Trial and Treatment of Youth Offenders: Human Rights at the Coalface of Youth Justice

Introduction | The need for a principled approach | Persisters and desisters - two types of youth offender | Trial and treatment in a principled youth justice system | Conclusion

IV “TRIAL” AND “TREATMENT” IN A PRINCIPLED YOUTH JUSTICE SYSTEM

(a) A Principled Approach to Trial - The Age of Criminal Liability

(i)The Age of Criminal Liability - Using Developmental Research to “Get it Right”
(ii) The Age of Criminal Liability in New Zealand
(iii) Doli Incapax

(b) A Principled Approach to Trial - The Laying of Charges as a Last Resort

(i) Alternatives to Court Appearances
(ii) Alternatives to Court Appearances in New Zealand
(iii) Possible Dangers from the Use of Alternative Action

(c) A Principled Approach to Trial - Participation and Family Group Conferencing - New Zealand’s “Gift to the World?”

(i) A Definition of Family Group Conferencing
(ii) Is the New Zealand System a Restorative Justice Approach?
(iii) The Family Group Conference System: Is it a Mäori/Indigenous Model
(iv) The Use of Family Group Conferencing in the New Zealand Context. Correcting Some Misunderstanding
(v) Strengths and Weaknesses of Family Group Conferencing for Young Offenders

(i) Introduction
(ii) Fundamental Participation of Young Offenders is Ensured by the Family Group Conference Process
(iii) How Family Group Conferences Allow Participation in Practice
(iv) Formulation of a Plan
(v) Direct Accountability
(vi) Participation of Young People in the Court System

(e) A Principled Approach to Treatment - The Relevance of Age in Sentencing Young Offenders

(f) A Principled Approach to Treatment - Youth Offenders - What Works and What Doesn’t

(i) What Doesn’t Work for Youth Offenders
(ii) What Does Work for Youth Offenders
(iii) An example of “What Works”

(g) Trial or Treatment? The Need to Separate Criminal Justice and Care and Protection Issues

(i) Holding the Line Between Care and Protection and Youth Justice Issues
(ii) The Dangers of Addressing Care and Protection Concerns within the Youth Justice Arena

(a) Introduction

Having considered both a principled approach to the youth justice system and having gained an understanding of young offenders, a number of specific issues arise. It is impossible to cover them all in this paper and a selection of key issues are dealt with below. Other relevant issues not dealt with here include the proper use of custodial facilities for young offenders remanded pre or post-trial, specialist representation of young offenders, additional protection for young people during the investigation stage of an offence and whether the adversarial system is appropriate for determining a young person’s guilt.

(b) A Principled Approach to Trial - The Age of Criminal Liability

(i) The Age of Criminal Liability - Using Developmental Research to “Get it Right”

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.[34] 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.[35] It is of fundamental importance that the age at which a child can take responsibility in Court for criminal behaviour should be determined with reference to psychological and behavioural research rather than in response to political pressure. 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:[36]

The minimum age of criminal responsibility differs widely owing to history and culture. The modern approach would be to consider whether a child can live up to the moral and psychological components of criminal responsibility; that is, whether a child, by virtue of her or his individual discernment and understanding, can be held responsible for essentially antisocial behaviour. If the age of criminal responsibility is fixed too low or if there is no age limit at all, the notion of responsibility would become meaningless.

There has been some suggestion that modern children are so “sophisticated” and “knowing” that there is no need to increase the minimum age.[37] 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.

(ii) The Age of Criminal Liability in New Zealand

In New Zealand, the age of criminal liability is 10.[38] 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.[39] 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.

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 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.

(iii) Doli Incapax

As discussed, 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 aged 10 but not yet 14 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.[40] 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.

(b) A Principled Approach to Trial - The Laying of Charges as a Last Resort

(i) Alternatives to Court Appearances

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 “treatment” rather than “trial” can 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. 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” 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.

(ii) 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: [41]

“… unless the public interest requires otherwise, criminal proceedings should not be instituted against a child or young person if there is an alternative means of dealing with the matter.”

