Oranga Tamariki Act 1989
Children’s and Young People’s Well-being Act 1989

11 Child’s or young person’s participation and views

(1)

This section applies to the following proceedings and processes:

(a)

proceedings under this Act in a District Court, Family Court, or Youth Court (all being first instance courts) and proceedings in the High Court, Court of Appeal, or Supreme Court on an appeal (other than on a point of law only) against a decision, finding, or order under this Act of a first instance court:

(b)

the process for convening, and the proceedings of, a family group conference convened under this Act:

(c)

the preparation or review of a plan for a child or young person (a planning process) under this Act:

(d)

the taking of any other action or making of any other decision (any other process) under this Act that would or does significantly affect a child or young person who is the subject of that process.

(2)

In proceedings or a process to which this section applies,—

(a)

the child or young person must be encouraged and assisted to participate in the proceedings or process to the degree appropriate for their age and level of maturity unless, in the view of a person specified in subsection (3), that participation is not appropriate, having regard to the matters to be heard or considered; and

(aa)

except where section 10 (relating to proceedings) applies, the child or young person must be given reasonable assistance to understand the reasons for the proceedings or process, the options available to the decision-maker, and how these options could affect them; and

(b)

the child or young person must be given reasonable opportunities to freely express their views on matters affecting them; and

(c)

if a child or young person has difficulties in expressing their views or being understood (for example, because of their age or language, or because of a disability), support must be provided to assist them to express their views and to be understood; and

(d)

any views that the child or young person expresses (either directly or through a representative) must be taken into account; and

(e)

any written decision must set out the child’s or young person’s views and, if those views were not followed, include the reasons for not doing so; and

(f)

the decision, the reasons for it, and how it will affect them must be explained to the child or young person.

(3)

The following persons must either perform the duties imposed by subsection (2)(a) to (c) or be satisfied, before undertaking any proceeding or process involving the child or young person, that those duties have been performed by another person:

(a)

for proceedings before a court, the Judge or other person presiding and the barrister or solicitor representing the child or young person:

(b)

for the process for convening, and the proceedings of, a family group conference, the person responsible for convening the conference:

(c)

for a planning process, the person directed by the court to prepare or review the plan:

(d)

for any other process, the person responsible for taking the action or making the decision.

(3A)

In any proceeding or process,—

(a)

the persons listed in subsection (3)(a) to (d) must perform the duty imposed by subsection (2)(d); and

(b)

decision-makers must perform the duty imposed by subsection (2)(e); and

(c)

decision-makers must perform the duty imposed by subsection (2)(f) or, within a reasonable period following the making of a decision, satisfy themselves that the duty has been performed by another person.

(4)

Despite anything to the contrary in this Act and subject to subsection (5), a person providing support to a child or young person under subsection (2)(c) is entitled to be present at a proceeding or a meeting relating to a process referred to in subsection (1) at which the child or young person is present, to continue to provide that support to them but for no other purpose.

(5)

If the person responsible for a proceeding or process referred to in subsection (1) considers it is impracticable or inappropriate for the person providing support to be present at the proceeding or meeting, that person may not be present.

(6)

This section is not limited by section 5(1)(a) (which sets out a principle relating to ascertaining, considering, and giving weight to the wishes of the child or young person).

(7)

In this section, support includes support from a member of the child’s or young person’s family group or other person supporting the child or young person, a specialist service provider, or any other service under this Act.

(8)

A person who complies with section 66K must be treated as having complied with this section.

Section 11: replaced, on 1 April 2017, by section 8 of the Children, Young Persons, and Their Families (Advocacy, Workforce, and Age Settings) Amendment Act 2016 (2016 No 98).

Section 11(2)(a): amended, on 14 July 2017, by section 137 of the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 (2017 No 31).

Section 11(2)(aa): inserted, on 1 July 2019, by section 15(1) of the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 (2017 No 31).

Section 11(2)(b): amended, on 14 July 2017, by section 137 of the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 (2017 No 31).

Section 11(2)(c): amended, on 14 July 2017, by section 137 of the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 (2017 No 31).

Section 11(2)(d): replaced, on 1 July 2019, by section 15(2) of the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 (2017 No 31).

Section 11(2)(e): inserted, on 1 July 2019, by section 15(2) of the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 (2017 No 31).

Section 11(2)(f): inserted, on 1 July 2019, by section 15(2) of the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 (2017 No 31).

Section 11(3A): inserted, on 1 July 2019, by section 15(3) of the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 (2017 No 31).

Section 11(4): amended, on 14 July 2017, by section 137 of the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 (2017 No 31).

Section 11(6): amended, on 1 July 2019, by section 15(4) of the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 (2017 No 31).

Section 11(8): inserted, on 1 July 2019, by section 15(5) of the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 (2017 No 31).