Child offending and youth justice processes

New Zealand's child offending and youth justice processes recognise that children and young people need to be held to account for their offending in a way that acknowledges their needs and vulnerability. The way child and youth offenders are dealt with varies depending on their age and the nature of their offending.

Introduction

New Zealand has separate justice processes for under 17 year olds – the child offending process for 10 to 13 year olds and the youth justice process for 14 to 16 year olds.
The child offending and youth justice processes are governed by the Children, Young Persons and Their Families Act 1989.
Both processes have a dual focus on accountability and rehabilitation.
The processes are diversion-focused.
A range of options is available to respond to child and youth offending depending on the age of the offender and the seriousness of the offence.
Unique elements of both the child offending and youth justice processes are Police Youth Aid alternative action and Family Group Conferences.

Background

The Children, Young Persons and Their Families Act 1989 (CYPF Act) sets out separate justice processes for children (aged 10 to 13) and youth (aged 14 to 16).

The separate systems are based on the premise that the vulnerability of younger people and their generally more immature judgement means that they ought to be treated differently from adult offenders. Our child offending and youth justice processes recognise that children and young people need to be held to account for their offending in a way that acknowledges their needs and vulnerability. The way child and youth offenders are dealt with varies depending on their age and the nature of their offending.

Definition – child and youth

In New Zealand criminal responsibility begins at age ten¹; however, under the CYPF Act, prosecution of children aged 10 to 11 is limited to murder and manslaughter. Police still have a range of options available to respond to offending by 10 to 13 year olds, described below in the process for dealing with child offenders. Serious or persistent offending by children aged 12 and 13 can also be brought to the Youth Court. Youth aged 14 to 16 can be formally charged and prosecuted for any offence². Young people aged 17 or over are dealt with in the same manner as adults³.

Children, Young Persons and Their Families Act 1989 overview

The CYPF Act introduced major changes in the way children and youth who offend are dealt with in New Zealand and was considered ground-breaking legislation. It established a system of dealing with child offenders through the Family Group Conference (FGC) and Family Court, and with youth offenders through the FGC and Youth Court (excluding non-imprisonable traffic offences, which are usually dealt with in the District Court).

The object of the CYPF Act is to promote the well-being of children, young persons and their families/whänau. Where a child or young person offends, their well-being is to be promoted by holding them accountable for their offending and encouraging them to accept responsibility for their behaviour; and dealing with them in a way that acknowledges their needs and will give them the opportunity to develop in responsible, beneficial and socially acceptable ways.

The CYPF Act also contains several principles specific to youth justice, including that criminal proceedings should not be instituted against a child or young person if there is an alternative means of dealing with the matter; that criminal proceedings should not be used solely for welfare purposes; that measures for dealing with offending should strengthen the family/whänau and foster their ability to deal with offending by their children and young persons; that children and young people who offend should be kept in the community where this is practicable and consonant with ensuring public safety; that any measures for dealing with child or youth offending should address the causes underlying the child or youth's offending; and that due regard should be given to the interests of victims of offending.

Alternative action

The youth justice principle that criminal proceedings should not be instituted against a child or youth if there is an alternative way of dealing with the matter means that most child and youth apprehensions are dealt with by warning, caution or Police ‘alternative action’. Alternative action is a diversionary response to child and youth offending, designed for lower-level offending that can be appropriately dealt with without recourse to an FGC or court. Alternative action is delivered by Police Youth Aid⁴. Youth Aid officers have a lot of flexibility in how they apply alternative action; it may include any action considered likely to reduce continued offending. Practical examples include informal community work, counselling, agreements to pay reparation, apology letters, maintenance of school attendance, or completion of an assignment about the effects of their offending. Families and victims are often involved in the development of alternative action plans. In some cases the family may have developed a response before Police Youth Aid became involved. Where this is the case, Police may use the family’s response as the basis for the alternative action.

