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

V ASKING THE HARD QUESTIONS

The following is a consideration of some of the key questions that it is suggested challenge all jurisdictions in their dealings with children in conflict with the law. It is vital that every youth justice system regularly asks these questions and assesses its performance against them.

These questions are posed on the following assumptions:

• That every country should have its own separate, specialist legislation for children who break the law.

• There should always be a separate criminal children's court, either as a stand-alone court or as a criminal division of a multi-jurisdictional children's court. Some courts - such as those in Victoria, Australia have a Children's Court with two separate divisions, one for care and protection/welfare and one for criminal cases. Others, such as New Zealand, deal with care and protection in the Family Court and youth justice in a stand-alone Youth Court. Other countries, such as Scotland, offer more possibility of welfare-based negotiation and intervention than in many other jurisdictions.[32]

• Legislation and Courts will have specialist protections for young people such as additional safeguards when being interviewed by police, restrictions on police arrest powers and name suppression in Court (either absolute or qualified).

• Every jurisdiction should have trained specialists who deal with children in conflict with the law at every stage of the process. In particular there should be specialist law enforcement agents who deal with young people, specialist social workers, specialist child advocates/lawyers and specialist judges.

This paper assumes that these matters are accepted as fundamental to a principled youth justice system and consequently does not deal with them. Thus, the eight question to be dealt with are:

1. At what Age should Children be held Criminally Responsible for their Actions?

A survey of various countries reveals a wide disparity in the ages of criminal responsibility. For example, in Portugal the age is 16 years but in England the age is 10 years. Cultural and historical perspectives may indicate a different age is appropriate in different states but nevertheless, the age should be based on studies of children's maturation processes and relative levels of capacity, including their levels of responsibility, impulsivity, decision making and understanding of consequences as well as capacity for "rehabilitation".[33] Studies of human development conclude that the mind develops after the body and that physical/sexual, cognitive, behavioural, emotional and identity mature at different times.[34]

A leading principle in UNCROC is that States should set a minimum age below which children are presumed not to have the capacity to infringe the penal law.[35] No specific age is mentioned in UNCROC but the UN Committee on the Rights of the Child has criticised jurisdictions in which the minimum age is 12 years or below.[36] To assist with the difficult question of how the minimum age should be set, the United Nation's Standard Minimum Rules for the Administration of Juvenile Justice (the "Beijing Rules") explains:[37]

There has been some suggestion that modern children are so "sophisticated" and "knowing" that there is no need to increase the minimum age.[38] However, it is dangerous to confuse an astounding awareness of computers and modern culture with an understanding of whether actions are very serious or gravely wrong. Also, young people mature at different rates and a "one size fits all" template to determine maturity is insufficient. Physical maturity usually precedes cognitive and emotional maturity by a number of years.

(i) Doli Incapax

Young people develop at different rates and will be at different levels of maturity at any given age. The ability to understand the wrongfulness of criminal acts develops gradually. To impose one age at which every child is considered competent to stand trial on their own account is arbitrary and potentially unjust. The doctrine of doli incapax, which presumes that children are criminally incapable, is a useful means of providing some flexibility to ameliorate the potential harshness of a minimum age of criminal liability.

The doli incapax presumption is rebuttable and a child can be convicted of an offence if the prosecution brings proof that the child understood their act or omission to be wrong. In some jurisdictions this presumption has a statutory basis while in others it remains a matter of common law.[39] The presumption allows the Court to consider the individual child's capacity to commit crime where the child is in the difficult "in between" years.

(ii) The Age of Criminal Liability in New Zealand

In New Zealand, the age of criminal liability is 10.[40] A "child" is defined as someone under the age of 14 years and a "young person" is an unmarried person aged 14 or over, but under 17 years of age.[41] Once aged 14, a young person can be charged with any criminal offence and almost all types of offence must be brought before a Youth Court, a specialist division of the District Court. Once the young person turns 17, any offence committed must be dealt with in the adult Courts. The only criminal offences with which a child aged between 10 and 13 can be charged are murder and manslaughter. In such rare cases, the charges are laid in the Youth Court and the preliminary hearing is held there. If there is sufficient evidence to proceed to a full trial, the matter is then transferred to the High Court.

In all other cases of child offending, the matter must be dealt with by way of a Family Group Conference and if necessary, an application can be made to the Family Court that the young person is in need of care and protection. This reflects a philosophical assumption that "children" who offend must be viewed in the context of their family environment - or lack of it - and are not capable of appearing in Court as autonomous, responsible individuals in their own right. In line with the criticisms of the UN Committee on the Rights of the Child, there is considerable debate in New Zealand as to when "children" ought to be considered old enough to face the consequences of criminal offending entirely on their own. Some New Zealand politicians are currently calling for a law change to allow children as young as 12 to face all serious offences.[42]

The Family Court, in dealing with child offenders, has a much wider array of orders and responses it can make than the Youth Court. For instance, the Family Court (but not the Youth Court) has power to make custody and guardianship orders, and also counselling orders, in respect of parents, guardians and any person who is made the subject of a restraining order in respect of a child. There may be an arguable case for the reduction of the minimum age for responsibility for all serious crimes but only if the Youth Court has the wider powers of the Family Court.

The minimum age settled on is less than instructive in itself - it is also necessary to ask what crimes children of that minimum age may actually be charged with and whether those children are dealt with in specialist Courts and using processes that are tailored to people of their age. If a 12-year-old must face the adult Court process, or something similar to it, it can hardly be said that the international principles are being upheld.

2. What is the Proper Treatment of Child Offenders with Care and Protection Issues?

Most serious child offenders, in one way or another, bring with them past and/or present care and protection deficits. International research confirms a causal connection between maltreatment of children and child offending.[43] Such children present a difficult challenge to the criminal justice system. On the one hand their backgrounds of abuse and environmental dysfunction, categorise them as vulnerable victims in need of help. On the other, their offending demands accountability. This raises the following fundamental questions. We can never ask these questions enough.

1. When and on what basis, should offences committed by children be seen primarily as a result of care and protection failures (requiring resolution in the Family or Care Courts). Further, when and on what basis should offences be dealt with as intentional breaches of the criminal law by autonomous, responsible individuals requiring resolution in the criminal courts. This raises the issue of how care and protection issues are to be recognised and importantly, how it is to be concluded that those issues have been causative of offending. It also raises the profound risk of criminalising what is essentially a welfare issue. More importantly still, it bears on the issue of the age of criminal liability because the younger an offender with care and protection issues is, the more they are seen as a product of their family and not fully culpable.
2. At the stage when the law does require that child offenders are dealt with in the criminal Court, to what extent should any underlying care and protection issues that may have contributed to their offending be addressed, in the criminal Court rather than the Care or Family Courts? Addressing such issues in the Criminal Courts, especially to the extent necessary to fully resolve them, runs the risk of "welfarising" and prolonging the justice response, and compromising the principle of proportionality of response.

(i) General Comments

Historically, justice systems treated child offenders as "small adults" and applied a classical punitive approach to juvenile crime. Throughout the early years of the twentieth century there was a move to a positivist "welfare approach" in many countries which dealt with child offending as symptomatic of welfare or care and protection issues.[44] The emphasis was on treatment and rehabilitation instead of punishment and accountability. This movement was, in time, criticised for causing too many and inappropriate arrests of young people for minor offences. Children who stole a chocolate bar might find themselves subject to open-ended sanctions which were aimed at reforming their overall behaviour but that were out of all proportion to the offence. Thus, this well-intentioned movement actually diminished children's rights in many cases.[45] The injustice of this response soon became apparent as did the realisation that many children who offend do not have any special family or social problems, meaning welfare dispositions are inappropriate.[46] In time, the pendulum swung back to a "justice approach" in many jurisdictions - this approach assumed that actions of child offenders were matters of free choice and focussed on accountability.

(ii) The New Zealand Response to Care and Protection Issues

The CYPF Act in New Zealand is largely an example of a "justice" approach as it seeks to separate justice and welfare processes. The CYPF Act recognised that a justice approach would not be appropriate for some offenders and included statutory provisions that enabled referrals to welfare services if a young offender was considered to be in sufficient need.[47] This has the effect of moving cases out of the criminal courts where care and protection is the real issue. These are kept separate from the justice response as it is a principle of the CYPF Act that young people should not be brought before the Youth Court to remedy welfare concerns. The New Zealand legislation states: "... 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, or family group.[48]

The relevant key features of the New Zealand system are as follows:[49]

1. All young offenders under 14 years of age (except when facing murder or manslaughter charges), are dealt with on the basis that care and protection issues are the primary cause of their offending. They are dealt with in the Family Court (under care and protection provisions of the Children Young Persons and their Families Act 1989) and cannot be charged in any criminal court. In other words, by definition, any offending by an under 14 year old is seen as being of a care and protection origin. While the age of criminal responsibility is 10 years of age,[50] for practical purposes, other than for murder or manslaughter, it is 14 years of age.
2. After 14 years of age, a youth offender can be charged in a criminal Court. But, even then, there is a process whereby care and protection issues may be referred to a Care and Protection Family Group Conference Co-ordinator at the direction of the Youth Court Judge (with the option then of further referral to the Family Court). When that happens, the criminal charges can be adjourned, and then the offender discharged absolutely.
3. When young people are charged in the Youth Court, the twin emphasis is on accountability and addressing the underlying causes of offending; but there is a strong emphasis against "welfarising the response".

This system appears philosophically sound. Indeed it is frequently considered as world leading. In practice, it faces problems of adequate resourcing and difficulties in adequately meeting both the accountability and welfare needs of child and youth offenders.

