“Court in the Act”

A newsletter co-ordinated by the Principal Youth Court Judge for the Youth Justice Community

Issue 31 September 2007

Inside this issue:

Young Offender Serious Crimes Bill

Tables – Youth and Child Offending

UK Report: Criminal Age of Resposibility should be raised

Obligations of Police – Robert Ludbrook

USA Transfer Provisions (Young Person to Adult Court) - Not Effec-

Fetal Alcohol Spectrum Disorder

Assessments for Childhood Learning Disabilities

Health and Education Assessment Programme

New Skills for Youth Justice Residents

Family Group Conference Concept Receives Award

Successful Intensive Youth Justice Pilot Scheme

Letters to Editor

Short Story Written by a Young Offender

Letter from A Young Offender

Resilience in Development

Young Offenders (Serious Crimes) Bill.

"Under the new Bill, only a handful of charges, for example stone throwing, would end up in the Youth Court jurisdiction" Judge Andrew Becroft

Judge Becroft attended a Parliamentary Select Committee on Wednesday 18 July 2007 in order to address the structure and unintended consequences of Ron Mark’s Young Offenders (Serious Crimes) Bill. The Bill would effectively abolish the Youth Court and end the family group conferences system.

In keeping with constitutional convention, Judge Becroft’s submissions were limited to matters of drafting, structure and implications for the Youth Court, but not matters of policy.

Judge Becroft’s prime concern was that the drafting of the Bill was very poor—"abysmal"- his words to the Select Committee.

Despite suggestions by framers of the Bill that the Bill was being misrepresented— in fact its effect is plain.

Judge Becroft’s Submission

The essence of Judge Becroft’s submissions was what he considered to be six unintended consequences of the Bill.

1. That the effect of the Bill is to remove YC jurisdiction for almost all criminal offences from the Youth Court.

2. Family Group Conferences would be removed for virtually every offence

3. The Bill is inconsistent and confusing where it maintains existing procedures for dealing with 10-13 year olds and at the same time introduces a new system whereby virtually all children will be charged in the adult criminal courts.

4. The Bill will mean that almost all under 17 year olds, if charged, will be able to be imprisoned (section 18 of the Sentencing Act 2002 currently allows young people to be imprisoned only in respect of "purely indictable" offences – a small handful of very serious offences). This is because the definition in the Bill of serious offences is so wide.

5. The historic protection of the doli incapax presumption afforded to 10-13 year olds is virtually abolished. This doctrine presumes children are criminally incapable, but is rebuttable and a child may be convicted of an offence if there is proof that the child understood their act to be wrong. In practice, capability is virtually always conceded. The authors don’t know of a single case where the doctrine was relied upon in the last 5 years, but it is important that it be retained as a matter of principle.

6. Provisions of the Bill conflict with statutory youth justice principles.

Age of Prosecution

In respect of age of prosecution, Judge Becroft acknowledged this was a legitimate policy decision for Parliament—outside his scope. However he did say that in any debate it would be important to consider;

• Offending rates for 10-13 year olds, and whether offending was growing and out of control; and
• Whether the existing child offender provisions are working and the extent to which they could be modified and improved. This issue is within the domain of the Principal Family Court Judge as child offenders (10—13) are dealt with by that Court.

Judge Becroft urged the Select Committee to consider these obviously unintended consequences of the Bill as it is currently drafted.

As to the question of offending rates for 10- 13 year olds, see Table 1 on the following page.

Copies of Judge Becroft’s submission may be obtained by emailing a request to: Tracey.Cormack@justice.govt.nz

Apprehensions decrease for 10-13 year olds over the last 10 years

The table below shows a reduction of 10.78% in apprehensions for 10-13 years olds for apprehensions for the years 1997 to 2006.

One thing is clear from this table. Apprehensions overall in this age cohort have decreased over the last 10 years for all categories of offences.

While there has been an increase in apprehensions for violent offending for 14-16 year olds in recent years, this trend is similar for all adult age cohorts (see table 6, page 8) except 10—13 year olds.

Percentage increase for apprehensions for violence:

10-13: 10.79% reduction from 1997 to 2006
14-16: 47.5 % increase from 1997 to 2006
17-20: 41.83% increase from 1997 to 2006
21-30: 7.8% increase from 1997 to 2006
31- 50: 46.98% increase from 1997 to 2006
51–99: 71.67% increase from 1997 to 2006

Tables revealing offending numbers and offending rates are included below and on pages 4 and 5 of this newsletter.

Apprehension Statistics: Table 1: 10-13 year olds: Numbers and Rates Per 10,000 of Population

UK - Report: Criminal Age of Responsibility Should Be Raised

Source: http://bbc.co.uk/2/hi/uk_news/5369274.stm

The UK government is being urged to raise the age of criminal responsibility in England and Wales from 10 to 14.

A report for the Centre for Crime and Justice Studies suggested that too many children are prosecuted and criminalised.

It called for greater emphasis on educational, social and mental health needs and suggested care proceedings should be used for younger offenders. The report recommended a new sentencing framework, including a residential training order of up to two years (five years for serious crimes).

The author of the report, Rob Allen spent eight years on the UK Youth Justice Board and said that there has been an increasing intolerance by the public for teenage misbehaviour. Speaking of the young offenders he has dealt with, he said that they often came from disturbed backgrounds. He believes that often they have not reached a point in development where they you could confidently say they know right from wrong and may not be aware of the consequences of their actions.

