Children, Young Persons, and Their Families Amendment Bill (No 4)

  • discharged on 20 September 2007
  • Unofficial version

Children, Young Persons, and Their Families Amendment Bill (No 4)

Government Bill

159—2

As reported from the Social Services Committee

Commentary

Recommendation

The Social Services Committee has examined the Children, Young Persons, and Their Families Amendment Bill (No 4) and recommends that it be passed with the amendments shown.

Introduction

The Children, Young Persons, and Their Families Amendment Bill (No 4) is a Government Bill that amends the Children, Young Persons, and Their Families Act 1989 and the Criminal Justice Act 1985.

After the bill was referred to the committee the Minister of Social Development produced a Supplementary Order Paper which detailed suggested responses to reports of child abuse. Submitters on the bill were invited to comment on it.

This commentary focuses on the main issues raised by submitters.

Arrest, bail, and custody issues

Currently, the police cannot arrest a young person for failing to comply with bail conditions imposed by the Youth Court, as non-compliance is not an offence. We consider that clauses 7 and 12 will enable the police to take a young person who is breaching court-ordered bail conditions (using such force as may be necessary) and return them to a state of compliance. It will also empower the police to arrest a young person, without warrant, for breaching their bail conditions where the police consider that use of the power to take and return the young person is inappropriate in the circumstances.

Several submitters raised concerns that these clauses would give the police too much power to arrest children and young people, which would contravene the rights of young people and the underlying principle of the Act. The underlying principle of the Act is that young people be dealt with outside of the criminal justice system wherever possible, using the least restrictive means appropriate.

The submitters are correct in seeing the amendments in these clauses as extending the police's ability to arrest without warrant. However, only young persons subject to court-ordered bail conditions are exposed to the risk. We consider that this limited application of the extended right of arrest is justified given the need to promote bail as a credible alternative to detention in custody. We also note that the alternative approach would be to make breaching court-ordered bail conditions an offence in its own right. However, this would severely constrain the ability of the police to react flexibly to minor or accidental infringements of bail conditions.

A submitter pointed out that in the event that the power in new section 243A is not exercised, it is unclear exactly where the child or young person will be placed.

There is lack of clarity about where to place a young person arrested for breach of bail. We consider it is necessary to give the Department of Child, Youth and Family Services and the police the ability to detain a young person in custody for breaching bail conditions.

Merging clauses 7 and 12

The New Zealand Police Association submitted that clauses 7 and 12 addressing control of power of arrest for breaching bail conditions be merged into a single clause. They argued that the use of two separate sections for this purpose is confusing and overly complicated. The fact that the two sections are so far apart in the Act adds to the confusion. We agree that clauses 7 and 12 should be merged.

Family Group Conferences

The purpose of clauses 13, 21, and 22 is to extend the circumstances in which a Family Group Conference (FGC) can be waived, and to simplify the structure and language of the current section 248 of the Act which governs this power. Some submitters argued that these clauses fail to simplify section 248 and that it remains unnecessarily long and complicated.

We agree but note that the complexity reflects the fact that these clauses are situation-specific. The power to waive an FGC will remain limited to circumstances where their prior offending has not been dealt with or the young person is subject to an existing custodial sentence or order for other offending.

The current wording in the bill extends the grounds for waiving a FGC to include:

  • where a young person offends again and the decision, recommendations or plans of a previous FGC have not been implemented

  • where previous offending is identified, or a young person offends, after being charged in the Youth Court for unrelated offences.

We propose that the power to waive an FGC be changed from a tightly prescribed power, to a generic, judgment-based power. The proposed new policy will emphasise the judgment and consultation elements rather than the procedural elements of a decision to waive an FGC. The FGC can be waived if:

  • the young person has been, is currently, or is about to be subject to an FGC or court process, or is subject to an existing sentence or order for other offending, and

  • a member of the police, the Youth Justice Co-ordinator, the young person's family, whānau, or family group, and the victim, and any other person referred to in paragraphs (d) to (n) of section 251(1), agree that the conference will serve no useful purpose.

Discretion to exclude entitled persons from a Family Group Conference

Clause 14 provides discretion to exclude certain relatives or caregivers from attending an FGC where their presence may endanger the safety of the young person and disrupt the FGC. However, this clause as drafted does not adequately emphasise the safety aspect or the needs of the people entitled to attend an FGC, including the victim or their support people. We consider that the extension of the provision being sought would give better effect to victims' rights, consistent with other amendments in the bill.

Some submitters argued for a greater role for youth advocates in FGCs. They argue that the youth advocate is central to ensuring that young people can play a full role in the proceedings, and participate in decisions relating to their own accountability and needs. The appointment of youth advocates is not addressed in the bill. Certain operational matters relating to the use of youth advocates in FGCs need further consideration before a policy for their systematic use can be developed and implemented. A decision to do this does not require changes to the Act.

Family Group Conference timeframes

We are proposing a new clause which is consistent with the scope of the bill.

The Department of Child, Youth and Family Services has recently reviewed the timeframes within which youth justice FGCs must be completed. Issues identified were:

  • the use of the term days instead of working days makes it difficult to organise effective FGCs involving all the appropriate people during holiday periods

  • some of the time restrictions are contrary to good practice in complex cases, as necessary information cannot be made available in time.

  • the diversity of timeframes and the way they are grouped in the Act contribute to confusion amongst practitioners.

The purpose of the proposed clause is to improve the quality of practice regarding youth justice FGCs. We recommend that the bill be amended to:

  • modify the current definition of working days in the Act so that, for the purposes of youth justice FGCs, all days in the period commencing with 25 December in a year and ending with 2 January in the following year are excluded.

  • alter the timeframes for convening, and holding youth justice FGCs.

Enforcement of reparation orders from the Family Court

We propose a new clause recommending the enforcement of reparation orders from the Family Court. Youth offending is generally dealt with under Part IV (Youth Justice) of the Act, and where necessary in the Youth Court. However, when the offending of children aged 10 to 13 is such as to give serious concern for their wellbeing, they may be dealt with in the Family Court by way of an application for a declaration that they are in need of care or protection (the application is brought on the ground in section 14(1)(e) in Part II (Care and Protection) of the Act). On making a declaration on this ground, the Family Court may make orders under section 84 of the Act in respect of the children's offending. One such order is for reparation against children or their parents or guardians under section 84(1)(b).

Currently, there is no express provision in the Act for the enforcement of section 84 orders, and they can be enforced only in the same manner as a civil judgment. Where the offender or their family complies with the reparation order, no issues arise. Non-compliance cannot readily be addressed through civil enforcement without re-victimising the victim, for example, by requiring them to take part in proceedings to establish the debtor's means to pay.

Minor amendments

Timeframes for laying an information

Clause 19 will permit an information to be laid – that is, a young person to be charged and required to come before the Court – outside of the current six-month timeframe in certain circumstances. It would apply if a young person had failed to comply with a decision, recommendation or plan of a Family Group Conference (FGC).

