PUTTING YOUTH JUSTICE UNDER THE MICROSCOPE: A QUICK NIP AND TUCK OR RADICAL SURGERY?

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

Te Kaiwhakawa Matua o Te Kooti Taiohi o Aotearoa

NATIONAL COUNCIL OF JUVENILE AND FAMILY COURT JUDGES ANNUAL CONFERENCE

INDEX

I INTRODUCTION

II NEW ZEALAND AND THE NEW ZEALAND YOUTH JUSTICE PROCESS

III "CHILDREN", "YOUNG PEOPLE" AND "JUVENILES"

IV A PRINCIPLED APPROACH TO CHILDREN IN CONFLICT WITH THE LAW

(a) UNCROC

(b) Other International Instruments

(c) International Instruments and New Zealand Legislation

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

(ii) Deficiencies in the incorporation of international instruments in the New Zealand Law

V CONDUCTING THE DIAGNOSIS

1. At what age should children be held criminally responsible for their actions

(i) Doli Incapax

(ii) The age of criminal liability in New Zealand

2. What is the proper "treatment" of child offenders with Care and Protection issues?

(i) General comments

(ii) The New Zealand response to Care and Protection issues

3. Should all children be charged and brought before a Court?

(i) Alternatives to Court appearances in New Zealand

(ii) Possible dangers of the use of alternative action

4. To what extent should state power to deal with child offending be transferred to families, victims and communities?

(i) Is the New Zealand system a restorative justice approach?

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

(iii) The use of Family Group Conferencing in the New Zealand context. Correcting some misunderstandings

(iv) Strengths and weaknesses of Family Group Conferencing

5. Should children actively participate in formal criminal processes?

(i) Comprehensivel participation of young offenders is ensured by the Family Group Conference process

(ii) How Family Group Conferences allow participation in practice

(iii) Formulation of an FGC Plan

(iv) Direct accountability

(v) Participation of young people in the Court system

6. Should a child who breaks the law ever be transferred to the adult criminal Court for trial/sentence?

7. Are our responses/sanctions for children in conflict with the law "evidence based" and in line with best international practice

(a) Persisters and desisters - two types of youth offenders

(i) What are "persisters" and "desisters"

(ii) Key risk factors for persisters and desisters

(iii) Key risk factors for desisters or "adolescent-limited" offenders

(iv) Key risk factors for persisters or "early onset offenders"

(v) Policy implications for dealing with desisters

(vi) Policy implications for dealing with persisters

(b) Child offenders - what works and what doesn't

(i) What doesn't work for child offenders

(ii) What does work for child offenders

Effective New Zealand Programmes designed to target "at-risk youth".

8. What use should be made of prison and youth detention centres?

(i) Why prison is no place for children

(ii) Imprisonment of youth offenders in New Zealand

9. Is segregation and aggregation of an offender an appropriate response to deviant youth behaviour?

Deviant Peer Contagion Alternatives

VI CONCLUSION

APPENDIX

I INTRODUCTION[1]

"... curious ambivalence underpins adult conceptualizations of children and childhood. Sentimentality and anxiety are polarized. Constructions of innocence and vulnerability necessitating protection contrast sharply with conceptualizations of a threatening and dangerous childhood demanding correction. "

B Goldson in "The Demonisation of Children: From the Symbolic to the Institutional"[2]

Children who offend pose a peculiar challenge to every criminal justice system. Children may commit "adult" crimes but their immaturity and lack of understanding mean that they cannot be dealt with as "small adults". They are different for a number of reasons. Firstly, childhood is typified by risk-taking and impulsive behaviour. To some extent this is a necessary part of maturation but unfortunately it manifests itself in unwise and reckless acts that may bring a child to the attention of the authorities. Secondly, children do not have the same developmental level of cognitive or psychological maturity as adults.[3] They are more vulnerable to provocation, duress or threatening behaviour and are particularly influenced by peer approval and fear or rejection.[4] Thirdly, offending by young people is often symptomatic of care and protection issues to which a purely justice response is destructive and unjust. Attempting to unravel and deal with justice and welfare issues within a traditional, adversarial Court setting is very difficult.

These factors interpret child offending as a consequence of vulnerability, immaturity and "disadvantage" but public perceptions are more likely to perceive child offenders as threatening or dangerous "yobs" and favour a "get tough" approach to child crime. It is this "curious ambivalence" that gives rise to many of the difficult questions surrounding child and youth justice. To what extent should the criminal justice system take account of, and respond to, welfare needs and how should accountability be achieved? Solutions for these difficult children are elusive. Nevertheless, a principled and proportionate approach is vital because a test of a country's civilisation and social maturity can be determined by the way it deals with children who break the law.

In enquiring into the correct response to young people we should beware of a supposed "golden age", now past, when children did not push boundaries and come into conflict with their elders. In 1884 a New Zealand newspaper reported: "There are a number of children running about the streets of Dunedin ... without the control of parents. If the government does not take them in hand ... they will become ... members of a criminal class."[5] Children have always posed a challenge to their communities.

Certainly every generation has its particular challenges in dealing with children, and particularly with those who break the law. Research in New Zealand, and most of the Western world indicates that all children break the law at least once between the ages of 10 and 18. Despite this, few come to the attention of the law enforcement authorities and fewer still, about 2%, require formal intervention. And the vast majority of child offenders do not pose a long-term threat to the public. Around 80% are "Desisters"[6] - those that commit at least one crime, but usually start offending after 13 years and stop or age out of offending by age 24 to 28 years.[7] It is, in fact, the 5% to 15% of child offenders described as "Persisters"[8] who are the real challenge for the justice system. These young people tend to come from deprived and abusive backgrounds, start offending before the age of 14 and are likely to become career criminals.