The age of criminal responsibility is higher in many other countries, for example France is 13, Japan is 14 and Italy is 15.

Mr Allen suggested that the labelling of young offenders as delinquents may initiate a cycle that may be difficult to break out of.

In 1997, the UK government lowered the age of criminal responsibility from 14 to 10 and since then, according to the report, this had resulted in an increased proportion of young people being prosecuted.

The Home Office justification is that the current age of criminal responsibility allows for early interventions in order to prevent offending and help young people develop personal responsibility.

The Children’s Society Chief Executive Bob Reitemeier considered it was "absolutely essential" that the age of criminal responsibility was raised back to 14.

He said that the it was "...staggering that young people as young as 10 can be placed in custody…" and that there should be attention on prevention and alternatives to custody.

"Hot Off the Press - Youth Justice Statistics In New Zealand: First Annual Release"

The following tables are part of a recently published report by the Ministry of Justice: Youth Statistics in New Zealand:1992– 2006 (by Jin Chong).

This is the first release of annual stand-alone Youth Justice figures. The full report can be found at: http://www.courts.govt.nz/pubs/reports/2007/nz-youthjustice- statistics-1992-2006/index.html.

The Ministry is open to suggestions as to how to improve the content and format of the Report.

"Court in the Act" editors have summarised the key messages as follows:

1. 2006 was the lowest police apprehension rate for youth offending since at least 1995.

2. The apprehension rate for property offending was the lowest in 10 years

3. Burglary apprehension rates are dropping

4. While apprehensions for violent offending have increased, the significant increases have only occurred since 2004. As to the violent offending statistics:

(a) The actual number of people involved may be no more than about 1000; and

(b) The rate of the increase in apprehensions for serious violent youth offending mirrors that in almost all other cohorts of the population (except 10- 13 year olds where there is a significant reduction in apprehension rates for violence: refer to table 1 on page 2).

The rise in apprehensions for serious violent offending should concern us all, and those involved in youth justice must take it seriously. The real question however, appears to be — when statistics across the whole community appear to be stable or decreasing, why are apprehensions for violent offending for every age group increasing (except for 10– 13 year olds)?

The other point is that the increase in apprehensions for violent youth offending is the truth, but not the whole truth. Few commentators or media reporters have presented a balanced view of the issue. Most have failed to highlight the significant decrease in the rate of offending for youth overall.

Note: All the following tables are based on charges laid, rather than young people charged.

Table 3.3 on page 4 refers to numbers of apprehensions for 14-16 year olds from 1995 -2006. Table 3.4 on page 5 refers to the rates of offending per 10,000 of population for 14-16 year olds from 1995-2006. The latter gives a truer picture as it takes into account the population growth, while raw numbers may be misleading.

Table 3.3 National Annual Apprehensions for the Latest 10 Calendar Years: 14 –16 Year Olds: Numbers

Table 3.3 Number of Police apprehensions of 14 to 16 year olds for non-traffic offences, by offence type, 1995 to 2006 1

Notes

1. The data used to produce this table were sourced from New Zealand Police. For consistency with the rest of the report, offences were grouped using the Ministry of Justice offence classification rather than the Police classification. The miscellaneous category includes a small number of apprehensions that were classified as unknown. The figures in this table do not refer to distinct offenders, as people who are apprehended for more than one offence are counted once for each offence. See Section 2.3 for more detail on statistics sourced from New Zealand Police.
2. Murder, manslaughter and attempted murder.
3. Sexual violation, attempted sexual violation and indecent assault.
4. Grievous and serious assaults, including assaults by males on females and assaults on children. Grievous assaults include assault with a weapon, wounding with intent and injuring with intent, but also include aggravated wounding or injury, disabling, doing a dangerous act with intent, acid throwing and poisoning with intent to cause grievous bodily harm. Serious assaults include common assault under the Crimes Act 1961, but also include assault with intent to injure, injuring by an unlawful act and aggravated assault (including assault on a Police officer or a person assisting the Police under the Crimes Act 1961).
5. Mainly common assault under the Summary Offences Act 1981.
6. Mainly unlawfully getting into or interfering with a motor vehicle, unlawfully taking a bicycle, receiving stolen property and fraud-related offences.

Table 3.4. National Annual Apprehensions for the Latest 10 Calendar Years: 14-16 Rates of Offending per 10,000 population of 14-16 year olds.

Table 3.4 Police apprehension rates per 10,000 population of 14 to 16 year olds for non-traffic offences, by offence type, 1995 to 2006

Notes

1. The data used to produce this table were sourced from New Zealand Police. For consistency with the rest of the report, offences were grouped using the Ministry of Justice offence classification rather than the Police classification. The miscellaneous category includes a small number of apprehensions that were classified as unknown. The figures in this table do not refer to distinct offenders, as people who are apprehended for more than one offence are counted once for each offence. See Section 2.3 for more detail on statistics sourced from New Zealand Police.
2. Rates per 10,000 have been calculated using population estimates for the 14 to 16 age group in Table 2.1. See Section 2.2.1 for more detail on population estimates sourced from Statistics New Zealand.
3. Murder, manslaughter and attempted murder.
4. Sexual violation, attempted sexual violation and indecent assault.
5. Grievous and serious assaults, including assaults by males on females and assaults on children. Grievous assaults include assault with a weapon, wounding with intent and injuring with intent, but also include aggravated wounding or injury, disabling, doing a dangerous act with intent, acid throwing and poisoning with intent to cause grievous bodily harm. Serious assaults include common assault under the Crimes Act 1961, but also include assault with intent to injure, injuring by an unlawful act and aggravated assault (including assault on a Police officer or a person assisting the Police under the Crimes Act 1961).
6. Mainly common assault under the Summary Offences Act 1981.
7. Mainly unlawfully getting into or interfering with a motor vehicle, unlawfully taking a bicycle, receiving stolen property and fraud-related offences.

