Youth Justice Family Group Conferences: A Quick "Nip and Tuck" or Transplant Surgery - What Would the Doctor Order in 2006?

HIS HONOUR JUDGE A J BECROFT
Principal Youth Court for New Zealand

Te Kaiwhakawa Matua o Te Kooti Taiohi o Aotearoa

INTERNATIONAL CONFERENCE ON THE FAMILY GROUP CONFERENCE – "COMING HOME – TE HOKINGA MAI"

I INTRODUCTION[1]

Family Group Conferences (FGCs) have been described as the "lynch pin" and the "jewel in the Crown"[2] of the New Zealand youth justice system. With their introduction in 1989 a completely new paradigm[3] for dealing with young offenders was introduced. Indeed after eighteen years of operation, it is hard to imagine our system without them.

Epithets such as "lynch pin" and "jewel" are well justified. The FGC system, which was introduced along with Police led, community diversionary approaches, revolutionised the youth justice landscape. It empowered families to find solutions for their young people that promoted both accountability and rehabilitation. In this way, FGCs became the prime mechanism for discharging the twin statutory responsibilities in respect of serious young offenders,[4] expressly provided for in the Children, Young Persons and Their Families Act 1989 (CYPF Act). The CYPF Act states that a key object of the Act is to ensure:[5]

(f) ... that where children or young persons commit offences,—

(i) They are held accountable, and encouraged to accept responsibility, for their behaviour; and

(ii) They are dealt with in a way that acknowledges their needs and that will give them the opportunity to develop in responsible, beneficial, and socially acceptable ways:

Indeed some commentators, such as Durie J in his speech to the International FGC Conference at which this paper was presented, go so far as to suggest that the FGC is not primarily a "means" to the "end" of ensuring accountability and stopping re-offending, however important these goals are, but is an "end" in itself. The FGC enshrines the rights of families to take responsibility for, and to participate in, decision-making about their own law-breaking children.

The success of FGCs is world renowned. The conferencing system, pioneered in New Zealand, has now been adapted and adopted to greater or lesser degrees in many other jurisdictions. But even the most ardent admirer of the New Zealand FGC would recognise the importance of reflecting upon the past eighteen years of experience and of enquiring as to what lessons have been learned with the completion of over 100,000 youth justice and care and protection FGCs. As with any system, there are issues facing the New Zealand FGC regime which require urgent debate and attention, and deficiencies that require adjustment. Whether the FGC system in New Zealand needs a quick "nip and tuck" to remedy minor flaws or a major transplant, perhaps in terms of law reform or a philosophical shift, is the subject of this paper.

It is vital that these questions are answered and that an ever-improving FGC system is in place. Internationally, there is an increasing trend towards treating youth offenders as junior adults, for whom "adult crime demands adult time". The pendulum tends to swing between welfare and more punitive justice approaches in different youth justice systems and these changes in policy have historically bedevilled a consistent approach to youth crime. Currently, the pendulum is moving firmly towards a more punitive approach. For example, in the United Kingdom, where ten to fourteen year olds are increasingly considered to be fully competent. Julia Fionda, in Legal Concepts of Childhood, argues:[6]

"Policy changes and recent legislation have increasingly treated this age group as fully competent, aware of the significance and repercussions of their actions and mature enough to accept responsibility for them. Concomitant with the erosion in the recognition of children's incapacity and lack of awareness is a trend towards punitive treatment ... Fionda argues that many of these policy changes are politically motivated rather than based on any real change in the nature of childhood or the competence of children."

New Zealand will not be exempt from these trends. Indeed with the introduction to Parliament of the Young Offenders (Serious Crimes) Bill, introduced 16 March 2006, this country faces a debate on this very issue.