Family Group Conference (FGC)

The FGC lies at the heart of the youth justice system, which has a dual focus on accountability and rehabilitation. An FGC involves the child or young person, his or her advocate (where one has been arranged), family/whänau or family group members, the victim(s) or their representative, the Police and the Youth Justice Coordinator (YJC). The role of the FGC is to hold young people accountable for their offending and encourage them to take responsibility for their behaviour. FGCs for child offenders will also focus on care or protection issues present and family/whänau issues contributing to the offending. To this end, the FGC formulates a plan for the child or young person making recommendations as it sees fit (which, for young persons, may include prosecution). Common elements of FGC plans include an apology, reparation, work for the victim or community, a donation to charity, curfews, counselling or training programmes. The FGC may also recommend that proceedings be discontinued or that a formal Police caution be issued.

Process for dealing with child offenders aged 10 to 13

Children aged 10 and 11 cannot be prosecuted except for the offences of murder and manslaughter. Where a child is alleged to have committed murder or manslaughter the preliminary hearing of the charge takes place before the Youth Court, and is then automatically transferred to the High Court for trial and sentencing. Children can be sentenced to imprisonment for murder or manslaughter and be detained in a Child, Youth and Family Youth Justice Residence under the custody of the Chief Executive of the Ministry of Social Development. Child offenders who are declared in need of care and protection can be detained in a Care and Protection Residence under the custody of the Chief Executive of the Ministry of Social Development.

For offences other than murder or manslaughter, children aged 10 and 11, whether or not they have been arrested can:

have no action taken; or
be issued a warning or formal caution by Police; or
be referred to Police Youth Aid, who may arrange an alternative action (diversion) after consultation with victims, the child and their family/whänau; or
be referred to a Child, Youth and Family YJC for a Family Group Conference (FGC) if the number, nature or magnitude of their offence(s) give serious concern for their well-being; or
be referred to the Family Court, subsequent to an FGC, where their offending may be proceeded against by way of a declaration that the child is in need of care or protection, provided the Court is satisfied that the child knew either that the offence was wrong or contrary to law.

In addition, due to an amendment to the CYPF Act in 2010, children aged 12 and 13 can be charged in the Youth Court if the charge they face is serious, or if they are a previous offender. In these cases, the Youth Court Judge dealing with the case has a discretion to adjourn the case and refer it back to the Police or CYF for them to consider whether it would be better dealt with under the care and protection provisions o f the CYPF Act.

Between initial contact and the decision to arrest, the Police have significant discretion in deciding how to proceed. The CYPF Act limits the use of arrest, but this does not minimise the accountability of children and young people. Section 234 (c) states that following arrest a child (or young person) can be delivered into the custody of:

any parent or guardian or other person having the care of the child or young person; or
any Iwi Social Service or Cultural Social Service, with the agreement of the child or young person; or
any other person or organisation approved by the Chief Executive or member of the Police for the purpose, with the agreement of the child or young person.

Where a child is referred to an FGC, it may recommend that proceedings be discontinued, that a formal Police caution be issued, that the child make reparation to the victim(s), and/or agree to some form of assistance (e.g. request a psychological assessment, referral to a rehabilitative programme). The FGC can also agree for an application to the Family Court for a declaration that a child is in need of care or protection where the number, nature or magnitude of the offending is such as to give serious concern for the well-being of the child. When the Family Court makes such a declaration, Section 83 Orders of Court on making of declaration can include one or more of the following:

discharge
order that the child or parent come before the Court if called upon in two years
counselling
services
restraining
support
custody
appoint a guardian.

Other orders may also be made where a declaration is made on the grounds of a child’s offending. Section 84 Power to make other orders where declaration made on grounds of child’s offending can include one or more of the following:

admonish
reparation
restitution
forfeiture.

Further, if a support order is made under sections 91 or 92, the Court has the power to impose additional conditions under section 96 including one or more of the following:

if a declaration is made under section 14(1)(d)or(e): non-association; attend/remain at a Centre; any other conditions the Court thinks fit to reduce offending
examination/treatment/counselling/therapy
any other condition the Court sees fit.

Process for dealing with youth offenders aged 14 to 16

Youth aged 14 to 16 can be formally charged and prosecuted for any offence. Where a youth is alleged to have committed murder or manslaughter the preliminary hearing of the charge takes place before the Youth Court before being automatically transferred to the High Court for trial and sentencing. Youth can be imprisoned for murder, manslaughter and jury trial only offences. They can also be detained in a Child, Youth and Family Youth Justice Residence under the custody of the Chief Executive of the Ministry of Social Development.

