THE HISTORY OF THE YOUTH COURT SINCE 1989
| J A Crockett |
Part II: THE FOUNDATIONS OF THE YOUTH COURT
A Children, Young Persons and Their Families Bill 1986
The Children, Young Persons and Their Families Act 1989 has its origins in 1984 when the Minister of Social Welfare Ann Hercus established a working party to evaluate existing child protection and youth justice legislation. The result was a discussion paper that signaled the change from a welfare to a justice based approach and laid the foundations for the Children, Young Persons and their Families Bill 1986.[10] However, the Bill was not well received, in particular by the Maori community, which noted that the working party was without Maori representation, and saw the Bill as an ineffective answer to a system that consistently undermined their ability to care for members of their whanau, hapu or iwi.[11] This opinion was reiterated in the Ministerial Advisory Committee's report Puao-Te-Ata-Tu, which specifically recommended that the Children, Young Persons and Their Families Act 1974 be amended to empower the Maori community to care for its children.[12] The views of the Maori community were eventually received in 1987 when the new Minister of Social Welfare, Michael Cullen, asked Departmental officials to undertake further consultations with a broad range of organisations and individuals, including consultation with tangata whenua through a series of hui held around the country. These views undoubtedly had a profound effect on how the 1986 Bill was redrafted. Youth Court Judge FWM McElrea writes
"It is significant that Parliaments' Select Committee from February to April 1988 traveled to Maori marae and Pacific Island centres throughout New Zealand hearing submissions on how to recast the Bill so as to make it more culturally relevant to Polynesian people." [13]
Royal Assent was given to the revised Children, Young Persons and Their Families Bill on 28 May 1989 and on 1 November 1989 the Act came into effect.
B Youth Justice Principles
Cautious not to repeat past instances of institutional racism[14] and institutional abuse,[15] the Act embodies the principle that responses to youth offending are best made through the family or whanau, with the state having a facilitative rather than an interventionist role.[16] Youth justice proceedings are to be guided by a set of youth justice principles which "are based on the justice model, which ensures that children and young persons are held accountable for their actions but are dealt with in ways that are appropriate to their age and culture."[17] The justice model promotes determinate sentences relative to the offence, respect for the legal rights of young people, and the establishment of formal procedures.[18] The youth justice principles are set out in s 208, and include:
- criminal proceedings should be a measure of last resort, and should not be instituted solely to provide welfare assistance; [19]
- measures adopted should be designed to strengthen the child or young person's family, whanau, or family group and foster their ability to develop their own means to deal with children and young person's offending;[20]
- a child or youth offender should be kept within the community as far as practicable; [21]
- any sanction imposed should maintain and promote development of the child in his or her family group, taking the least restrictive form in the circumstances;[22]
- age is a mitigating factor in determining whether sanctions should be imposed and the nature of any sanctions;[23]
- any measures for dealing with offending by children and young persons should have due regard to the interests of any victims of that offending.[24]
1 Implementing Youth Justice Principles
Implementing these diverse principles involves holding the young person accountable while demonstrating compassion and hope for the young person to change. The Youth Court is structured to give effect to these twin imperatives by separating adjudication upon liability, where the adversarial system is maintained in full, from disposition of proved or admitted offences, where the family group conference plays an integral role.[25]
The Youth Court is based on the following process. Firstly, the Youth Court Judge reads the charges and if the young person does not deny the charge, the matter is referred to a Youth Justice Co-ordinator (YJC) to organise and convene a Family Group Conference (FGC). The people entitled to attend a FGC are the young person, his or her family, the YJC, the Police, the victim (and supporter(s)), and in certain circumstances a Social Worker, a Police Youth Aid officer, or person requested by the family.[26] The first and crucial issue at the FGC is whether the young person admits the charge, in which case the FGC has the responsibility of formulating a plan to deal with the young person's offending.[27]
If the young person denies the charge a date for hearing will be set. The Court hearing will apply the standard rules of evidence with the onus of proof being beyond reasonable doubt. As far as practicable, the sittings of a Youth Court will be arranged so that persons attending are not brought into contact with persons attending other court hearings and the time spent in common waiting facilities is kept to a minimum, implementing the broader goal that young people should be kept out of the criminal system as far as possible.[28] If the young person is found guilty, a FGC is held and recommendations prepared. A subsequent Youth Court hearing will then be held and any Court orders made, which are likely to implement FGC recommendations. Finally, the FGC plan / court order is implemented and monitored with reporting back to the Court for certain orders.