In this context, the FGC system is under the microscope as never before. Regrettably, in the land of their birth, FGCs are often wrongly perceived as a soft option, a sort of "kumbayah singing, hand holding, Milo drinking, soft response to crime", that simply "doesn't cut it", especially with serious young offenders. In this way FGCs are misconceived, and stereotyped as the antithesis of the "lock 'em up" get tough approach. Certainly, the FGC process recognises that young people may be immature, vulnerable and still very much part of and influenced by their families. But, in fact, when well prepared, conducted and followed up, the FGC has been a profoundly powerful response to youth crime. It is demanding for the young offender, it facilitates, and indeed necessitates the active involvement of his/her immediate and wider family, and can prove deeply satisfying for victims - all in ways that have surpassed the more traditional approach to dealing with offending. And it is worth noting that FGCs are able to recommend stern responses to serious young offenders, including, where accountability demands it, sentences of imprisonment.

In the context of the important national debate about effective responses to youth crime, it is even more vital that New Zealand's FGC system is properly understood, subject to continuing rigorous analysis, and proved to be an effective response to youth crime. The conference at which this paper is presented provides the first national forum to discuss these issues.

II THE YOUTH JUSTICE FAMILY GROUP CONFERENCE

This paper is limited in its scope to youth justice FGCs, which are integral to the youth justice system. For the purposes of this paper it will be important to list and describe the types of youth justice FGCs that can be convened and held and the circumstances in which they arise. In fact the CYPF Act dictates that a youth justice FGC must be convened in six situations, a little understood feature of New Zealand's system.

1 Child offender care and protection conference

If the Police believe, after inquiry, that an alleged child offender (10-13 years inclusive) is in need of care and protection, this must be reported to a Youth Justice Co-ordinator (YJCs are employees of Child, Youth and Family Services and are sometimes 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[7] 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.[8]

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.[9] 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.[10]

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.[11] 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.[12]

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.[13] "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. 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.[14]

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.[15] At a penalty FGC, the group must decide what action and/or penalties should result from a finding that a charge is proved.[16]

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.[17] 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.

B The majority of FGCs in Youth Justice are "Intention to Charge" and "Court-ordered" FGCs

There are two ways in which a "young person" charged with a criminal offence comes to appear before the Youth Court.

Intention to Charge FGC: Firstly, where an offence is alleged and the Police believe criminal proceedings are "required in the public interest", the Police and a YJC consult and the matter is considered by an "intention to charge" FGC.[18] This avenue is taken where the young person has not been arrested (or has been earlier arrested and released).

Court-ordered FGC: A second route by which a young person may find themselves in the Youth Court occurs where a young person is arrested for an offence and is brought before the Youth Court to answer the charge.[19] In this situation, the offence is either "denied", in which case the charge is dealt with according to sections 273 to 276 of the CYPF Act, or "not denied" and the Court orders a YJC to convene a FGC and proceedings are adjourned until the FGC has been held.

These two routes to the Youth Court demonstrate that the FGC is the "machine room" of the New Zealand youth justice system in its dealings with serious young offenders. In the vast majority of cases, it is the forum for making decisions about "guilt" and "punishment" and the Youth Court merely supervises the process and accepts the recommendations of the FGC.

Most young people being dealt with by youth justice FGC are serious young offenders, sometimes described as "Persisters". Some researchers have divided young offenders into two groups - "Persisters" and "Desisters".[20] The majority of youth offenders are "Desisters" - they commit at least one crime, but usually start offending after 13 years and stop or age out of offending by 24 to 28 years of age.[21] The real challenge to the youth justice system is posed by the "Persister" group which describes the difficult 5 to 15% of youth offenders,[22] who start offending before age 14 and are responsible for at least 50% of youth offending in New Zealand.

The common personal characteristics of Persisters are that:[23]

• 85% are male. However, the number of young women who offend, especially violently, seems to be increasing.
• 70-80% have an alcohol or other drug 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, especially conduct disorder, and display little remorse, let alone any victim empathy. Some will also have a specific learning disability eg dyslexia, although research is required to establish the extent of this problem.
• At least 50% are Maori[24] and in some Youth Courts, in areas of high Maori population, the Maori 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.

