the time that has elapsed since the date of commission of the alleged offence and the hearing has been unnecessarily or unduly protracted. When Family Group Conference plans are formulated, the timeframe for completion of the plan is a very important component. The orders under s 283 are finite; for example a young person sentenced to supervision with residence means a sentence of 3 months in residence (which can be reduced to 2 months) followed by supervision not exceeding 6 months. The question remains, however, as to whether any care and protection issues can be addressed adequately within these timeframes.

9. The Act - Sections 261 and 280:

These sections are particularly significant when considering the debate "Justice Model v Welfare Model" issues. Under s 261, where a Family Group Conference has been convened for youth justice purposes and it considers the young offender is in need of care and protection within the meaning of s 14, the conference can, with the prior agreement of a care and protection co-ordinator, make or formulate such decisions, recommendations and plans as it considers necessary or desirable in relation to the care or protection of the young offender. Every Family Group Conference to which this section applies, is deemed to be a Family Group Conference convened under the care and protection provisions of the Act.

If at any stage of the youth justice proceedings it appears to the Youth Court a young person may be in need of care and protection as defined in s 14 of the Act, then under s 280 the Court may refer the matter to a care and protection co-ordinator under s 19(1)(b) of the Act and adjourn the proceedings pending the outcome of that referral. If an application for a declaration under s 67 of the Act is made in respect of the young offender, the Court may adjourn the proceedings until that application is determined. The Court also has power to discharge the information under s 282 of the Act.

At first sight the provisions of ss 261 and 280 appear adequate to address those concerns where it is felt, after full investigation of all relevant factors, it is preferable to deal with matters on a care and protection basis in the Family Court jurisdiction rather than in the Youth Court jurisdiction.

In her research paper,[7] Rebecca Paton discussed the dichotomy between care and protection and criminal accountability in the context of current New Zealand policy. At page 5 of her paper she commented:

Current New Zealand Policy

New Zealand Youth Justice policy requires that when youth offenders with care and protection issues come before a Youth Court or a Family Group Conference (refer Ministry of Social Development - Achieving Effective Outcomes in Youth Justice Ministry of Social Development 2004)

Welfare issues should be addressed as voluntary additions to offence-based sanctions or separately in care and protection proceedings. In the latter case the Youth Justice Co-ordinator should refer the case to the care and protection co-ordinator.

The change in policy resulted from the growing awareness that therapeutic interventions (addressing care and protection issues at the same time as the offending behaviour) were no longer working. (Refer Lexis Nexis Family Law of New Zealand (2004) 6.651).

Because therapeutic programmes seemed part of the problem rather than the solution, demands grew for fairness, equality and concern for juveniles legal rights and due protection issues. Idealogically, this justice or due process concept limits sanctions to principles of proportionality, determinacy and the least restrictive alternatives.

As this paper will outline the dichotomy between care and protection and criminal accountability has been reinforced in the legislative processes under CYPF Act.

She noted according to the Ministerial Review of Child Youth and Family Services, s 280 referrals accounted for 4.36% of all referrals[8].

Judge Becroft has expressed concern there was a worrying trend towards police prosecution of young persons solely to access CYFS services[9]. He observed s 280 of the Act contemplated that some charges raised solely care and protection issues and provided for such matters to be referred to care and protection co-ordinators with the youth justice proceedings adjourned pending the outcome of that reference. While this was a sound provision in principle, regrettably the references appeared to take too long to be addressed and were frequently subject to delays. Too often Youth Courts felt compelled to retain the matter in the Youth Court where it could be resolved more quickly and where such resources as were available in the Youth Court could be directed to the young person in his/her family more quickly. Judge Becroft considered "there is a need for a much better systematic approach to Youth Justice care and protection" "crossover" cases".

The issue of "crossover" cases was considered by the Ministry of Social Development when it reviewed the operation of the Youth Court process in its report "achieving effective outcomes in youth justice" in December 2004. At page 243 of that review it was recorded:

The structure of the legislation reinforces the separation between care and protection in youth justice proceedings. Dealing with the separation of what were previously seen as part of a comprehensive set of responses to young people in the welfare system has not been simple. The advantages of separating the two systems can be seen in a greater emphasis on accountability of young offenders than in the past. Disadvantages can be seen in the difficulty of assessing, arranging and resourcing measures designed to respond to needs that have traditionally come under the welfare heading.

10. Scope of the Problem:

In the care and protection arena the needs of the child or young person are paramount, but in the youth justice arena consideration must be given to the needs of the victim to accountability and to the wider public interests.

In his paper "A Report Card on How Our Legal Systems Deal with the Inter-relationship Between Child Protection and Youth Crime"[10], Judge Becroft discussed the philosophical basis under-pinning the New Zealand system and considered the age of criminal responsibility in New Zealand. At page 15 of his paper he stated:

In New Zealand "child offenders" are dealt with under the care and protection provisions of the CYPFA. The involvement of the Family Court in this regard mirrors the fact that the law in New Zealand views offending by children as symptomatic of family problems. Thus, there is greater involvement of the care and protection provisions of the CYPFA for those who are younger and, unless there are obvious care and protection concerns, those of or above the age of 14 and under the age of 17 years are dealt with under the youth justice provisions of the CYPFA.