Grievous/Serious Assault Data — Unpacked.

We at "Court in the Act’ were particularly interested in unpacking the apprehension numbers and rates for grievous assaults for 14-16 year olds for the years 1995 – 2006. Much is made of the increase in numbers of violent offences for this age group and we wanted to see whether the increase was actually due to top-end offences or whether there was another explanation.

The Results

There has been a large increase in rate of apprehensions for the least serious offence within this category, that is common assault for which the rate has increased from 27 per 10,000 of population in 1995 to 37 per 10,000 in 2006.

The numbers for common assault are significantly higher than other types of offences, so that it would appear that the bottom end offending accounts for most of the overall increase in apprehensions for grievous/serious assault offences.

Assault with a weapon, and wounding with intent have also increased significantly.

Male assault female apprehensions have remained fairly constant over the last 10 years, with the rate fluctuating between 5 and 7 per 10,000.

Note: the tables do not refer to distinct offenders, as people who are apprehended for more than one offence are counted once for each single offence.

Table 4 Number of Police apprehensions of 14 to 16 year olds for grievous/serious assault offences, by offence type, 1995 to 2006

Notes

1. The data used to produce this table were sourced from New Zealand Police. For consistency with the Youth
   Justice annual report, offences were grouped using the Ministry of Justice offence classification rather than the Police
   classification. The figures in this table do not refer to distinct offenders, as people who are apprehended for more
   than one offence are counted once for each offence.
2. Offence types with small number of apprehensions must be treated with caution, as significant percentage
   changes between these years are due to the small numbers.

Table 5 Police apprehension rates per 10,000 population of 14- to 16-year-olds for grievous/serious assault offences, by offence type, 1995–2006

Notes

1. The data used to produce this table were sourced from New Zealand Police. For consistency with the classification
   used for courts statistical reports, offences were grouped using the Ministry of Justice offence classification rather
   than the Police classification. The figures in this table do not refer to distinct offenders, as people who are appre-
   hended for more than one offence are counted once for each offence.
2. Rates per 10,000 have been calculated using population estimates for the 14 to 16 age group sourced from
   Statistics New Zealand, see Table 2.1 for population estimates as presented in the annual report titled ‘Youth
   Justice Statistics in New Zealand: 1992 to 2006’.
3. The offence types are marked with an * to signify that there were ten or fewer apprehensions, these values
   must be treated with caution as the rate is calculated from small numbers

Table 6 National Annual Apprehensions for Violence Offences for the Latest 10 Calendar Years : 14-16 and Adult Age Groups: Numbers 1997 - 2006

Youth Offending Rates Consistent With The Rest of the Population

This table clearly demonstrates that the increase in apprehensions for violent offending over the last 10 years is not solely a "Youth" problem. The rate of the increase in apprehensions for serious violent youth offending mirrors that in almost all other cohorts of the population (except 10 –13 year olds, see Table page 2).

Free Legal advice and Representation Available to Children and Young Persons by Robert Ludbrook

Obligation on Police to Advise Children and Young Persons of Free Legal Advice and Representation Available through Emergency By Robert Ludbrook, Legal and Policy Consultant

There has been a significant enhancement of the rights of children and young persons being interviewed by the police. It is now necessary for the police, in addition to advising young suspects of their entitlement to consult with a lawyer, to advise them of the availability of a lawyer without cost under the Police Detention Legal Assistance Scheme.

This change has come about through combined effect of a Practice Note issued by the Chief Justice effective from 1 August 2007 and a High Court decision by Justice Baragwanath in June 2007.

Practice Note on Police Questioning

This Practice Note issued by the Chief Justice pursuant to s30(6) Evidence Act 2006 restates the Judges Rules and incorporates the advice requirement in s23 New Zealand Bill of Rights Act 1990. The Practice Note applies to adult suspects as well as those under 17 years. Paragraph 2 of the Practice Note states that whenever a member of the police has sufficient evidence to charge a person or seeks to question a person in custody the person must be cautioned before being invited to make a statement or to answer questions. It states that the caution to be given includes:

(b) that the person has the right to consult and instruct a lawyer without delay and in private before deciding whether to answer questions and that such right may be exercised without charge under the Police Detention Legal Assistance Scheme (emphasis added).

Case law on obligation of police to advise suspect or availability of free legal advice

It was said in R v Mallinson [1993] 1 NZLR 528; (1992) CRNZ 707 (CA) that

"There is no duty on the police when informing persons arrested of their right to a lawyer to go on to give advice designed to facilitate the exercise of that right … any duty to facilitate the manner of its exercise is not triggered until there is an indication by the person arrested of the desire to consult with a lawyer (at 531, 710).

R v Mallinson involved an adult arrestee and was concerned with the accused’s rights under s23(1)(b) Bill of Rights Act which states that every person who is arrested or detained shall have the right to consult and instruct a lawyer without delay and to be informed of that right.