C The function, method and process of FGCs

It is beyond the scope of this paper to set out how an FGC operates, what processes are followed and who is entitled to attend. These issues are well documented in other publications and papers.[25]

III IN CELEBRATION OF FAMILY GROUP CONFERENCES

Family Group Conferences are demonstrably an effective and appropriate means of dealing with serious youth offending. New Zealand can rightly be proud of having developed FGCs which have been described as its "gift to the world".[26]

A FGCs - One Component of a Comprehensive New Approach in 1989

However, the FGC "gift" was just one part of a two pronged approach. The second part was a commitment to diversion that was mandated by the CYPF Act and embraced by the New Zealand Police. The CYPF Act states that any exercise of powers relating to youth justice must be guided by the principle that:

(a) ... 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:

The CYPF Act mandates three levels of alternative action - diversion, warnings and "intention to charge" FGCs:

1. Warning: these are 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 is put in place by the Youth Aid Officer that may include an apology, reparation and/or community work.

3. Intention to Charge FGC: 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.

These three approaches have been embraced by the Police with the result that around 76% of youth offenders are now diverted away from the criminal justice system.[27] The remaining 24% are dealt with by FGC - about 8% of this number via intention to charge FGC.

B FGCs Work!

Thus, around 83% of young offenders are diverted away from the formal Court process. This is a world leading statistic and an important one as it can be very difficult to extract young people from the formal criminal justice system once they have been dealt with by it.

This emphasis on alternative action and the use of FGCs for the most serious cases has resulted in a marked decrease in the use of youth justice residences and a drop in the use of imprisonment, as demonstrated by the graph and table below:

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

Number of cases where the offender was under the age of 18, first appeared in a Youth Court and was then sentenced to imprisonment in either the District Court or High Court, 2001 to 2005

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.
5. Source: Ministry of Justice.

The graph shows custodial figures plummet after the CYPF Act was passed in 1989 and the table demonstrates the very limited use being made of imprisonment of under 18 year olds in New Zealand.

Importantly, statistics show that FGCs have a positive impact on re-offending:[28]

These figures demonstrate that, once young people who had been subject to a FGC "aged out" of the Youth Court jurisdiction, a third did not offend at all and a further 22% offended but only to a minor degree. Thus, 55% of the most serious young offenders in New Zealand either do not offend or offend only to a minor degree following FGC. This is a strong outcome given that every Western jurisdiction struggles to deal with this difficult group who are often impervious to rehabilitation.

One of the strongest success rates we are aware of is a 48% reduction in re-offending recorded in the State of Oregon, USA where young offenders were put through a two to three year programme of multi-systemic family and cognitive behaviour therapy. The Oregon re-offending rate compares well with the results of New Zealand's experiences with FGCs. Although the New Zealand approach is much less intensive and expensive, arguably 55% of serious young offenders do not continue to pose a significant problem for the criminal justice system.

C “Restorative Justice” Approach Taken - Although No Legislative Mandate for it

The New Zealand FGC system has been practised using a restorative justice approach although this is certainly not mandated by, or mentioned in, the CYPF Act under which FGCs are held. Indeed a restorative justice approach is not even necessary in order to conform to the provisions of the CYPF Act. It is now recognised that at the time the Act was debated and formulated, the restorative justice movement was in its infancy, and was not even in the minds of those who formulated the Bill. That said, a restorative justice approach is entirely consistent with its objects and principles.

FGCs have been practised as a restorative justice initiative for the past seventeen years. New Zealand has become a recognised world leader and since 1989 other jurisdictions have "woken up to the fact" that this small country is practising an example of restorative justice in its youth justice system.