However, this age limit has been criticised by the United Nations Committee on the Rights of the Child and there is considerable debate in New Zealand as to when "children" ought to be considered old enough to face the consequences of criminal offending entirely on their own. Some New Zealand politicians are currently calling for a law change to allow children as young as 12 to face all serious offences.

Whatever age is selected for criminal liability an arbitrary age cannot reflect the fact that young children mature at different rates - nor that many do not fully mature psychologically until well into their 20s. Further in New Zealand a decision as to which Court is a more appropriate forum turns primarily on the age of the defendant rather than their needs.

In addressing the strengths and weaknesses of the New Zealand system, Judge Becroft considered one of the strengths was that the New Zealand system avoided an unhelpful rigorous split between the youth justice and care and protection provisions by allowing a crossover between the two parts. This flexibility enabled youth offenders with care and protection issues to be dealt with appropriately and also allowed room for discretion as to whether the offending was really a care and protection base. It enabled the justice system to concentrate on justice issues and avoid getting involved in care and protection work which it was poorly equipped to carry out. He considered the difficulty of the New Zealand system was that if care and protection issues were dealt with badly, young people and children were not held to account for their crimes. A heavy burden was then placed on the care and protection system that was not always adequately resourced to cope with the workload. At page 16 he observed:

Historically, referrals to Care and Protection Co-ordinators have been unproductive and there is no easy mechanism to ensure that referral results come back to a Youth Court Judge. The welfare agency, Child Youth and Family Services (CYFS) is burdened with a massive workload which its staff are unable to process in a timely manner. This is despite importance of time interventions for young people recognised by the CYPFA.

When considering this issue it is important to keep in perspective the workload of the Youth Court. At page 5 of his paper, Judge Becroft observed:

New Zealand and most western countries recognise there are two types of young offenders. New Zealand's youth justice aims to appropriately address the needs of these two groups. The first group, alternatively known as "adolescent limited offenders" or "desisters" make up 75% - 80% of young offenders but commit only a small percentage of youth crimes. This offending is often the result of factors such as boundary pushing, peer pressure, impulsive and reckless decision-making, and although the offences may be serious, these young people do not usually have significant care and protection needs. This group is usually most effectively dealt with in the community by the police.

The second, much smaller group, is the primary focus of this paper. These offenders, known as "life course offenders" or "persisters" make up only 5% - 15% but commit more than half of all youth crime. They display a number of common characteristics including care and protection histories.

Police diversion schemes have been particularly successful in New Zealand in diverting more than 80% of youth offenders away from the criminal Courts wherever possible - a key goal of the system. This is premised on the belief that only a small proportion of small offenders actually need to come to Court; that their offending can be firmly and effectively addressed in the context of the community; and that bringing them to the Youth Court will be counter-productive.

Where there is no alternative to criminal processes the New Zealand legislation contains a number of safeguards for vulnerable young people facing the criminal justice system, including limitations on powers of arrest, the right to have a nominated person present during questioning and restrictions on the power of the Court to detain a child or young person in custody. While such safeguards are understandable from the perspective of due process in the context of youth justice there still remains the issue of how effectively do we deal with any care and protection issues affecting these young people.

11. Where To From Here:

The question must be asked as to whether the crossover provisions in ss 261 and 280 are fully and properly utilised. All too often a scenario is repeated where a young person appears in the Youth Court and can be described as a "life course offender" or a "persister". The majority of young people in this category come from a background of long term care and protection issues and more often than not those issues still remain at the time of their appearance in Court. The youth justice model requires focusing on the young person and holding him or her to account and the wider public interests. The Family Group Conference plan will address issues in terms of the youth justice model. It may be a component of the plan that the young person undertakes a specified course of counselling, training or some other constructive activity. Whatever the outcome there is a finite period of some months for the young person in the Youth Court jurisdiction. What happens to this young person once he or she is out of the Youth Court jurisdiction? The reality is if there are any care and protection issues affecting that young person, they will remain. How are they going to be addressed?

One of the concerns about the youth justice FGC process arises from the fact that at times dysfunctional parents and family members can be part of the FGC process where the focus is on holding a young offender accountable for his or her actions. Often the participants themselves lack the insight as to what has caused that young person to offend and how care and protection issues may be intertwined with the causes of that offending. Sadly, those participants may be the very people who have created the care and protection issues in the first place. Inevitably if those care and protection issues remain unaddressed, it is only a matter of time before the young person repeats offending and ends up back in the Youth Court process, which is then repeated.

Under the Act when a child becomes a young person at the age of 14 years, the focus switches arbitrarily from the paramountcy of the welfare and interests of the child to holding the young person to account along with other factors such as the wider public interest. At this cross-over point there is a need to determine whether there are care and protection issues affecting this young person. Bearing in mind the small group of young persons who come within the category of "life course offenders" or "persisters" and who often have a substantial history of care and protection issue this cross-over point can be critical for the young person. As a general proposition it can be stated "the earlier the intervention the better the outcome".