3. Should all Children be Charged and Brought before a Court?

UNCROC Art 40.3(b) states that 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. This principle shelters children from formal criminal justice processes in recognition of their immaturity and the likelihood that rehabilitative approaches will be particularly effective for those of tender years. Also, contact with the formal criminal justice system can be detrimental - although the shock of a formal process at an early age might be expected to deter children from re-offending, research shows it, in fact, has the opposite effect. Contact with the formal juvenile justice system has been shown to have a reasonable likelihood of increasing the level of criminal activity in early adulthood.[51] Such negative effects on children are more likely for those who come from impoverished backgrounds or those who are black.[52] This throws doubt on the suggestion that formal prosecution is the effective way to hold children accountable for their crimes.

Perhaps because these children have opportunities to mix with other young offenders and become au fait with Court procedures, it can become very difficult to remove them from the formal criminal justice system. Further, as most offenders are "Desisters"[53] they are low risk and there is no need for a court-based intervention - intervention (sometimes firm and decisive) is necessary but it can take place very effectively in the community.

However, as the decision on whether to grant a particular child access to the alternative procedures is discretionary, there is a danger that these procedures are not always applied fairly. Equally, there is a concern (usually unfounded) that diversionary procedures allow young people to avoid the consequences of their actions. It is necessary to find alternatives that are applied equally throughout the country and that, nevertheless, hold the young person to account for their wrongdoing.

(i) Alternatives to Court appearances in New Zealand

In New Zealand, alternative action involves warnings by Police, diversion and Family Group Conferences. The New Zealand CYPF Act gave Police authority to take alternative action through the principle that states:[54]

This legislation, unusually, places the emphasis on not instituting criminal proceedings. However, there was strident opposition to the Police being given prime control over the exercise of this discretion, albeit subject to limitations on Police powers of arrest. Critics argued that the Police could not be trusted to refrain from laying charges, and that community panels, for instance, would be better entrusted to make this sort of decision. In the words of the 1984 Working Party on the Children, Young Persons and Their Families Bill:

Contrary to these doom and gloom predictions, the specialist Youth Aid Division of the New Zealand Police has bought into the ethos of the Act in a quite spectacular way. Diversion/alternative action rates have remained consistently high, around 76% of all cases. "Alternative action" or "diversion" initiatives are locally based, draw on community strengths, and are often very creative plans or programmes that directly respond to local youth offending.[56] A further 8% of cases are referred to an FGC if there has not been an arrest and Police intend to lay charges. However, in this situation, if outcomes are agreed and the FGC plan is carried out by the young person, the matter can usually be resolved without referral to a Court, although in rare circumstances a charge is still laid. In the other 16% of cases, if the youth is arrested and a charge is laid in the Youth Court there must be a referral to a FGC if the matter is "not denied"[57] or proved after a defended hearing.[58]

The diversion system relies on Youth Aid Officers who are trained to deal with the complex needs of young offenders. This is in keeping with Rule 12 of the Beijing Rules that states that Police officers who usually deal with youth should be specially instructed and trained in this work. The work of Youth Aid Officers is almost entirely preventative - Youth Aid Officers take very little part in detection and prosecution of offences. Prior to the CYPF Act, Police did take informal alternative action against young people and this could range from "a good talking to, a clip around the ear or even a kick in the pants".[59] Fortunately, the CYPF Act provides a statutory basis for three levels of more formal alternative intervention:

1.  Warning: often given by the attending officer and followed up by a letter from the Youth Aid Officer acknowledging the warning.
2.  Alternative Action: a diversion plan put in place by the Youth Aid Officer that may include an apology, reparation and/or community work.
3.  Family Group Conference: for offending that cannot be dealt with by way of warning or diversion and where Police intend to lay a charge and there has been no arrest. About one third of the 8,000 FGCs held annually are of this type - they are known as "intention to charge" FGCs.

Alternative action recognises that many young people who offend while growing up will develop into responsible adults and go on to make a positive contribution to society. The "Desister" group are best dealt with by alternative measures that assist them in putting right the wrong caused and moving on with their lives free from formal involvement in the criminal justice system and free from a criminal record.

Diversion Rates per 10,000 distinct cases in the New Zealand Youth Court aged 10-16 years; 1987 to 2001[60]

(ii) Possible Dangers of the Use of Alternative Action

One danger of a crime response that relies on the discretion of individual Police officers is that there may be variability in practice and outcomes that cannot be explained by the nature of the offenders or by the differences in seriousness of types of offences.[61] Research suggests that differences in diversionary practice are unlikely to be accounted for by staffing levels and experience and are more likely to be the result of differences in philosophy and beliefs held by Police officers about appropriate responses to young people.[62] Youth Aid Officers have expressed the view that variations are due to differing responses from families and victims, and that where the offending is the final act in a long line of boundary pushing at home, an intervention may be put in place that addresses more than the one incident of offending. They argue that authority for such a flexible approach is found in the CYPF Act which insists that offences should be dealt with at the lowest possible level, that responses should emphasise restoration and rehabilitation and that accountability for actions should be achieved in ways that are offence related.[63] All this must occur within time frames related to the age of the child or young person.

Youth Aid officers say that they base their decision as to which level of intervention to use on factors such as the circumstances of the offence, the attitude of the offender, the amount and seriousness of the offending and the attitude of the victim and the offender's family. Officers also consider the importance of holding the child accountable for their offending,[64] the view of the victim,[65] and the position of the family and whether the family can deal with the offending.[66]

In summary, then, the formal youth justice process now deals with only 16% of offences plus those "intention to charge" FGCs[67] where it is decided to lay charges. Intention to charge FGCs account for around 8% of cases but there are no statistics as to what proportion of this 8% are ultimately dealt with in Court. Looking back on the pre-CYPF Act practice Youth Aid Officers consider the crimes young people used to go to Court for "unbelievable" and state that now, in many cases, families are dealing with minor offending "and probably more effectively".[68]

4. To What Extent Should State Power to Deal with Child Offending be Transferred to Families, Victims and Communities?

The New Zealand youth justice response takes the revolutionary step of (partially) transferring power from the State to families, victims and communities through its Family Group Conferencing system.[69] A Judge sitting in Court can never fully understand a child and a child's situation in the way the child's family does and the best and most relevant solutions to youth offending are often found in their communities. Further, victims often find the restorative justice process helpful in coming to terms with what has happened to them and some find it a healing experience. For these reasons, it makes sense to involve families, victims and communities in the youth justice response.

Family Group Conferencing was introduced with the CYPF Act in 1989 and is often described as the "lynch-pin" of New Zealand's youth justice system. Family Group Conferences (or "FGCs") allow the offender, the offender's family, the victim, the Police and other youth justice professionals to meet to discuss and make decisions, recommendations and plans for the young person. FGCs may take place both pre-charge, to determine whether a prosecution can be avoided, and also post-charge to determine how to deal with cases admitted or proved in the Youth Court. At a standard FGC which results from a charge that is "not denied",[70] the young offender is given the opportunity to discuss the offence and accept responsibility for it, discuss possible causes of the offending and take part in the formulation of a plan to rectify those causes and put right the harm caused by the offending.

Three key elements of the FGC process are:

1. The partial transfer of power from the State, principally the Courts' power, to the community.
2. The Family Group Conference as a mechanism for producing a negotiated, community response.
3. The involvement of victims as key participants, making possible a healing process for both offender and victim.[71]

It must be emphasised that in New Zealand FGCs are only reserved for the most serious offenders. That is, the 16% who are brought to the Youth Court after arrest and the small additional number of young people who have undergone an intention to charge FGC which has recommended the laying of charges.[72] The remaining young offenders, up to 84%, are dealt with by alternative action in which the formal FGC process plays no part.

(i) Is the New Zealand System a Restorative Justice Approach?

In practice, the New Zealand system encapsulates restorative justice ideologies, by including the victim in the decision-making process and encouraging the mediation of concerns between the victim, the offender and their families to achieve reconciliation, restitution and rehabilitation. The New Zealand system, especially the FGC, has been practised as a restorative justice system, though this was not necessary to conform to the provisions of the Act. Restorative justice is not mentioned in the CYPF Act, yet a restorative justice approach is entirely consistent with its objects and principles.[73] In fact, "restorative justice" thinking and practice had barely begun at the time the 1989 CYPF Act was being discussed. Thus, the system follows restorative justice techniques although the black letter law did not explicitly envisage this outcome.

(ii) The Family Group Conference System: Is it a Maori/Indigenous Model?

A groundbreaking element of the New Zealand Youth Justice system is its partial amalgamation of traditional Maori and European approaches to criminal justice in the form of the FGC. In Māori custom and law, tikanga o ngā hara (or the law of wrongdoing) is based on notions of collective rather than individual responsibility. Understanding why an individual has offended and addressing the causes collectively is seen as a benefit to society as a whole.

Although many of the processes of Māori law no longer exist, the whanau (or family) meeting is still used by extended families in some areas to resolve disputes. It was this model that was seen as a prototype for a new method of resolving disputes within families in a way that was culturally appropriate for Māori and also an empowering process for all New Zealand families. The adoption of this model accords with a shift in modern Western legal systems towards alternative methods of dispute resolution, such as mediation. Two specific factors promote participation by the young Māori offender in the FGC process:

• the inclusion of whanau, hapu and iwi in repairing the harm;[74] and
• the opportunity to have the conference in chosen familiar surroundings, including on marae.