The FGC system is now systematically entrenched and the current government is committed to ensuring that FGCs continue to be promoted as the primary means by which decisions are made for children and young people who offend or who are at risk or in need.[29]

D Youth Offending Stable

Contrary to headlines announcing youth crime is out of control, offending by under-17 year olds has only increased a small amount each year over the last six years.[30] Youth offenders have remained at about 22% of the total number of apprehended offenders meaning that youth offending has not increased at any greater rate than adult offending. Although there was a significant increase in youth offending statistics in the first half of the 1990s, most categories, such as apprehension rates and the number of charges processed in the Youth Court, have been stable since about 1998. Despite an increase in the population, the number of cases finalised in the Youth Court has declined over recent years.

However, particular categories of violent offending present a cause for concern. Statistics show that aggravated robberies and grievous/serious assaults increased up until and including 2005. Figures showing rates of offending per 10,000 of population of 14 to 16 year olds apprehended by Police for non-traffic offences, show that aggravated robberies increased 36% between 1996 and 2005 inclusive and serious/grievous assaults increased 32% over the same period.[31]

IV SOME "BIG PICTURE" CHALLENGES FOR THE FGC

A Is Sufficient Emphasis placed on Rehabilitation and Reintegration at Family Group Conference?

As noted in the introduction, the CYPF Act emphasises the need for accountability and rehabilitation of young people. New Zealand's FGCs have been an excellent forum for achieving accountability and ensuring that any wrong is put right but have been less successful at helping to rehabilitate and reintegrate young people.[32] The following table from Achieving Effective Outcomes in Youth Justice[33] demonstrates the success of the system in achieving accountability and restorative outcomes, and its lack of success in reintegrating and rehabilitating (sometimes called "enhancing well being") the majority of young people being dealt with at FGC:

Table 11.1 Recommendations of agreed family group conference comparing the combinations of primarily restorative, restrictive, rehabilitative and reintegrative measures for the retrospective sample; number and percentages (n = 904)

This may suggest that a "restorative approach", emphasising accountability and putting right the wrong, has relegated addressing the well-being of youth offenders to a secondary position. A guiding principle of the CYPF Act, and of youth justice in New Zealand, is that criminal proceedings may not be instituted against a young person solely to access welfare services.[34] This principle was one part of the CYPF Act's move away from a "welfarist" approach and it is possible that the failure of the system to achieve adequate rehabilitative outcomes at FGC reflects zealous adherence to a justice, rather than a "welfarist" principle.[35]

Those working under the CYPF Act have, at times, considered that section 208(b) disallowed any welfare help for youth offenders. This is not the case - section 208(b) forbids initiating criminal charges to gain welfare assistance but if charges have been appropriately instituted, there is no prohibition against accessing welfare assistance.[36] Indeed, it would be contrary to the CYPF Act, and section 4(f)(ii) in particular, not to do so. It must be stressed that it is not welfarism to address the causes of offending at FGC.

The CYPF Act contains avenues to transfer young people with welfare needs to the Family Court for assistance.[37] However, although the CYPF Act mandates care and protection assistance, it is not always easy in practice to access this assistance. Further, transfer to the "care and protection" jurisdiction can be difficult. Although cases may be referred to a care and protection co-ordinator,[38] they are rarely accepted by that service. As the care and protection system is extremely overburdened, understandably a very high threshold is set which cases must meet before they will be accepted.

This is a significant problem as a large number of young offenders have care and protection issues. A minimum of 20% of young people appearing before the Youth Court are already subject to care and protection custody orders.[39] These young offenders require careful and often intensive treatment and yet while under the custody order they appear to be insufficiently supervised by Child, Youth and Family Services and continue to offend.

These issues demonstrate that the FGC system is not adequately addressing the rehabilitative goals of the CYPF Act. A change in the practice of FGCs is surely required.

B Has the Commitment to the Primacy of Family Decision-Making been used to Excuse Important Information from "Professionals" being put before FGCs?

Family participation in decision-making is of primary importance but there should also be sufficient "professional" information and knowledge made available to assist families in the decision-making process. Youth Justice Co-ordinators are empowered to take steps to ensure that the FGC has all necessary resources[40] but the "family knows best" approach understandably taken in New Zealand often means that insufficient use has been made of the knowledge and skills of professionals at FGC. There has been an understandable "distaste" for professional decision-making and take-over. However, while the family must remain at the centre of the decisionmaking process, the family also requires good information to make good decisions.