A proposed amendment will eliminate the need for an information to be laid requirement in anticipation of a young person failing to comply with a plan outside of the current six month time limit. The amendment will also encourage the use of an FGC where there is little time remaining in the initial six-month window for the laying of an information and the police might otherwise go directly to the Youth Court. A key benefit of this amendment is that it will keep young people out of the Court, while also enabling follow-up action to hold them accountable for their offending behaviour if the FGC outcome is not complied with.

The policy intent of this clause is that the power should apply in situations where non-compliance is serious, and that the Youth Court should regulate the definition of what constitutes legitimate grounds for laying an information after an alleged failure to complete an FGC plan or outcome.

A submitter pointed out that the clause applies to all offences, not just those covered by section 14 of the Summary Proceedings Act 1957. To avoid doubt, the proposed amendment applies only where the six-month time limit currently applies. The use of an FGC is rewarded in these cases by re-setting the clock to zero once the FGC has been held, to allow six months for alternative action to be implemented and completed. We have proposed amendments to this clause to reinstate the original policy intent.

We disagree with a submitter who suggested that the current wording of clause 19, by introducing the new test of significance, has the unintended result of creating a two-tier compliance regime and the potential for technical defences. The policy intent is that further proceedings should be limited to failures to comply with the FGC decisions, recommendations, or plans in a significant way; that is, when a young person has failed to comply with the requirements of an FGC in more than a minor way. We propose to replace the words significant way with the words material particular. These are words found elsewhere in the Act to refer to a child or young person's failure to comply with a particular aspect of an agreed plan in a material way.

Application for arrest warrant on breach of supervision

The original intention of the Act was that the Court should be able to act on an application made before, or soon after, the expiry of a supervision/community work order, in cases where there has been a failure to comply with the order. Current Youth Court interpretation of the Act means that:

  • an application submitted on time cannot be acted on by the court if the order in question expires while the facts are being checked

  • there is no leeway to submit an application to cancel and replace an order soon after expiry if serious non-compliance is revealed.

The purpose of this amendment (clauses 28, 29 and 30) is to give effect to the original intent of the Act.

Further, under the new sections 320A and 320B, the Youth Court will be empowered to issue a warrant for the arrest of a young person who has failed to comply with an order at the same time as the application to breach the order is made. This would occur only after all reasonable efforts had been made to locate the young person and serve the application.

The clauses as drafted do not state clearly that an application lodged on time can still be addressed by the Youth Court if the process of consideration results in the original expiry date being reached. We propose to amend clause 28 to make explicit the Youth Court's power to do so, consistent with the policy intent informing the amendment.

The application and enforcement provisions do not allow for practical implementation, particularly where the order is not supervised by a social worker or police officer, and in situations where the young person has left the district where the warrant is issued. Therefore, we are proposing:

  • the provision in the bill, enabling a Police officer or social worker to apply for a warrant to arrest a young person for the breach of a supervision order, be extended to any person identified as the supervisor of that order

  • the bill be amended to make it clear that the warrant, once issued by the Youth Court, need not be physically present at the time and point of arrest.

Victims principle

The Act currently recognises the interests of victims. However, this recognition is not adequately reflected in the youth justice principles of the Act in section 208(g), which provide only that due regard should be given to the interests of victims. The bill amends the Act to reinforce the existing youth justice principle of recognising properly the interests of the victim. We agree it is not the policy intention to detract from the central position of the young person in the process while recognizing the interests of victims.

Several submitters argued that clause 6 was too weak. They suggested that the youth justice principles of the Act should require the victim's participation at all stages of the youth justice process. We propose an amendment to clause 6 to ensure that the interests of victims of offending by children and young persons must be considered and properly recognised in any measures for dealing with that offending.

Scope for reparation

The Sentencing Act 2002 repealed section 22(5) of the Criminal Justice Act 1985, which provided that reparation could not extend to consequential loss or damage. A similar amendment to the equivalent provision in the youth justice jurisdiction (section 287 of the Act) was not made at that time, which means that reparation in the youth jurisdiction is limited to the cost of replacement or repair. Consequently, a victim's entitlement to reparation varies depending on whether an offender is sentenced in the youth or the adult jurisdiction.

Clauses 2, 24(1) and 26 correct this anomaly by amending section 283(f) of the Act to enable the Youth Court to order reparation for loss or damage consequent on any emotional or physical harm, or loss of or damage to property.

In the youth jurisdiction, information on reparation is obtained in an unstructured way through the FGC process. Current practice fails to ensure that the offender or his or her family does not promise more than they can reasonably pay, resulting in unrealistic expectations. Unrealistic reparation expectations undermine effective practice. We suggest a new policy to allow specific reports to be requested from social workers on reparation matters in order to improve practice.

Implementation of this policy will impose effort and costs on the Department of Child, Youth and Family Services that cannot be delivered in 2004/2005.

Victim attendance at the Youth Court

Clause 6 amends section 329(1) of the Act to enable a victim, or his or her representative, to attend a Youth Court hearing without seeking leave of the Court. Several submitters argued that the victim should be able to bring one or more support people to Youth Court or an FGC. Another submitter also considered that there should be a change to section 330 to allow victims to make representations to the Youth Court.

The purpose of a Youth Court hearing is to mandate the decisions reached through the FGC process.

We are proposing new clauses to allow victims or their representatives to bring support people with them to Youth Court.

Differential Responses: Supplementary Order Paper 261

These provisions are designed to improve outcomes for children and young people by providing for more effective, appropriate and timely service provision according to individual need. It will allow the Department of Child, Youth and Family Services Social Workers to provide the most appropriate response to reports of suspected abuse or neglect, and enable approved services to conduct child and family assessments and provide services to restore wellbeing on the Department's behalf.

This amendment proposes that approved non-government organisations (NGOs) be allowed to conduct child and family assessments according to the requirements of the chief executive of the Department of Child, Youth and Family Services.

Submitters maintained that the Department remains accountable for child and family assessments and that these assessments are conducted to a reasonable standard by such organisations.

Conclusion

We have considered the bill, its related Supplementary Order Paper and the submissions made on them. We recommend changes to clarify some clauses and some new clauses to improve the Act.

Appendix

Committee process

The Children, Young Persons, and Their Families Amendment Bill (No 4) was referred to the committee on 29 July 2004. The closing date for submissions was 6 September 2004. We received and considered 10 submissions from interested groups and individuals. We heard 7 submissions. Hearing of evidence took 2 hours and 35 minutes and consideration took 2 hours and 25 minutes.

We received advice from Ministry of Social Development, Ministry of Justice, Department of Child, Youth and Family Services, New Zealand Police, and Parliamentary Counsel.