However, it is important to recognise that the Family Group Conference is not (as is sometimes unrealistically touted) the wholesale adoption of an indigenous method of dispute-resolution and a rejection of the Western legal system. It is rather a modern mechanism of justice that is culturally appropriate, and certainly is a product of the dissatisfaction by Maori with the previous paternalistic system. It contains some elements of the traditional Maori system of whanau decision-making, but also elements that are foreign to it (such as the presence of representatives of the State). It also modifies elements of the traditional system, such as the roles played by the family and victims. This is an important feature of the system because Maori children and young people comprise around half of all youth apprehended by Police, having a youth justice FGC or being prosecuted in Court.[75]

(iii) The Use of Family Group Conferencing in the New Zealand Context. Correcting Some Misunderstandings

An FGC must be convened in six situations:

The New Zealand legislation expressly allows FGC members, following discussions, to recommend that:

• proceedings continue or discontinue,[87]
• a formal Police caution be given,[88]
• a declaration be made that the young person is in need of care and protection,[89]
• appropriate penalties be imposed,[90] and/or
• reparation be paid to the victim of the offence.[91]

Further, the legislation requires that FGC plans reflect the principles laid down in the CYPF Act.[92] However, there are no other legislative, or formal or informal prescriptions for FGC plans - the established processes merely provide the platform from which creative and individualised resolutions are formulated. There are consequently no limitations on the imagination and ideas of the group and this is, in many ways, the strength of the system. The plan designed by the offender, victim and community, is likely to be realistic and reflect the resources and support available to those parties.[93] For 95% of cases, FGC-recommended outcomes involve accountability measures of some kind.[94] Plans commonly include an apology and/or reparation to the victim, community service requirements, counselling and rehabilitation programmes and educational requirements. Most recommendations/plans are accepted by the Court and if the plan is carried out no formal Court order is imposed[95]. Formal orders are, however, available if the plan is not carried out.[96]

(iv) Strengths and Weaknesses of Family Group Conferencing

Strengths of Family Group Conferences:

• Genuine involvement of victims. Victims are central to the process and are given a meaningful opportunity to express their views and contribute to outcomes involving the young person. Victims are key participants and the numbers of victims participating rose steadily throughout the 1990's. Victims now participate in 51% of FGCs.[97]

• Active participation by young offenders (as discussed in question 5, following).

• Direct, if not enforced, involvement of families, who are encouraged and empowered to take responsibility for the offending of a young person within their family group. "Family groups have proved capable of taking prime responsibility for their own young people despite initial scepticism about this."[98]

• Collaborative responses to youth offending.

Weaknesses of Family Group Conferences:

As the FGC is at the heart of the youth justice system and provides a creative, collaborative means for resolving the majority of cases, it follows that, any problems with the resourcing or conduct of FGCs will severely impact on the youth justice system as a whole. Problems observed include:  

• Timeframes breached: Young people are highly attuned to any adult inability to address their issues. They need to see swift, decisive action if they are to participate willingly and confidently in the system. In some cases, statutory timeframes for FGCs are not being adhered to. The result is that any FGC held is usually invalidated and the charges dismissed so that the Youth Court is denied jurisdiction over the young offender in question. Recently, this issue has been highlighted to Youth Justice Co-ordinators[99] (YJCs) who convene the FGCs, and steps are being taken to ensure timeframe compliance. There have been some significant improvements - timeframe compliance now occurs for 95% of conferences but 3 years ago it was as low as 30%.[100]

• Poor Attendance at FGCs: An FGC is only as effective as the YJC responsible for it. YJCs have responsibility for organising the time, date and place of an FGC. They are also charged with arranging who will attend and ensuring that they are properly notified and enabled to be present. Most YJCs are diligent and dedicated but some occasionally let the system down. In some cases, FGCs are being held where only the Police, YJC, young person and one parent (usually the mother) attend. This is not a "true" FGC and a restorative justice approach is thwarted: 

• The absence of the victim makes it impossible to harness the power of a direct, honest account of the effects of offending, and the consequent remorse of the young person. It is understandable that a high proportion of victims[101] do not attend FGCs preferring to wash their hands of a traumatic incident in their lives. In some cases, however, YJCs do not, or because of caseloads, cannot, make sufficient effort to encourage a victim to attend. The minimum requirement would be phone contact but a personal meeting is preferable. Other barriers include victim reluctance to attend for fear of further victimisation, victim's lack of confidence in the system, and unhelpful negative comments from frontline Police about the effectiveness of FGCs. In some cases it might be possible to substitute a victim's representative or a letter from the victim to be read out by the YJC. Victim attendance rates (only where there is a clear victim) have been about 50% for the last two years, which is concerning. Most victims who attend, (approximately 80%),[102] find the process cathartic, positive and helpful. However, for a small number, (about 5%),[103] meeting with the offender is a negative experience that leaves them feeling worse; depressed, fearful, distressed and angry, most often because they do not feel the offender is truly sorry. 

• Non-attendance of family members: Often the FGC is not a true "family group conference" because only one parent attends. The intention of the FGC model is that a young person's family, in the broadest sense, should be involved in resolving the consequences of the offending and in providing solutions. In some cases, a young person may simply have no extended family members who participate in his or her life who could attend. Other factors which inhibit family attendance are "FGC burnout", particularly with repeat offenders, and the fact that the FGC often comes some way down the track after Police alternative action and hence families have lost interest or run out of ideas. However, where the absence of extended family is due to a lack of time or effort on the part of the YJC, the Youth Court will order that an FGC be reconvened to allow for better efforts to be made. The average number of family/whanau attending FGCs has increased from 2.8 in 2002 to nearly 4.0 in 2004 - which is better than "the mum and the kid" stereotype. 

• Poorly prepared, resourced and monitored FGC plans: YJCs are empowered to take steps to ensure that the FGC has all necessary resources.[104] This may include professional advisors (such as a psychiatrist or psychologist) or, for example, specific factual information in relation to programmes of activity the young person might undertake. A failure to properly prepare such resources could stymie the work of an FGC.

Other difficulties with FGC plans include:

• A lack of proper psychological, psychiatric, education and health assessments to identify the complex issues that a young offender may face.

• A lack of resourcing such as comprehensive residential and other rehabilitative drug and alcohol programmes, youth forensic services, and special education services for the persistent truant or chronically non-enrolled young person.

• Poor monitoring. This is a scourge of the FGC system and results in unnecessary delays and pointless repeat Court appearances. Young people are sometimes being left to "get on with" plans they are uncertain how to commence or require encouragement to fulfil. While Police are good at enforcement of their own diversion schemes, the same is not always true with regard to FGC programmes. Most families need considerable help, for instance in identifying and arranging community work. Invariably, a month's adjournment from the date the FGC plan was approved in Court, community work has usually only just started. When a plan provides for a Youth Justice social worker to assist with aspects of a plan, there are frequently difficulties and delays in appointing a social worker - mainly because it appears there are insufficient social workers with too many plans to supervise.

• Ideally, a FGC should address both the deed (the offence) and the need (the cause of the offending).[105] However, in New Zealand FGCs have traditionally been good at identifying and addressing the deed, but have at times fallen short on identifying and addressing the need(s).[106] This may be a result of the anti-welfare philosophy underlying the CYPF Act, or it may simply be a pragmatic response to a lack of resources and programmes to combat the causes of youth offending.

• FGCs are usually effective in ensuring that the appropriate people participate, but there is evidence that the family's voice often drowns out that of the young person in the FGC process as only about half of young offenders reported feeling involved.[107] Yet even the low rates of involvement in FGCs by young people far exceed the amount of involvement young people have in the conventional Court process.

• There is insufficient involvement of indigenous and other cultural perspectives in the discussion and decision-making.

FGCs have been successful in ensuring accountability, i.e. that the offence "wrongs" are put right by the young person, especially when victims are present at the FGC. However, because of the above weaknesses (which have been subject to some significant recent improvements), they have been less effective at addressing the causes of re-offending.

5. Should Children Actively Participate in Formal Criminal Processes?

This discussion of participation by young people will address both participation in the "out of Court" process - the FGC - and participation in the actual Court hearing. Article 12 of UNCROC states that young people must be given the opportunity to both express their views and to have them taken into account in all matters affecting them, but particularly in any judicial or administrative proceedings. Article 12.2 then adds:

In New Zealand, a principle of the CYPF Act is that consideration should be given to the wishes of the child or young person "so far as those wishes can reasonably be ascertained".[108] These principles contrast with the traditional adversarial Court system that encourages youth offenders to remain silent while lawyers speak on their behalf.