Experts that can inform the decision-making process include psychologists, psychiatrists, alcohol and other drug counsellors, social workers and medical personnel. For example, if a young person has addiction issues, information establishing the addiction/dependency background and about the treatment that is likely to be the most effective might be vital to the family. Besides risk and needs assessments and forensic psychiatric reports, relevant information could include any of the following reports:

• strengths, risks & needs assessments
• drug and alcohol assessments
• health & education assessments
• psychological assessments
• in rare cases, even psychiatric assessments.

This is not to say that experts always know best. It is certainly true that the State's officials can too often be paternalistic. History has taught this lesson in New Zealand. However, it is fair to ask whether we have "thrown the baby out with the bath water" over the last 16 years and excluded good input from professionals with the knowledge and skills to assist and help families in their decision-making.

One group of professionals who are by law excluded from the Family Group Conference are social workers. They are only entitled to attend the FGC in very narrow circumstances set out in section 251 of the CYPF Act:

(h) a Social Worker, in any case where—

(i) the [chief executive] is a guardian of the child or young person; or [(ii) the chief executive has the role of providing day-to-day care for the child or young person under the Care of Children Act 2004, or is entitled to custody of the child or young person under an order or agreement made under Part 2 of this Act; or]

(iii) the [chief executive] is required, pursuant to an order made under section 91 of this Act, to provide support to the child or young person; or

(iv) the young person is under the supervision of the [chief executive] pursuant to an order made under section 283(k) or section 307 or section 311 of this Act:

In practice, they attend very rarely.

Further, a current concern is that risk and needs assessments are not available at every conference contrary to CYFS' own clear policy. Yet knowing the risks faced by young people and their needs is a vital part of working out an appropriate outcome. CYFS policy states that Risk and Needs Assessments should be carried out:

• for repeat offenders;
• all young people detained under section 238(1)(d) or section 238(1)(e);
• whenever a Youth Justice Co-ordinator feels, during the course of a FGC, that an assessment should be carried out; and
• where social work reports and plans will be recommending supervision, supervision with activity or supervision with residence orders.

Most families, whatever challenges they face, want the best for their young people. The best outcomes need the best inputs and it is possible to achieve this without sacrificing a family's privacy.

C Is there Scope for more Formalised "Community" Input at FGCs

Justice is a community concern and a community responsibility. The FGC process partially handed power to the community to allow a negotiated, community response to crime.[41] Judge McElrea has described the three key elements of the FGC process[42] as:

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.

Unlike care and protection FGCs, there is scope for wider community input in the youth justice FGC process. Perhaps this could be achieved by way of two "panel members" being invited to a FGC who have experience working with challenging young people and access to community programmes, training and jobs. Essentially they could inform the conference about appropriate training and opportunities that are available and explain how they could be accessed.

D Are "Subject to Finance" FGC Plans or Recommendations Consistent with the Principles of the CYPF Act?

Section 268(1) CYPF Act states that effect should be given to FGC plans unless this is "clearly impracticable or clearly inconsistent with the principles" of that Act. This does not mandate the presenting of FGC plans "subject to finance". FGC Coordinators should be trusted to ensure necessary and appropriate plans are formulated. All the relevant people are, ideally, at the FGC and hear all the relevant information -if this group of well-informed people decide that a programme is required and agree upon its implementation at FGC then that plan should be implemented save in very rare cases.

New Zealand has experienced an erosion in youth justice expertise and an attendant degredation of community-based youth justice residential programmes and facilities.

This has left some FGCs with severely limited options as to effective or appropriate programmes for their young people. More such programmes are required.

The CYPF Act provides a great deal of flexibility as to the content of plans that may be devised for young people. Plans may be detailed and tailored to fit a young person's specific needs. Even where a charge is proved, a range of programmes can be chosen for the young person under the "supervision with activity" order provided for in the CYPF Act.[43] Of course, this relies on a range of programmes being available.