Committee membership

Georgina Beyer (Chairperson)

Dr Muriel Newman (Deputy Chairperson)

Paul Adams

Sue Bradford

Hon Taito Phillip Field

Bill Gudgeon

Moana Mackey

Katherine Rich

Dr Lynda Scott

Hon Judith Tizard

Nandor Tanczos replaced Sue Bradford for this item of business.


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Hon Steve Maharey

Children, Young Persons, and Their Families Amendment Bill (No 4)

Government Bill

159—2

Contents

Purpose

Interpretation

Responsibility for administration of principal Act

Reducing re-offending or development of patterns of offending

Responses to reports of child abuse

Orders under Part II

Victims

Contravening or failing to comply with conditions of bail

Police bail for child or young person arrested without warrant

Custody following arrest for breach of bail conditions

Remanding young persons to penal institutions

Detention in custody if bail conditions contravened seriously and remanding young persons to penal institutions

Remanding young persons to penal institutions

Contravening or failing to comply with conditions of bail

Waiver of family group conferences

Persons not entitled to attend family group conference

Offences relating to breach of community-based sentences to be dealt with in District Courts

Transfer of related charges to District Court or High Court for hearing

Special provisions relating to preliminary hearings in cases of sexual nature

Laying of information

Transfer of related charges to District Court or High Court for hearing

Waiver of family group conferences

Record keeping after discharge of information

Reparation and transfer to District Court for sentencing

Transfer to District Court for sentencing

Reparation

Expiry of Youth Court orders

Cancelling and replacing supervision orders and supervision with activity orders

Warrant to arrest young person for purpose of having him or her brought before Court dealing with specified application

Victims

Informant's right of appeal against order of Youth Court

Functions of Care and Protection Resource Panels

Consequential amendment

Purpose

Remanding young persons to penal institutions


The Parliament of New Zealand enacts as follows:

1 Title
  • (1) This Act is the Children, Young Persons, and Their Families Amendment Act (No 4) 2004.

    (2) In this Act, the Children, Young Persons, and Their Families Act 19891 is called the principal Act.

2 Commencement
  • (1) The following provisions come into force on the day after the date on which this Act receives the Royal assent:

    • (a) sections 1 to 3 3A and 34, the Part 1 heading, the Part 2 heading, and the headings before sections 3, 3A, and 34 (preliminary preliminary, interpretation, and purpose provisions); and

    • (b) section 33 and the heading before section 33 (provisions relating to the functions of Care and Protection Resource Panels); and

    • (c) sections 9, 10(3), 11, and 35 and the headings before sections 9, 10, 11, and 35 (provisions relating to remanding young persons to penal institutions).

    (2) Section 4 and the heading before section 4 (which relate to responsibility for the administration of the principal Act) come into force on the day that is 1 one month after the date on which this Act receives the Royal assent.

    (2A) Section 5A and the heading before section 5A (which relate to responses to reports of child abuse) come into force on a date to be appointed by the Governor-General by Order in Council.

    (2B) Sections 24(1) and 26 (which relate to Youth Court orders for reparation) come into force on 1 July 2006.

    (3) The rest of this Act comes into force on the day that is 6 months after the date on which it receives the Royal assent.

Part 1
Amendments to principal Act

Purpose

3 Purpose of this Part
  • The purpose of this Part is to—

    • (a) make miscellaneous amendments to provisions of the principal Act relating to—

      • (i) the administration of that Act; or

      • (ii) care and protection; and

    • (b) amend the principal Act to—

      • (i) improve the functioning of its youth justice processes; and

      • (ii) more closely align its provisions on reparation with those of the Sentencing Act 2002; and

    • (c) make other miscellaneous amendments to provisions of the principal Act relating to youth justice; and

    • (d) re-enact spent provisions of the principal Act relating to remanding young persons to penal institutions.

Interpretation

3A Interpretation
  • Section 2(1) of the principal Act is amended by repealing the definition of working day, and substituting the following definition:

    working day

    • (a) means a day that is not—

      • (i) a Saturday, a Sunday, Good Friday, Easter Monday, Anzac Day, Labour Day, the Sovereign's birthday, or Waitangi Day; or

      • (ii) in relation to a duty or ability to file a document with a court or to supply a document before a sitting of a court,—

        • (A) the day observed as anniversary day in the place where the court is situated; or

        • (B) some other day observed by the court as a court holiday; and

    • (b) in relation to anything other than convening or holding a youth justice family group conference under Part IV, includes a day in a period commencing on 25 December in one year and ending with 15 January in the next year; and

    • (c) in relation to convening or holding a youth justice family group conference under Part IV, includes a day in a period commencing on 25 December in one year and ending with 2 January in the next year.

Responsibility for administration of principal Act

4 New sections 2A and 2B inserted
  • (1) The principal Act is amended by inserting, after section 2, the following sections:

    2A Department defined
    • (1) Department, for the purposes of a provision of this Act, or for the purposes of a reference in a provision of this Act to the chief executive (as defined in section 2(1)), means,—

      • (a) the department of State that, with the authority of the Prime Minister, is for the time being solely responsible for the administration of the provision; or

      • (b) if the provision is one to which subsection (2) applies, the department of State that, with the authority of the Prime Minister, is for the time being responsible for the administration of the provision to help to achieve attain (for all purposes or for the relevant purpose) the relevant object of this Act set out in section 4.

      (2) This subsection applies to a provision if, with the authority of the Prime Minister, 2 or more departments of State are for the time being responsible for the administration of the provision to help to achieve attain (for all purposes or purposes specified by the Prime Minister under subsection (3)) one or more objects of this Act set out in section 4.

      (3) For the purposes of subsection (2), the Prime Minister may make a department of State responsible for the administration of a provision to help to achieve attain (for all purposes or for specified purposes) one or more objects of this Act set out in section 4.

    2B References to department in other enactments
    • (1) This subsection applies to every reference in an enactment other than this Act to the department for the time being responsible for the administration of the Children, Young Persons, and Their Families Act 1989.

      (2) The Prime Minister must, for the purposes of the references to which subsection (1) applies, ensure a department of State is, with his or her authority, responsible for the administration of this Act.

    (2) Section 2(1) of the principal Act is consequentially amended by repealing the definition of Department, and substituting the following definition:

    Department has the meaning given to it by section 2A.

    (3) The Department of Child, Youth and Family Services Act 1999 is consequentially amended by repealing so much of Part 1 of the Schedule as relates to the definition of Department in section 2(1) of the principal Act.

Reducing re-offending or development of patterns of offending

5 Objects
  • Section 4(f) of the principal Act is amended by repealing subparagraph (ii), and substituting the following subparagraph:

    • (ii) they are dealt with in a way—

      • (A) that reduces the likelihood of their re-offending or developing patterns of offending that are likely to continue into adulthood; and

      • (B) that otherwise acknowledges their needs and that will give them the opportunity to develop in responsible, beneficial, and socially acceptable ways:.