The authors of Thomson/Brookers Child Law II Youth Justice have expressed the view that "If a right to the advice and assistance of a lawyer is to be meaningful to a young suspect, the child or young person must be aware that the attendance of a lawyer at the police station can be arranged without cost and that, once a request is made, questioning will be delayed until the lawyer has arrived. Children and young persons are less likely to have had a previous connection with a lawyer and to be aware of schemes that provide free legal advice for young suspects": para YJ6.3.03.

The Court of Appeal in R v H 26/7/02 CA 214/02 was concerned with a 15 year old who was suspected of committing a very serious offence. The police officer advised the young person that he could speak to a lawyer and that if he wished to speak to his own lawyer he could use the yellow pages or a phone book. He was further informed that the police had a list of lawyers available to give advice to suspects. The Court of Appeal followed its earlier decision in Mallinson but left open the question whether the police must advise a young suspect of the availability of free legal assistance through the Police Detention Legal Aid (PDLA) Scheme if the question of cost was raised by the young person.

In the earlier decision Batisch v Ministry of Transport: Keni v Police (1993) 10 CRNZ 623; 1 HRNZ 333 (CA) the Court of Appeal had declined to adopt as a general principle the decision in R v Brydges (1990) 1 SCR 190 where the Canadian Supreme Court had decided that, as a matter of routine in all cases of arrest or detention, an accused must be informed of the availability of a roster of lawyers whose services are available free of charge. The Court of Appeal in Batisch held that each case must be decided on its own facts and that what is required is a proper informative notification of the suspect’s statutory rights tailored and appropriate to the particular circumstances. It should be noted that Batisch was decided before the PDLA scheme had been established and was influenced by the fact that the Legal Services Act 2002 did not at that time provide legal aid for police station advice. The scheme, which now has statutory force under ss49 to 52 Legal Services Act 2000, was established with the object of ensuring that there is available a sufficient number of lawyers to provide legal advice, or legal assistance, or both, to any unrepresented persons who:

• wish to consult or instruct a lawyer about any matter relating to their questioning by the police in relation to the commission of an offence; or
• are detained by the police, with or without arrest, and are entitled, under s23(1)(b) Bill of Rights Act 1990 to consult and instruct a lawyer without delay: s51(1) Legal Services Act.

The need for the police to advise young suspects of their right to free legal assistance came before the Court of Appeal in R v Alo 3/5/2007 CA/155/06 where it was argued that the principle in Mallinson did not apply and that a young suspect should be given information as to how a suitable lawyer could be contacted and that legal advice and representation could be obtained without cost. The Court was divided but, after reviewing the competing policy issues, held that there is no absolute requirement for the police to advise suspects of the PDLA scheme but failure to give such advice will be in breach of the Bill of Rights Act if:

• The circumstances at the time of the interview, including the suspect’s age, experience and remarks, provide a substantial basis for believing that the suspect might not have appreciated that he or she had a practical ability to obtain legal advice;
• The defendant provides an evidential basis for the contention that he or she chose not to take legal advice because of cost considerations;
• The Crown cannot disprove that contention on the balance of probabilities.

Court In The Act is published by the Chambers of the Principal Youth Court Judge Judge Andrew Becroft and edited and produced by Tracey Cormack and Timothy Hall Research Counsel to the Principal Youth Court Judge.

Court In The Act welcomes contributions or comments from anyone involved in youth justice in New Zealand or overseas.

Phone 0064 4 914 3465 (Tracey) 0064 4 914 3452 (Tim) Email courtintheact@justice.govt.nz

Hugh Court decision in R v Z

The right of a young suspect to be informed of the availability of free legal assistance received close consideration in R v Z 23/6/07, Baragwanath J HC Auckland CRI 2006-204-0487 where Justice Baragwanath examined the differences between the Bill of Rights Act provisions and those in the Children, Young Persons and their Families Act. He noted that the general policy of the law is that a statement by a person who has been detained or arrested is admissible but that the general policy in respect of under-17s is precisely the reverse: a statement is to be excluded unless the provisions in the CYPF Act are complied with. That policy conforms with the principle is s208(h) that a child or young person is entitled to special protection – a principle that is also reflected in Care of Children Act 2004. His Honour remarked that the fact that the majority in Alo had emphasised the importance of the suspect’s age and this, taken together with the strength of the dissenting judgment of Chambers J in that case, suggested that young suspects must be advised of the means of getting practical access to legal advice so that the decision not to request such advice is truly autonomous. He added that:

"The need for an immediate response requires a learned capacity to give a considered reply; young people are not as a rule familiar with lawyers and means of access to them and cannot be said to have any intuitive capacity. There is no factual basis for a finding that young people generally have learned the skills required to secure a lawyer with or without fee. There is therefore a powerful case for making mandatory advice to young suspects as to how they can realistically secure legal advice".

The view that a young suspect’s right to legal advice and assistance is not effectively met unless he or she has the information necessary to exercise that right seems unassailable. It is fortified by the requirement in s215(1) CYPF Act that the police officer must explain to the child or young person his or her right to a lawyer (a stronger term than be informed of in s23(1)(b) Bill of Rights Act) and the further requirement in s218 that the explanation of rights shall be given ‘in a manner and in language that is appropriate to the age and level of understanding of the child or young person’. The right under the Practice Note to be informed of the availability of a lawyer without charge under the PDLA scheme is restricted to situations where the police have sufficient evidence to charge a person with an offence or where the police seek to question a person in custody. The decision in R v Z is not so restricted and applies to any situation where the police ask a question intended to obtain an admission of an offence (s215 CYPF Act) or where a child or young person is in hospital.