(i) Fundamental Participation of Young Offenders is ensured by the Family Group Conference Process

The Family Group Conference process provides the main forum for participation by young people. The face-to-face meeting with the victim forces the young offender to confront the effects of their conduct in human terms.[109] FGC's are intended to increase the offender's awareness of the human impact of their behaviour and provide them with an opportunity to take responsibility for their offending. FGCs therefore endeavour to make young people feel a part of, rather than apart from, the proceedings.[110] As such, FGCs should create and foster a feeling of mutual respect.[111]

The physical inclusion of the offender in the sanctioning process reaffirms that the offender has an important interest in the outcome. Exclusion from the process, in contrast, signals that the offender's concerns are minor or unworthy of consideration, perpetuating the feelings that often underlie offending. Importantly, the offender's inclusion is not a result of an intention to shame, but rather an intention to help the offender understand the harm caused and to support them in taking full responsibility for that harm.[112]

Voluntariness is another important aspect of the FGC. The offender is involved in the sanctioning process of his or her own free will.[113] At an FGC a young person is given the autonomy to participate in a decision-making process and the freedom to accept or reject a particular decision. Allowing the young person to have some control over sanctioning procedures can empower that person. Importantly, it offers a sense of "ownership" in the means and ends of the outcome and engenders respect not only for the outcome itself but also for the parties who worked together toward a resolution.[114]

An FGC facilitates an expression of genuine remorse by the offender, initiating healing. By accepting responsibility for the offence and acknowledging the harm caused, the offender signals an affirmation of the community's legal norms and the desire to be part of legitimate society. It thereby provides the first step towards re-integrating the offender back into the community.[115]

(ii) How Family Group Conferences Allow Participation in Practice

• Young person may participate in making important decisions

FGC's allow a child or young person to participate, not in peripheral issues, but in the fundamental questions and decisions which face the prosecuting authorities and the Court as a result of the young person's behaviour. The type of decision to be made depends, naturally, on the reason for convening the FGC and the "type" of FGC being held.[116] As previously emphasised, all decisions made by a FGC are still subject to the Court's scrutiny and control. In summary, the issues and decisions in which the child or young person is able to participate are:

• Three facets of participation

Conventional juvenile justice systems do not encourage the involvement of the young offender. There, the principal players are the professionals and the legal representative's role is expressly to speak for their client. Young offenders may take no actual part in the proceedings. In contrast, FGCs expect and facilitate active participation by the young offender in discussions about how best to deal with their offending. As noted, this is in line with UNCROC and encourages participation and ownership of the process. It also aids in holding young offenders accountable for their actions.[118]

The following discussion is primarily directed towards "intention to charge" FGC's or Court ordered FGC's where the charges have not been denied.  

• Active Participation and Contribution

As noted, offenders do not have to attend FGCs, but conferences rarely proceed without their attendance, as the participation of young people in FGCs extends beyond simply being present. In FGC's, youthful offenders, at least in principle, are expected to actively participate in discussions about how best to deal with their own offending.[119]

At an FGC the young offender, together with their family, is given time to reflect on the matters that are put before them in relation to the offending. The young offender is given the opportunity to:

• discuss the offence and accept responsibility for it;
• openly discuss possible causes of the offending;
• participate in the formulation of a plan to rectify the causes of the offending and repair the harm caused by it;
• present the plan to other FGC participants;
• apologise and express remorse to the victim;
• answer any questions posed by the victim; and
• where relevant, present the plan to the Judge when the matter returns to the Youth Court.

Each of these opportunities for participation are discussed separately below. 

• Admission of Responsibility

The youth justice system avoids formal "guilty" pleas; all that is needed for a "standard" FGC to proceed is a formal acknowledgement that the charge is "not denied". If this does not happen the young person's case will be determined by a conventional, adversarial hearing in the Youth Court. This is because the success of a FGC is premised on the young offender taking responsibility for their offending. One of the mandatory ingredients in the successful completion of a conference is that the juvenile must admit the offence they are alleged to have committed.

Early in the FGC the offender must acknowledge responsibility for the offence by admitting the charge. This is not to say that a blind admission is required. If the essential elements of the charge are in dispute the conference allows an opportunity to discuss and reach agreement on the facts. If, following discussion, there is still no agreement the case is referred back to the Youth Court or to the Police depending on the type of conference convened.

This discussion and/or admission is usually brought about by a Police representative reading out the summary of facts. The young person is asked directly if he or she agrees with the summary and any variation is noted.  

• Possible causes of offending

A general discussion then takes place about the offence and its underlying causes. It is necessary to identify as clearly as possible the causes of the offending so that the outcome formulated at the FGC responds to immediate issues and meets the future needs of the offender. This reflects the ideal that an FGC should be instrumental in the early intervention and prevention of recidivist offending.

However, this is a difficult aspect to analyse because the causes of offending are often quite complex. They may be beyond a young person's understanding, and sometimes may be caused by complex problems or sensitive issues within the young person's family - the very family present and supporting the offender. That is why advance preparation by the Family Group Conference Co-ordinator and Police Youth Aid officer is important. As best practice, a proper "risk" and "needs" assessment should be carried out in advance of the Conference, so that the needs of a young offender can be more accurately and comprehensively addressed. The performance of this aspect of the FGC is often sub-optimal.  

• Hearing the Victim's Perspective of the Offending

The victim's perspective plays an important role in the conference dynamics. The presence of the victim and the description of their injury/loss prevents the young offender from denying or neutralising the harmfulness of the offending.[120] The victim's perspective can act as a powerful catalyst, clearly revealing to the young offender and their family what action must be taken.

The victim is always given the opportunity to describe how the offending has affected them and how they feel about the incident. This is important for the victim, but is also important for the young offender, because it enables them to acquire a clearer understanding of the impact of their offending.[121]

The victim is sometimes given the opportunity to ask questions of the offender. Research has shown that victims frequently wish to know why the offence happened. This level of participation requires reflection by the young offender on the reasons for their actions. This facilitates a very direct form of accountability on the part of the young offender. The victim's participation is completely voluntary and if victims do not wish to attend FGCs their views are often included through representatives, letters, videos or cassette tapes. 

• Formulation of a Plan

Once this discussion has taken place the victim and professionals leave the family and the young person to meet privately and discuss options to repair the damage and prevent re-offending.  

• Presentation of the FGC plan to FGC participants, for eventual submission to the Court

The outcome plan formulated by the family/whanau is presented to the FGC preferably by the offender. This process re-engages the dialogue between the victim and the young offender.[122] More importantly, having the child or young person present the plan to the FGC or Judge in Court is an indication as to whether they understand the plan.  

• Apology and expression of remorse to the victim

Following the formulation of a plan the young person usually apologises to the victim, exhibiting a very direct acceptance of responsibility. This is always the expectation. This is not only an acknowledgement of the harm caused to the victim, but a recognition that the conduct giving rise to the offending was outside behaviour accepted by the community. In this way, an apology can signal an acceptance of community values previously disrespected by the young offender.

Genuine remorse is a prerequisite to the moral development of the offender. Without understanding the wrongfulness of the conduct, the offender retains an identity with deviance and connection to an antisocial subculture. In contrast, offenders who recognise the immorality of their behaviour and feel sorrow for having violated both the victim and the legal norm are less likely to re-offend.[123]

(iii) Formulation of a FGC Plan

At the FGC the young offender, together with their family, is required to construct possible legal outcomes aimed at addressing past offending, repairing present harm and meeting future needs. A range of outcomes are available to the offender and their family.[124] Generally, suggested outcomes must be "necessary or desirable in relation to the child or young person"[125] and must "have regard to the [youth justice] principles set out in .. [the CYPF] Act."[126] More specifically, and depending on the purpose of the Conference, the plan can make a number of recommendations.

The offender and their family, together with youth justice professionals who attend the conference, use the information obtained from earlier discussions in the FGC to facilitate the formulation of an appropriate plan. The offender's participation in its formulation is intended to create a feeling of ownership of it, thereby increasing the likelihood of completion, and subsequent pride in completion, of the plan. Note, of course, that the Court retains the overriding responsibility for decision-making. While the Court is required to consider the plan, it is not obliged to adopt it, although it does in the vast majority of cases.

(iv) Direct Accountability

The FGC system is firmly committed to giving victims a central place in the response to crime. Victims are given a voice at FGCs to outline the impact of the crime on them and to get some questions answered. Critically, the involvement of the victim leads to a greater accountability from the young offender. It is difficult for offenders to make excuses and to retreat behind a shell in the face of victims recounting the often devastating impact of the offence. Offenders more often express real remorse, which is a key step in their own journey away from crime and to the healing of the wounds suffered by victims.[127]

Further, FGCs present offenders with a tangible opportunity to put their wrong doing right, thereby strengthening their integrity and responsibility. There is also the incentive that if the young person is able to complete the plan then, if the conference has so recommended and the Court agrees, the charges may be withdrawn from Court or the offender may receive a complete discharge.[128]

There is evidence that the FGC system has increased the number of youth offenders carrying out "active penalties" for offending, for example community work and reparation. Custodial and residential penalties are rarely recommended by FGCs. Generally therefore more young people are being held accountable for their offending than in the past, and in ways that emphasise restoration.[129]

(v) Participation of Young People in the Court System

While the FGC is the central mechanism for ensuring participation by young people, their involvement in formal Court processes is also important. Involvement is useful in decisions such as confirming FGC plans, remand, formal sentencing if Court orders are required, decisions as to whether to convict and transfer to the adult Court for sentence and for determining whether a charge is proved if the young person denies it.

New Zealand has given legislative effect to these principles in sections 10 and 11 of the CYPF Act. Under section 10 where a young person appears before the Youth Court, the Court and counsel are under a duty to explain, in a manner and in language that the young person can understand, the nature and legal implications of the allegations and ensure that the young person understands the proceedings.

Participation is encouraged by section 11 CYPF Act which states:

In New Zealand, encouraging young people to participate in Youth Court hearings has been more difficult than getting them to participate in the FGC process. Youth Court Judges often encourage families and young people to participate in the proceedings but the success of this is very dependent on the presiding Judge and, as ever, time constraints. The court has been challenged in the past for its formality and alienating processes. Morris & Young showed that young people and their parents did not feel able to participate in the proceedings and did not understand them properly. One boy told them he had been "abolished and discharged".[130]

6. Should a Child who Breaks the Law Ever be Transferred to the Adult Criminal Court for Trial/Sentence?

This is a key issue for all jurisdictions. There seems to be a growing trend in the West for an increasing number of cases to be transferred to the adult courts. It is a matter for very serious consideration and a challenge (even a threat) to any "separate" specialised, system of child justice.

