Youth Court Decisions How to Use Full list of key titles CYPFA section Date

Director-General of Social Welfare v District Court at Otahuhu (1993)10 FRNZ 232 (HC)

Case summary provided by BROOKERS

Name: Director-General of Social Welfare v District Court at Otahuhu
Reported: (1993) 10 FRNZ 232
File number: M1280/92
Date: 22 March 1993
Court: High Court
Location: Auckland
Judge: Fisher J
Charge:
CYPFA:  s2; s4; s5; s6; s371
Key Title: Custody - CYFS; Secure Care
Brooker’s summary:

Children, young persons, and their families - Judicial review - Young persons serving term of imprisonment in children and young persons residence - Whether young person may be locked up without obtaining fortnightly authorising orders from District Court - Children, Young Persons, and Their Families Act 1989, ss 2, 4-6, 238, 361, 364, 365, 371; Children, Young Persons (Residential Care) Regulations 1986; Judicature Amendment Act 1972; Crimes Act 1961, s 172; Criminal Justice Act 1985, ss 8, 136, 142A, 143; Penal Institutions Act 1954, ss 4, 6, 7, 12, 16, 19, 20, 21A-21C.

The sole issue in this application for judicial review concerned young persons who are serving terms of imprisonment in a children and young persons residence: can these young persons be locked in a room or enclosure without obtaining fortnightly orders from the District Court specially authorising it under s 371 Children, Young Persons, and Their Families Act 1989? The Justice Department answered "yes" but the Department of Social Welfare and both counsel answered "no". The District Court held that it was unnecessary for the Director-General to apply in that way (see DGSW v V (1992) 8 FRNZ 598). This application was made in relation to a 13-year-old found guilty of murder who is kept in a locked area known as a "secure facility" at the Kingsley Residential Centre in Christchurch.

Held, dismissing the application:

A young person serving a sentence of imprisonment may be detained in a conventional prison under the Penal Institution Act 1954 or in any children and young persons residence under s 142A Criminal Justice Act 1985. Where a young person is detained in a conventional prison, the prison superintendent has a discretionary power whether or not to physically confine the person without formal procedure or precondition. That power (subject to the overriding control of the Director-General of Social Welfare) devolves around the principal of the children and young persons residence where a young person is detained under s 142A Criminal Justice Act. That results from the wording of s 142A in combination with the Penal Institutions Act 1954. It is reinforced by the underlying objectives of the sentencing statute, the Penal Institution Act 1954, and the Criminal Justice Act 1985. The latter two Acts continue to apply to a young person detained in a children and young persons residence subject only to "such modifications as are necessary" (s 142A(2)).

This principle may have been overlooked or underestimated in this case.[(1993) 10 FRNZ 232, 233]

Application

This was an application under the Judicature Amendment Act 1972 for a review of the decision of a District Court Judge.

The facts appear from the judgment.