These changes are likely to mean that more children and young persons will seek assistance from the Police Detention Legal Aid Scheme and members of PDLA panels will need to familiarise themselves with the specific protections afforded to children under the CYPF Act. The changes may provide an incentive for youth advocates to join the PDLA scheme as many young persons have made damaging admissions before they have the opportunity to receive advice from their youth advocate.

Robert Ludbrook
28/8/07

TRANSFER PROVISIONS NOT EFFECTIVE

"Research from the United States of America shows that young offenders are not being deterred by the threat of receiving criminal sanctions following direct waiver.’

Summary, "New Campaign for Youth Justice Launched to End the Practice of Trying Youths as Adults"

By Roger Ghatt and Seth Turner, in Juvenile and Family Justice Today/Summer 2007 –15

On March 21 2007, a new national campaign was unveiled in the USA, - The Campaign for Youth Justice (CFYJ) - designed to end the practice of trying youths as adults.

The CFYJ report The Consequences Aren’t Minor: The Impact of Prosecuting Youth as Adults and Strategies for Reform examined state-level policies that emerged in the 1990’s due to predictions of a violent crime wave in the 1990s caused by young "superpredators". The predictions did not come true, but in the meantime nearly every state passed laws to make it easier to try and sentence youths in the adult Courts. The report highlighted the following:

• Most often the decision to transfer youths to adult courts is not made by Youth Court Judges
• Most youths tried as adults are charged with non-violent offences.
• Placement of youths in adult jails is increasing – where they are at increased risk of assault, abuse and death.
• Laws allowing youths to be tried as adults do not promote public safety
• Access to effective legal counsel is a deciding factor on whether a youth is prosecuted as an adult.
• Transfer laws ignore the latest scientific evidence on the adolescent brain – the same evidence that barred the juvenile death penalty
• State laws contradict core federal protections which are supposed to prohibit youths from being confined with adult inmates.
• Youths of colour are disproportionately affected by these policies.

The report recommends that judicial transfer (waiver) should be a judicial decision only. Public polls supported this recommendation. Other state-level policy recommendations include:

• Increasing the age of juvenile Court jurisdiction to 18
• Ending the placement of youths in adult jails and prisons
• Increasing options for sentencing young offenders as adults
• Redirecting resources to expand developmentally appropriate treatment and service for youth
• Investment in quality legal counsel for youth.

Transfer Provisions are Not Effective.

Recent related research from the United States of America shows that young offenders are not being deterred by the threat of receiving criminal sanctions following direct waiver.

Benjamin Steiner & Emily Wright, have published their findings following studies evaluating the effectiveness of the waiver, or transfer laws in Assessing the Relative Effects of State Direct File Waiver Laws on Violent Juvenile Crime: Deterrence or Relevance?

The use of transfer provisions or "waiver" laws are justified as a deterrent for those young people who are considered to be beyond the rehabilative measures of a Youth Court, but those arguments are not necessarily convincing. Recent research from the United States has assessed the effects of ‘direct file waiver laws’ in fourteen states and the District of Columbia.

The findings from the study do not support the conclusion that young offenders are being deterred by the threat of receiving criminal sanctions following direct waiver. The analysis showed that the direct file law had a deterrent effect in only one state. The other thirteen states had either no effect or experienced an increase in their arrest rate for violent youth crime.

FETAL ALCOHOL SPECTRUM DISORDER

"A 2006 study showed that around 50% of women believed that some alcohol consumption in pregnancy was safe and nearly 20% had binged on at least one occasion in pregnancy."

Excerpts from an Alcohol Healthwatch briefing paper, "Fetal Alcohol Disorder in New Zealand: Activating the Awareness and Intervention Continuum"

This paper outlines current knowledge of Fetal Alcohol, Spectrum Disorder, FASD. This disorder is caused by alcohol consumption by the mother during pregnancy. The paper also explores the situation in New Zealand regarding its prevention and treatment.

The Disorder

Alcohol is toxic to the fetus, particularly to its developing central nervous system. FASD can cause permanent disabilities. As these disabilities are preventable, intervention is a critical public health issue. There is no known safe level of exposure to alcohol during pregnancy and the possible adverse effects can vary depending on for example, the timing of the exposure and the amount of alcohol consumed.

Fetal Alcohol Syndrome, FAS is regarded as the leading preventable cause of mental retardation in the developed world and is estimated to affect 1 in 100 live births. The resulting disabilities may be associated with conditions such as Attention Deficit Disorder, Autistic Spectrum Disorder or Conduct Disorder.

The New Zealand Position

The number affected is largely unknown, but on estimates of 1 case per 100 live births, New Zealand could expect 500 new cases per year.

A 2006 study showed that around 50% of women believed that some alcohol consumption in pregnancy was safe and nearly 20% had binged on at least one occasion in pregnancy.

Alcohol and Pregnancy Advice in New Zealand

Medical advice on alcohol consumption during pregnancy is mixed.

A survey of medical practitioners over 11 years revealed that less than half of the doctors surveyed advised pregnant woman to abstain from alcohol, however most midwives advised abstinence, but 79% wanted more training in effective communication about alcohol and pregnancy.

There is a debate about the amount of alcohol that is safe to drink, with some advocating ‘moderate’ intake, which conflicts with official advice that there is no known safe level of alcohol consumption during pregnancy.