Responses to reports of child abuse

5A New sections 17 to 17E substituted
  • (1) The principal Act is amended by repealing section 17, and substituting the following sections:

    17 Preliminary assessment of matters contained in report of ill-treatment or neglect of child or young person
    • (1) Forthwith after receiving a report under section 15 a Social Worker or member of the police must undertake or arrange for the undertaking of a preliminary assessment of—

      • (a) the matters contained in the report; and

      • (b) the risk of harm to the child or young person raised by those matters.

      (2) In the undertaking of the preliminary assessment, regard may be had to any information that—

      • (a) is held by the department or the New Zealand Police, or has been obtained by the department or the New Zealand Police for the purpose of making the assessment; and

      • (b) relates to the child or young person, his or her parents or guardians, or any other persons for the time being having care of the child or young person.

      (3) A report requires no further action if the preliminary assessment indicates that any or all of the following apply to it:

      • (a) there is no substance to it:

      • (b) it is vexatious or an abuse of process:

      • (c) it raises only matters already reported to a Social Worker or the New Zealand Police that—

        • (i) have been assessed under this section as requiring no further action; or

        • (ii) are already being or have been dealt with under section 17A.

    17A Duty to take actions following preliminary assessment
    • (1) As soon as practicable after the completion of a preliminary assessment under section 17, the Social Worker who received the report (or some other Social Worker designated by the chief executive for the purpose) must, unless he or she considers it requires no further action by virtue of section 17(3), take any or all of the following actions that he or she considers appropriate to the circumstances of the case:

      • (a) undertake or arrange for the undertaking of any investigation that may be necessary or desirable into the matters contained in the report and, as soon as practicable after the investigation has commenced, consult with a Care and Protection Resource Panel in relation to the investigation:

      • (b) undertake, or arrange for another Social Worker or a service to which subsection (4) applies to undertake, a child and family assessment in respect of the child or young person and the matters contained in the report:

      • (c) refer the child or young person to some other person, body, organisation, or department for the purposes of providing, to any or all of the following, any services referred to, or to help to attain the objects set out, in paragraph (a) or paragraph (b) or paragraph (d) of section 4, and that the preliminary assessment indicates may be necessary or desirable:

        • (i) that child or young person:

        • (ii) his or her parents or guardians:

        • (iii) any other persons for the time being having care of the child or young person:

      • (d) arrange for the taking of any other action and steps under section 7(1).

      (2) As soon as practicable after the completion of a preliminary assessment under section 17, the member of the police who received the report must, unless he or she considers it is one that, by virtue of section 17(3), requires no further action, either—

      • (a) take action under subsection (1)(a); or

      • (b) refer the report and preliminary assessment to a Social Worker who must take any or all of the actions specified in subsection (1) that he or she considers appropriate to the circumstances of the case.

      (3) As soon as practicable after making decisions under section 17 or this section, the Social Worker or member of the police must, unless it is impracticable or undesirable to do so, inform the person who made the report under section 15 whether any further action has been taken with respect to it.

      (4) This subsection applies to any service approved under section 396 or section 403 that is approved by the chief executive to undertake child and family assessments.

    17B Matters Social Worker or member of police must have regard to in deciding actions under sections 17A and 17D
    • In deciding under section 17A(1) or section 17A(2)(b) or section 17D(5) what actions are appropriate to the circumstances of the case, and in deciding under section 17A(2) what actions to take, the Social Worker or member of the police must have regard to—

      • (a) the findings of the preliminary assessment; and

      • (b) whether the preliminary assessment indicates that the child or young person may be in need of care or protection and, if it does,—

        • (i) the ground in section 14(1) that is relevant; and

        • (ii) the severity and duration of the harm the child or young person is suffering, or is likely to suffer:

      • (c) the extent to which the parents or guardians of, or any other persons for the time being having care of, the child or young person are likely to co-operate in the undertaking of a child and family assessment:

      • (d) whether harm to the child or young person would be reduced or prevented by the provision of services to the child or young person, his or her parent or guardian, or any other persons for the time being having care of the child or young person:

      • (e) any other matters that the Social Worker or member of the police considers relevant.

    17C Procedure if investigation under section 17A(1)(a) shows child or young person in need of care or protection
    • (1) This section applies to a Social Worker or member of the police to whom a report under section 15 was made if—

      • (a) he or she decides to undertake or arrange for the undertaking under section 17A(1)(a) of an investigation into the matters contained in the report (regardless, for a Social Worker, of whether that action is taken alone or together with other actions specified in section 17A(1)); and

      • (b) after that investigation is completed, he or she believes on reasonable grounds that the child or young person to whom the report relates is in need of care or protection (other than on the ground specified in section 14(1)(e)).

      (2) The Social Worker or member of the police must, in accordance with section 18(1), notify a Care and Protection Co-ordinator of the matters in subsection (1)(b) of this section.

      (3) This section does not limit subsections (2) and (3) of section 18.

    17D Child and family assessments under section 17A(1)(b)
    • (1) An assessor must undertake a child and family assessment under section 17A(1)(b) in accordance with all requirements the chief executive has specified for the time being for the purposes of this subsection.

      (2) An assessor may (with the agreement of the child or young person or his or her parents or guardians) provide or arrange for the provision of services to a child or young person, his or her parents or guardians, or any other persons for the time being having the care of the child or young person both while undertaking, and after having completed, a child and family assessment in respect of the child or young person.

      (3) Before embarking on, or at any stage of, a child and family assessment, an assessor who is not a Social Worker may refer the report and preliminary assessment back to the following, so he or she may take further action under section 17A(1):

      • (a) the Social Worker who under section 17A(1)(b) arranged for the undertaking of the assessment; or

      • (b) another Social Worker designated for the purpose by the chief executive.

      (4) A referral back under subsection (3) must be accompanied by the assessor's reasons for making the referral back.

      (5) A Social Worker to whom a case is referred back under subsection (3) must, in the light of the referral back, either decide the report is one that requires no further action or take any or all actions specified in section 17A(1) that he or she considers appropriate to the circumstances of the case.

      (6) In this section and section 17E, assessor means a Social Worker undertaking, or a Social Worker or a service to which section 17A(4) applies arranged by a Social Worker under section 17A(1)(b) to undertake, a child and family assessment.

    17E Procedure after child and family assessment completed
    • (1) As soon as practicable after completing a child and family assessment, an assessor who is not a Social Worker (whether required to act by subsection (2) or not) must give a copy of the assessment to a Social Worker.

      (2) An assessor who is not a Social Worker and, after completing a child and family assessment, believes on reasonable grounds that a child or young person to whom a report under section 15 relates is in need of care or protection (other than on the ground specified in section 14(1)(e)), must, as soon as practicable,—

      • (a) give notice of those matters to a Social Worker; or

      • (b) refer the matter to a Care and Protection Co-ordinator under section 19.