Rather than succumb to simplistic public pressure to "get tough", child and youth justice systems must take as their foundation the principles that uphold the rights of children and young people and develop systems that are qualitatively different to their adult criminal justice counterparts. The 1989 United Nations Convention on the Rights of the Child ("UNCROC") is the starting point for such a principled approach and the foundation upon which a delicate balance between trial and treatment can be achieved.

II DESCRIPTION OF NEW ZEALAND AND THE NEW ZEALAND YOUTH JUSTICE PROCESS [9]

The intent of this paper is to raise principles and issues of universal importance relating to youth justice and policy that should challenge all countries in the way they deal with children who offend. But the writers' recognise that even this exercise will be coloured by their experience of the New Zealand approach to child offending.

However, this paper is not fundamentally about the New Zealand youth justice system that deals with child offenders (10 to 13 year olds inclusive) and young people (14 to 16 year olds inclusive). A detailed description of the New Zealand system and environment is available in the Appendix.

New Zealand is situated in the South Pacific Ocean, 1600 km east of Australia and is made up of the North and South Island and a number of smaller ones, totalling 271,000 square kilometers. The capital city, Wellington is the most southerly capital city in the world. New Zealand's Head of State is Queen Elizabeth and the Prime Minister is Helen Clark, the leader of the Labour party, which is now in its third term.

New Zealand has a population of about 4.1 million people. In 2001 there were 675,087 people aged 12 to 24, making up 18% of the total population. The overall proportion of young people as part of New Zealand's population is declining and is expected to drop to 15% by 2051. Only 12% of young people live in rural areas. The ethnic diversity of New Zealand is increasing with the proportion of young people of European extraction decreasing while the proportion of Maori, Pacific, Asian and other young people is increasing.[10]

III "CHILDREN", "YOUNG PEOPLE" AND "JUVENILES"

It is important to define "child" for the purposes of this paper. The United Nations Convention on the Rights of the Child (UNCROC) defines a "child" as:[11]

"For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier."

The words "child" and "young person" are used differently and interchangeably in different countries. In New Zealand a sharp distinction is made between a "child" -someone aged under 14 years - and "young persons" who are unmarried young people aged 14 to 16 inclusive.[12] Other jurisdictions use the word "children" for everyone under the age of 17 or 18 - for example the state of Victoria in Australia. In keeping with UNCROC and usage at this conference, this paper will use the term "children" for all people under the age of 18.

However, no use is made of the word "juvenile" as in the writers' view this invariably has negative connotations. For example, people talk about juvenile offenders, juvenile courts and juvenile penitentiaries but seldom speak of juvenile soccer teams, juvenile violinists and juvenile scholarships. As the former Chief Social Worker of New Zealand's Child Youth and Family Services, Mike Doolan noted: "... young people find [the word 'juvenile'] deeply offensive. They are the first to realise that juvenile is usually only used as a companion to the word delinquent. Juvenile is not a word used in relation to young people except where they are involved with the criminal justice system and thus it is a stigmatising term."[13]

IV A PRINCIPLED APPROACH TO CHILDREN IN CONFLICT WITH THE LAW

(a) UNCROC

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

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

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

Article 40.1 of UNCROC maintains that every child who has infringed the penal law is entitled to treatment "in a manner consistent with the promotion of the child's sense of dignity and worth". Factors such as taking into account the child's age and the desirability of reintegrating the child back into a constructive role within society are some of the stated goals of this Article.

Article 40 states a child must be afforded a fair trial and must be:

• presumed innocent until proven guilty according to law;
• informed promptly of the charges against them and be afforded the appropriate assistance in the preparation of a defence;
• have the matter dealt with expeditiously by an impartial authority or judicial body with appropriate assistance and, where appropriate, the child's parents or legal guardians present;
• given the right of appeal to a higher judicial authority;
• afforded respect for their privacy;[14]
• UNCROC also states that a minimum age must be established below which children shall be presumed not to have the capacity to infringe the penal law;[15]
• further, whenever appropriate and desirable, alternatives to judicial proceedings should be found, though not at the expense of the child's human rights and appropriate legal safeguards.[16]

Further, UNCROC states as to the treatment of children:

• No child should be deprived of their liberty unlawfully or arbitrarily and arrest, detention or imprisonment of a child must be in conformity with the law and used only as a measure of last resort and for the shortest appropriate period of time;[17]
• States must promote laws and judicial procedures that are tailored to children who are alleged to have infringed the penal law;[18]
• A variety of alternatives to institutional care should be available to deal with children who offend including counselling, foster care and educational and vocational training programmes. These alternatives should ensure that children are dealt with in a manner appropriate to their well-being and proportionate to their circumstances and the offence.[19]

(b) Other International Instruments

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

1. the UN Guidelines for the Administration of Juvenile Delinquency ("the Riyadh Guidelines")[20]

2. the UN Standard Minimum Rules for the Protection of Juvenile Justice ("the Beijing Rules")[21], and

3. the UN Rules for the Protection of Juveniles Deprived of their Liberty.[22]

The Riyadh Guidelines insist that young people should have an active role and partnership within society and should not be seen as "objects of socialisation or control".[23] Anti-social behaviour should be seen as "part of the maturation and growth process" that will disappear with the transition to adulthood. The Riyadh Guidelines stress that government should put child offending prevention plans in place with the assistance of young people and should promote government involvement in strengthening the family, and in providing adequate education and community services.

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

Despite these lofty goals, there are an estimated 1 million children deprived of their liberty worldwide.[24] Unicef reports that these children often suffer deplorable and inhumane conditions, physical and sexual abuse and that parents are regularly denied visitation rights or information about their child's whereabouts. It would appear that some countries are more successful than others at implementing UNCROC and its associated Rules.