For offences other than murder or manslaughter, young persons aged 14 to 16, whether or not they have been arrested can:

have no action taken; or
be issued a warning or formal caution by Police; or
be referred to Police Youth Aid, who may arrange an alternative action (diversion) after consultation with victims, the young person and their family/whänau; or
be referred to a Child Youth and Family YJC for an ‘intention to charge’ FGC; or
be arrested and have charges laid against them in the Youth Court.

Between initial contact and the decision to arrest, the Police have significant discretion in deciding how to proceed. The CYPF Act limits the use of arrest but this does not minimise the accountability of the child or young person, as follows.

Section 234 (c) states that following arrest a young person can be delivered into the custody of:

any parent or guardian or other person having the care of the child or young person; or
any Iwi Social Service or Cultural Social Service, with the agreement of the child or young person; or
any other person or organisation approved by the Chief Executive or member of the Police for the purpose, with the agreement of the child or young person.

Where a young person is referred to an FGC and does not complete the plan, the FGC can be reconvened or the matter may be brought before the Youth Court. What happens then depends on the offence:

murder or manslaughter can only be finalised in the High Court
for serious offences the Youth Court has jurisdiction, and trial by jury is then in either the District or High Court. However, the Youth Court may offer the young person the opportunity to forgo jury trial and be dealt with in the Youth Court
where a young person is charged with an offence punishable by more than three months imprisonment, the young person may elect trial by jury and be committed for trial in the District or High Court. The Youth Court can, however, offer the young person the option of forgoing trial in the District or High Court, and instead be dealt with in the Youth Court.

Where an offence is proved in the Youth Court, young people may be served with a Youth Court Order or discharged. In some circumstances the judge may order the offender to appear for sentence in the District Court.

The Youth Court is part of the District Court and has jurisdiction to deal with youth who were aged 12 to 16 when they offended. Where a youth is alleged to have committed murder or manslaughter the preliminary hearing of the charge takes place before the Youth Court before being automatically transferred to the High Court for trial and sentencing. It is also possible to transfer a case to the District Court for sentencing after it has been proven in the Youth Court. However, most cases are resolved in the Youth Court, with the exception of non-imprisonable traffic offences, which are usually dealt with in the District Court. The CYPF Act provides the Youth Court with a range of ‘sentencing’ options referred to as Youth Court orders. Lower tariff orders include admonishment, fines, reparation and restitution. Higher tariff orders are supervision, community work, supervision with activity and supervision with residence. The supervision with residence order is the sole custodial order available to the Youth Court⁵.

If a youth denies the charge in the Youth Court then there is a defended hearing. If the charges are proved, then an FGC is held. Similarly, if a youth does not deny the offence they are referred to an FGC. The FGC meets and decides a plan for holding the young offender accountable and encouraging them to take responsibility for their behaviour. This plan needs to be approved by the Youth Court judge. If the young person completes the plan then the charge is usually withdrawn or discharged.

For more information on the youth justice system see the following websites:

Footnotes

¹ Section 21 of the Crimes Act 1961 sets out that no person under the age of 10 years shall be convicted of an offence.

² The CYPF Act defines a ‘child’ as a boy or girl under the age of 14 years and a ‘young person’ as a boy or girl of or over the age of 14 years but under 17 years; but does not include any person who is or has been married.

³ Offenders aged 17 or over may be offered diversion by the Police (generally first time offenders) or be dealt with in the District Court or, if the offence is serious, the High Court.

⁴ Police Youth Aid is a specialist section of the New Zealand Police, dedicated to dealing with child and youth offending. They work alongside frontline officers dealing with young offenders and are involved in the vast majority of apprehensions involving child or youth offenders.

⁵ The Children, Young Persons and Their Families (Youth Courts Jurisdiction and Orders) Amendment Act came into effect on 1 October 2010. Under this Act, the Youth Court has new orders at its disposal, including mentoring, drug and alcohol, and parenting orders, and longer, more intensive supervision orders.

Ministry of Justice, New Zealand

Policy development