      (3) A Social Worker who is given notice of matters under subsection (2)(a) may, in accordance with section 18(1), notify a Care and Protection Co-ordinator of those matters.

      (4) An assessor who is a Social Worker and, after completing a child and family assessment, believes on reasonable grounds that a child or young person to whom a report under section 15 relates is in need of care or protection (other than on the ground specified in section 14(1)(e)), must, in accordance with section 18(1), notify a Care and Protection Co-ordinator of those matters.

      (5) The references to inquiry in sections 18(1) and 19(1)(a) each include a reference to a child and family assessment.

      (6) This section does not limit sections 18(2) and (3) and 19.

    (2) Section 2(1) of the principal Act is consequentially amended by inserting, after the definition of child abuse, the following definition:

    child and family assessment

    • (a) means an assessment, for the purpose of identifying the care and protection needs (if any) of a child or young person, of the circumstances of—

      • (i) the child or young person; and

      • (ii) his or her parents and guardians; and

      • (iii) any other persons for the time being having the care of the child or young person; and

    • (b) to avoid doubt, may include an assessment of the needs of the parents and guardians of, or of any other persons for the time being having the care of, the child or young person, and the identification of measures associated with them that, if implemented, may help to avoid or mitigate risk to the safety and well-being of the child or young person.

Orders under Part II

5B Power to make other orders where declaration made on ground of child's offending
  • Section 84 of the principal Act is amended by adding the following subsection:

    • (5) Every order under subsection (1)(b) has effect under section 293 as if made by a District Court, and as if any sum ordered to be paid had been adjudged to be paid by conviction, except that—

      • (a) enforcing the order is the responsibility of a Youth Court and its officers; and

      • (b) the child concerned is not liable to imprisonment for failing to comply with the order; and

      • (c) no costs, expenses, or fees are payable in respect of enforcing the order.

Victims

6 Principles
  • Section 208 of the principal Act is amended by repealing paragraph (g), and substituting the following paragraph:

    • (g) the principle that any measures for dealing with offending by children and young persons should recognise properly the interests of any victims of that offending (for example, by including consideration of whether reparation should be made to those victims):

    • (g) the principle that—

      • (i) in the determination of measures for dealing with offending by children or young persons, consideration should be given to the interests and views of any victims of the offending (for example, by encouraging the victims to participate in the processes under this Part for dealing with offending); and

      • (ii) any such measures should have proper regard for the interests of any victims of the offending and the impact of the offending on them:.

Contravening or failing to comply with conditions of bail

7 Arrest of child or young person without warrant
  • Section 214 of the principal Act is amended by inserting, after subsection (2), the following subsection:

    • (2A) Nothing in subsection (1) prevents a member of the police from arresting a child or young person without warrant under section 35(1)(b) of the Bail Act 2000 if that member—

      • (a) believes on reasonable grounds that the child or young person has contravened or failed to comply with a condition of bail imposed by or under—

        • (i) section 31 or section 34 of that Act; or

        • (ii) section 240; and

      • (b) has first considered whether to exercise the powers in section 243A but, after doing so, has determined that in all the circumstances it would for some reason be inappropriate to exercise those powers.

    • (2A) Subsection (1) does not prevent a member of the police from arresting a child or young person in the circumstances described in section 243A(2A).

Police bail for child or young person arrested without warrant

8 Custody of child or young person following arrest
  • Section 234 of the principal Act is amended by repealing paragraph (b), and substituting the following paragraph:

    • (b) release the child or young person on bail under section 21 of the Bail Act 2000 (and that section applies for the purposes of this paragraph even if the offence with which the child or young person is charged is a purely indictable offence); or.

Custody following arrest for breach of bail conditions

8A Child or young person who is arrested may be placed in custody of chief executive
  • Section 235 of the principal Act is amended by inserting, after subsection (1), the following subsections:

    • (1A) If a member of police has reasonable grounds for believing that, if released under section 234(a) or released on bail under section 234(b) or delivered into the custody of any person or organisation under section 234(c), a young person arrested under section 243A(2A) may further breach one or more conditions of his or her bail imposed by or under section 31 or section 34 of the Bail Act 2000 or section 240 of this Act, the member of police must, as soon as practicable (and in any case not later than 24 hours after the arrest), place the young person in the custody of the chief executive in accordance with subsection (2).

    • (1B) Subsection (1A) overrides section 234, but is subject to section 244.

Remanding young persons to penal institutions

9 Custody of child or young person pending hearing
  • Section 238 of the principal Act is amended by inserting, before subsection (2), the following subsections:

    • (1D) Subsection (1) is subject to subsection (1E).

    • (1E) Subject to section 239(3A), if a young person appears before a Youth Court the Court may, instead of dealing with the young person in any of the ways described in subsection (1), order that the young person be remanded to a penal institution.

    • (1F) If the Court makes an order under subsection (1E), section 171(1) of the Summary Proceedings Act 1957 applies as if the Youth Court were a District Court.

Detention in custody if bail conditions contravened seriously and remanding young persons to penal institutions

10 Restrictions on power of Court to order child or young person to be detained in custody
  • (1) Section 239(1) of the principal Act is amended by inserting, after paragraph (b), the following paragraph:

    • (ba) the child or young person is, given that he or she has been released on bail under section 238(1)(b) and has already contravened seriously a condition of bail, likely again to contravene seriously a condition of bail; or.

    (2) Section 239(2) of the principal Act is amended by repealing paragraph (a), and substituting the following paragraph:

    • (a) that the child or young person—

      • (i) is likely to abscond; or

      • (ii) is likely to be violent; or

      • (iii) is, given that he or she has been released on bail under section 238(1)(b) and has already contravened seriously a condition of bail, likely again to contravene seriously a condition of bail; and.

    (3) Section 239 of the principal Act is amended by adding the following subsection:

    • (3A) The Court must not make an order under section 238(1E) remanding a young person to a penal institution unless—

      • (a) the young person is at least 15 years of age; and

      • (b) the young person is charged with or has been convicted of a purely indictable offence (within the meaning of section 18 of the Sentencing Act 2002); and

      • (c) the young person is being remanded to a District Court or the High Court for trial or sentencing in respect of that offence; and

      • (d) if the remand is pending trial, the Court is satisfied that the period that the young person is likely to be on remand pending trial will not be less than 2 months; and

      • (e) the chief executive, or an officer of the department authorised in that behalf by the chief executive, has furnished to the Court a certificate stating that detention of the young person in the custody of the chief executive under an order under section 238(1)(d) for the likely period of remand would be likely to prejudice the ability of the department to meet demands to detain other young persons in the department's residences under similar orders; and

      • (f) the Court is satisfied that remand to a penal institution is in all the circumstances appropriate.

Remanding young persons to penal institutions

11 New section 239B inserted
  • The principal Act is amended by inserting, before section 240, the following section:

    239B Expiry of sections 238(1D) to (1F) and 239(3A)
    • Sections 238(1D) to (1F) and 239(3A) expire at the close of 30 June 2008.