(c) International Instruments and New Zealand Legislation

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

New Zealand has implemented many of the principles laid down in the international instruments in the Children, Young Persons and Their Families Act 1989 ("the CYPF Act") but there is still room for improvement. It established procedures for the way in which the State could intervene in the lives of children, young people and their families (where care and protection concerns were apparent); and set up an innovative system of youth justice to respond to young people who offend. The CYPF Act heralded a shift from a "welfare-based" mentality where the State imposed generalised solutions on young people and their families in the interests of "curing" young offenders, to a hybrid justice/welfare system where young people, their families, victims, the community and the State are involved in taking responsibility for offending and its consequences.[25] Some key features of the provisions of the CYPF Act that apply to youth justice include:

• Protection of Children's Rights: Children and young people must be informed of their rights; Police powers of arrest are strictly limited; a nominated person must be present at any interview; children and young people may decline to make a statement and are entitled to legal representation; and they must be fully informed of their rights in language and in a manner that they can understand.
• Welfare: Rehabilitative options and support for families should be provided -children cannot be prosecuted in the Youth Court until they reach the age of 14 and time frames for resolving matters must be appropriate to the child's age.
• Justice: Diversion from Court and custody is to be preferred as are least restrictive sanctions. There is an emphasis on accountability and a separation of welfare and justice matters. Young people are to be held accountable but must also be dealt with in a way that acknowledges their needs and gives them opportunities to develop "in responsible, beneficial, and socially acceptable ways." [26]

The part of the Act devoted to youth justice begins with a statement of principles, which follows:[27]

• Unless the public interest requires otherwise, criminal proceedings should not be instituted against a child or young person if there is an alternative means of dealing with the matter
• Criminal proceedings should not be instituted against a child or young person solely in order to provide any assistance or services needed to advance the welfare of the child or young person, or his or her family, whanau,[28] or family group
• Any measures for dealing with offending by children or young persons should be designed -

  (i) To strengthen the family, whanau, hapu, iwi,[29] and family group of the child or young person concerned; and

  (ii) To foster the ability of families, whanau, hapu, iwi, and family groups to develop their own means of dealing with offending by their children and young persons

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

  (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

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

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

It is one thing to create laudable principles and quite another to ensure they are implemented in the face of resource constraints and, at times, contrary public opinion. In 2003 the UN Committee on the Rights of the Child considered New Zealand's compliance with UNCROC[30] and highlighted a number of deficiencies including the need to:

• Raise the minimum age of criminal responsibility from 10 years of age to an internationally acceptable level and apply this to all criminal offences.
• Extend the age jurisdiction of the Youth Court in the Children Young Persons and Their Families Act 1989 so that special protection may be accorded to everyone under the age of 18. As noted, UNCROC defines a "child" as any person under the age of 18 unless, under the law applicable to the child, majority is attained earlier. The age of majority in New Zealand is 20 years of age[31] but New Zealand only affords youth justice protections to children under the age of 17. Once the age of 17 is reached, youths are dealt with in the adult Courts although age is a relevant mitigating factor in sentencing.[32]
• Ensure the availability of sufficient residential youth facilities so that all juveniles in conflict with the law are held separately from adults in pre and post-trial detention. Article 37(c) of UNCROC states that children deprived of their liberty should be "separated from adults unless it is considered in the child's best interests not to do so". However, in New Zealand, of young people sentenced to prison, only the six most vulnerable can be housed in a youth criminal justice unit and the remainder are placed in prisons. Male youth offenders are placed in one of four youth units attached to prisons which are intended to house 17-20 year old males, thus a 14 year old who does not qualify to be held in the youth criminal justice unit may be forced to share a facility with a 19 year old. Female youth offenders are always placed in adult women's prisons as there are no female youth units.

• Find alternatives to the remand detention of young people in Police cells. Under-resourcing of youth justice facilities in recent years has seen the number of available residential youth justice beds limited to 102. The law provides for young people to be remanded to Police cells when they are likely to abscond or be violent and suitable facilities for their detention in safe custody are not available.[33 ]Increasingly, Judges have been forced to place young people in Police cells for very long periods - in some cases as long as 10 to 12 days - until a suitable place becomes available. While in Police cells, young people get little or no exercise, are fed fast food and may come into contact with serious adult offenders. Youth Court Judges in New Zealand have publicly criticised this state of affairs as being in breach of UNCROC Articles 37(a): "inhuman or degrading treatment or punishment", Article 40.2: "alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence", and Article 19.1 which insists that all measures should be taken to protect children from "physical or mental violence . neglect or negligent treatment, maltreatment or exploitation" while in the care of parents, legal guardians or any other person who has care of the child.

V CONDUCTING THE DIAGNOSIS

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

These questions are posed on the following assumptions:

• That every country should have its own separate, specialist legislation for children who break the law.
• There should always be a separate criminal children's court, either as a standalone court or as a criminal division of a multi-jurisdictional children's court. Some courts - such as those in Victoria, Australia have a Children's Court with two separate divisions, one for care and protection/welfare and one for criminal cases. Others, such as New Zealand, deal with care and protection in the Family Court and youth justice in a stand-alone Youth Court. Other countries, such as Scotland, offer more possibility of welfare-based negotiation and intervention than in many other jurisdictions.[34]
• Legislation and Courts will have specialist protections for young people such as additional safeguards when being interviewed by police, restrictions on police arrest powers and name suppression in Court (either absolute or qualified).
• Every jurisdiction should have trained specialists who deal with children in conflict with the law at every stage of the process. In particular there should be specialist law enforcement agents who deal with young people, specialist social workers, specialist child advocates/lawyers and specialist judges.