The range of orders the Court can make gives it flexibility to tailor the response in accordance with which principle needs to be afforded weight in each case. The kind of orders the Youth Court can make are set out in s 283, and include transferring the case to the District Court for sentencing,[29] supervision,[30] supervision with residence,[31] supervision with activity,[32] community work,[33] disqualification from driving, reparation,[34] fines, report to Court,[35] or admonishment.[36] S 285 places limits on the exercise of judicial discretion when making orders. For example, the Court must be satisfied that a young person can meet a fine within 12 months before it can impose such an order. Conversely, S 282 allows the Court to discharge information and is often imposed when a FGC plan has been satisfactorily completed and formal orders are not required.
Youth Court Judges are more likely to promote youth justice principles than their previous counterparts under the Children and Young Persons Court, who imposed punishment or intervened in the young person's life for welfare reasons.[37] Only individuals who are suitable to deal with matters within the jurisdiction of the Youth Court will be appointed as Youth Court Judges, through a process whereby the Principal Youth Court Judge recommends to the Chief District Court Judge persons who have the relevant training, experience, personality, and understanding of the significance and importance of different cultural perspectives and values.[38] However, when a Youth Court Judge is absent or no District Court Judge has been appointed any District Court Judge may exercise jurisdiction in the Youth Court.[39]
Youth Advocates are appointed by the Court to represent the young person unless a private barrister or solicitor has been arranged.[40] The Youth Advocate has its origins in a novel pilot scheme of individuals such as Elias CJ and Robert Ludbrook which was designed to mitigate the harsh effects of the Children and Young Persons Court. The statutory codification of the role makes it clear that the young person retains the Youth Advocate to represent him or her; unlike the child advocate, the role of the Youth Advocate is relatively settled as someone who acts on the young person's instructions.[41] While some Youth Advocates may be reluctant to run technical defences or may be predisposed toward a paternalistic stance, the fact that criminal sanction remains a possibility renders both these approaches untenable. However, the standard conception of the lawyer's role is altered significantly by the fact that the client is a young person; as far as possible only those solicitors or barristers who "by reason of personality, cultural background, training and experience, be suitably qualified to represent the child or young person" will be appointed by the Court as Youth Advocates.[42]
2 Youth Justice Equals Restorative Justice?
Locally and internationally, many youth justice practitioners consider that restorative justice underpins the Youth Court system. However it is more accurate to say that the Act, which does not mandate restorative justice, has been practiced using a restorative justice model.
Restorative justice depicts the traditional adversarial system as leaving all those affected by crime short-changed; the victim is left without a voice and often without compensation, the offender is deprived of a chance to make good his or her wrong and to reintegrate into society, and the larger community "suffers from both a rising crime rate and increasingly costly apparatus of justice."[43] Restorative justice goes beyond a critique to posit goals for a criminal justice system, which should aim to "mend the harm that has been caused by an offence, in material, psychological and relational terms, while giving the parties involved responsibility and an opportunity for participation in all the decisions that are made affecting them."[44]
Youth justice principles intersect with the restorative justice model insofar that they encourage the young person to take responsibility for his or her actions and to reintegrate into the community. Both models emphasise communitarian responses rather than punitive state control over crime.[45] McElrea identifies three key restorative elements of the Children, Young Persons and Their Families Act 1989:
(i) the transfer of power from the State, principally the courts' power, to the community;
(ii) the FGC as a mechanism for producing a negotiated, community response; and
(iii) the involvement of victims as key participants, making possible a healing process for both offender and victim.[46]
Each of these elements relate to the pivotal role the FGC plays in the Youth Court process. Power is transferred from the State by using the FGC as both a diversionary mechanism and as a sentencing aid when the young offender has been found guilty.[47] A communitarian response to an individual's criminal act is promoted by directly involving the people whom juvenile offending affects. FGC plans may also promote healing between offender and victim, such as the youth making an apology or repatriation to the victim, and also healing within the larger society, such as undertaking community work, or participating in a relevant programme.