FASD COSTS

The costs have never been estimated in New Zealand, but overseas evidence in Canada for example, suggests that the life-time care cost of $1 million per person costs taxpayers an extra $4 billion every year.

Recommended Actions in New Zealand

Acknowledgement of the level of drinking in New Zealand requires urgent nationwide action.

Culturally appropriate, non-judgmental prevention programmes to high risk groups should be implemented.

Research into the advice that pregnant women are receiving and the provision and resourcing of education programmes to the primary health care section is required. There needs to be an acceptance that the international cost estimates of FASD are applicable in New Zealand.

We must acknowledge that FASD is already costing New Zealand, and undertake an econometric study of the likely cost and cost effectiveness of establishing, integrating and maintaining FASD prevention and early intervention.

New Zealand Policy

Compared to other countries there has been little development of policy relating to FASD in New Zealand.

Current Policy Includes:

Priority three of the National Drug Policy 1998-2003 is "the reduction in the prevalence of drinking among pregnant women and women planning pregnancy"

The National Drug Policy 2007-2012 (NDP) recognises that alcohol-related harm includes "birth defects, including Fetal Alcohol syndrome and other permanent disabilities" A strategy based on the NDP has not yet been developed.

The existing National Alcohol Strategy 2000- 2003 has identified outcomes of a reduction in drinking among pregnant women, and states that "indicators/targets cannot be identified until baseline data are generated" The Ministry of Health strengthened their advice regarding drinking during pregnancy in 2006. Policy and programmes have not been developed, possibly due to the lack of evidence of the prevalence and incidence of FASD in New Zealand.

FASD has limited recognition as a disability in New Zealand. Support is offered when an intellectual threshold is met, that being an IQ of under 70.

There is currently no indication that FASD is considered systematically as a specific policy issue within the Mental Health Directorate and associated services.

Moving Forward on FASD prevention

Prevention measures need to be carried out with social, not economic imperatives in mind. It is important that while raising awareness of this sensitive issue, that any stigma and guilt be reduced and to ensure adequate follow-up support is available.

There needs to be a continuous delivery of health messages about drinking during pregnancy through the media. Information should be available on a planned, proactive and sustained communication strategy.

Secondary prevention aims to reach specific subgroups in society, such as adolescent pregnancies.

Universal and targeted screening will provide an effective early intervention opportunity to reduce the risk of alcohol use disorder on women and will ensure that all women are considered and treated equally.

High-risk factors for mothers of children with full FAS include poverty, having more than 3 children, a family background of alcohol abuse and starting drinking at an early age.

Early intervention for high-risk women and children.

Comprehensive early intervention programmes have been implemented in a programme in Toronto which has reduced harm by using several integrating theoretical frameworks such as harm reduction, relational theory and attachment theory.

In New Zealand, the closest model to an integrated service is the Pregnancy and Parental Service of Community Alcohol and Drug Services in Auckland.

It does not have an integrated child assessment service. The model could be expanded to include children and support for families.

Improving the outcome for the affected child Suggested actions

A nationwide skills training programme from the health sector and allied workforce.

National guidelines for the support and treatment of FASD. Training programmes for all relevant sectors to increase understanding of appropriate responses to address the needs of affected children.

Ensuring the eligibility for government funded services includes criteria that reflect the functional and behavioural deficits of development disorders like FASD to reduce the risk of secondary disability and family burnout.

ASSESSMENTS NEEDED for Childhood learning Disabilities

Moira Buchanan, founder of LBCTNZ, trading as Hope Train International has suggested that the area of Youth Offending should be in the office of the Principal Youth Court Judge.

"At the moment all Child/Youth offending comes under CYPFA, but as has happened in the past and is still happening now, FGC’s and their outcome is usually determined before it has even taken place. Judgments are made on young people before all the facts, including behaviours are investigated"

Buchanan argues there could be neurological differences, related to any of the following conditions. All of these conditions have are accompanied by a great lack of self-esteem, lack of confidence and depression.

Dyslexia

ADD/ADHD

Dyspraxia

Dysgraphia

Hyperlexia

Hyper-sensitive Hearing

Aspergers Syndrome

Autistic Syndrome

Buchanan believes that all youth, from 12 to 18 years should be assessed for their neurological pathways at their first or second offending. She says this can be done very quickly and with simple questions.

"CYPFS need to identify if the young person or persons have any learning or behaviour challenges, as these can and do impede their personal judgment." This is quoted as "best practice for the child" in the United Nations Charter Rights of the Child.

Buchanan argues that youth aid police, tactical team police, probation officers, counsellors, CYFS social workers, Youth Court Judges and any others that have input to the future of young people all should be given the tools to help these young people.

At all meetings surrounding the young person, the young person should have input. If the offending is in a low category it should be encouraged that the offender and the victim work together with support, so the offender can learn respect and responsibility from within all those who are part of the teamwork to encourage positive engagement for all.

Dyslexia summarised from www.ninds.nih.gov/disorders/ dysgraphis/dysgraphis.htm National Institute of Neurological Disorders and Stroke.

Dyslexia is a brain-based type of learning disability that specifically impairs a person's ability to read. These individuals typically read at levels significantly lower than expected despite having normal intelligence. Although the disorder varies from person to person, common characteristics among people with dyslexia are difficulty with phonological processing (the manipulation of sounds) and/or rapid visual-verbal responding.

