I INTRODUCTION | II “CHILDREN”, “YOUNG PEOPLE” AND “JUVENILES” | III KEY PRINCIPLES FOR DEALING WITH CHILD OFFENDERS | IV A PRINCIPLED APPROACH TO CHILDREN IN CONFLICT WITH THE LAW | V ASKING THE HARD QUESTIONS | VI CONCLUSION | APPENDIX

IV A PRINCIPLED APPROACH TO CHILDREN IN CONFLICT WITH THE LAW

(a) UNCROC

Youth justice can all too easily become a societal and political football. Most people consider themselves “armchair experts” on the issues - perhaps because everyone was young once and many are parents. Youth justice is also a victim of fashion in that the pendulum swings from “get tough” to “welfare” approaches over time - often in response to a particular crime being highlighted in the media. Shocking crimes by children may lead to calls for the legal system to get tough on young offenders and knee-jerk responses are likely to be inevitable.

However, it is imperative that a principled approach be taken to guard against the excesses of a populist approach. Key international conventions on youth justice contain a number of principles that are vital for a measured and dispassionate response to child offending.

The 1989 United Nations Convention on the Rights of the Child (“UNCROC”) sets out key principles on the maintenance of the rights of children and young people. UNCROC is the most universally accepted human rights document in history and has been ratified by 192 countries. It gives the rights of children and young people, at least in theory, a central place in international law.

Article 40.1 of UNCROC maintains that every child who has infringed the penal law is entitled to treatment “in a manner consistent with the promotion of the child’s sense of dignity and worth”. Factors such as taking into account the child’s age and the desirability of reintegrating the child back into a constructive role within society are some of the stated goals of this Article.
Article 40 states a child must be afforded a fair trial and must be:

• presumed innocent until proven guilty according to law;
• informed promptly of the charges against them and be afforded the appropriate assistance in the preparation of a defence;
• have the matter dealt with expeditiously by an impartial authority or judicial body with appropriate assistance and, where appropriate, the child’s parents or legal guardians present;
• given the right of appeal to a higher judicial authority;
• afforded respect for their privacy;[12]
• UNCROC also states that a minimum age must be established below which children shall be presumed not to have the capacity to infringe the penal law; [13]
• Further, whenever appropriate and desirable, alternatives to judicial proceedings should be found, though not at the expense of the child’s human rights and appropriate legal safeguards.[14]
  

Further, UNCROC states as to the treatment of children:

• No child should be deprived of their liberty unlawfully or arbitrarily and arrest, detention or imprisonment of a child must be in conformity with the law and used only as a measure of last resort and for the shortest appropriate period of time;[15]
• States must promote laws and judicial procedures that are tailored to children who are alleged to have infringed the penal law;[16]
• A variety of alternatives to institutional care should be available to deal with children who offend including counselling, foster care and educational and vocational training programmes. These alternatives should ensure that children are dealt with in a manner appropriate to their well-being and proportionate to their circumstances and the offence.[17]

(b) Other International Instruments

UNCROC operates as an umbrella for three sets of non-binding rules that deal with youth justice:

1. the UN Guidelines for the Administration of Juvenile Delinquency (“the Riyadh Guidelines”)[18]
2. the UN Standard Minimum Rules for the Protection of Juvenile Justice (“the Beijing Rules”)[19], and
3. the UN Rules for the Protection of Juveniles Deprived of their Liberty.[20]

The Riyadh Guidelines insist that young people should have an active role and partnership within society and should not be seen as “objects of socialisation or control”[21]. Anti-social behaviour should be seen as “part of the maturation and growth process” that will disappear with the transition to adulthood. The Riyadh Guidelines stress that government should put child offending prevention plans in place with the assistance of young people and should promote government involvement in strengthening the family, and in providing adequate education and community services.

The Beijing Rules lay down clear guidelines for trial of young offenders emphasising principles such as the need for a proportionate and timely response to offending, the safeguarding of basic procedural rights and the need for diversion rather than Court action. The UN Rules for the Protection of Juveniles Deprived of their Liberty describe optimal custodial arrangements for children. These include imprisonment in small open facilities with individualised treatment, contact with family members, and staff trained in child welfare and human rights.

