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Department of Social Welfare - v- Bts (A Young Person) (1992) 9 FRNZ 670 (DC)

Case summary provided by BROOKERS

Name: Department of Social Welfare v Bts (A Young Person)
Reported: (1992) 9 FRNZ 670
File number: MP166/92
Date: 21 October 1992
Court: District Court
Location: Otahuhu
Judge: Harvey DCJ
Charge:
CYPFA: s5; s6; s368, s371
Key Title: Secure Care
Brooker’s summary:

Youth justice - Continuation of secure care - Order of secure care last resort - Nature of evidence - Each ground for placement must be proved by evidence - Whether there was real likelihood of further absconding - Whether absconding would harm young person's physical, mental, or emotional wellbeing not proven - Comments on necessity for appropriate allocation of resources to hear applications for secure care - Children, Young Persons, and Their Families Act 1989, ss 5, 6, 368, 370-372, 375-377.

This was an application for a renewal of an order for secure care in respect of 15-year-old BTS who faced charges of various offences. BTS was detained in secure care at the Weymouth Residential Centre. He had led a nomadic lifestyle and had a history of absconding from the various institutions that he had been placed in. Counsel for BTS submitted that there was no real likelihood that BTS would further abscond. He relied on the fact that BTS was going to be taken to a family group conference in Kaikohe in an unsecured vehicle by one, or possibly two, social workers.

Held, declining the application:

(1) Section 368 Children, Young Persons, and Their Families Act 1989, which provides for the grounds for placement in secure care, contains stringent requirements which focus on the interests of a child or young person. There is an overriding discretion conferred by the word "may" and this must be exercised having regard to the general principles set out in ss 5(c) and 6 of the Act. The welfare and interests of the child or young person remain a paramount factor.

(2) A young person may be placed in secure care only as a last resort. The use of the words "if, and only if" followed by the word "necessary" in s 368 provide a form of an extreme legislative emphasis that an order for secure care is considered as an "in extremis" measure.

(3) Where an application is opposed, all of the grounds must be made out under s 368(a) and in respect of each and every one of these grounds, there must be some form of supporting evidence brought whether or not that evidence would be admissible in a Court of law.

(4) There must be a degree of contemporaneity between any previous absconding and the establishment of absconding necessary to invoke the provisions of s 368(a).

(5) Although the documentary evidence showed that BTS had previously absconded and is likely to abscond again, there is, however, no evidence that[(1992) 9 FRNZ 670, 671] by absconding, his physical, mental, or emotional wellbeing are likely to be harmed. Such evidence may be given by a social worker or, where appropriate, by an expert. It is incumbent upon the department to arrange for this evidence to be made available. In the absence of any evidence admissible in a Court of law or otherwise, the application cannot be sustained.

(6) Moreover, if the department's fears of BTS further absconding were strongly held, some more secure means of transporting BTS to his family group conference would be arranged. If the department is to be consistent in seeking an application for secure care, then the nature of the security of the care must continue 24 hours a day.

Obiter, "hearings of this nature cannot be dealt with in an offhand or casual manner. Evidence must be called and appropriate evidence must be given. I leave it to the administration to devise the appropriate systems for ensuring that hearings involving applications for secure care, where the obvious welfare of children and young persons is at issue, are properly scheduled, and that sufficient resources in terms of time, personnel, and equipment are made available".