In many jurisdictions there are some serious cases that can only be dealt with by the adult Courts, and in some cases the superior adult Courts. An example is murder and manslaughter in New Zealand which, apart from the preliminary hearing, can only be dealt with in the High Court of New Zealand. There are sound policy and public interest considerations as to why this should be so. However, we argue that if there is to be such a group of charges, it should be as small a list as possible and should probably be limited to cases of alleged homicide.

Almost all jurisdictions however, provide for a discretion for children's court to transfer cases to the adult courts. In the USA this is known as "waiver" of jurisdiction. It has become a controversial issue and the subject of considerable debate in that country. There is a growing list of cases subject to waiver in most states in America.[131]

In New Zealand "purely indictable" offences, which are very serious, jury only cases, are not within the Youth Court jurisdiction unless jurisdiction is offered by the Court[132]. If jurisdiction is offered, there remains a residual power to convict and transfer any case to the adult courts for sentence, but on limited grounds.[133] Recently, there has been diverging High Court authority on the issue of whether Youth Court principles[134] or adult sentencing principles should apply once a case is transferred to the adult courts.

In X v Police,[135] the High Court of New Zealand held that the District Court must take youth justice principles into account in determining the length of the sentence of imprisonment to be imposed on a young person following a transfer for sentence from the Youth Court under section 283(o) CYPFA. However, in R v Patea-Glendinning,[136] Miller J held that the CYPFA ceases to apply once the young person is transferred to the District Court; with the consequence that youth justice principles do not apply to sentencing in the District Court.[137]

In Roper v Simmons[138] the United States Supreme Court recognised that punishing young people as adults through the death penalty was unconstitutional on a number of grounds including the fact that young people are immature, are particularly susceptible to negative influences and their character is not as well formed as that of an adult. The Court considered that, from a moral standpoint, it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed.[139]

7. Are our Responses/Sanctions for Children in Conflict with the Law "Evidence Based" and in Line with Best International Practice?

There is ample research available to guide an evidence-based approach to youth justice. Research makes clear that effective responses to children in conflict with the law take account of the two types of youth offender - "Persisters" and "Desisters".

(a) Persisters and Desisters - Two Types of Youth Offender

(i) What are "Persisters" and "Desisters"

Significant research has been carried out into the reasons why young people offend to ensure that responses to offending are appropriate and effective for the well-being of children and young people. This research has revealed that there are two distinct types of young offender, susceptible to different risks and having different needs, and consequently, an effective and principled approach requires different responses for these two groups. Further, this research bears directly on both the trial and treatment of young offenders.

A quarter of young men will commit at least one offence during their formative years but most of these will desist from crime and go on to settle into law-abiding lifestyles by their mid-twenties, having committed only a few trivial crimes. However, in New Zealand and internationally 15%-20% of youth offenders will persist and go on to become "life course" offenders - these "Persisters" are responsible for a large proportion of crime.[141] Thus, there are two groups - those that persist with crime and those that desist from it.

"Desisters" commit at least one crime, but usually start offending after 13 years of age and tend to stop or age out of offending by age 24 to 28.[142] In contrast, "Persisters" start early, before age 14 and as early as 10 years of age,[143] offend at high rates - around 40% to 60% of youth offending in New Zealand - and continue offending into adulthood. The statistics in NZ make sobering reading:

• 85% are male.
• 70-80% have a drug and/or alcohol problem, and a significant number are drug dependent/addicted.
• 70% are not engaged with school - most are not even enrolled at a secondary school. Non-enrolment, rather than truancy, is the problem.
• Most experience family dysfunction and disadvantage; and most lack positive male role models.
• Many have some form of psychological disorder, and display little remorse, let alone any victim empathy
• At least 50% are Māori[144] and in some Youth Courts, in areas of high Māori population, the Māori appearance rate is 90%. This figure is a particular challenge to the youth justice system, and to all working with young offenders.
• Many have a history of abuse and neglect, and previous involvement with Child, Youth and Family Services.[145]

These characteristics are common to the small group of serious young offenders who bedevil all Western democracies. Both groups commit serious offences, but the Persisters tend to commit more of them, partly because they are committing crime at such a high rate over a long period. Although some research has suggested that the two groups are not entirely clear cut,[146] persistent young offenders are a difficult and worrying group that requires identification and intervention as early as the preschool years. Terrie Moffitt is one researcher who has put forward the "Desister" versus "Persister" theory. She concludes that:[147]

(ii) Key Risk Factors for Persisters and Desisters

The most rigorous research available shows that the following risk factors are the most powerful causes of offending and are consequently the key targets for programmes aimed at reducing offending.

(iii) Key Risk Factors for Desisters or "Adolescent-Limited" Offenders

Young people in the Desister group make few Court appearances and have fewer risk factors. Also called "adolescent limited" offenders,[148] they are particularly at risk from substance abuse and antisocial peers, and are considered by some to be the priority for intervention. The following list gives an order of priority for addressing risks with this group:[149]

• Mixing with antisocial peers;
• Substance abuse;
• Family problems - poor parental monitoring, negative parent-child relationships;
• Poor performance and attendance at school, negative feelings about school;
• Others as per the Persisters list below.

(iv) Key Risk Factors for Persisters or Early Onset Offenders

Persisters tend to come from multi-problem backgrounds, and are the most likely of all offenders to keep offending into adulthood. Also known as "Early Onset" offenders these youths are usually seekers of immediate gratification and give no thought to the consequences of their actions. Effective interventions with this group must tackle multiple identified risk factors.

Risk factors in order of the highest to lowest priority for Persisters are:[150]

• Having few social ties (being low in popularity, and engaging in few social activities);
• Mixing with antisocial peers;
• Having family problems, particularly poor parental monitoring of children and negative parent-child relationships;
• Experiencing barriers to treatment, whether low motivation to change, or practical problems such as difficulty in attending appointments due to lack of transport and work hours;
• Showing poor self-management, including impulsive behaviour, poor thinking skills, poor social/interpersonal skills;
• Showing aggressiveness (both verbal and physical, against people and objects) and anger;
• Performing and attending poorly at school, lacking positive involvement in and feelings about school;
• Lacking vocational skills and a job (for older offenders);
• Demonstrating antisocial attitudes that are supportive of crime, theft, drug taking, violence, truancy and unemployment;
• Abusing drugs and alcohol;
• Living in a neighbourhood that is poor, disorganised, with high rates of crime and violence, in overcrowded and/or frequently changing living conditions;
• Lacking cultural pride and positive cultural identity.

Persistent offenders tend to show the most severe and greatest numbers of risk factors from a relatively early age. As Scott (1999)[151] notes, Desisters and Persisters are at separate ends of a continuum of offending defined primarily by the number of risk factors the young person has experienced.

(v) Policy Implications for Dealing with Desisters

Desisters require a low-key, measured approach that is nevertheless graduated to deal with escalations in offending. Interventions must emphasise accountability, insist on reparation and restitution and make the young person aware of the impact of their offending.[152] It is important that responses do not confirm the young person as a "criminal" because research shows they are likely to find their way back to a law-abiding lifestyle and are more likely to do so if kept away from the criminal justice system. Responses such as warnings and diversion are particularly useful for this group.

(vi) Policy Implications for Dealing with Persisters

Early identification of Persisters is vital as is information sharing between education, health, Police and welfare agencies to identify and deal with this group. Research shows that the greatest change in expected re-offending rates for Persisters was achieved through:

• Preparation for employment (35% decrease)
• Behaviour contract (25% decrease)
• Institutional training (15% decrease)
• Court/Probation (10% decrease)
• Offender Counselling (8% decrease)
• Family Counselling (No change)
• Deterrent Sentencing (25% increase).[153]

Also of value was a Family Group Conference preceded by full assessments such as risk and needs assessments, psychological, medical, educational and cultural assessments and comprehensive plans or supervision orders. Multi-systemic therapy, a licensed and franchised intensive community-based intervention programme for serious young offenders, a specialist Youth Drug Court and other programmes that provide intensive assessment and supervision have also proved useful in assisting Persisters.

(b) Child Offenders - What Works and What Doesn't

(i) What Doesn't Work for Child Offenders

Research shows that responses to youth offending that are focussed solely on deterrence, supervision and punishment are often ineffective.[154] There will be times when in the interests of protecting the community, punitive responses and prison will be necessary. The point is that these responses do not work in the sense of reducing re-offending and may in fact make the situation worse. Treatment is a vital component of most youth offending responses. Many approaches, such as intensive supervision and drug testing, only effect change in the young person's behaviour if they are coupled with a rehabilitative element.[155]

This is probably because punishment and deterrence do not address factors that put young people at risk of offending, or teach them new skills to succeed in conventional life. Having a "fear of punishment" has not been found to have any relationship to offending and, in fact, some research shows that young people who believe they will be caught and punished severely actually commit more crime.[156] For this reason programmes designed to scare young people "straight", including prison and morgue visits are usually ineffective.

Young people have myriad reasons for committing crimes - temptation, thrills, impulsiveness, money, the desire to impress friends - and fear of punishment is insufficient to overcome these. Young people may be so impulsive that the last thing on their mind is getting caught. And many of these young people have grown up with family members who are involved in crime - to them going to prison is a normal part of life and, for some, prison contains a number of glamorous role models. Many of these young people don't have the skills that most people use to live honest lives - thinking ahead, getting on with others, doing well at school, managing emotions and impulses. So trying to scare them out of offending is pointless unless they are given the tools that enable them to do things differently.