Contravening or failing to comply with conditions of bail

12 New section 243A inserted
  • The principal Act is amended by inserting, after section 243, the following section:

    243A Powers in respect of children and young persons who contravene or fail to comply with bail conditions
    • (1) This section applies to a condition imposed by or under—

      • (a) section 31 or section 34 of the Bail Act 2000; or

      • (b) section 240 of this Act.

      (2) A member of the police who believes on reasonable grounds that a child or young person has contravened or failed to comply with the condition may, using such force as may reasonably be necessary for the purpose, take the child or young person and return him or her—

      • (a) to the place where he or she should be to comply with the condition; or

      • (b) if the condition is one imposed under section 240, to the parent or guardian or other persons having the care of the child or young person.

      (2A) A member of the police who believes on reasonable grounds that a young person has contravened or failed to comply with the condition, but that it is inappropriate to return the young person under subsection (2), may instead arrest the young person without warrant under section 35(1)(b) of the Bail Act 2000.

      (3) Nothing in this section limits section 48 or the power of arrest without warrant referred to in section 214(2A).

Waiver of family group conferences

13 New sections 248 to 248B substituted
  • The principal Act is amended by repealing section 248, and substituting the following sections:

    248 Waiver of requirement to hold family group conference
    • (1) A family group conference (the conference) required by any of sections 245(1)(c), 246(b), 247(b), (d), and (e), and 281 (a specified section) to be held in respect of an offence (offence A) alleged or proved to have been committed by a young person need not be held if a Youth Justice Co-ordinator—

      • (a) is satisfied of the matters specified in subsection (2)(a) or (b) or (c) or (d); and

      • (b) is, after complying with section 248A(1), of the view that the holding of a family group conference would serve no useful purpose; and

      • (c) is satisfied that the following agree with that view:

        • (i) the family or whanau or family group of the young person; and

        • (ii) the persons who, under any of paragraphs (d) to (n) of section 251(1), would be entitled to attend the conference (if held).

      (2) The matters referred to in subsection (1)(a) are that—

      • (a) the young person has been convicted or sentenced in the High Court or a District Court, or a Youth Court has made an order under section 283, for another offence (offence B)—

        • (i) committed after offence A; and

        • (ii) for which the maximum penalty is greater than the maximum penalty for offence A; or

      • (b) the young person is subject to—

        • (i) a sentence of imprisonment (as defined in section 4(1) of the Sentencing Act 2002); or

        • (ii) a community-based sentence (as so defined); or

        • (iii) an order made under any of paragraphs (k) to (o) of section 283; or

      • (c) another family group conference (the earlier conference) has already been convened under this Part in respect of another offence (offence C) alleged or proved to have been committed by the young person, the earlier conference had the opportunity to consider how offence C should be dealt with, and the requirement to hold the conference in respect of offence A arose under the specified section—

        • (i) within 6 weeks of the completion of the earlier conference; or

        • (ii) before substantial effect has been given under sections 267 and 268 to its decisions, recommendations, or plans; or

      • (d) a charge that the young person has committed an unrelated offence (offence D) is before a Youth Court, and offence A is alleged or proved to have been committed—

        • (i) before offence D was committed; or

        • (ii) after proceedings for offence D were commenced.

    248A Duties to be performed under section 248(1)(b)
    • (1) Before forming a view under section 248(1)(b) about whether the holding of a family group conference would serve a useful purpose, the Youth Justice Co-ordinator must perform the 3 duties specified in this section.

      (2) The first duty is to consult with the following persons:

      • (a) the family, whanau, or family group of the young person; and

      • (b) the persons who, under any of paragraphs (d) to (n) of section 251(1), would be entitled to attend the conference (if held).

      (3) The second duty is to have regard to the following matters:

      • (a) the seriousness and extent of the offence referred to in section 248 as offence A; and

      • (b) in the case only of a young person referred to in section 248(2)(c), the response of the young person to any decisions, recommendations, or plans made or formulated by the conference referred to in section 248(2)(c) as the earlier conference.

      (4) The third duty is to consider whether a family group conference is necessary for the purpose of considering whether the young person should be required to make reparation for the offence referred to in section 248 as offence A.

    248 Power to waive holding of second family group conference
    • (1) This section applies to a family group conference otherwise required by any of sections 245(1)(c), 246(b), 247(b), 247(d), 247(e), and 281 to be convened in respect of an offence (the later offence) alleged or proved to have been committed by a young person if—

      • (a) it is alleged or has been proved that the young person has earlier committed another offence (the earlier offence); and

      • (b) one of the following applies:

        • (i) a family group conference under this Part for the earlier offence has recently been convened, or is in the process of being convened, or is about to be convened:

        • (ii) proceedings under this Part for the earlier offence have been commenced or are about to be commenced:

        • (iii) the young person has been committed for trial in respect of the earlier offence in accordance with section 274:

        • (iv) the young person has been ordered to be brought before a District Court for sentence under section 283(o) for the earlier offence:

        • (v) the young person is, in respect of the earlier offence, subject to a sentence of imprisonment or a community-based sentence (as those terms are defined in section 4(1) of the Sentencing Act 2002) or to an order made under any of paragraphs (k) to (n) of section 283.

      (2) A Youth Justice Co-ordinator does not have to convene a family group conference to which this section applies if—

      • (a) the Co-ordinator, after consulting the people referred to in subsection (3) and considering the matters set out in subsection (4), considers that holding the conference would serve no useful purpose; and

      • (b) all those people agree.

      (3) The people referred to in subsection (2)(a) are—

      • (a) the young person's family, whanau, or family group; and

      • (b) the people who, under any of paragraphs (d) to (n) of section 251(1), would be entitled to attend the conference.

      (4) The matters referred to in subsection (2)(a) are—

      • (a) the seriousness and extent of the later offence; and

      • (b) if a family group conference for the earlier offence has been completed, the response of the young person to any decisions, recommendations, or plans made or formulated by that conference; and

      • (c) whether a family group conference is required for the purpose of considering whether the young person should be required to make reparation for the later offence.

    248B Family group conference required by section 247 need not be held if existing conference can consider offence
    • (1) This section applies to the following situation:

      • (a) a family group conference has been convened under section 247 in relation to an offence (offence A) (the earlier offence) alleged or proved to have been committed by a child or young person; and

      • (b) before the family group conference has made any decision, recommendation, or plan under section 260 in relation to offence A the earlier offence, that child or young person is alleged or proved to have committed another offence (offence B) (the later offence); and

      • (c) ) offence B the later offence is one in respect of which a family group conference is required to be held under section 247.

      (2) In that situation,—

      • (a) the family group conference may make in respect of offence B the later offence any decision, recommendation, or plan that it is empowered to make under section 260; and

      • (b) it is not necessary for a separate family group conference to be held in relation to offence B the later offence.