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

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

A survey of various countries reveals a wide disparity in the ages of criminal responsibility. For example, in Portugal the age is 16 years but in England the age is 10 years. Cultural and historical perspectives may indicate a different age is appropriate in different states but nevertheless, the age should be based on studies of children's maturation processes and relative levels of capacity, including their levels of responsibility, impulsivity, decision making and understanding of consequences as well as capacity for "rehabilitation".[35] Studies of human development conclude that the mind develops after the body and that physical/sexual, cognitive, behavioural, emotional and identity mature at different times.[36]

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.[37] 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.[38] 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:[39]

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.[40] 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. Recent studies[41] have shown that the executive functions of the brain, situated in the pre-frontal cortex are not fully mature until the late teens or early 20's. A mature frontal cortex makes it easier for voluntary (endogenous) behaviour to override the reflexive (exogenous) behaviour. Tests using magnetic resonance imaging show that when an adolescent is confronted with an already stressful situation, the adolescent may exhaust his or her prefrontal cortex resources. Furthermore, in everyday life general overtaxing of the pre-frontal cortex may impair planned behaviour and decision making 'which may explain why adolescents exhibit impulsive or thoughtless behaviour'. [42]

(i) Doli Incapax

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

The doli incapax presumption is rebuttable and a child can be convicted of an offence if the prosecution brings proof that the child understood their act or omission to be wrong. In some jurisdictions this presumption has a statutory basis while in others it remains a matter of common law.[43] The presumption allows the Court to consider the individual child's capacity to commit crime where the child is in the difficult "in between" years.

(ii) The Age of Criminal Liability in New Zealand

In New Zealand, the age of criminal liability is 10.[44] 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.[45] 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.[46]

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

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

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

Most serious child offenders, in one way or another, bring with them past and/or present care and protection deficits. International research confirms a causal connection between maltreatment of children and child offending.[47] Such children present a difficult challenge to the criminal justice system. On the one hand their backgrounds of abuse and environmental dysfunction, categorise them as vulnerable victims in need of help. On the other hand, their offending demands accountability. This raises the following fundamental questions. We can never ask these questions enough.

1. When and on what basis, should offences committed by children be seen primarily as a result of care and protection failures (requiring resolution in the Family or Care Courts). Put another way, when and on what basis should offences be dealt with as intentional breaches of the criminal law by autonomous, responsible individuals requiring resolution in the criminal courts. This raises the issue of how care and protection issues are to be recognised and importantly, how it is to be concluded that those issues have been causative of offending. It also raises the profound risk of criminalising what is essentially a welfare issue. More importantly still, it bears on the issue of the age of criminal liability because the younger an offender with care and protection issues is, the more they are seen as a product of their family and not fully culpable.

2. At the stage when the law does require that child offenders are dealt with in the criminal Court, to what extent should any underlying care and protection issues that may have contributed to their offending be addressed, in the criminal Court rather than the Care or Family Courts? Addressing such issues in the Criminal Courts, especially to the extent necessary to fully resolve them, runs the risk of "welfarising" and prolonging the justice response, and compromising the principle of proportionality of response.

(i) General Comments

Historically, justice systems treated child offenders as "small adults" and applied a classical punitive approach to juvenile crime. Throughout the early years of the twentieth century there was a move to a positivist "welfare approach" in many countries which dealt with child offending as symptomatic of welfare or care and protection issues.[48] The emphasis was on treatment and rehabilitation instead of punishment and accountability. This movement was, in time, criticised for causing too many and inappropriate arrests of young people for minor offences. Children who stole a chocolate bar might find themselves subject to open-ended sanctions which were aimed at reforming their overall behaviour but that were out of all proportion to the offence. Thus, this well-intentioned movement actually diminished children's rights in many cases.[49] The injustice of this response soon became apparent as did the realisation that many children who offend do not have any special family or social problems, meaning welfare dispositions are inappropriate.[50] In time, the pendulum swung back to a "justice approach" in many jurisdictions - this approach assumed that actions of child offenders were matters of free choice and focussed on accountability.

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

The CYPF Act in New Zealand is largely an example of a "justice" approach as it seeks to separate justice and welfare processes. The CYPF Act recognised that a justice approach would not be appropriate for some offenders and included statutory provisions that enabled referrals to welfare services if a young offender was considered to be in sufficient need.[51] This has the effect of moving cases out of the criminal courts where care and protection is the real issue. These are kept separate from the justice response as it is a principle of the CYPF Act that young people should not be brought before the Youth Court to remedy welfare concerns. The New Zealand legislation states: "... criminal proceedings should not be instituted against a child or young person solely in order to provide any assistance or services needed to advance the welfare of the child or young person, or his or her family, whanau, or family group.[52]

The relevant key features of the New Zealand system are as follows:[53]

1. All young offenders under 14 years of age (except when facing murder or manslaughter charges), are dealt with on the basis that care and protection issues are the primary cause of their offending. They are dealt with in the Family Court (under care and protection provisions of the Children Young Persons and their Families Act 1989) and cannot be charged in any criminal court. In other words, by definition, any offending by an under 14 year old is seen as being of a care and protection origin. While the age of criminal responsibility is 10 years of age,[54] for practical purposes, other than for murder or manslaughter, it is 14 years of age.

2. After 14 years of age, a youth offender can be charged in a criminal Court. But, even then, there is a process whereby care and protection issues may be referred to a Care and Protection Family Group Conference Co-ordinator at the direction of the Youth Court Judge (with the option then of further referral to the Family Court). When that happens, the criminal charges can be adjourned, and then the offender discharged absolutely.

3. When young people are charged in the Youth Court, the twin emphasis is on accountability and addressing the underlying causes of offending; but there is a strong emphasis against "welfarising the response".