Programmes that intervene in children and young people's lives must deal with as many of the identified needs as comprehensively as possible - an intervention that targets one area of need is unlikely to achieve any long term change. Further, that intervention must target the problems or strengths related to the actual offending.[157] Programmes that build fitness or increase self-esteem are useful but are unlikely to have any impact on recidivism. Effective services must also set out with clearly defined goals, co-ordinate well with other service providers and use a variety of techniques and approaches.

Effective staff are a key determinant of the usefulness of programmes addressing youth offending. Staff who can relate to young people, who model good behaviour and who ensure that the programme actually runs as it was intended can ensure that an intervention is effective - as long as the intervention is of the type identified under the "what works" section in the first place. Research has shown that programmes run by adults are more effective than those run by young people.

While boot camps are a perennial favourite with politicians, these interventions featuring military-style discipline, hard physical work and rigorous exercise may result in improved fitness and respect for staff, but numerous studies have shown that they have little effect in reducing offending. If a "boot camp" approach is used, it is important that the programme targets the needs and problems related to offending, that it builds up strengths that protect young people, and that it aims to build skills that are relevant to these needs and strengths, for example by staff demonstrating the skills by their own behaviour and responding warmly when young people model this behaviour. Relevant new skills might include thinking before acting, learning to manage anger and resolving conflict without violence. Less time should be spent on military style drills and discipline and more time on building new skills and relating to young people with warmth and acceptance.

Of itself, a curfew is usually ineffective in reducing crime but when combined with parental rules, affection and positive attention by parents, a curfew can be a useful intervention. Restitution is another intervention that must be combined with other services such as probation, supervision, rehabilitation, family/parent counselling and academic enhancement in order to have an impact.

Long periods of incarceration have been found to be ineffective in reducing offending but the New Zealand experience shows that when prisons provide treatment through effective programmes, an impact on offending can be achieved. Intensive supervision involves staff spending large amounts of time with clients and being very strict about rule breaking but it has not been found to be effective unless it is used alongside rehabilitative services.

(ii) What Does Work for Youth Offenders

Earlier in this paper, key risk factors for two groups of offenders, described as "Desisters" and "Persisters" were outlined. Where possible, programmes should specifically target the risk factors described and, ideally, all these needs and problems should be addressed by one intervention so that young people and families do not need to travel to several locations and can avoid issues with various services not providing co-ordinated services. Research shows that accessibility is an important factor in a young person completing a programme.

• Teach young people how to manage their emotions, particularly anger, and how to manage impulsiveness.
• Teach effective violence prevention skills, for young people and parents.
• Treat substance abuse using effective techniques.
• Teach relapse prevention skills.
• Teach parenting skills such as reasonable rules and discipline, the importance of knowing where children are and what they are doing; affection and acceptance.
• Provide practical support for families with financial matters, particularly making sure they are not living in poverty.
• Increase social skills among young people, and get them involved in positive activities where they can make law-abiding friends.
• Improve attitudes to school, attendance and academic performance.
• Help families cope positively with poor neighbourhoods or move to less risky neighbourhoods.

The most effective interventions target young people who have a longer and more serious offending history and who are more likely to offend again rather than youth who have committed few and/or petty crimes. Effective interventions also build in multiple components (e.g. education, work skills and substance abuse), address multiple needs and strengths (such as anger management, thinking skills and making law-abiding friends) and work in multiple environments. The more characteristics of effective practice a programme incorporates, the more impact it has on offending. Lastly, programmes that work across several areas of a young person's life - such as family, peer group and school - are more likely to be effective than those that work in only one area.

Research highlights the importance of teaching young people the necessary skills to reduce violence such as anger management. It is also vital to protect programme quality ensuring that the actual content of the programmes does not change over time through budget cuts or the ideas of new staff. Effective programmes rely on staff with excellent people skills who are trained to use the actual programme and who are given clear guidelines as to how the programme should be run.

For non-residential programmes, involvement with the young person for six months, with contact as often as once a day, is optimal. The same time frame appears effective with live-in programmes, but here continuous treatment is most effective - that is, having treatment incorporated into every aspect of the day-to-day regime. Long periods of residential treatment do not appear effective, in part because of the harmful impact of living alongside other criminally inclined youth.

8. What Use Should be Made of Prison and Youth Detention Centres?

Prison is necessary for community safety and protection. It is the ultimate sanction and needs to be available for the most serious offenders. However, while effective for community protection, prison is generally ineffective in meeting young people's needs and should always be a last resort and subject to real restrictions. Further, young people should be housed in dedicated youth justice residences that provide meaningful activities and programmes to assist them in dealing with their issues. Youth detention centres are generally preferable to adult prisons, as a specialist response, but grouping together impulsive, violent young men can be counter-productive.

Although offenders often have complex problems including mental health issues or drug addictions, prison is a blunt instrument that is used, not in response to offenders' needs, but in response to the seriousness of particular crimes or offenders. The focus is on retribution, deterrence and public safety. Consequently, although much good work is done to assist prisoners, in practice rehabilitation is a secondary goal and is often too little, too late. Further, rehabilitation is generally under-resourced and, as a result, high rates of recidivism seem inevitable. Further, prison is not working well for society placing a huge cost burden on the taxpayer who often receives "up-skilled" criminals rather than reformed ones for their money.

These familiar and well-rehearsed criticisms often spark debate over which alternatives to traditional sentencing and imprisonment approaches should be followed. In New Zealand, imprisonment is considered to be an absolute last resort -every effort is made to keep young people out of the criminal justice system. This system's focus on diversion and alternatives to imprisonment since the inception of the Children, Young Persons and Their Families Act 1989 lead to a sharp decrease in the numbers of young people incarcerated:

Figure 6 Custodial Sentences for Youth Court Cases, 1987-2001

(i) Why Prison is no Place for Young People

Imprisonment is a particularly poor response to youth crime. There are numerous negative psychological and behavioural consequences for young people who are imprisoned as adults, and with adult offenders.[160] While adults adapt to the custodial system, children and young persons may be adopted by it.[161] Marginalised youth may learn to fit in to the prison culture and continue to use that culture's norms upon release. Stealing another person's shoes, violence or joining a gang are normal behaviours from the viewpoint of a "custody culture" which prizes power, status and indifference to the predicament of the other person.[162]

Although young people might be adopted by the custody culture, some find it is every bit as dysfunctional as their "birth" families. Young inmates may experience intimidation and bullying by older inmates.[163] Verbal, physical, sexual and emotional abuse is particularly likely for those incarcerated for the first time, those that are small, from a middle class background, are effeminate in behaviour or lack "streetwise" knowledge.[164] Further, juveniles in adult prisons are at greater risk of suicide.[165]

Young people do not have the same developmental level of cognitive or psychological maturity as adults.[166] They are more vulnerable to provocation, duress or threatening behaviour and are particularly influenced by peer approval and fear or rejection.[167] Thus, young people are more likely to react unlawfully to a threatening or provocative situation and, once in prison, are more likely to be negatively influenced by its "custody culture". It is little surprise then that incarcerated youth are at high risk of serious re-offending.[168]

Although the Department of Corrections provides some separate, specialist units to deal with vulnerable young offenders in prison, and these include rehabilitative programmes, counselling and vocational training, it is preferable for young people to be kept out of prison altogether. The benefits of incarceration do not outweigh the disadvantages and an adult jail is not a sufficiently rehabilitative option for youth.[169]

The majority of young people will grow out of offending if they are kept away from the criminal justice system, are made accountable for their crimes and are given the right support. These, then, are some of the reasons the Youth Court prefers to avoid sending its charges to prison.

(ii) Imprisonment of Youth Offenders in New Zealand

As noted, the New Zealand youth justice system is designed to steer young people away from the criminal justice system and, wherever possible, to keep them out of prisons. The Youth Court cannot sentence young people to imprisonment but can convict and transfer them to the District Court where they may receive a sentence of imprisonment[170] or, for certain offences, the Youth Court may conduct a preliminary hearing and then send the matter off to a superior Court for hearing and sentence. The following table shows how many young people who initially appeared in the Youth Court in one of these ways were subsequently given a sentence of imprisonment by the District Court or High Court.

Notes:

1. Age taken at time of finalisation.
2. Final court hearing location has been used.
3. Some cases had their final court hearing in a Youth Court yet had other court details as the District Court (perhaps sentencing location) and so these have been categorised under District Court.
4. Figures are provisional. Source: Ministry of Justice.

Thus, only about 50 sentences of imprisonment are handed down against young people whose case originated in the New Zealand Youth Court each year. The Youth Court does not follow the trend in the New Zealand adult Courts where imprisonment is also being used more frequently. And its stance is contrary to views commonly espoused in the media and by members of the public that there is a greater need to "get tough" on crime.[171] This is for the following reasons:

• Youth justice decisions must be guided by youth justice principles in the CYPF Act (outlined below) and these encourage the use of alternatives to imprisonment. This ensures that the vast majority of youth offending is dealt with by Police diversion and stays away from the criminal justice system.

• Where a matter is initially heard in the Youth Court, it is less likely that the defendant will receive a sentence of imprisonment. The young person must firstly receive a s283(o) conviction and transfer to the District Court and s283(o) sentences may only be handed down where:[172]

• Section 18(1) of the Sentencing Act 2002 limits prison sentences for young people under 17 years of age. It states:

• A child or young person serving a sentence of imprisonment may serve that sentence in a prison or in any residence approved by the chief execution of Child, Youth and Family Services.[173] There is no requirement or statutory direction towards either placement in prison or placement in a residence.