The main focus of treatment should be on the specific learning problems of affected individuals. The usual course is to modify teaching methods and the educational environment to meet the specific needs of the individual with dyslexia. The prognosis for dyslexia is mixed as the disability affects such a wide range of people, producing different symptoms and varying degrees of severity, that predictions are hard to make. The prognosis is generally good, however, for individuals whose dyslexia is identified early, who have supportive family and friends and a strong self-image, and who are involved in a proper remediation program.

Current research avenues focus on developing techniques to diagnose and treat dyslexia and other learning disabilities, increasing the understanding of the biological basis of learning disabilities, and exploring the relationship between neurophysiological processes and cognitive functions with regard to reading ability.

Dyspraxia – summarised from www.dyspraxia.org.nz

Dyspraxia, also known as developmental dyspraxia, is a neurologically based disorder of the processes involved in the planning of movement (praxix) to achieve a purpose. The condition may affect the acquisition and execution of new skills. Dyspraxia may affect physical, intellectual, emotional, social, language and sensory development. It may impair the normal process of learning and thus is a learning difficulty. It affects each person in different ways and at different stages of development and to different degrees.

Children with this handicap appear no different than their peers, until new skills are tried out and difficulties become apparent.

The World Health Organisation has stated in their "Diagnostic and Statistical Manual IV" that dyspraxia affects 6% of all children to varying degrees.

Therapy covers many areas, and may include perceptual motor training, speech and language therapy, maths and numeracy, reading and literacy, spelling, environmental manipulation, behavioural modification, and medication and treatment for any other disorders.

The main aim of treatment is to help the child to achieve his or her potential. Without the appropriate help at the right time, the child may grow into an extremely frustrated and possibly unemployable adult. There are those, who without early help, are a drain on out welfare and prison systems, and live with constant frustration.

ADHD summarised from www.adhd.org.nz/define1.html "

Attention Deficit Hyperactivity Disorder, ADHD, is an early onset, biological disorder, classically characterised by a triad of symptoms: hyperactivity, inattention and impulsivity. These 3 symptoms are persistent and at developmentally inappropriate levels."

While much of what is written about ADHD is the subject of debate, the following information is generally agreed upon by the wider medical and scientific community.

The Diagnostic and Statistical Manual of Mental Disorders (4th Edition) breaks ADHD into 3 sub-categories:

i. Attention deficit/hyperactivity disorder: combined type.

ii. Attention deficit/hyperactivity disorder: predominantly inattentive

iii. Attention deficit/hyperactivity disorder: predominantly hyperactive or impulsive

In New Zealand the exact number of children is not known, however in the USA approximately 2-5% of the school population has been diagnosed with one of the 3 types of ADHD. ADHD is 3 to 4 times more likely to occur in males than females.

The cause of ADHD is unknown, but it is agreed that it is biological in nature. Possible factors include genetics, exposure to toxins, and episodes of oxygen deprivation or exposure to toxins during pregnancy.

Two-thirds of children who have ADHD may have additional problems. 30-50% may have conduct disorders, and 20-30% may have anxiety problems. 20-30% of ADHD children also have learning problems and up to 30% have delayed motor development.

ADHD is not curable, but can be managed with behavioural and pharmacological regimes.

Dysgraphia summarised from www.ninds.nih.gov/disorders/ dysgraphis/dysgraphis.htm National Institute of Neurological Disorders and Stroke.

Dysgraphia is a neurological disorder characterised by writing disabilities. It causes a person’s writing to be distorted or incorrect. The disorder emerges when children are introduced to writing. They make inappropriately sized and spaced letters, or write misspelled words, despite thorough instruction. These children may have other learning disabilities, but usually do not have any other social or academic problems. Dysgraphia is also characterised by wrong or odd spelling. The cause of the disorder is unknown.

Treatment may include treatment for motor disorders to help control writing movements and other treatments may address impaired memory or other neurological problems. Some physicians suggest that people with dysgraphia use computers to avoid the problem. Some individuals with dysgraphia improve their writing ability, but for others, the disorder persists.

Hyperlexia summarised from www.hyperlexia.org/ aha_what_is.html

Hyperlexia is a syndrome observed in children who have an ability to read words, far above what would be expected at their chronological age. They may have significant difficulty in understanding verbal language and abnormal social skills and difficulty in socialising and interacting appropriately with people.

Some children who are hyperlexic may also learn expressive language in a peculiar way, echo or memorise the sentence structure without understanding the meaning. A hyperlexic child rarely initiates conversation, has an intense need to keep routines and may exhibit ritualistic behaviour. In addition they may have unusual fears, have difficulty with abstract concepts and have difficulty answering questions such as ‘‘what," "where," "who" and "why".

Hyperlexia has characteristics similar to other disorders, such as autism, behaviour disorder, language disorder, emotional disorder, Attention Deficit Disorder, hearing impairment, giftedness or, paradoxically, mental retardation. Effective teaching strategies differentiate hyperlexia from other disorders. A thorough speech and language pathologist who is familiar with the syndrome of hyperlexia is a crucial first step. Psychological tests which emphasise visual processes rather than verbal skills aid in identifying hyperlexia.

The prognosis for a hyperlexic child depends on developing language expression and comprehension skills. Speech and language therapy and early intervention programs can help achieve this objective.

It is important to teach the child appropriate social skills. Providing opportunities for the child to interact with children whose behaviour is more socially appropriate is one way to accomplish this.

Asperger Syndrome summarised from www.ninds.nih.gov/ disorders/dysgraphis/dysgraphis.htm National Institute of Neurological Disorders and Stroke.