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:

“The central duties of the Police are the prevention, detection and control of criminal behaviour. The normal outcome of successful Police action is a prosecution. To ask the Police to act as the main agency for keeping young people out of court creates a conflict in the various roles to be played by an individual Police Officer and may lead to conflict with his/her colleagues.” [42]

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.[43] 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”[44]or proved after a defended hearing.[45]
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”.[46] 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 described above 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[47]

(iii) 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.[48] 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.[49] 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.[50] 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,[51] the view of the victim,[52] and the position of the family and whether the family can deal with the offending.[53]

In summary, then, the formal youth justice process now deals with only 16% of offences plus those intention to charge FGCs 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”.[54]

(c) A Principled Approach to Trial - Participation and Family Group Conferencing - New Zealand’s “Gift to the World”?

(i) A Definition of Family Group Conferencing

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”,[55] 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.[56]

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.[57] The remaining young offenders, up to 84%, are dealt with by alternative action in which the formal FGC process plays no part.

(ii) 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 nowhere mentioned in the Act, yet a restorative justice approach is entirely consistent with its objects and principles.[58] 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.

(iii) The Family Group Conference System: Is it a Mäori/Indigenous Model?

A groundbreaking element of the New Zealand Youth Justice system is its partial amalgamation of traditional Mäori and European approaches to criminal justice in the form of the FGC. In Mäori custom and law, tikanga o ngä 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 Mäori 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 Mäori 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 Mäori offender in the FGC process:

• the inclusion of whanau, hapu and iwi in repairing the harm;[59] 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 Māori with the previous paternalistic system. It contains some elements of the traditional Māori 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 Māori children and young people comprise around half of all youth apprehended by Police, having a youth justice FGC or being prosecuted in Court.[60]

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

An FGC must be convened in six situations:

1. Child offender care and protection conference

If the Police believe, after inquiry, that an alleged child offender is in need of care and protection, this must be reported to a Youth Justice Co-ordinator (“YJC”). YJCs are employees of the New Zealand Government’s Children, Young Persons and Their Families Service (“CYFS”) and are often qualified Social Workers. The YJC and Police must consult, after which if the Police believe an application for a declaration of care and protection is necessary in the public interest, an FGC must be held[61] to address the child’s offending. At a care and protection FGC, the group must determine whether the offence is admitted, and, if so, what steps should be taken, including whether a declaration that the child is in need of care or protection should be filed in the Family Court.[62]

2. Intention to charge FGC

This is required whenever a young person is alleged to have committed an offence and has not been arrested (or has been earlier arrested and released) and the Police intend to lay charges. The Police must first consult a YJC. If, after consultation, the Police still wish to charge the young person, an FGC must be convened.[63] This is the second most common type of FGC, and accounts for between one third and one half of all FGCs annually. At an intention to charge FGC, the group must determine whether the charge is admitted and, if so, decide what should be done. This may include completion of an agreed plan, which if successful will be the end of the matter, or a decision that a charge should be laid in Court.[64]

3. “Custody conference” FGC

Where a young person denies a charge, but, pending its resolution, the Youth Court orders the young person be placed in CYFS or Police custody, an FGC must be convened.[65] At a custody FGC, the group must decide whether detention in a CYFS secure residence should continue and where the young person should be placed pending resolution of the case.[66]

4. Court directed FGC: “not denied”

Where a (non-purely indictable) charge is “not denied” by the young person in the Youth Court, the Court must direct that a FGC be held.[67] “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 he or she is guilty of something, although not necessarily the charge as laid. Invariably, in such cases, the details can be resolved at FGC. This is the most common type of FGC and accounts for at least half of all FGCs. At a Court ordered FGC, the group must determine whether the young person admits the offence, and, if so, what action and/or penalties should result.[68]

5. FGC as to “orders” to be made by Youth Court

Where a charge is admitted or proved in the Youth Court and there has been no previous opportunity to consider the appropriate way to deal with the young offender an FGC must be held.[69] At a penalty FGC, the group must decide what action and/or penalties should result from a finding that a charge is proved.[70]

6. FGC at Youth Court discretion

A Youth Court may direct that an FGC be convened at any stage in the proceedings if it appears necessary or desirable to do so.[71] An example of where this might happen would be where a young person indicates a desire to plead guilty to a purely indictable charge and there is a possibility that Youth Court jurisdiction will be offered. An FGC would then be ordered to consider whether such an offer should be made. If the FGC recommends that jurisdiction should be offered, it will usually recommend how the Youth Court should dispose of the matter. When the Youth Court exercises its discretion to order an FGC, it may also make directions as to the decisions to be made there.