13A New section 249 substituted
  • The principal Act is amended by repealing section 249, and substituting the following section:

    249 Time-frames for convening and completing family group conferences
    • (1) A family group conference to which section 247(a) applies—

      • (a) must be convened not later than 15 working days after the day on which the Youth Justice Co-ordinator received the report in relation to which the family group conference is required to be held; and

      • (b) unless there are special reasons why a longer period is required, must be completed within 20 working days after it is convened.

      (2) A family group conference to which paragraph (b) of section 247 applies—

      • (a) must be convened not later than 15 working days after the day on which the notification referred to in that paragraph was received by the Youth Justice Co-ordinator; and

      • (b) unless there are special reasons why a longer period is required, must be completed within 20 working days after it is convened.

      (3) A family group conference to which section 247(c) applies—

      • (a) must be convened not later than 5 working days after the day on which the Court made the order under paragraph (d) or paragraph (e) of section 238(1) for the detention of the young person pending the determination of the charge; and

      • (b) unless there are special reasons why a longer period is required, must be completed within 5 working days after it is convened.

      (4) If a family group conference to which section 247(d) applies relates to a young person detained in custody pursuant to an order under paragraph (d) or paragraph (e) of section 238(1),—

      • (a) it must be convened not later than 10 working days after the day on which the order was made; and

      • (b) unless there are special reasons why a longer period is required, it must be completed within 10 working days after it is convened.

      (5) If a family group conference to which section 247(d) applies does not relate to a young person detained in custody pursuant to an order under paragraph (d) or paragraph (e) of section 238(1),—

      • (a) it must be convened not later than 15 working days after the day on which the direction requiring the conference to be held was given; and

      • (b) unless there are special reasons why a longer period is required, it must be completed within 15 working days after it is convened.

      (6) A family group conference to which section 247(e) applies—

      • (a) must be convened not later than 15 working days after the day on which the Court found that the charge against the young person was proved; and

      • (b) unless there are special reasons why a longer period is required, must be completed within 15 working days after it is convened.

Persons not entitled to attend family group conference

14 Persons entitled to attend family group conference
  • (1) Section 251 of the principal Act is amended by inserting, after subsection (1), the following subsection:

    • (1A) However, a person to whom subsection (1)(b) applies is not entitled to attend the conference if the Youth Justice Co-ordinator convening it—

      • (a) is of the opinion, after considering the principles in sections 5 and 208 (and in particular the one in section 208(g)), that the attendance of that person at the conference would present a risk to the safety or well-being of the child or young person, or of any other person entitled under subsection (1) to attend the conference, and therefore be likely to inhibit the proceedings of the conference; and

      • (b) advises that person, at or before the conference, that he or she is for that reason not entitled to attend it.

    (2) Section 251(1) of the principal Act is consequentially amended by omitting the words subsection (2) of this section and substituting the words subsections (1A) and (2).

15 New section 254 substituted
  • The principal Act is amended by repealing section 254, and substituting the following section:

    254 Youth Justice Co-ordinator to ascertain views of persons not to attend family group conference
    • (1) Every Youth Justice Co-ordinator who convenes a family group conference must for the purposes of that conference take all reasonable steps to ascertain the views of the following persons:

      • (a) every person who is entitled to attend the conference but is unable, for any reason, to do so and has notified the Youth Justice Co-ordinator of that fact:

      • (b) every person who in accordance with section 251(1A) is not entitled to attend the conference.

      (2) A Youth Justice Co-ordinator who ascertains views under subsection (1) for the purposes of a conference must ensure that they are made known at that conference.

Offences relating to breach of community-based sentences to be dealt with in District Courts

16 Jurisdiction of Youth Court
  • Section 272(3) of the principal Act is amended by inserting, after paragraph (b), the following paragraph:

    • (ba) an offence against section 70 or section 71(1) of the Sentencing Act 2002; or.

Transfer of related charges to District Court or High Court for hearing

17 Manner of dealing with summary offences and indictable offences (other than purely indictable offences)
  • Section 273 of the principal Act is amended by inserting, after paragraph (a), the following paragraph:

    • (ab) the offence arose out of the same event or series of events as another offence (being either a purely indictable offence or an offence for which the young person has elected jury trial) with which the young person is also charged, and the Youth Court determines, in accordance with section 280A, that the charges for those offences be heard together; or.

Special provisions relating to preliminary hearings in cases of sexual nature

18 Manner of dealing with purely indictable offences or where person elects jury trial
  • Section 274(2) of the principal Act is amended by repealing paragraph (a), and substituting the following paragraph:

    • (a) the preliminary hearing must take place in accordance with Parts V and VA of the Summary Proceedings Act 1957, except that—

      • (i) the hearing must take place in a Youth Court, which for that purpose has all the powers of a District Court and must be presided over by a Youth Court Judge or, in the absence of a Youth Court Judge, by a District Court Judge or (for hearings to which section 185B of that Act does not apply) by 2 or more Justices or by one or more Community Magistrates; and

      • (ii) the reference in section 185E of that Act to section 138 of the Criminal Justice Act 1985 must be read as a reference to sections 329 and 438 of this Act; and.

Laying of information

19 Laying of information where family group conference completed
  • The principal Act is amended by inserting, after section 279, the following section:

    279A Laying of information where family group conference completed
    • (1) An information may be laid against a young person within 6 months from the completion of a family group conference convened under section 247(b) if—

      • (a) the offence described in the information was dealt with by that family group conference; and

      • (b) an enforcement officer or other informant considers that the laying of the information is required because the young person has, without reasonable excuse, failed in a significant way to comply with the requirements of the package of decisions, recommendations, or plans of—

        • (i) that family group conference; or

        • (ii) a reconvened family group conference under section 270.

      (2) This section is an exception to the period of limitation in section 14 of the Summary Proceedings Act 1957 (as applied by section 321 and clause 2 of the First Schedule).

19 New section 279A inserted
  • The principal Act is amended by inserting, after section 279, the following section:

    279A Laying of information after family group conference completed
    • (1) This section applies to an offence if, but for this section, section 14 of the Summary Proceedings Act 1957 (as applied by section 321 and clause 2 of the First Schedule) would require an information for the offence to be laid within 6 months from the time when the matter of the information arose.

      (2) An information for an offence to which this section applies may be laid against a young person—

      • (a) at any time within 6 months from the completion of a family group conference convened under section 247(b) if—

        • (i) the conference dealt with the offence described in the information; and

        • (ii) an enforcement officer or other informant considers that the laying of the information is required because the young person has, without reasonable excuse, failed in some material particular to comply with the requirements of a decision, recommendation, or plan of the conference; or

      • (b) where a family group conference convened under section 247(b) that dealt with the offence described in the information has been reconvened under section 270, at any time within 6 months from the completion of the reconvened conference, if—

        • (i) the reconvened conference dealt with the offence described in the information; and

        • (ii) an enforcement officer or other informant considers that the laying of the information is required because the young person has, without reasonable excuse, failed in some material particular to comply with the requirements of a decision, recommendation, or plan of the conference (whether made at the reconvened conference or earlier).

