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Police v BT (No 2) (22 June 2004) YC, Papakura, CRN 4255006063, Harvey DCJ

Name: Police v BT (No 2)
Unreported
File Number: CRN 4255006063; 4255006064
Date: 22 June 2004
Court: Youth Court
Location: Papakura
Judge: Harvey DCJ
Charge:
CYPFA: s238(1)(d); s238(1)(e)
Key Title: Custody - CYFS; Custody - Police; Police cell custody

Summary: Second decision of Judge Harvey in relation to the custody of BT; CYFS applied for the remand of BT to a penal institution under s238(1)(A)-(C) CYPFA; Judge Harvey considered the prerequisites for remand under s239(3) CYPFA and declined to make such an order; ordering instead that B continue to be remanded in CYFS custody under s238(1)(d), but granting an application for his placement in secure care at the residence where he was being held.

Judge Harvey commented that the power to remand a young person to a penal institution was created to address a lack of CYFS’s residential resources, but that, as that lack was being addressed, the provision creating that power would expire on 30 June 2004. Before a young person may be remanded to a penal institution under s238(1)(A) – (C), the Court must be satisfied that the 6 mandatory prerequisites set out in s239(3) are met.

Judge Harvey was satisfied that the first four prerequisites were met on the facts. He had received a certificate from CYFS to fulfil the requirements of s239(3)(e), but noted the difficulty for a Court in accepting a bald certificate presented with no supporting evidence or reasons for the assertions it contained.

Judge Harvey considered the final requirement, in s239(3)(f), noting that the word "appropriate" in that paragraph gives rise to the following test:

"I must be satisfied in all the circumstances that it is proper that [the young person] be remanded to a penal institution." (para [10]).

At paragraph [15], Judge Harvey set out the reasons he was not so satisfied, as follows:

• A s238(1)(A)-(C) order is an in extremis measure; as with s238(1)(e), it is not intended that such an order be substituted for a s238(1)(d) remand.
• BT was doing well at the residence in which he had been placed and the evidence was not such as to satisfy the Court that his remaining there would do more than "inconvenience" CYFS in its running of the residence.
• BT was soon to turn 17 and his custody would then be reviewed, subject to provisions of the Bail and Criminal Justice Acts. To change his custody arrangements now would be anticipating this but not having regard to those statutes.
• BT should not be deprived of the opportunity to remain in the residence and continue the work being done there.

Decision: Judge Harvey ordered that BT should continue to be remanded in the CYFS residence under s238(1)(d), but granted an application for him to be kept in secure care there for 14 days.