Despite these lofty goals, there are an estimated 1 million children deprived of their liberty worldwide.[22] Unicef reports that these children often suffer deplorable and inhumane conditions, physical and sexual abuse and that parents are regularly denied visitation rights or information about their child’s whereabouts. It would appear that some countries are more successful than others at implementing UNCROC and its associated Rules.

(c) International Instruments and New Zealand Legislation

(i) The Children, Young Persons and Their Families Act, 1989

New Zealand has implemented many of the principles laid down in the international instruments in the Children, Young Persons and Their Families Act 1989 (“the CYPF Act”) but there is still room for improvement. It established procedures for the way in which the State could intervene in the lives of children, young people and their families (where care and protection concerns were apparent); and set up an innovative system of youth justice to respond to young people who offend. The CYPF Act heralded a shift from a “welfare-based” mentality where the State imposed generalised solutions on young people and their families in the interests of “curing” young offenders, to a hybrid justice/welfare system where young people, their families, victims, the community and the State are involved in taking responsibility for offending and its consequences.[23] Some key features of the provisions of the CYPF Act that apply to youth justice include:

• Protection of Children’s Rights: Children and young people must be informed of their rights; Police powers of arrest are strictly limited; a nominated person must be present at any interview; children and young people may decline to make a statement and are entitled to legal representation; and they must be fully informed of their rights in language and in a manner that they can understand.
• Welfare: Rehabilitative options and support for families should be provided - children cannot be prosecuted in the Youth Court until they reach the age of 14 and time frames for resolving matters must be appropriate to the child’s age.
• Justice: Diversion from Court and custody is to be preferred as are least restrictive sanctions. There is an emphasis on accountability and a separation of welfare and justice matters. Young people are to be held accountable but must also be dealt with in a way that acknowledges their needs and gives them opportunities to develop “in responsible, beneficial, and socially acceptable ways.” [24]

The part of the Act devoted to youth justice begins with a statement of principles, which follows:[25]

• Unless the public interest requires otherwise, criminal proceedings should not be instituted against a child or young person if there is an alternative means of dealing with the matter:
• Criminal proceedings should not be instituted against a child or young person solely in order to provide any assistance or services needed to advance the welfare of the child or young person, or his or her family, whanau,[26] or family group:
• Any measures for dealing with offending by children or young persons should be designed -

• A child or young person who commits an offence should be kept in the community so far as that is practicable and consonant with the need to ensure the safety of the public:
• A child's or young person's age is a mitigating factor in determining -

• Any sanctions imposed on a child or young person who commits an offence should -

• Any measures for dealing with offending by children or young persons should have due regard to the interests of any victims of that offending:
• The vulnerability of children and young persons entitles a child or young person to special protection during any investigation relating to the commission or possible commission of an offence by that child or young person.

(ii) Deficiencies in the Incorporation of International Instruments in the New Zealand Law

It is one thing to create laudable principles and quite another to ensure they are implemented in the face of resource constraints and, at times, contrary public opinion. In 2003 the UN Committee on the Rights of the Child considered New Zealand’s compliance with UNCROC[28] and highlighted a number of deficiencies including the need to:

• Raise the minimum age of criminal responsibility from 10 years of age to an internationally acceptable level and apply this to all criminal offences.
• Extend the age jurisdiction of the Youth Court in the Children Young Persons and Their Families Act 1989 so that special protection may be accorded to everyone under the age of 18. As noted, UNCROC defines a “child” as any person under the age of 18 unless, under the law applicable to the child, majority is attained earlier. The age of majority in New Zealand is 20 years of age[29] but New Zealand only affords youth justice protections to children under the age of 17. Once the age of 17 is reached, youths are dealt with in the adult Courts although age is a relevant mitigating factor in sentencing.[30]
• Ensure the availability of sufficient residential youth facilities so that all juveniles in conflict with the law are held separately from adults in pre and post-trial detention. Article 37(c) of UNCROC states that children deprived of their liberty should be “separated from adults unless it is considered in the child’s best interests not to do so”. However, in New Zealand, of young people sentenced to prison, only the six most vulnerable can be housed in a youth criminal justice unit and the remainder are placed in prisons. Male youth offenders are placed in one of four youth units attached to prisons which are intended to house 17-20 year old males, thus a 14 year old who does not qualify to be held in the youth criminal justice unit may be forced to share a facility with a 19 year old. Female youth offenders are always placed in adult women’s prisons as there are no female youth units.
• Find alternatives to the remand detention of young people in Police cells. Under-resourcing of youth justice facilities in recent years has seen the number of available residential youth justice beds limited to 102. The law provides for young people to be remanded to Police cells when they are likely to abscond or be violent and suitable facilities for their detention in safe custody are not available.[31] Increasingly, Judges have been forced to place young people in Police cells for very long periods - in some cases as long as 10 to 12 days - until a suitable place becomes available. While in Police cells, young people get little or no exercise, are fed fast food and may come into contact with serious adult offenders. Youth Court Judges in New Zealand have publicly criticised this state of affairs as being in breach of UNCROC Articles 37(a): “inhuman or degrading treatment or punishment”, Article 40.4: “alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence”, and Article 19.1 which insists that all measures should be taken to protect children from “physical or mental violence ... neglect or negligent treatment, maltreatment or exploitation” while in the care of parents, legal guardians or any other person who has care of the child.

Footnotes

12 United Nations Convention on the Rights of the Child, Art. 40.2(b)(i)-(vi).

13 United Nations Convention on the Rights of the Child, Art. 40.3(a).

14 United Nations Convention on the Rights of the Child, Art. 40.3(b).

15 United Nations Convention on the Rights of the Child, Art. 37(b).

16 United Nations Convention on the Rights of the Child , Art. 40.3.

17 United Nations Convention on the Rights of the Child , Art. 40.4.

18 United Nations Guidelines for the Prevention of Juvenile Delinquency ("The Riyadh Guidelines"), G.A. res. 45/112, annex, 45 U.N. GAOR Supp. (No. 49A) at 201, U.N. Doc. A/45/49 (1990).

19 United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules"), G.A. res. 40/33, annex, 40 U.N. GAOR Supp. (No. 53) at 207, U.N. Doc. A/40/53 (1985).

20 United Nations Rules for the Protection of Juveniles Deprived of their Liberty, G.A. res. 45/113, annex, 45 U.N. GAOR Supp. (No. 49A) at 205, U.N. Doc. A/45/49 (1990).

21 United Nations Guidelines for the Prevention of Juvenile Delinquency ("The Riyadh Guidelines"), G.A. res. 45/112, annex, 45 U.N. GAOR Supp. (No. 49A) at 201, U.N. Doc. A/45/49 (1990), Art 3.

22 Unicef website at <www.unicef.org/protection/files/justice.pdf> (last accessed 2 August 2006).

23 Children, Young Persons and Their Families Act 1989 (NZ), s4, s5, s208.

24 Dr G Maxwell, Achieving Effective Outcomes in Youth Justice: Implications of New Research for Principles, Policy and Practice, Paper presented at AIC Conference, Sydney, December 2003, 4. Cf. Children, Young Persons and Their Families Act 1989 (NZ), s4(f).

25 Children, Young Persons and Their Families Act 1989 (NZ), s208.

26 "Whanau" is the Māori word for family. Māori are the indigenous people of New Zealand.

27 "Hapu" is the Māori word for extended family, "Iwi" describes a Māori sub-tribe.

28 Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties Under Article 44 of the Convention, 3 October 2003, CRC/C/15/Add.216.

29 Age of Majority Act 1970 (NZ), s4.

30 Sentencing Act 2002 (NZ), s9(2)(a).

31 Children, Young Persons and Their Families Act 1989 (NZ), s239(2).