The CYPF Act provides for a range of orders to be imposed on a young person including supervision, supervision with activity and supervision with residence.[44]Supervision with activity involves three months of supervision during which the young person must attend and undertake a specified programme or activity. The three months may be followed by a further period of supervision for up to three months.[45]Supervision with residence[46] places a young person in the custody of the chief executive of Child, Youth and Family Services for 3 months and after this order is completed, a period of up to six months supervision follows.

The supervision with activity order is a true statutorily mandated alternative to supervision with residence. Section 289 CYPF Act states that a Court shall not make a supervision with activity order unless, "but for the availability of that order", the Court would have considered making a supervision with residence order.

Critics have argued that too little use is being made of the supervision with activity order[47] while the custodial supervision with residence order is over-used.[48]

E Improved Training for Youth Justice FGC Co-ordinators

FGC Co-ordinators are pivotal to the New Zealand system. Arguably, their role has been eroded and devalued. Originally, FGC Co-ordinators were intended to lead and manage youth justice work in their geographical area.

A social work qualification is not necessary for the position as Co-ordinators are an independent, unique set of skill-based individuals. However, it is vital that the unique skills of the Co-ordinator be enhanced through formalised training. A Diploma or Certificate in FGC Practice would provide useful training to Co-ordinators and assist in ensuring good practice throughout the country.

This is something that has been overlooked by Child, Youth and Family services for too long.

F Is the Youth Court too Involved in Monitoring of Plans; Should we Beware of "Judicial Creep..."

As noted, the Youth Court acts as a type of "referee" to the FGC process, in certain circumstances directing that FGCs be held or deciding whether the plan formulated by the FGC is sufficient.[49] If the FGC plan is too lenient or too onerous, the Youth Court has been known to alter elements of the plan. For example, it may reduce the number of community work hours required where the FGC recommends this in response to a less serious crime. In this role the Youth Court safeguards the restorative FGC process and ensures that individual rights are upheld and that outcomes are proportionate to the crime.

Over time there has been increased use of multiple appearances before the Youth Court which has meant more "check-ups" and more monitoring by the Court. The first reason for this trend is the growth and acceptance of the "therapeutic jurisprudence" model. This asserts that Court processes potentially impact participant wellbeing and therefore these processes should be developed with a view to promoting wellbeing or at least limiting any negative impact.[50] This may be used, for example, in a Drug Court where the young person makes repeat appearances before the same Judge to ensure adequate monitoring of their treatment plan.

A less positive reason is the historical lack of confidence by the Court in plans (and top end orders) being properly monitored and implemented. This unease is often shared by FGC Co-ordinators. The Court has, over time, assumed a much greater role in monitoring the performance and completion of a FGC plan. It is a legitimate debate as to whether the trend is desirable. Perhaps a suitable response to this problem is for the Youth Court to make greater use of restorative processes within the Courtroom. If interested parties are able to take greater ownership of the process, perhaps they will also undertake a greater commitment to proper monitoring and implementation of plans.

It is difficult to transplant restorative processes into the formal adversarial Court arena. However, a more restorative approach may be achieved by improving the participation of victims in Court, increasing young people's participation and comprehension of the Youth Court and increasing community involvement.[51] For example, the CYPF Act makes provision for the appointment of "lay advocates" in Youth Court, non-lawyers who appear in support of the young person, but these are rarely if ever appointed.[52]

V SOME “SMALL PICTURE/TECHNICAL” CHALLENGES

There are several smaller challenges facing the FGC process. For example, Family Group Conferences could be improved if members of the young person's wider family group were more regularly in attendance. Further, concerns have been raised that FGC plans have become too uniform, for example, they may regularly include similar requirements for community work and an apology letter. These problems stem from the fact that the caseloads facing YJCs can be too large to allow a thorough handling of a case. However, it is hoped that this will change with the recent renewed focus on youth justice.[53]

VI CONCLUSION

This is a crucial time for the FGC system. It is an effective and ground-breaking process and a sound model of practice which supports the spirit and intent of the CYPF Act. At its best, the FGC system is effective in reducing re-offending, in involving families and giving them the right to effect change and in meeting victims needs. It constitutes a profoundly appropriate response to youth offending and is a system the community can trust.

