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Department of Social Welfare v S (1994) 12 FRNZ 641 (DC)

Case summary provided by BROOKERS

Name: Department of Social Welfare v S
Reported: (1994) 12 FRNZ 641
File number: MFP112/94
Date: 30 September 1994
Court: District Court
Location: Otahuhu
Judge: Boshier DCJ
Charge:
CYPF no: s371
Key Title: Secure Care
Brooker’s Summary:

Youth justice - Continuation of secure care - Jurisdiction - Procedure in bringing such applications - Children, Young Persons, and Their Families Act 1989, ss 371, 372.

This was an application under s 372(1) Children, Young Persons, and Their Families Act 1989 for an order authorising the continued detention of a young person, S. After a brief hearing the applicant sought to withdraw the application.

The application was filed in the first instance in the District Court at Otahuhu, and was then faxed to Papakura and placed before a Youth Court Judge. The proceedings were then referred back to the District Court to be dealt with by a Family Court Judge.

Held, declining jurisdiction to hear the application:

The only application before the Court is one under s 372(1) Children, Young Persons, and Their Families Act 1989 which relates to an ex parte application before a Registrar. A Judge does not have jurisdiction under s 372, but only under s 371. Even if the Registrar had considered this application in the first instance, as he should have, there probably would not have been jurisdiction because there is no substantive application before the Court under s 371.

Obiter, (1) it is desirable that if matters that involve considerable thought and care are asked to be dealt with in a busy Court schedule they are presented carefully.

(2) An application for continued secure care detention must be sought before a Judge, and preferably a Family Court Judge where it relates to care and protection.

(3) The correct procedure appears to require the Registrar to deal with the documents in the first instance ex parte, for service to then occur, and for a Judge to be requested to exercise jurisdiction only after hearing from the persons who are entitled to be heard.

Application

This was an application under s 372(1) Children, Young Persons, and Their Families Act 1989 for an order authorising the continued detention of a young person.