• The Youth Court cannot currently remand young people to penal institutions.[174]

Of the 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 adult 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. This is contrary to Article 37(c) of the United Nations Convention on the Rights of the Child ("UNCROC") which 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". This principle is further violated, at least in spirit, by the all too common practice of keeping young people on remand in Police cells in New Zealand and often in close proximity to adult prisoners. However, the Corrections Act and Regulations require that, as far as practicable, inmates aged under 20 years should be kept separate from older inmates. Young inmates can mix with adult inmates if it is in their best interests or there is a lack of suitable facilities to separate youth from adults.[175] UNCROC further provides that imprisonment must be in conformity with the law and that no child should be subjected to "inhuman or degrading treatment or punishment".[176]

Footnotes

32 J Muncie, G Hughes, E McLaughlin (eds) Youth Justice: Critical Readings (Sage Publications, London, 2002) 175.

33 Monaghan, Hibbert & Moore, Children in Trouble: Time for a Change (Barnados, Essex, United Kingdom, 2003).

34 Dr John Newman, Development of, Communicating with and Understanding Young People, Aspects taken from a Presentation at the Centre for Youth Health, New Zealand, July 2005.

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

36 JUSTICE 1996, Children and Homicide - Appropriate procedures for juveniles in murder and manslaughter cases, London quoted in G Urbas, The Age of Criminal Responsibility, Trends and Issues in Crime and Criminal Justice, No. 181, Australian Institute of Criminology, November 2000, 2.

37 United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules"), n 19.

38 Senior Children's Magistrate of NSW Stephen Scarlett quoted in G Urbas, The Age of Criminal Responsibility, n 36.

39 See for example Crimes Act 1961 (NZ), s22.

40 Crimes Act 1961 (NZ), s21.

41 Children, Young Persons and Their Families Act 1989 (NZ), s2.

42 "New Zealand First" Media Release, 20 March 2005 available at <www.nzfirst.org.nz> (last accessed 7 August 2006).

43 Anna Stewart, Susan Dennison and Elissa Waterson, "Pathways from Child Maltreatment to Juvenile Offending, Paper No 241, Australian Institute of Criminology, October 2002.

44 Emily Watt. A History of Youth Justice in New Zealand, n 11.

45 N Bala, J Hornick, H Snyder (eds) Juvenile Justice Systems: an International Comparison of Problems and Solutions (Thompson Educational Publishing, Toronto, 2002) 7.

46 Emily Watt. A History of Youth Justice in New Zealand, n 11.

47 Children, Young Persons and Their Families Act 1989 (NZ), s280.

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

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

50 Crimes Act 1961, s21, Relevantly, s22 provides that no person shall be convicted of an offence by reason of an act done or omitted by him when of the age of 10 but under the age of 14, unless he or she knew either that the act or omission was wrong or that it was contrary to law.

51 Bernberg, Jon Gunnar and Marvin D Krohn (2003) Labelling, Life Chances, and Adult Crime: The Direct and Indirect Effects of Official Intervention in Adolescence on Crime in Early Adulthood. Criminology, 41(4), 1287-1318; Criminological Highlights, August 2004, Vol. 6 No. 5, Item 3.

52 Bernberg, Jon Gunnar and Marvin D Krohn (2003) Labelling, Life Chances, and Adult Crime: The Direct and Indirect Effects of Official Intervention in Adolescence on Crime in Early Adulthood, n 51.

53 Explained under Question 7 of this paper.

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

55 Quoted in His Honour Judge Becroft, Youth Justice - The New Zealand Experience - Past Lessons and Future Challenges, Paper for the Australian Institute of Criminology/NSW Dept of Juvenile Justice, Juvenile Justice Conference, Sydney, December 2003, 33.

56 This includes informal and written warnings as well as diversion.

57 Where a (non-purely indictable) charge is "not denied" in the Youth Court, the Court must direct that a FGC be held (Children, Young Persons and Their Families Act 1989 (NZ) s246). "Not denied" is a somewhat odd, but very useful, mechanism. It triggers an FGC without the need for an absolute admission of culpability. It may indicate the young person's acceptance that they are guilty of something, although not necessarily the charge as laid. Invariably, in such cases, the details can be resolved at FGC where the conference will formulate a recommendation and a plan.

58 Less than 1% of all cases are dealt with at a defended hearing.

59 Inspector C Graveson, Police Involvement in Juvenile Crime Prevention and Diversion - Australia and New Zealand, Paper presented to the International Association of Youth and Family Judges and Magistrates, 26-31 October 2002, 4.

60 G Maxwell, Achieving Effective Outcomes in Youth Justice: Implications of New Research for Principles, Police and Practice, n 24, 8.

61 G Maxwell, J Robertson, T Anderson, Police Youth Diversion - Final Report, Crime and Justice Research Centre, Victoria University of Wellington, Prepared for New Zealand Police and Ministry of Justice, January 2002, 88.

62 G Maxwell, J Robertson, T Anderson, Police Youth Diversion - Final Report, n 61, 88.

63 Inspector C Graveson, Police Involvement in Juvenile Crime Prevention and Diversion - Australia and New Zealand, n 59, 12.

64 Children Young Persons and Their Families Act 1989 (NZ), s4.

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

66 Children Young Persons and Their Families Act 1989 (NZ), s5(a), s5(b), s5(e).

67 Explained on page 23.

68 Inspector C Graveson, Police Involvement in Juvenile Crime Prevention and Diversion - Australia and New Zealand, n 59, 14.

69 Judge McElrea , "New Zealand Youth Court: A Model for Development in other Courts?", Paper prepared for the National Conference of District Court Judges, Rotorua, New Zealand 6-9 April 1994, 3-4.

70 Explanation of "not denied" mechanism at n 57.

71 Judge McElrea , "New Zealand Youth Court: A Model for Development in other Courts?", n 69, 3-4.

72 Explanation of Intention to Charge FGCs on page 23.

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

74 Children, Young Person and Their Families Act 1989 (NZ), s5(a).

75 Ministry of Justice "Youth Offending Strategy: Preventing and Reducing Offending and Re-offending by Children and Young People. Te Haonga" (Ministry of Justice, April 2002, Wellington) 11. Statistics suggest that in some regions the rate of Mäori youth offending is significantly higher, comprising 80-90% of total youth offending.

76 Children, Young Persons and Their Families Act 1989 (NZ), s18(3).

77 Children, Young Persons and Their Families Act 1989 (NZ), s258(a), s259(1).

78 Children, Young Persons and Their Families Act 1989 (NZ), s245.

79 Children, Young Persons and Their Families Act 1989 (NZ), s258(b), s259(1).

80 Children, Young Persons and Their Families Act 1989 (NZ), s247(d).

81 Children, Young Persons and Their Families Act 1989 (NZ), s258(c).

82 Children, Young Persons and Their Families Act 1989 (NZ), s246.

83 Children, Young Persons and Their Families Act 1989 (NZ), s258(d), s259(1).

84 Children, Young Persons and Their Families Act 1989 (NZ), s281.

85 Children, Young Persons and Their Families Act 1989 (NZ), s258(e).

86 Children, Young Persons and Their Families Act 1989 (NZ), s281B.

87 Children, Young Persons and Their Families Act 1989 (NZ), s260(3)(a).

88 Children, Young Persons and Their Families Act 1989 (NZ), s260(3)(b).

89 Children, Young Persons and Their Families Act 1989 (NZ), s260(3)(c).

90 Children, Young Persons and Their Families Act 1989 (NZ), s260(3)(d).

91 Children, Young Persons and Their Families Act 1989 (NZ), s260(3)(e).

92 Children, Young Persons and Their Families Act 1989 (NZ), s260(2); the principles are set out in s208 of the same Act.

93 His Honour, (former) Chief District Court Judge of New Zealand, D J Carruthers Restorative Justice and Juvenile Justice: A Comparison of the Singapore and New Zealand Experience, 2002, 17.

94 Maxwell, Kingi and Robertson Achieving the Diversion and Decarceration of Young Offenders in New Zealand, Crime and Justice Research Centre, Victoria University of Wellington, 2003, 11.

95 In this situation the young person is given an absolute discharge under the Children, Young Persons and Their Families Act 1989 (NZ), s282.

96 Children, Young Persons and Their Families Act 1989 (NZ), s283.

97 Source: Neil Cleaver, National Manager FGC Co-ordinators, New Zealand.

98 M Doolan, Working with Young People who Offend, Paper presented in Glasgow, Scotland, 2001, 2.

99 Youth Justice Co-ordinators are social workers employed by New Zealand's Department of Child, Youth and Family Services.

100 Source: Neil Cleaver, National Manager FGC Co-ordinators, New Zealand.

101 Of a 100-person sample, 42 victims chose not to attend the FGC, Maxwell, Kingi, Robertson and Morris Achieving Effective Outcomes in Youth Justice: Draft Final Report to the Ministry of Social Development (Unpublished, 2002) 141.

102 Maxwell, Kingi, Robertson and Morris, Achieving Effective Outcomes in Youth Justice: Draft Final Report to the Ministry of Social Development, n 101.

103Maxwell, Kingi, Robertson and Morris Achieving Effective Outcomes in Youth Justice: Draft Final Report to the Ministry of Social Development, n 101.

104 Children, Young Persons and Their Families Act 1989 (NZ), s255.

105 These goals are contained in the Children, Young Persons and Their Families Act 1989 (NZ), s4(f)(i) &(ii).

106 Gabrielle Maxwell, Achieving Effective Outcomes in Youth Justice: Implications of New Research for Principles, Policy and Practice, n 24, 6.

107 Gabrielle Maxwell, Achieving Effective Outcomes in Youth Justice: Implications of New Research for Principles, Policy and Practice, n 24, 7.