In the case of an FGC to consider purely indictable charges, the group will be asked to decide whether Youth Court jurisdiction should be offered, and if so, whether the offence has been committed and what should be the result.

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

• proceedings continue or discontinue,[72]

• a formal Police caution be given, [73]

• a declaration be made that the young person is in need of care and protection, [74]

• appropriate penalties be imposed, and/or [75]

• reparation be paid to the victim of the offence. [76]

Further, the legislation requires that FGC plans reflect the principles laid down in the CYPF Act.[77] 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.[78] For 95% of cases, FGC-recommended outcomes involve accountability measures of some kind.[79] 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.[80] Formal orders are, however, available if the plan is not carried out.[81]

(v) Strengths and Weaknesses of Family Group Conferencing for Young Offenders

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.[82]

• Active participation by young offenders.

• 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.”[83]

• 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 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%. [84]

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[85] 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%),[86] find the process cathartic, positive and helpful. However, for a small number, (about 5%),[87] 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.[88] 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.

Besides risk and needs assessments and forensic psychiatric reports, relevant information could include any of the following reports:

• Reports by social workers or prominent members of young person’s communities.

• Reports addressed to the specific issues faced by the young person (for example an assessment of his or her drug/alcohol problem).

An undesirable tendency in relation to FGCs previously noted by Youth Court Judges is the “sameness” of their plans. While young offenders may have certain similar characteristics that need to be addressed, they are all unique. The uniformity of plans sometimes coming out of FGCs (apology, reparation payment, community work) suggest something of a “cookie-cutter” mentality amongst the Youth Justice professionals involved. This situation has improved in recent times but more is required. Youth Court Judges address this issue by sending plans back for a more creative application of participant’s minds to the specific young person and their offending.

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).[89] 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).[90] 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.[91] 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.

(d) A Principled Approach to Trial - The Need for Involvement and Participation by Young Offenders in the System

(i) Introduction

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:

For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

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”.[92] These principles contrast with the traditional adversarial Court system that encourages youth offenders to remain silent while lawyers speak on their behalf.

(ii) 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.[93] 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.[94] As such, FGCs should create and foster a feeling of mutual respect. [95]

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.[96]

Voluntariness is another important aspect of the FGC. The offender is involved in the sanctioning process of his or her own free will.[97] 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. [98]

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.[99]

(iii) 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.[100] 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:

1. In respect of an alleged child offender, whether the offences have been committed and what steps should be taken as a result, including whether a declaration that the child is in need of care or protection should be filed in the Family Court;

2. In respect of an “intention to charge conference” whether the offence was committed, what should be done as a result and if a charge should be laid in Court;

3. In respect of a “custody conference” where the young person should be placed pending resolution of the case;

4. In respect of a charge before the Youth Court that is “not denied”,[101] whether the offence was committed, and what action and or penalties should result;

5. In respect of a charge that has been proved before the Youth Court after a defended hearing, what action and/or penalties should result;

6. In the case of “purely indictable” charges, whether Youth Court jurisdiction should be offered and, if so, whether the offence has been committed and what should be the result.

• 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.[102]

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.[103]

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.[104] 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.[105]

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.[106] 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.[107]

(iv) Formulation of a 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.[108] Generally, suggested outcomes must be “necessary or desirable in relation to the child or young person”[109] and must “have regard to the [youth justice] principles set out in .. [the CYPF] Act.”[110] More specifically, and depending on the purpose of the Conference, the plan can make a number of recommendations.[111]

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.

(v) 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.[112]

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.[113]

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.[114]

(vi) 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:

Where, in any proceedings under this Act, a child or young person appears before a Family Court or a Youth Court, that Court and the barrister or solicitor representing the child or young person shall, where necessary and appropriate, encourage and assist the child or young person to participate in those proceedings to the degree appropriate to the age and level of maturity of the child or young person.