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

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

UNCROC Art 40.3(b) states that whenever appropriate and desirable, alternatives to judicial proceedings should be found, though not at the expense of the child's human rights and appropriate legal safeguards. This principle shelters children from formal criminal justice processes in recognition of their immaturity and the likelihood that rehabilitative approaches will be particularly effective for those of tender years. Also, contact with the formal criminal justice system can be detrimental - although the shock of a formal process at an early age might be expected to deter children from re-offending, research shows it, in fact, has the opposite effect. Contact with the formal juvenile justice system has been shown to have a reasonable likelihood of increasing the level of criminal activity in early adulthood.[55] Such negative effects on children are more likely for those who come from impoverished backgrounds or those who are black.[56] This throws doubt on the suggestion that formal prosecution is the effective way to hold children accountable for their crimes.

Perhaps because these children have opportunities to mix with other young offenders and become au fait with Court procedures, it can become very difficult to remove them from the formal criminal justice system. Further, as most offenders are "Desisters"[57] they are low risk and there is no need for a court-based intervention -intervention (sometimes firm and decisive) is necessary but it can take place very effectively in the community.

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

(i) Alternatives to Court appearances in New Zealand

In New Zealand, alternative action involves warnings by Police, diversion and Family Group Conferences. The New Zealand CYPF Act gave Police authority to take alternative action through the principle that states: [58]

"... 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."[59]

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.[60] 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"[61] or proved after a defended hearing.[62]

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".[63] Fortunately, the CYPF Act provides a statutory basis for three levels of more formal alternative intervention:

1. Warning: often given by the attending officer and followed up by a letter from the Youth Aid Officer acknowledging the warning.

2. Alternative Action: a diversion plan put in place by the Youth Aid Officer that may include an apology, reparation and/or community work.

3. Family Group Conference: for offending that cannot be dealt with by way of warning or diversion and where Police intend to lay a charge and there has been no arrest. About one third of the 8,000 FGCs held annually are of this type - they are known as "intention to charge" FGCs.

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

Diversion Rates per 10,000 distinct cases in the New Zealand Youth Court aged 10-16 years; 1987 to 2001[64]

(ii) Possible Dangers of the Use of Alternative Action

One danger of a crime response that relies on the discretion of individual Police officers is that there may be variability in practice and outcomes that cannot be explained by the nature of the offenders or by the differences in seriousness of types of offences.[65] 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.[66] 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.[67] 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,[68] the view of the victim,[69] and the position of the family and whether the family can deal with the offending.[70]

In summary, then, the formal youth justice process now deals with only 16% of offences plus those "intention to charge" FGCs[71] 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".[72]

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

The New Zealand youth justice response takes the revolutionary step of (partially) transferring power from the State to families, victims and communities through its Family Group Conferencing system.[73] A Judge sitting in Court can never fully understand a child and a child's situation in the way the child's family does and the best and most relevant solutions to youth offending are often found in their communities. Further, victims often find the restorative justice process helpful in coming to terms with what has happened to them and some find it a healing experience. For these reasons, it makes sense to involve families, victims and communities in the youth justice response.

Family Group Conferencing was introduced with the CYPF Act in 1989 and is often described as the "lynch-pin" of New Zealand's youth justice system. Family Group Conferences (or "FGCs") allow the offender, the offender's family, the victim, the Police and other youth justice professionals to meet to discuss and make decisions, recommendations and plans for the young person. FGCs may take place both pre-charge, to determine whether a prosecution can be avoided, and also post-charge to determine how to deal with cases admitted or proved in the Youth Court. At a standard FGC which results from a charge that is "not denied",[74] 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.[75]

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

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

In practice, the New Zealand system encapsulates restorative justice ideologies, by including the victim in the decision-making process and encouraging the mediation of concerns between the victim, the offender and their families to achieve reconciliation, restitution and rehabilitation. The New Zealand system, especially the FGC, has been practised as a restorative justice system, though this was not necessary to conform to the provisions of the Act. Restorative justice is not mentioned in the CYPF Act, yet a restorative justice approach is entirely consistent with its objects and principles.[77] In fact, "restorative justice" thinking and practice had barely begun at the time the 1989 CYPF Act was being discussed. Thus, the system follows restorative justice techniques although the black letter law did not explicitly envisage this outcome.

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

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

• the inclusion of whanau, hapu and iwi in repairing the harm;[78] and
• the opportunity to have the conference in chosen familiar surroundings, including on marae.

However, it is important to recognise that the Family Group Conference is not (as is sometimes unrealistically touted) the wholesale adoption of an indigenous method of dispute-resolution and a rejection of the Western legal system. It is rather a modern mechanism of justice that is culturally appropriate, and certainly is a product of the dissatisfaction by Maori with the previous paternalistic system. It contains some elements of the traditional Maori system of whanau decision-making, but also elements that are foreign to it (such as the presence of representatives of the State). It also modifies elements of the traditional system, such as the roles played by the family and victims. This is an important feature of the system because Maori children and young people comprise around half of all youth apprehended by Police, having a youth justice FGC or being prosecuted in Court.[79]

(iii) 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[80] 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.[81]

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.[82] 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.[83]

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.[84] 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.[85]

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.[86] "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.[87]

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.[88] At a penalty FGC, the group must decide what action and/or penalties should result from a finding that a charge is proved.[89]

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.[90] 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,[91]
• a formal Police caution be given,[92]
• a declaration be made that the young person is in need of care and protection,[93]
• appropriate penalties be imposed,[94] and/or
• reparation be paid to the victim of the offence.[95]

Further, the legislation requires that FGC plans reflect the principles laid down in the CYPF Act.[96] 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.[97] For 95% of cases, FGC-recommended outcomes involve accountability measures of some kind.[98] 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.[99] Formal orders are, however, available if the plan is not carried out.[100]

iv) Strengths and Weaknesses of Family Group Conferencing

Strengths of Family Group Conferences:

• Genuine involvement of victims. Victims are central to the process and are given a meaningful opportunity to express their views and contribute to outcomes involving the young person. Victims are key participants and the numbers of victims participating rose steadily throughout the 1990's. Victims now participate in 51% of FGCs.[101]
• Active participation by young offenders (as discussed in question 5, following).
• Direct, if not enforced, involvement of families, who are encouraged and empowered to take responsibility for the offending of a young person within their family group. "Family groups have proved capable of taking prime responsibility for their own young people despite initial scepticism about this."[102]
• 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. Historically problems observed include:

• Timeframes breached: Young people are highly attuned to any adult inability to address their issues. They need to see swift, decisive action if they are to participate willingly and confidently in the system. In some cases, statutory timeframes for FGCs are not being adhered to. The result is that any FGC held is usually invalidated and the charges dismissed so that the Youth Court is denied jurisdiction over the young offender in question. Recently, this issue has been highlighted to Youth Justice Co-ordinators[103] (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%.[104]

• 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[105] 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 years 2005 and 2006, which is concerning. Most victims who attend, (approximately 80%),[106] find the process cathartic, positive and helpful. However, for a small number, (about 5%),[107] 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.[108] 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:

o Reports by social workers or prominent members of young person's communities.

o 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).[109] 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).[110] 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.[111] 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. At the time of writing the New Zealand Children, Young Persons and Their Families Service has recently reviewed its delivery of youth justice services and increased its capability to ensure these issues are addressed.

5. Should Children Actively Participate in Formal Criminal Processes?

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

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

(i) Comprehensive 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.[113] 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.[114] As such, FGCs should create and foster a feeling of mutual respect.[115]

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.[116]

Voluntariness is another important aspect of the FGC. The offender is involved in the sanctioning process of his or her own free will.[117] 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.[118]

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 reintegrating the offender back into the community.[119]

(ii) How Family Group Conferences Allow Participation in Practice

• Young person may participate in making important decisions

FGC's allow a child or young person to participate, not in peripheral issues, but in the fundamental questions and decisions which face the prosecuting authorities and the Court as a result of the young person's behaviour. The type of decision to be made depends, naturally, on the reason for convening the FGC and the "type" of FGC being held.[120] 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",[121] 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.

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[122] actions.

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. [123]

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.[124] 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.[125]

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.[126] 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.[127]

(iii) Formulation of a FGC Plan

At the FGC the young offender, together with their family, is required to construct possible legal outcomes aimed at addressing past offending, repairing present harm and meeting future needs. A range of outcomes are available to the offender and their family.[128] Generally, suggested outcomes must be "necessary or desirable in relation to the child or young person"[129] and must "have regard to the [youth justice] principles set out in [the CYPF] Act."[130] More specifically, and depending on the purpose of the Conference, the plan can make a number of recommendations.

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

(iv) Direct Accountability

The FGC system is firmly committed to giving victims a central place in the response to crime. Victims are given a voice at FGCs to outline the impact of the crime on them and to get some questions answered. Critically, the involvement of the victim leads to a greater accountability from the young offender. It is difficult for offenders to make excuses and to retreat behind a shell in the face of victims recounting the often devastating impact of the offence. Offenders more often express real remorse, which is a key step in their own journey away from crime and to the healing of the wounds suffered by victims.[131]

Further, FGCs present offenders with a tangible opportunity to put their wrongdoing 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.[132]

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.[133]

(v) Participation of Young People in the Court System

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

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

Participation is encouraged by section 11 CYPF Act which states:

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".[134]

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

This is a key issue for all jurisdictions. There seems to be a growing trend in the West for an increasing number of cases to be transferred to the adult courts. It is a matter for very serious consideration and a challenge (even a threat) to any "separate" specialised, system of child justice. By allowing this trend to continue there is a risk that the authority of the Youth Court is undermined, and it ceases to be seen as a truly separate specialist Court.

In many jurisdictions there are some serious cases that can only be dealt with by the adult Courts, and in some cases the superior adult Courts. An example is murder and manslaughter in New Zealand which, apart from the preliminary hearing, can only be dealt with in the High Court of New Zealand. Almost all other jurisdictions provide for a discretion for children's court to transfer cases to the adult courts. In the USA this is known as "waiver" of jurisdiction. It has become a controversial issue and the subject of considerable debate in that country. There is a growing list of cases subject to waiver in most states in America.[135]

There are said to be sound policy and public interest considerations as to why this should be so. These include, for example, the need for the most severe cases, where penalties of life imprisonment may be imposed, to be heard and determined in the same superior Courts as adults to encourage public confidence in the criminal justice system. Put more colloquially that "adult crime demands adult time." However, we state if there is to be such a group of charges, it should be as small a list as possible and should probably be limited to cases of alleged homicide. Even then there is the danger that the "authority" of the Youth Court is undermined, and its specialist, independent character compromised.

The use of transfer provisions or "waiver" laws are justified as a deterrent for those young people who are considered to be beyond the rehabilative measures of a Youth Court, but those arguments are not necessarily convincing. Recent research[136] from the United States has assessed the effects of 'direct file waiver laws'[137] in fourteen states and the District of Columbia. The findings from the study do not support the conclusion that young offenders are being deterred by the threat of receiving criminal sanctions following direct waiver. The analysis showed that the direct file law had a deterrent effect in only one state. The other thirteen states had either no effect or experienced an increase in their arrest rate for violent youth crime.[138]

However, the writers' view is that as a matter of principle, Youth Courts should be empowered to deal with all cases involving young people, with all the sentencing options that would be available in the adult Courts, being available to the Youth Court instead.

In New Zealand the CYPFA recognises that children are different than adults and offers them a broad range of special protections. The Youth Court seeks to hold young people accountable without permanently labelling them or destroying their opportunities in life.