Dealing in isolation with a young person in accordance with Youth Justice Model may hold the young person to account but ultimately that process can be self-defeating if care and protection issues are not also addressed. Section 4(f)(ii) of the Act requires a young person to be dealt with in a way which acknowledges their needs and gives them the opportunity to develop "in responsible, beneficial and socially acceptable ways". The Youth Justice Model alone is unlikely to achieve that object. By the time the Youth Court jurisdiction takes over, it should not be difficult to determine whether there are care and protection issues affecting the young person; the check list contained within s14(1)(a) - (i) identifies the relevant factors.

In the Youth Court jurisdiction there is the "window of opportunity" for three years until the young person attains the age of 17 years. While three years may appear to be a long time to address issues affecting a young person, in the youth justice context the following factors need to be weighed:

1. The youth justice process is of relatively short duration; a lot of cases can be disposed of within 3-4 months. Is that timeframe realistic to bring about the rehabilitation of the young person?

2. What is the nature of the care and protection issues? What time will it take to address those issues?

3. How long have care and protection issues existed and how have they affected that young person? Will the youth justice process be able to address issues affecting that young person given the particular nature of care and protection issues affecting that young person?

4. Will the young person have adequate backup and family support once out of the Youth Court jurisdiction?

5. Are the sentencing options available to the Court under s 283 likely to resolve care and protection issues?

In the case of young offenders who repeatedly offend, it is not uncommon to review their history and find they have appeared on numerous occasions in the Youth Court. At the beginning of the Youth Court process it is common for young persons to be discharged under s 282 of the Act. While that may be a good outcome for the young person from a youth justice perspective, such a discharge will not address any ongoing care and protection issues. If the young person continues to re-offend, the Youth Court may have no option but to impose more severe sentences, culminating in either the young person being sentenced to supervision with residence or being transferred to the District Court for sentence. When this happens the question arises - could this outcome have been avoided if there had been a care and protection intervention at a much earlier stage in the process?

If care and protection issues are identified, then the timeframe available to address these issues is less than three years given the limits of the Youth Court jurisdiction. When a young person has a life history of care and protection issues, it will often take considerable time to address and resolve those issues. By the time the young person attains the age of 14 years, it can be more difficult to deal with care and protection issues which will have evolved over time and may have changed in nature. For example, a young person in his or her early years may have been exposed to various manifestations of domestic violence between his or her parents and subsequently goes on to develop serious addiction issues.

In her paper "Tensions in Youth Justice: Young Offenders in need of Care and Protection"[11] Rebecca Paton considered there were several mechanisms in the Act to ensure care and protection issues were addressed and raised in a youth justice context. The issues appeared to be one of process and how referrals were made to Children Youth and Family Service and the Service's response times and resourcing. She also suggested further options for reform included:

Legislative reform to clarify the Court's powers perhaps by making applications under s 68 mandatory instead of voluntary. Under s 68 an application for a declaration a child is in need of care and protection can be made by a social worker, a member of the police or with the leave of the Court, any other person.

Legislative amendment to make better use of s 280 referrals enabling a Judge to direct a Family Group Conference take place with further direction for consultation with the care and protection co-ordinator before the Conference.

Widening the range of referrals a Youth Court can make to recognise the cross-over between care and protection and youth justice matters.

Education of police so that less care and protection matters make it to the Youth Court.

The issues arising out of the "Justice Model v Welfare Model" debate are not new and are discussed from time to time. As time goes by, however, the need to address the issues has intensified. At times and for reasons of expediency and resourcing, it is convenient to deal with young persons using only the Youth Justice Model but ultimately such approach is short-sighted. Where there are young people with clearly identified care and protection issues, there needs to be a better balance between the Youth Justice Model and the Welfare Model; each model can be used to support the other.

Footnotes

1 Rebecca Paton: Tensions in Youth Justice: Young Offender in Need of Care and Protection – LLM Research Paper, Victoria University, 2005.

Emilly Watt: A History of Youth Justice in New Zealand. Youth Court Web site http://www.justice.govt.nz/Youth History

2 See above.

3 Doolan, M. (2003). Restorative Practices and Family Empowerment: both and/or either/or ?. Family Rights Newsletter. London: Family Rights Group.

4 “A Report Card On How Our Legal Systems Deal With The Interrelationship Between Child Protection and Youth Crime” -Paper presented to AIJA Youth Justice and Child Protection Conference, Hobart, Tasmania, 3 April 2006.

5 For the purposes of this paper the term “Family” includes whanau, hapu, iwi and family group.

6 Simon Jefferson, Robbie Lavern, The Care and Protection Provisions of the Children Young Persons and Their Families act 1989 Revisited, New Zealand Law Society Seminar, August 1995.

7 See above No. 1

8 Brown, Judge Michael – Care and Protection is about Adult Behaviour (Ministerial Review into the Department of Child Youth and Family Services, December 2002, 58)

9 Principal Youth Court Judge Andrew Becroft – “Youth Justice in New Zealand: Future Challenges” – paper delivered at 2004 New Zealand Youth Justice Conference “Never Too Early, Never Too Late” – 17 – 19 May 2004, Wellington.

10 See 4 above

11 See above no. 1