108 Children, Young Persons and Their Families Act 1989 (NZ), s5(d).

109 His Honour Judge DJ Carruthers Restorative Justice and Juvenile Justice: A Comparison of the Singapore and New Zealand Experience, n 93, 13.

110 Allison Morris and Gabrielle Maxwell, Juvenile Justice in New Zealand: A New Paradigm (1992) Submitted to the ANZ Journal of Criminology, 7.

111 Erik Luna, Restorative Justice, NZIDR Lecture, 5 July 2000 <http://www.scoop.co.nz/archive/scoop/stories/51/19/200007051755.74daa57b.html> (last accessed 8 August 2006)

112 Erik Luna, Restorative Justice, n 111.

113 Children, Young Persons and Their Families Act 1989 (NZ), s251(1)(a), outlines an entitlement to attend a Family Group Conference, not a requirement.

114 Erik Luna, Restorative Justice, n 111.

115 Erik Luna, Restorative Justice, n 111.

116 The types of FGC are discussed on pages 23-24.

117 The "not denied" mechanism is explained at n 57.

118 Allison Morris, Family Group Conferences: Revisiting Principles, Practices and Potential, in Youth Justice in Focus: Conference Proceedings, Institute of Criminology, Victoria University of Wellington, 1998, 177.

119 Allison Morris and Gabrielle Maxwell, Restorative Justice in New Zealand: Family Group Conferences as a Case Study" (1998) Western Criminology Review <http://wcr.sonoma.edu/v1n1/morris.html> (last accessed 8 August 2006).

120 Erik Luna, Restorative Justice, n 111.

121 A MacRae, Family Group Conferencing: An Effective Justice Process, cited in Anne Hayden Restorative Conferencing Manual of Aotearoa New Zealand: A Treasure from our Basket (Department for Courts, Wellington, 2001) 72.

122 A MacRae, Family Group Conferencing: An Effective Justice Process, n 121.

123 Erik Luna, Restorative Justice, n 111.

124 Children, Young Persons and Their Families Act 1989 (NZ), s260.

125 Children, Young Persons and Their Families Act 1989 (NZ), s260(1).

126 Children, Young Persons and Their Families Act 1989 (NZ), s260(2).

127 Donald J Schmid, Restorative Justice in New Zealand: A Model for US Criminal Justice, (August 2001) <http://www.fulbright.org.nz/voices/axford/schmidd.html> (last accessed 2 August 2006).

128 Children, Young Persons and Their Families Act 1989 (NZ), s282.

129 Allison Morris and Gabrielle Maxwell, Restorative Justice in New Zealand: Family Group Conferences as a Case Study, n 119.

130 Emily Watt, A History of Youth Justice in New Zealand, n 11.

131 More information on the United States waiver position can be found at http://ojjdp.ncjrs.org/pubs/tryingjuvasadult/transfer.html.

132 Children, Young Persons and Their Families Act 1989 (NZ), s275, s276.

133 Children, Young Persons and Their Families Act 1989 (NZ), s283(o).

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

135 X v Police (11 February 2005) HC, Auckland, CRI 2004-404-374.

136 R v Patea-Glendinning (29 March 2006) HC, Wanganui, CRI 2005-483-17.

137 District Court Criminal Law Review, Ministry of Justice, Wellington, New Zealand, Issue 3, April 2006.

138 (Donald P Roper, Superintendent Potosi Correctional Center, Petitioner v Christopher Simmons (1 March 2005) 543 US (unreported)).

139 R Paton, Summary of Roper v Simmons available in "Court in the Act", March 2005 on http://www.justice.govt.nz/youth/media.

140 K L McLaren, Tough is Not Enough - Getting Smart about Youth Crime, n 7.

141 K L McLaren, Tough is Not Enough - Getting Smart about Youth Crime, n 7.

142 Moffitt T E (1996) Adolescence-Limited and Life-Course Persistent Offending: A Complementary Pair of Developmental Theories, in T Thornberry (eds) Advances in Criminological Theory: Developmental Theories of Crimes and Delinquency, 11-54, London: Transaction Press quoted in K L McLaren, Tough is Not Enough - Getting Smart about Youth Crime, n 7, 16.

143 K L McLaren, Tough is Not Enough - Getting Smart about Youth Crime, n 7, 16.

144 Maori are the indigenous people of New Zealand.

145 These statistics are provided by the New Zealand Ministry of Justice, the New Zealand Police and anecdotal evidence from Youth Court Judges.

146 K L McLaren, Tough is Not Enough - Getting Smart about Youth Crime, n 7, 18.

147 Moffit T E, Adolescence-Limited and Life-Course Persistent Antisocial Behaviour: A Developmental Taxonomy, n 7.

148 Moffitt T E, Adolescence-Limited and Life-Course Persistent Antisocial Behaviour: A Developmental Taxonomy, n 4.

149 K L McLaren, Tough is Not Enough - Getting Smart about Youth Crime, n 7, 36.

150 K L McLaren, Tough is Not Enough - Getting Smart about Youth Crime, n 7, 36.

151 G Scott (1999) Young Offenders: Current Issues in Policy and Practice, quoted in K L McLaren, Tough is not Enough, n 7.

152 M Doolan, Work With Young People Who Offend, n 98.

153 M W Lipsey, The Effect of Treatment on Juvenile Delinquents: Results from Meta-Analysis, in F Losel, D Bender and T Bliesener (eds) Psychology and Law: International Perspectives (Walter de Gruyter and Co, Berlin, 1992).

154 This section is based on K McLaren, Youth Offending Teams: What Works to Reduce Offending by Young People, e-flash 18 (Ministry of Justice, Wellington, New Zealand, 2005) and K L McLaren, Youth Offending Teams: What Doesn't Work to Reduce Offending by Young People, e-flash 19 (Ministry of Justice, Wellington, New Zealand, 2005).

155 K McLaren, Youth Offending Teams: What Works to Reduce Offending by Young People, e-flash 18, n 154, 2.

156 K McLaren, Youth Offending Teams: What Doesn't Work to Reduce Offending by Young People, e-flash 19, n 154, 4.

157 An exception to this is work skills which have been shown to effect long-term change as long as the young person finds employment.

158 Goldson, 2002:51 quoted in Geoff Monaghan, Pam Hibbert, Sharon Moore, Children in Trouble: Time for Change, n 33, 33.

159 D Cayley, Prison and Its Alternatives, Ideas (CBC Radio Transcript, 1996) 49 quoted in R G Green and K F Healy, Tough on Kids: Rethinking Approaches to Youth Justice, (Purich Publishing Ltd, Saskatoon, Saskatchewan, Canada, 2003) 23.

160 Adams, 1992; Bishop & Fraser, 2002; Bishop et al., 1996; Calabrese & Adams, 1990; Lane et al., 2002; Taylor, 1996; Tie & Waugh, 2001 quoted in Dr Ian Lambie, The Negative Impacts on Juvenile Offenders Incarcerated in Adult Prisons, Paper still currently in draft, Auckland, New Zealand, 2006.

161 B Clark & T O'Reilly-Fleming, eds., Youth Injustice: Canadian Perspectives (Canadian Scholars Press Inc, Toronto, 1993) 189, 194 quoted in R G Green and K F Healy, Tough on Kids: Rethinking Approaches to Youth Justice, n 159, 23.

162 Jerome Miller, Prison and Its Alternatives, Ideas (CBC Radio transcript, 1996) quoted in Tough on Kids: Rethinking Approaches to Youth Justice, n 159, 23.

163 Department of Corrections, Young Male Inmates available online at http://www.corrections.govt.nz/public/aboutus/factsheets/managingoffenders/youngmaleinmates.html (last accessed 7 August 2006).

164 Maitland & Sluder, 1998 quoted in Dr Ian Lambie, The Negative Impacts on Juvenile Offenders Incarcerated in Adult Prisons, n 8, 6.

165 Dr Ian Lambie, The Negative Impacts on Juvenile Offenders Incarcerated in Adult Prisons, n 160.

166 Steinberg & Scott, 2003 quoted in The Negative Impacts on Juvenile Offenders Incarcerated in Adult Prisons, n 160.

167 Moffitt, 1993 quoted in The Negative Impacts on Juvenile Offenders Incarcerated in Adult Prisons, n 160.

168 Dr Nick J Wilson, Assessment, Treatment and Management of High Risk Incarcerated Youth Offenders, Department of Corrections, Wellington, New Zealand. Full report available on http://ccm.corrections.govt.nz/corrnet/research/risk-need-profile-youth-offenders/index.html (last accessed 5 August 2006).

169 The Negative Impacts on Juvenile Offenders Incarcerated in Adult Prisons, n 160, 4.

170 Children, Young Persons and Their Families Act 1989 (NZ), s283(o).

171 Judge FWM McElrea, The New Zealand Model of Family Group Conferences, a paper prepared for the International Symposium "Beyond Prisons": Best Practices Along the Criminal Justice Process, March 15-18, 1998, Queen's University, Kingston, Ontario, Canada.

172 Children, Young Persons and Their Families Act 1989 (NZ), s290.

173 Children, Young Persons and Their Families Act 1989 (NZ), s142A(1).

174 New Zealand Crown Law Office opinion dealing with Children, Young Persons and Their Families Act 1989 (NZ), s238; Summary Proceedings Act 1957 (NZ), s46; Criminal Justice Act 1985 (NZ), s142;

175 Department of Corrections, Young Male Inmates, n 163.

176 United Nations Convention on the Rights of the Child, Art 37(a).