Asperger syndrome (AS) is a developmental disorder. It is an autism spectrum disorder (ASD), one of a distinct group of neurological conditions characterised by an impairment in language and communication skills, as well as repetitive or restrictive patterns of thought and behaviour. Unlike children with autism, children with AS retain their early language skills.

The most distinguishing symptom of AS is a child’s obsessive interest in a singular interest to the exclusion of any other. Children with AS want to know everything about their interest and their conversations with others will be about little else. Other characteristics of AS include repetitive routines or rituals; peculiarities in speech and language; socially and emotionally inappropriate behaviour and the inability to interact successfully with peers; problems with non-verbal communication; and clumsy and uncoordinated motor movements.

Children with AS are isolated because of their poor social skills and narrow interests. They may approach other people, but make normal conversation impossible by inappropriate or eccentric behaviour, or by wanting only to talk about their singular interest. Children with AS usually have a history of developmental delays in motor skills. They are often poorly coordinated with a walk that can appear stilted. Ideal treatments for AS coordinates therapies that address the three core symptoms of the disorder: poor communication skills, obsessive or repetitive routines, and physical clumsiness. Most professionals agree that the earlier the intervention, the better.

An effective treatment program builds on the child’s interests, offers a predictable schedule, teaches tasks as a series of simple steps, actively engages the child’s attention in highly structured activities, and provides regular reinforcement of behaviour. It may include social skills training, cognitive behavioural therapy, medication for co-existing conditions, and other measures.

With effective treatment, children with AS can learn to cope with their disabilities, but they may still find social situations and personal relationships challenging. Many adults with AS are able to work successfully in mainstream jobs, although they may continue to need encouragement and moral support to maintain an independent life.

Research includes studies to understand what causes AS and how it can be effectively treated. One study is using functional magnetic resonance imaging (fMRI) to show how abnormalities in particular areas of the brain cause changes in brain function that result in the symptoms of AS and other ASDs. The effectiveness of an anti-depressant in individuals with AS and HFA is being trialed.

Autistic Syndrome summarised from www.ninds.nih.gov/ disorders/dysgraphis/dysgraphis.htm National Institute of Neurological Disorders and Stroke.

Autism (sometimes called "classical autism") is the most common condition in a group of developmental disorders known as the autism spectrum disorders (ASDs).

Autism is characterised by difficulties with social interaction, problems with verbal and nonverbal communication, and repetitive behaviours or narrow, obsessive interests. These behaviours can range in impact from mild to disabling. Autism varies widely in its severity and symptoms and may go unrecognized, especially in mildly affected children or when more debilitating handicaps mask it. The cause of autism is uncertain, but it’s likely that both genetics and environment play a role.

There is no cure for autism. Therapies are designed to remedy specific symptoms and can bring about substantial improvement. The ideal treatment plan coordinates therapies and interventions that target the core symptoms of autism. Most professionals agree that the earlier the intervention, the better.

For many children, autism symptoms improve with treatment and with age. Some children with autism grow up to lead normal or near-normal lives. Children whose language skills regress early in life, usually before the age of 3, appear to be at risk of developing epilepsy or seizure-like brain activity. During adolescence, some children with autism may become depressed or experience behavioural problems.

Correction: Court in the Act Issue 30

Page 2 Supervision with Activity Orders The table on page 2 incorrectly recorded the 5th and 13th rating as "Whakatane".

The correct 13th rating should have read "Waitakere".

Apologies for the error.– Eds. Issue 31 Page 14

Health and Education Assessment Programme

The Health and Education Assessment Programme is an interagency collaboration (Ministry of Health, Child Youth and Family, Ministry of Education) aimed at reducing re-offending by children and young people.

The programme is funded with $1.16 annually to provide 460 Education and 1110 Health and Education Assessments, and recruitment and training of assessors.

Key Objectives

1. To complete assessments before the Family Group Conference (FGC).

2. To inform FGC decision making

3. To have recommendations specifically addressing issues that are contributing to re-offending

Eligibility

All child offenders subject to a FGC and young offenders subject to a first FGC are eligible. The programme is designed to target young people where a health or education issue becomes known or suspected during the consultation and convening process.

The co-ordinator has the responsibility to ensure the FGC is well informed and that the young person has the opportunity to give their informed consent.

What happens to the Assessments?

The assessments inform the FGC and matters raised in the assessments are then reflected in the FGC plans and the recommendations are made available to the Court.

Progress

The first 12 months of the programme 350 children/young people were referred and 292 assessments were completed. There has been 160 referrals in the first quarter of the second 12 month period, which amounts potentially to 640 referrals and 512 assessment for this year.

Youth Justice Managers

The role of the Youth Justice Manager, (YJM) is to promote collaboration between the agencies or individuals providing the assessments and to ensure the Coordinators are making the assessments available to appropriate client. The YJM will advise the Programme Coordinator of any issues that might prevent assessments being completed and work with the Coordinator to ensure the programme runs successfully. Monitoring

The programmes are monitored, by a central monitoring group that meet monthly. Reports are completed quarterly.

Key Contacts:

Mark Thorburn, Ministry of Education
Shelly Dean, Ministry of Education
Colin Hamlin, Ministry of Health
Janette Thompson, Child Youth and Family

Decision not to transfer….R v LF, 17 August 2007, Youth Court, Waitakere, CRI-2005-004-014541, Judge P Recordon