The FGC system faces several challenges, as outlined, and these undermine its effectiveness. It is vital that these problems are dealt with and the system functions, and is seen to function, effectively for young people, their families and the community. Arguably, the alternative is the global move towards imposing "adult time for adult crime" and processing and punishing youth offenders as "small adults" which is likely to be ineffective and possibly even dangerous.

The FGC system requires more than "nip and tuck" surgery. But it is structurally sound and does not require a full "transplant surgery" approach. There is significant support for the system in New Zealand[54] and, imitation being the sincerest form of flattery, around the world. However, practice must improve and big picture issues must be addressed urgently if the system is to remain one worthy of gifting to the world.

Footnotes

1 Paper prepared by His Honour Judge A J Becroft, Principal Youth Court Judge of New Zealand with
assistance from Rhonda Thompson (BBS, LLB(Hons)), Research Counsel to the Principal Youth Court
Judge.

2 Judge Carolyn Henwood, Wellington Youth Court Judge, The Children, Young Persons and Their
Families Act 1989 – The New Zealand Situation 1997 – A Judicial Perspective.

3 Morris and Maxwell (1990) Juvenile Justice in New Zealand: A New Paradigm, Victoria University
of Wellington, Wellington. McElrea, FWM (1993) A New Model of Justice, in Brown and McElrea
(eds.). The Youth Court in New Zealand: A New Model of Justice. Legal Research Foundation,
Auckland.

4 Note that 76% of youth offending is dealt with by Police diversion or other forms of alternative action
and is not the subject of an FGC.

5 Children, Young Persons and Their Families Act 1989, s4(f)(i) & (ii).

6 Julia Fionda (ed), Legal Concepts of Childhood (Hart Publishing, Oxford, 2001) 6.

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

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

9 Children, Young Persons and Their Families Act 1989, s245.

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

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

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

13 Children, Young Persons and Their Families Act 1989, s246.

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

15 Children, Young Persons and Their Families Act 1989, s281.

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

17 Children, Young Persons and Their Families Act 1989, s281B.

18 Children, Young Persons and Their Families Act 1989, s245.

19 Children, Young Persons and Their Families Act 1989, s246.

20 Moffitt TE (1993) “Adolescence-Limited and Life-Course Persistent Antisocial Behaviour: A
Developmental Taxonomy” Psychological Review 100(4): 674-701.

21 Moffitt TE (1996) “Adolescence-Limited and Life-Course Persistent Offending: A Complementary
Pair of Developmental Theories” quoted in K L McLaren, Tough is Not Enough – Getting Smart about
Youth Crime (Wellington, 2000) available online at
<http://www.myd.govt.nz/uploads/docs/0.7.4.1%20exec%20sum.pdf> (last accessed 7 August 2006).

22 Moffitt TE (1996) “Adolescence-Limited and Life-Course Persistent Offending: A Complementary
Pair of Developmental Theories”, n 21, 16.

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

24 Youth Offending Strategy: Preventing and Reducing Offending and Re-offending by Children and
Young People, Te Haonga (Ministry of Justice & Ministry of Social Development, Wellington, 2002)
11 available online at <http://www.justice.govt.nz/pubs/reports/2002/youth-offending-strategy/youthstrategy/
index-strategy.html> (last accessed 2 August 2006).

25 See for example Judge A J Becroft, Family Group Conferencing: A New Zealand Model for Young
Persons’ Participation in Youth Justice Processes, an Address to the XVI Youth and Family World
Congress, Melbourne, Australia, October 27, 2002; Judge A J Becroft, Family Group Conferences as a
Model of Justice, Melbourne, IAJFCJ, 2002.