As discussed below there is conflicting authority regarding whether youth justice principles apply in sentencing where a young person is transferred to the adult Court. In addition, whenever young offenders are transferred out of the Youth Court for sentencing, or serious charges are heard in the adult Courts the public perception of the Youth Court may be undermined.

Even more damaging is the potential effects of Young offenders. Transfer of young people to the adult Courts does not solve the problem of youth offending - it just relocates it. It has long been argued that labelling a young person as deviant or a delinquent may increase his or her delinquency and lead to marginalisation from education and employment opportunities.[139]

Furthermore, we resist encouraging the perception that the Youth Court is a "soft option." A fully empowered Youth Court will give all youth offenders the benefits of the youth justice system, but with the option of severe sentences including life imprisonment if needed, while at the same time maintaining an image of the Youth Court as a court that 'addresses real crime'. Provided that the Youth Court is appropriately staffed by Judges with appropriate jurisdictional powers, we can see no significant reason why the New Zealand Youth Court cannot deal with all young offenders.

One full-blown model of a stand-alone Youth Court is the Children's Court in Western Australia.[140] In Western Australia children and young people are dealt with exclusively in the Children's Court. The President of the Children's Court has unlimited jurisdiction when dealing with children. The President can deal with all matters up to and including murder. The jurisdiction of the Magistrates is limited according to potential sentencing outcomes and they cannot impose community orders and detention in excess of six months. In those cases the Magistrate must seek an extension of power from the President or refer the matter to the President. In the case of indictable offences the President also hears, determines and sentences those offenders. Matters may be transferred to the adult Court for reasons of convenience and to avoid duplicate trials, when a young person and adult co-accused are to be tried in one trial.

In the writers' view, there is no reason as to principle or policy why the Youth Court in New Zealand could not effectively operate in this way. In New Zealand "purely indictable" offences, which are very serious, jury only cases, are not within the Youth Court jurisdiction unless jurisdiction is offered by the Court.[141] If jurisdiction is offered, there remains a residual power to convict and transfer any case to the adult courts for sentence, but on limited grounds.[142] Recently, there has been diverging High Court authority on the issue of whether Youth Court principles[143] or adult sentencing principles should apply once a case is transferred to the adult courts.

In X v Police,[144] the High Court of New Zealand held that the District Court must take youth justice principles into account in determining the length of the sentence of imprisonment to be imposed on a young person following a transfer for sentence from the Youth Court under section 283(o) CYPFA. However, in R v Patea-Glendinning,[145] Miller J held that the CYPFA ceases to apply once the young person is transferred to the District Court; with the consequence that youth justice principles do not apply to sentencing in the District Court.[146]

In Roper v Simmons[147] the United States Supreme Court recognised that punishing young people as adults through the death penalty was unconstitutional on a number of grounds including the fact that young people are immature, are particularly susceptible to negative influences and their character is not as well formed as that of an adult. The Court considered that, from a moral standpoint, it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed.[148]

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

"There is hope. More than ever before, we know what to do to reduce offending by young people. We know more about how to spend taxpayer dollars wisely to protect the public and reduce the likelihood of serious, violent crime by young offenders than at any other time in the history of society. We also know more about how to build on young people's strengths and address their weak areas so that they are less likely to offend than ever before."[149]

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

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

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

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

A quarter of young men will commit at least one offence during their formative years but most of these will desist from crime and go on to settle into law-abiding lifestyles by their mid-twenties, having committed only a few trivial crimes. However, in New Zealand and internationally 15%-20% of youth offenders will persist and go on to become "life course" offenders - these "Persisters" are responsible for a large proportion of crime.[150] Thus, there are two groups - those that persist with crime and those that desist from it.

"Desisters" commit at least one crime, but usually start offending after 13 years of age and tend to stop or age out of offending by age 24 to 28.[151] In contrast, "Persisters" start early, before age 14 and as early as 10 years of age,[152] offend at high rates - around 40% to 60% of youth offending in New Zealand - and continue offending into adulthood. The statistics in NZ make sobering reading:

• 85% are male. However the number of young women who offend, especially violently, seems to be increasing.
• 70-80% have a drug and/or alcohol problem, and a significant number are drug dependent/addicted.
• 70% are not engaged with school - most are not even enrolled at a secondary school. Non-enrolment, rather than truancy, is the problem.
• Most experience family dysfunction and disadvantage; and most lack positive male role models.
• Many have some form of psychological disorder, 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[153] 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.[154]

These characteristics are common to the small group of serious young offenders who bedevil all Western democracies. Both groups commit serious offences, but the Persisters tend to commit more of them, partly because they are committing crime at such a high rate over a long period. Although some research has suggested that the two groups are not entirely clear cut,[155] persistent young offenders are a difficult and worrying group that requires identification and intervention as early as the preschool years. Terrie Moffitt is one researcher who has put forward the "Desister" versus "Persister" theory. She concludes that:[156]

"a substantial body of longitudinal research consistently points to a very small group of males who display high rates of antisocial behaviour across time and in diverse situations. The professional nomenclature may change, but the faces remain the same as they drift through successive systems aimed at curbing their deviance: schools, juvenile-justice program, psychiatric-treatment centres, and prisons." (1996:15).

(ii) Key Risk Factors for Persisters and Desisters

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

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

Young people in the Desister group make few Court appearances and have fewer risk factors. Also called "adolescent limited" offenders,[157] they are particularly at risk from substance abuse and antisocial peers, and are considered by some to be the priority for intervention. The following list gives an order of priority for addressing risks with this group:[158]

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

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

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

Risk factors in order of the highest to lowest priority for Persisters are:[159]

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

Persistent offenders tend to show the most severe and greatest numbers of risk factors from a relatively early age. As Scott (1999)[160] notes, Desisters and Persisters are at separate ends of a continuum of offending defined primarily by the number of risk factors the young person has experienced.