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”.[115]

(e) A Principled Approach to Treatment - The Relevance of Age in Sentencing Young Offenders

Once a minimum age of criminal liability is reached in a jurisdiction, the question remains as to what kinds of sentences are suitable for young people and whether less severe sentences should be imposed on account of the young person’s age. This is a difficult task given that many countries are caught in the grip of a “collective schizophrenia” over the issue.[116] On the one hand, there is a growing national and international movement, based on the above principles and research, that believes our historic approach to youth crime, in general, has proven unsatisfactory from all points of view including that of victims, offenders and society. On the other hand, there is a “get tough on crime” groundswell fuelled in part by a media focus on a few extremely violent youth crimes that have fed a general fear about public safety issues. This has lead to calls to make the existing system tougher on crime by advocating stiffer sentencing options for violent or chronically offending youth and increasing the ease with which young offenders can be transferred to the adult Courts for serious crimes.[117] As ever, youth justice responses must follow the principled approach.

UNCROC provides that imprisonment must be in conformity with the law and that no child should be subjected to “inhuman or degrading treatment or punishment”.[118] However, there is little guidance as to the level of mitigation of sentence that should be offered by a child’s age. New Zealand legislation includes the principles that: [119]

A child's or young person's age is a mitigating factor in determining -

(i) Whether or not to impose sanctions in respect of offending by a child or young person; and
(ii) The nature of any such sanctions:

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

(i) Take the form most likely to maintain and promote the development of the child or young person within his or her family, whanau, hapu, and family group; and

(ii) Take the least restrictive form that is appropriate in the circumstances:

These principles have allowed the New Zealand Youth Court to take account of a child’s age and impose the least restrictive sanction possible where appropriate. Whether these principles should apply to youth offenders in the adult Courts is a question that has attracted some debate. The High Court of New Zealand grappled with this issue this year and, in a ground-breaking case, decided 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 youth offender following a transfer for sentence from the Youth Court. The High Court held that the age of the offender and their particular vulnerability and immaturity and the CYPF Act principles were two of the factors that should be taken into account when sentencing youth offenders.[120] In a different case this year, the Court of Appeal of New Zealand ruled that a seventeen year minimum non-parole period of imprisonment may be so crushing for young offenders that its imposition would be “manifestly unjust” in terms of the Sentencing Act 2002.[121]

New Zealand is not the only jurisdiction to pay greater heed to age as a factor in sentencing in the adult Courts. In the United States case of Roper v Simmons,[122] the majority of the Supreme Court held that the death penalty was a disproportionate punishment for young offenders under 18 years of age. In their reasoning the Supreme Court recognised significant differences between youth and adult offenders. Among other things, the Court acknowledged that young people exhibit less maturity of judgement, are more vulnerable or susceptible to peer pressure, and tend to have an undeveloped sense of responsibility.[123]

(f) A Principled Approach to Treatment - Youth Offenders - What Works and What Doesn’t

(i) What Doesn’t Work for Youth Offenders

Research shows that responses to youth offending that are focussed solely on deterrence, supervision and punishment are often ineffective.[124] 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.[125]

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.[126] 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.[127] 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.

Random drug testing of offenders at unpredictable times does not have an impact on offending unless appropriate treatment is added to the drug testing. It is vital to include a treatment component in any random drug testing and to teach relapse prevention skills to young people and their families or law-abiding friends.

(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.[128] 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.

Effective programmes provide services which:

• 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.

(iii) An example of “What Works”

One programme that is the result of recent research is the Reducing Youth Offending Programme (“RYOP”) which is being piloted in two locations in New Zealand between 2003 and 2006. This uses multi-systemic therapy (MST), a franchised and licensed model, to address serious and high-risk youth offenders. MST is an intensive community-based intervention programme for serious youth offenders. Services are time limited (in this case up to 6 months), individualised and provided in the context of family values, beliefs and cultures. Individual Case Workers provide treatment and are available 24 hours a day, 7 days week. Case Workers carry small caseloads of 4 to 6 young people and are responsible for the personal delivery of the treatment and the outcomes rather than being “brokers” for other service providers. This intervention is designed to work with the “Persisters” and aims to reduce recidivism, return young people to functioning well in school, training or employment and involve them in pro-social activities. RYOP is designed to teach young offenders skills, knowledge and behaviours to develop respectful relationships with family, friends and partners and to develop skills to manage any disorders, symptoms or substance dependency to the extent that they no longer impact on offending.