However, there is no mention of "restorative justice" in the comprehensive Act. Restorative justice only emerged as a widespread legal theory after the Act was passed, through the writings of Zehr (1990) in the United States and Wright (1991) in England. ‘Restorative' practices entered the Act through Select Committee observance of traditional Maori modes of dispute resolution, which are based on the fundamental tenet that when a dispute arises, the whanau, hapu and iwi are impacted and should be involved. While restorative justice theory may incorporate traditional concepts and modes of dispute resolution, the risk is that the restorative label may deflect from underlying tikanga Maori principles in instances when the two do not intersect. For example, Maxwell suggests that Brathwaite's claim that the FGC implements ‘traditional' reintegrative shaming[48] is actually misdirected; this practice may be more detrimental than beneficial to youth rehabilitation.[49]
C Age of Accountability
Under the Crimes Act 1961 a child under the age of 10 cannot be convicted of a criminal offence, while children between ten and fourteen can be convicted of an offence if they knew that the act or omission was wrong or contrary to law.[50] The Children, Young Persons and Their Families Act 1989 effectively raises this threshold by providing that no child under 14 can be charged with any criminal offence other than murder or manslaughter. If the offending is of such number, nature or magnitude to warrant concern, the child will be placed under care and protection through Family Court proceedings.[51] The position is that child offenders are not required to accept criminal responsibility but must be held accountable for their offending.[52]
The United Nations Committee on the Rights of the Child has expressed concern that New Zealand's youth justice system has set the minimum age of criminal liability (10) and cut-off age for the application of youth justice (17) too low. In 1997 the Committee noted concern "particularly with regard to the minimum age for charging a child with serious offences" and "the appearance of a wide range of age cut-offs."[53] New Zealand, which is Party to the Convention of the Rights of the Child,[54] could be seen to be in breach of Part 1, Article 1 of the Convention which defines a child as every human being below the age of eighteen years. In response, the Children and Youth in Aotearoa recommended that the Government amend the Act to extend its coverage to 17 year olds and review its minimum age of criminal liability for very serious offences under the Crimes Act.[55]
Footnotes
10 MP Doolan "Youth Justice Reform in New Zealand" (Paper for presentation at the Preventing Juvenile Crime Conference, Australian Institute of Criminology, Melbourne, 1989) 3-4.
12 Ministerial Advisory Committee Puao-Te-Ata-Tu (Day Break) (Department of Social Welfare, Wellington,1998) 10-11.
13 FWM McElrea "The Youth Court in New Zealand: Is This a New Model of Justice?" (Notes for Guest Seminar Institute of Criminology, University of Cambridge, 20 October 1993) 21.
15 Institutional abuse recognizes some institutional practices and policies as damaging to children and young persons.
16 See the Act's long title, its objects (s 4) and principles (ss 5, 13, 208).
17 J Keall 47 Parl Deb 20/4/89 in presenting the report of the Social Services Select Committee on the Children and Young Persons Bill 1986.
29 Usually this will be followed by a prison sentence or an other adult penalty.
30 The young person will be placed under the supervision of an approved person or organisation for a period not exceeding six months.
31 A direction to live in a Child, Youth and Family residence for up to three months followed by six months supervision.
32 A supervision with activity order requires the young person to carry out a supervised, specified activity or programme for a period of up to three months.
33 This involves work in the interests of the community for a minimum of 20 and a maximum of 200 hours and must be completed in 12 months. Compared to the Children and Young Persons Act 1974, community work can be imposed without a supervision order.
34 A payment to any person who has suffered emotional harm or loss or damage to property.
35 An order that, if called upon within 12 months, the young person come to the Youth Court for further action.
36 Admonition involves the young person receiving a reprimand from the judge.
37 FWM McElrea "A New Model of Justice" in Brown & McElrea (eds) The Youth Court in New Zealand: A New Model of Justice (1993) 3.
43 TF Marshall "Criminal Justice in the New Community: Bending to the Trends in Politics, Society, Economics and Ecology" (Paper given at Criminology Conference, Budapest, 1993) 32-33.
45 MJA Brown "Background Paper on New Zealand Youth Justice Process" (International Bar Association, Judges' Forum, Section On General Practice, Edinburgh, 1995).
46 FWM McElrea The New Zealand Model of Family Group Conferences (1998)1 EJ 1.
47 A Morris and GM Maxwell "Juvenile Justice in New Zealand: A New Paradigm" (1993) 26 ANZJ Crim 72, 81-82.
48 J Braithwaite Crime, Shame and Reintegration (Cambridge University Press, Sydney, 1998).
49 GM Maxwell Achieving Effective Outcomes in Youth Justice: Implications of New Research for Principles, Policy and Practice. (6th International Conference on Restorative Justice, 6 January 2003) 1.
50 ss 21 and 22 Crimes Act 1961, a codification of the doli incapax rule.
52 P Boshier, J Moore and S Hale (eds) Child Offenders' Manual: A Practical guide to successful intervention with child offenders (Chief Judges Chambers, Wellington, 1999) 4.
53 Reported in Children and Youth in Aotearoa website <http://www.acya.org.nz/ngo_rept/text/ChildrenYouthAotearoa2003_Appendix9.pdf> (at 20 August 2003).
54 New Zealand signed the United Nations Convention of the Rights of the Child on 1 October 1990 and ratified it on the 6 April 1993 <http://www.unhchr.ch/html/menu2/6/crc/treaties/status-crc.htm> (at 10 August 2003).
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