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Police v TGW [1998] NZFLR 296

Case summary provided by LEXISNEXIS

Name: Police v TGW
Reported: [1998] NZFLR 296
File number: CYPF 0004/132/97
Court: District Court
Location: Auckland
Date: 19 March 1998
Judge: Boshier DCJ
Charge:
CYPFA: s364; s367; s368; s370
Key title: Secure Care; Care and Protection Cross-over

LEXISNEXIS Summary:
Children and young persons – Care and protection orders - Extreme and dangerous behaviour exhibited by young person - Need for secure care from time to time - Consent order made placing young person in custody of DGSW to attend a rehabilitation programme but on the basis that the young person would be immediately placed in secure care if the need arose - Jurisdiction of the Court to make an order in these terms - Director-General the only person who could make the placement in secure care - Direction from the Court that young person be placed in one residence but would be moved to another residence with secure unit if necessary - Children, Young Persons, and Their Families Act 1989, ss 83, 86, 101, 103, 105, 125, 128, 162, 202, 361, 364, 367, 368, 370 – Guardianship Act 1968, s 11.

A declaration that TGW was in need of care and protection was made in August 1997. TGW, now aged fourteen, had been demonstrating extreme anti-social behaviour and had regularly offended throughout 1997. It was considered that TGW would benefit from a therapeutic programme such as that offered by the Youth Horizons Trust. However concern was expressed by a psychiatrist and counsel for the child that while the Youth Horizons Trust could cope with TGW, it had no secure facility and the need for a secure facility would undoubtedly arise from time to time. An order was then made by consent placing TGW in the custody of the D-GSW pursuant to s 101 of the Children, Young Persons, and Their Families Act 1989. A further order by consent was made that if at any time during the custody order the Youth Horizons Trust considered a situation had arisen which required TGW to be accommodated in up to 72 hours of secure care, the D-GSW, through the Northern Residential Centre was to forthwith provide that facility.

The Head Office of the DSW later refused to acknowledge the validity of the order so far as the provision for secure care was concerned. It was argued that “secure care” could only mean containment in a residence as provided for in part VII of the Act and accordingly it was for the D-GSW alone to place any child or young person in a secure unit under the grounds for placement as prescribed by s 368. It was argued that the effect (Page 297; [1998] NZFLR 296) of the order was to usurp the D-GSW’s discretion and to circumvent the statutory restrictions as to placement in secure care as set out in s 368.
Held (varying the order)

(1) In so far as the condition attached to the custody order that required the D-GSW to supply up to 72 hours of secure care when requested, it was ultra vires. When use of secure care was sought, the only means of achieving it was for the D-GSW to make the placement into secure care and upon the grounds specified in s 368. The present order which contemplated that it was the Youth Horizons Trust who might make the request for secure care was therefore outside the Court’s jurisdiction.

(2) The Court could direct as a part of the term or condition that TGW be placed in one residence but be moved to another so as to require the D-GSW to at least consider use of the secure unit. Notwithstanding the provisions of s 105, the Court was able to direct, as terms or conditions, as long as it was in the child’s best interests, aspects which might otherwise have been left to the D-GSW pursuant to s 105.

(3) The order was varied so that if, pursuant to the D-GSW’s placement, TGW’s placement at Youth Horizons Trust could not, in the opinion of the Trust be immediately continued, the D-GSW or a social worker would forthwith place TGW in a residence of the kind specified in s 364 of the Act.

Cases referred to in judgment
Bell v Police (1987) 4 NZFLR 498
Department of Social Welfare v BTS (a young person) (1992) 9 FRNZ 670
KLF, Re (Family Court, Porirua CYPF 11/92, 28 February 1994, Judge Frater)
P Children (No 2), Re the (1992) 9 FRNZ 93
THC (Family Court, Otahuhu CYPF 048/03/97, 29 April 1997. Judge Mather)
W v W (1984) 1 FRNZ 37
Y v Y (1994) 12 FRNZ 176

Application
This was an application to determine the validity of a condition attached to a custody placing the young person in the care of the D-GSW directing the placement of the young person in secure care where necessary.