(g) Trial or Treatment? The Need to Separate Criminal Justice and Care and Protection Issues

(i) Holding the Line Between Care and Protection and Youth Justice Issues [129]

UNCROC provides protection for young people facing criminal charges but is also concerned to protect the welfare of children generally. A key difficulty in administering youth justice is that a criminal charge may be symptomatic of welfare or care and protection issues and a traditional punitive response may be inappropriate. Here the line between “trial” and “treatment” is blurred but it cannot be ignored - international research confirms a causal connection between maltreatment of children and youth offending[130]. In these cases the criminal Court, that traditionally aims to achieve accountability and deterrence, is faced with a dilemma. To criminalise conduct that springs from welfare needs is unjust and is unlikely to deter recidivism. Youth justice systems have struggled to find ways to get young offenders who are in need of care and protection assistance out of the criminal Courts.

Historically, justice systems treated young 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 youth offending as symptomatic of welfare or care and protection issues.[131] 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. Young people 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.[132] The injustice of this response soon became apparent as did the realisation that many young people who offend do not have any special family or social problems, meaning welfare dispositions are inappropriate.[133]

In time, the pendulum swung back to a “justice approach” in many jurisdictions - this approach assumed that actions of youth offenders were matters of free choice and focussed on accountability. The CYPF Act in New Zealand is largely an example of a “justice” approach as it sought 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.[134] This had the effect of moving cases out of the criminal Courts where care and protection was 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.[135]

Although modern New Zealand legislation deals with both “trial” and “treatment”, the New Zealand experience has not been free from problems. Recently, Police have begun to prosecute young people solely to access welfare services. This is because the avenues for referral to welfare agencies often take too long to be addressed and are frequently subject to delays. The welfare agency, Child Youth and Family Services (“CYFS”) is burdened with a massive workload which its staff are unable to process in a timely manner.[136] Particularly in light of the fact that young people work on much shorter time frames than adults and that responses to offending must be applied quickly in order to be effective,[137] Youth Court Judges have started to resort to alternative sections of the CYPF Act to get help for young offenders.[138]

(ii) The Dangers of Addressing Care and Protection Concerns within the Youth Justice Arena

If a young person is referred to CYFS under section 280 of the CYPF Act, the matter may be discharged in the Youth Court and dealt with under the care and protection provisions. The young person has offended but is only indirectly held accountable for their actions. It could be argued that this absolves the young person of accountability for their actions on the basis of their background or needs. This raises the question of when and whether care and protection should provide an excuse for offending - and how serious should care and protection needs be before this referral out of the justice system is offered.

Footnotes

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

35 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.

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

37 Senior Children's Magistrate of NSW Stephen Scarlett 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, 5.

38 Crimes Act 1961 (NZ), s21.

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

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

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

42 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.

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

44 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.

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

46 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.

47 G Maxwell, Achieving Effective Outcomes in Youth Justice: Implications of New Research for Principles, Police and Practice, n 13, 8.

48 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.

49 G Maxwell, J Robertson, T Anderson, Police Youth Diversion - Final Report, n 48, 88.

50 Inspector C Graveson, Police Involvement in Juvenile Crime Prevention and Diversion - Australia and New Zealand, n 46, 12.

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

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

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

54 Inspector C Graveson, Police Involvement in Juvenile Crime Prevention and Diversion - Australia and New Zealand, n 46, 14.

55 Explanation of "not denied" mechanism at n 44.

56 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.

57 Explanation of Intention to Charge FGCs on page 22.

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

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

60 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 (eg. Rotorua, Gisborne and Kaikohe) the rate of Mäori youth offending is significantly higher, comprising 80-90% of total youth offending.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

78 His Honour, Chief District Court Judge DJ Carruthers Restorative Justice and Juvenile Justice: A Comparison of the Singapore and New Zealand Experience (Unpublished) 2002, 17.

79 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.

