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T v Department of Social Welfare (1989) 6 FRNZ 100 (HC)

Case summary provided by BROOKERS

Name: T v Department of Social Welfare
Reported: (1989) 6 FRNZ 100
File number: M2031/89
Date: 19 December 1989
Court: High Court
Location: Auckland
Judge: Gault J
Charge: Aggravated Robbery, Kidnapping, and Unlawfully Taking a Motor Vehicle
CYPF no: s368
Key Title: Secure Care
Brooker’s Summary:

Children and young persons - Secure care - Custody orders made in respect of young person - 16-year-old charged with serious offences involving violence - Application for review of decision to detain young person in secure care - Procedure - Civil proceedings to be proved to the satisfaction of the Court - Welfare and interests of child or young person paramount factor - Children, Young Persons and Their Families Act 1989, ss 368, 375, 376, 379, 440.

The applicant, a 16-year-old, had been in the care of the department for some time residing at the Owairaka Boys Home. He had a background of absconding from the home and on one occasion had threatened suicide. In November 1989 he was placed in secure custody at Owairaka Centre following his arrest on charges of aggravated robbery, kidnapping, and unlawfully taking a motor vehicle. The Youth Court Judge held that both grounds under s 368 Children, Young Persons and Their Families Act 1989 ("the Act") had been made out and ordered continued detention of the applicant in secure care for a period of 14 days. The applicant applied for a review of that decision under s 379 of the Act.

Held, declining the application:

(1) The appropriate procedure for applications to this Court under s 379 for review of an order approving or renewing detention in secure care is that prescribed in Part IV of the High Court Rules. The Act is not concerned with review in the administrative law sense confined to the legality of the decision. On review the appropriate course is for the Court to examine the decision and the grounds and evidence on which it was made together with any new matter put forward, and then to consider whether the young person should be further detained in secure care.

(2) Proceedings in respect of an application for secure care are civil in nature. The appropriate standard of proof is to be found in the wording of the statute, ie "... the Judge must be ‘satisfied’ ". This implies the weighing of the opposing contentions and the reaching by the Judge of a clear conclusion that a substantial ground exists.

(3) In light of the limited time available to the parties in proceedings under s 371, to exclude relevant and perhaps vital information because it was not specified in the original notice of application would be unrealistic. Where full notice has not been given, the child or young person and his/her parents must be treated fairly. The Judge hearing the application must be alert to possible prejudice or injustice and must ensure that opportunity is given to address any matters of which notice has not been given.

(4) The finding on s 368(a), although not necessary, is not precluded by lack of notice in the application in this case. However this might not be so in [(1989) 6 FRNZ 100, 101]another case. Each case will turn on its own facts and upon the principles of fairness and the welfare of the child or young person.

(5) The wording of s 376(1) does not justify the conclusion that on any application, however notified, it is open to the Court to make an order for detention on either or both of the grounds specified in s 368. The order that can be made in a particular case will depend upon the terms of the application and all of the circumstances.

(6) The purpose of s 375 of the Act, when read with the general guiding principles in s 5, appears to be to avoid the threatening or inhibiting environment of a Court when dealing with the issue of the care of a child or young person. A decision as to the venue of the hearing must be made when the application is filed so that notice can be given to those served. The hearing is to be held at the residential home unless that course is not practicable. The hearing in this case should have been held there. However in this case there was no miscarriage of justice in the failure to conduct the hearing at the residential home and to the extent that there was an irregularity it is saved by s 440 of the Act.

(7) The stringent requirements of s 368 are to be read in conjunction with the overriding discretion conferred by the word "may" in the section which must be exercised having regard to the general principles in ss 5(c) and 6 of the Act. They clearly make the welfare and interests of the child or young person a paramount factor.

(8) Secure care is not to be approved as a punishment for absconding or otherwise, nor is it merely to prevent the nuisance of young people absenting themselves. Unless the grounds are made out an order cannot be made. Section 368(a) requires not only previous absconding and a real likelihood of future absconding, but also a likelihood of harm to the physical, mental, or emotional wellbeing of the child or young person if he or she absconds. This last requirement in subpara (iii) is very broad. It extends to the impact on the child or young person, not only of the further absconding, but also of his or her likely conduct, company, and lifestyle, having absconded. Section 368(b) provides a narrower ground, not necessarily related to absconding, although it would extend to behaviour outside the custody of the department. There is a real likelihood that this young person will abscond again, will further offend, and in so doing will put at risk of physical harm himself and others. He must be prevented from absconding and secure care seems the only short term way of achieving this.

Obiter, upon an application for renewal of approval to detain a young person in secure care, the department must present to the Court its assessment of the appropriateness of continued detention in light of the detention under the previous order or orders, any response to counselling and other programmes and any relevant changes in attitudes of the family or whanau and to bring to the Court such material as will assist it at the time of the application for renewal in determining whether continued secure care is necessary.

Obiter, it is a real likelihood that Youth Court Judges will come to know particular young persons well and, while knowledge of background must never intrude into consideration of the proof of criminal offences, it is appropriate that it should be taken into account where it may assist in determining the appropriate form and circumstances of care of a young person. The Act clearly permits it and there is no reason in principle why this should not occur, so long as opportunity is given to the young person by his or her advocate to address any matters to be relied upon.

Cases referred to

Angland v Payne [1944] NZLR 610 (CA)
Devonport Borough Council v Local Government Commission [1989] 2 NZLR 203
Graebar Holdings Ltd v Taylor [1989] 2 NZLR 10; (1987) 1 PRNZ 608 (CA)
Hopper Group Ltd v Parker 24/9/86, Wylie J, HC Auckland A192/84

Application

This was an application under s 379 Children, Young Persons and Their Families Act 1989 for a review of the decision of a Youth Court Judge that the applicant, a young person, be detained by the Department of Social Welfare in secure care.

The facts appear from the judgment.