26 Former Chief District Court Judge David Carruthers, Wellesley Club Luncheon, Wellington, 6 June
2001 quoted in Hon Justice J Bruce Robertson What is Distinctive about the New Zealand Law and the
New Zealand Way of Doing Law?, Law Commission 20th Anniversary Seminar, Wellington, New
Zealand, 25 August 2006.

27 Conviction and Sentencing of Offenders in New Zealand, 1995 - 2004, Ministry of Justice,
Wellington, New Zealand, February 2006.

28 Maxwell, Robertson, Kingi, Morris & Cunningham, Achieving Effective Outcomes in Youth Justice,
Ministry of Social Development, February 2004, 192.

29 Hon Ruth Dyson MP, Minister for Child, Youth and Family Services, Celebrating Innovation in
Family Decision Making for the Family Group Conference, Address to Child, Youth and Family
Decision Making Conference “Coming Home: Te Hokinga Mai”, Wellington Town Hall, 27 November
2006.

30 Conviction and Sentencing of Offenders in New Zealand: 1995-2004, n 27.

31 Updated Table 7.2 from the report Conviction and Sentencing of Offenders in New Zealand: 1995-
2004, 16 October, 2006, Ministry of Justice, Wellington, New Zealand.

32 Maxwell, Kingi, Robertson, Morris, Cunningham, Achieving Effective Outcomes in Youth Justice:
Implications of New Research for Principles, Policy and Practice, 6.

33 Maxwell, Kingi, Robertson, Morris, Cunningham, Achieving Effective Outcomes in Youth Justice:
Implications of New Research for Principles, Policy and Practice, n 32, 241.

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

35 Morris and Maxwell, Juvenile Justice in New Zealand: A New Paradigm, n 3, 13.

36 Judge A J Becroft, A Report Card on How Our Legal Systems Deal with the Inter-Relationship
Between Child Protection and Youth Crime, AIJA Youth Justice Child Protection Conference, Hobart,
Tasmania, April 2006.

37 Children, Young Persons and Their Families Act 1989, s280.

38 Children, Young Persons and Their Families Act 1989, s19.

39 Children, Young Persons and Their Families Act 1989, s101, s110. As a snapshot view, on one day
in November 2006, 18 of 66 young people on remand at a youth justice residence were the subject of a
s101 or s110 order. Source: CYFs official note.

40 Children, Young Persons and Their Families Act 1989, s255.

41 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.

42 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.

43 Children, Young Persons and Their Families Act 1989, s283(m).

44 Children, Young Persons and Their Families Act 1989, s283(k), s283(m), s283(n).

45 Children, Young Persons and Their Families Act 1989, s307(2).

46 Under the Children, Young Persons and Their Families Act 1989, s311.

47 Children, Young Persons and Their Families Act 1989, s283(m).

48 Bobby Bryan, Advocate, Office for the Commissioner for Children Newsletter, 2003.

49 Although note that the Youth Court has no input into diversionary conferences.

50 Applying Therapeutic Jurisprudence in Regional Areas - The Western Australian Experience by
Michael S King, Murdoch University Electronic Journal of Law, Vol 10, No. 2 June 2003.

51 These issues are dealt with in more depth in Judge A J Becroft, Restorative Justice in the Youth
Court, A Square Peg in a Round Hole?, Towards a Restorative Society Symposium, Institute of Policy
Studies, October 2005, Wellington.

52 Children, Young Persons and Their Families Act 1989, s326.

53 See for example Child, Youth and Family Services “Youth Justice Capability Review”, part of which
is available on
http://www.beehive.govt.nz/Documents/Files/Youth%20Justice%20Capability%20Review.pdf.

54 Symposium on Child and Youth Offenders hosted by the Children’s Commissioner, 22 August 2006,
presentations available on http://www.presentationcentral.co.nz/mediasite/viewer/?cid=a045c880-
4d11-4abd-9e63-c0406ee105df.