(v) Policy Implications for Dealing with Desisters

Desisters require a low-key, measured approach that is nevertheless graduated to deal with escalations in offending. Interventions must emphasise accountability, insist on reparation and restitution and make the young person aware of the impact of their offending.[161] It is important that responses do not confirm the young person as a "criminal" because research shows they are likely to find their way back to a law-abiding lifestyle and are more likely to do so if kept away from the criminal justice system. Responses such as warnings and diversion are particularly useful for this group.

(vi) Policy Implications for Dealing with Persisters

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

• Preparation for employment (35% decrease)
• Behaviour contract (25% decrease)
• Institutional training (15% decrease)
• Court/Probation (10% decrease)
• Offender Counselling (8% decrease)
• Family Counselling (No change)
• Deterrent Sentencing (25% increase).[162]

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

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

(i) What Doesn't Work for Child/Youth Offenders

Research shows that responses to youth offending that are focussed solely on deterrence, supervision and punishment are often ineffective.[163] 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.[164]

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.[165] 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.[166] 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 is 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 Child/Youth Offenders

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

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.

Effective New Zealand Programmes designed to target "at-risk youth".

A report to the Henwood Trust in 2005[167] provided an overview of selected international and New Zealand research based on research reviews contained in documents prepared by Kaye McClaren and Gabrielle Maxwell. The report included a summary of the international literature on factors associated with effective change in children and young people at risk of offending.[168] The key risk factors (or needs) [169 ]related to success included positive relations with peers who are not involved in antisocial behaviour, not being involved in substance abuse, and helping young people to build new realtionships with pro-social peers, family and other adults and intensive and structured interventions.

Reviews of three specific New Zealand Studies

1. Child and Young Person's Support Worker Demonstration Projects[170]

This programme provided support to children and young people at risk of offending. The programme took a case management, wraparound approach. All of the people accepted had a history of involvement in anti-social behaviour, low self-esteem, a lack of social ties and poor school attitudes.

Key features associated with success were:

Design

The design was based on individual needs and long term intervention was provided when appropriate. Children and their parents were involved in the planning and actively. The programmes provided therapy if needed, involved learning new skills, recreation and leisure activities.

Caseworkers

Caseworkers visited regularly and formed trusting relationships with children and parents. Feedback was provided to parents and to referring agencies. The caseworkers reviewed plans regularly and liaised with the school.

Inter-agency relationships

Regular meetings with relevant agencies in order to keep them informed of changes and consultation with other agencies about proposed changes in policy and plans for specific clients.

Outcomes

Key outcomes were improved behaviour at school and at home, school attendance, decreased involvement in anti-social and criminal activity and more effective and efficient use of services.

2. Programmes that were part of the 1997 Crime Prevention Package[171]

The programmes aimed to improve the health and education outcomes for youth "at-risk" of offending and to improve communities ability to these people and reduce recidivism.

Key features of successful programmes were the extent to which the programmes provided or generated:

• Support to the young person;
• Assisted the development of relationships with others;
• A rewarding experience;
• For young people and families involvement in the selection of the goals and methods;
• A sense of trust in the providers;
• Acquisition of skill by the young people;
• An intention to change constructively;
• A culturally appropriate method of delivery;
• A holistic approach to the range of needs for the young person;

Not all programmes reliably collected this data.

3. Police Youth at Risk of Offending Programmes - 1997-2000[172]

Five programmes were provided in 'hot spots', and the police set up another nine. Most of the programmes (11) were categorised as adopting a community-based case management approach to each young person. Two programmes were built around a mentoring approach and another used a school-based model. The final programme was a wraparound "wellness" programme that was already operating in the area. Effectiveness in reducing needs was related to the amount of need identified initially. The extent of the reduction for those with greatest need is impressive. The results from the most effective programmes indicate that even young people in a lot of difficulty were capable of benefiting substantially from involvement in the programmes.

The most successful overall were the community-based programmes, followed by the mentoring programme. The school-based programme was not as effective, but this was due in part to the fact that many young people in this programme were initially low in need. Another factor predicting change was the amount of contact the young person had with the programme. A critical factor in effective service provision was the amount of support provided from national office.

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

Children whose lives have been damaged and disfigured by disadvantage, neglect and abuse are the very children who occupy the juvenile remand wings of our prisons. These are the children for whom the fabric of life invariably stretches across poverty; family discord; public care; drug and alcohol abuse; mental distress; ill-health; emotion, physical and sexual abuse; self-harm; homelessness; isolation; loneliness; circumscribed educational and employment opportunities and the most pressing sense of distress and alienation.[173]

"With the majority of those that end up becoming criminals, from young offenders on up, it happens because of a lot of hurts that have happened to them in their lives, and then they end up taking it out on others. And if you don't deal with the person and their internal problems and help them overcome them, they become worse. And if you warehouse them, well, you're warehousing the problems for X-numbers of years and then bringing them back into society worse off, and then it doesn't change anything. It's a vicious circle."[174]

Jim Cavanagh, former inmate and subsequently director Kingston Chapter of Prison Fellowship, Canada.

Prison is necessary for community safety and protection. It is the ultimate sanction and needs to be available for the most serious offenders. However, while effective for community protection, prison is generally ineffective in meeting young people's needs and should always be a last resort and subject to real restrictions. Further, young people should be housed in dedicated youth justice residences that provide meaningful activities and programmes to assist them in dealing with their issues. Youth detention centres are generally preferable to adult prisons, as a specialist response, but grouping together impulsive, violent young men can be counter-productive.[175]

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

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

Figure 6 Custodial Sentences for Youth Court Cases, 1987—2006

(i) Why Prison is no Place f