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

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

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

83 M Doolan, Working with Young People who Offend, n 32, 2.

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

85 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.

86 Maxwell, Kingi, Robertson and Morris, Achieving Effective Outcomes in Youth Justice: Draft Final Report to the Ministry of Social Development, n 85.

87 Maxwell, Kingi, Robertson and Morris Achieving Effective Outcomes in Youth Justice: Draft Final Report to the Ministry of Social Development, n 85.

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

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

90 Gabrielle Maxwell, Achieving Effective Outcomes in Youth Justice: Implications of New Research for Principles, Policy and Practice, n 13, 6.

91 Gabrielle Maxwell, Achieving Effective Outcomes in Youth Justice: Implications of New Research for Principles, Policy and Practice, n 13, 7.

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

93 His Honour, Chief District Court Judge DJ Carruthers Restorative Justice and Juvenile Justice: A Comparison of the Singapore and New Zealand Experience, n 78, 13.

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

95 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 September 2005)

96 Erik Luna, Restorative Justice, n 95.

97 Children, Young Persons and Their Families Act 1989, section 251(1)(a), outlines an entitlement to attend a Family Group Conference, not a requirement.

98 Erik Luna, Restorative Justice, NZIDR Lecture, n 95.

99 Erik Luna, Restorative Justice, NZIDR Lecture, n 95.

100 The types of FGC are discussed on pages 21-23.

101 The "not denied" mechanism is explained at page 17, n 43.

102 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.

103 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 September 2005)

104 Erik Luna, Restorative Justice, n 95.

105 A MacRae, Family Group Conferencing: An Effective Justice Process (Presented at Santa Rosa, California, 22-25 May 2000) cited in Anne Hayden Restorative Conferencing Manual of Aotearoa New Zealand: A Treasure from our Basket (Department for Courts, Wellington, 2001) 72.

106 A MacRae, Family Group Conferencing: An Effective Justice Process, n 105.

107 Erik Luna, Restorative Justice, n 95.

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

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

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

111 The recommendations a FGC may make are outlined on page 23.

112 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 September 2005).

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

114 Allison Morris and Gabrielle Maxwell, Restorative Justice in New Zealand: Family Group Conferences as a Case Study, n 103.

115 Emily Watt, A History of Youth Justice in New Zealand, (Unpublished) 2003, <http://www.justice.govt.nz/youth/history> (last accessed 5 September 2005).

116 A N Montgomery, Restorative Justice and The Incorporation of Dispute Resolution into the Criminal Justice System: Playing Devil's Advocate (Unpublished) 1998, <http://www.cfcj-fcjc.org/full-text/montgomery.htm> (last accessed 2 September 2005).

117 A N Montgomery, Restorative Justice and The Incorporation of Dispute Resolution into the Criminal Justice System: Playing Devil's Advocate, n 116.

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

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

120 X v New Zealand Police (11 February 2005, High Court, Auckland CRI 2004-404-374, Heath, Courtney JJ).

121 R v Slade & Hamilton (CA, CA245/04, CA266/04, 28 February 2005, Anderson P, Hammond and William Young JJ).

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

123 Simmons, above n 122, 15-16 per Justice Kennedy, delivering the judgment of the Court.

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

125 K McLaren, Youth Offending Teams: What Works to Reduce Offending by Young People, e-flash 18, n 124, 2.

126 K McLaren, Youth Offending Teams: What Doesn't Work to Reduce Offending by Young People, e-flash 19, n 124, 4.

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

128 The discussion on "Desisters" and "Persisters" begins on page 10.

129 Research assistance for this section provided by Rebecca Paton, Research Counsel to the Chief District Court Judge.

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

131 Emily Watt. A History of Youth Justice in New Zealand, n 115.

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

133 Emily Watt. A History of Youth Justice in New Zealand, n 115.

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

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

136 Judge Michael Brown, Care and Protection is about Adult Behaviour, Ministerial Review into the Department of Child, Youth and Family Services, December 2002, 58.

137 Ministry of Social Development, Achieving Effective Outcomes in Youth Justice, Ministry of Social Development, New Zealand, 2004, 19.

138 Children, Young Persons and Their Families Act 1989 (NZ), s68, s261