Transfer of related charges to District Court or High Court for hearing

20 New heading and sections 280A to 280G inserted
  • The principal Act is amended by inserting, after section 280, the following heading and sections:

    Transfer of related charges to District Court or High Court for hearing

    280A Youth Court may commit young person to High Court or District Court for trial on offence related to offence to which section 274 applies
    • (1) This section applies to the following situation:

      • (a) a young person is charged with—

        • (i) a purely indictable offence or an offence in respect of which the young person has elected trial by jury under section 66 of the Summary Proceedings Act 1957 (the main offence); and

        • (ii) another offence (not being a purely indictable offence) the information for which would, but for section 273(ab) and this section, be required to be heard and determined by a Youth Court (a related offence); and

      • (b) both offences arise out of the same event or series of events; and

      • (c) a Youth Court Judge considers that—

        • (i) it is desirable that the charges be heard together; and

        • (ii) the charges can conveniently be heard together.

      (2) In that situation, the Youth Court—

      • (a) may conduct a preliminary hearing (as provided in section 274(2)(a)) into the charge of the related offence as if it were a purely indictable offence (which may be the same preliminary hearing as that conducted into the charge for the main offence); and

      • (b) may commit the young person to the High Court or a District Court for trial on the related offence if the Youth Court—

        • (i) is of the opinion that the evidence adduced by the informant is sufficient to put the young person on trial for the related offence; and

        • (ii) has committed the young person to that court for trial on the main offence.

    280B Effect of Youth Court acting under section 280A(2)(b)
    • If the Youth Court commits the young person for trial on the related offence, under section 280A(2)(b),—

      • (a) the proceedings continue as if the related offence were a purely indictable offence; and

      • (b) the court to which the young person is committed for trial must try the main offence and the related offence together; and

      • (c) that court must make an order under section 140 of the Criminal Justice Act 1985 prohibiting publication of the following pending the completion of the trial and sentencing of the young person and any appeal in respect of that trial or any sentence imposed on the young person:

        • (i) the young person's name, address, or occupation; and

        • (ii) any particulars likely to lead to the young person's identification.

    280C Procedure if main offence not prosecuted or if young person discharged in respect of main offence
    • (1) If the Youth Court commits the young person for trial on the related offence, under section 280A(2)(b), and no indictment is filed for the main offence or the young person is, before trial, discharged in respect of the main offence under section 347 of the Crimes Act 1961, the court to which the young person is committed for trial—

      • (a) must refer the information for the related offence to the Youth Court for hearing and determination; and

      • (b) may in that connection order that the young person be brought before the Youth Court to be dealt with.

      (2) If the Youth Court commits the young person for trial on the related offence, under section 280A(2)(b), and the young person is, during trial or after verdict, discharged in respect of the main offence under section 347 of the Crimes Act 1961, the court to which the young person is committed for trial may sentence or otherwise deal with the young person in accordance with section 280F.

    280D Procedure if young person discharged in respect of related offence
    • If the Youth Court commits the young person for trial on the related offence, under section 280A(2)(b), and the court to which the young person is committed discharges the young person under section 347 of the Crimes Act 1961 in respect of the related offence, section 282(3) of this Act applies instead of section 347(5) of the Crimes Act 1961.

    280E Sentencing for related offence if young person pleads guilty to, or found guilty of, both main offence and related offence
    • (1) This section applies to the following situation:

      • (a) the Youth Court commits the young person for trial on the related offence, under section 280A(2)(b); and

      • (b) the young person pleads guilty to, or is found guilty of, both the main offence and the related offence.

      (2) In that situation, the court to which the young person is committed must, when sentencing for the related offence under the Sentencing Act 2002, ensure that the sentence imposed is no more onerous than the order or orders that would have been made by a Youth Court if the charge of the related offence had been proved before a Youth Court.

    280F Sentencing or otherwise dealing with young person for related offence if he or she is acquitted of main offence
    • (1) This section applies to the following situation:

      • (a) the Youth Court commits the young person for trial on the related offence, under section 280A(2)(b); and

      • (b) the young person—

        • (i) is acquitted of the main offence; but

        • (ii) pleads guilty to, or is found guilty of, the related offence.

      (2) In that situation, the court to which the young person is committed—

      • (a) must not enter a conviction for the related offence, or sentence the young person for the related offence under the Sentencing Act 2002, unless, under paragraph (b)(ii) of this subsection, it makes an order under section 283(o):

      • (b) may, as if it were a Youth Court,—

        • (i) discharge the indictment for the related offence under section 282 (which applies as if the indictment were an information); or

        • (ii) make any order in respect of the young person that could be made under section 283 if the charge of the related offence had been proved before a Youth Court.

      (3) For the purposes of subsection (2)(b)(ii), section 283(o) applies as if the words and order that the young person be brought before a District Court for sentence or decision were omitted.

      (4) If a conviction is entered under subsection (2)(a), the young person must be regarded as having been convicted on indictment of the related offence for the purposes of the following provisions of the Crimes Act 1961:

      • (a) sections 341 and 357 to 360 (which relate to previous convictions, special pleas, etc); and

      • (b) Part XIII (which relates to appeals).

    280G Appeals where young person sentenced or otherwise dealt with for related offence under section 280F
    • (1) This section applies to the following situation:

      • (a) the Youth Court commits the young person for trial on the related offence, under section 280A(2)(b); and

      • (b) the court to which the young person is committed sentences or otherwise deals with the young person for the related offence under section 280F.

      (2) In that situation,—

      • (a) Part XIII of the Crimes Act 1961 applies to the young person and to the prosecutor instead of sections 351, 353A, and 354 of this Act:

      • (b) sections 352, 354, 355, and 359, insofar as they relate to the parent or guardian or person having the care of the young person, apply to an order made by the High Court or a District Court on the related offence as if—

        • (i) references to a Youth Court were references to the court that made the order:

        • (ii) references to a Youth Court Judge were references to a Judge of the court that made the order:

        • (iii) references to the High Court were references to the Court of Appeal:

      • (c) section 355(2) does not apply to any appeal under section 352 or section 354 by a parent or guardian or person having the care of the young person and, in the application of the provisions of Part IV of the Summary Proceedings Act 1957 (in accordance with section 355 of this Act) for the purposes of such an appeal, those provisions must be read as if—

        • (i) references to a District Court were references to the court that made the order on the related offence under section 280F:

        • (ii) references to a District Court Judge or Justice or Justices or Community Magistrate or Community Magistrates were references to a Judge exercising jurisdiction in the court that made the order on the related offence under section 280F:

        • (iii) references to the High Court were references to the Court of Appeal.

Waiver of family group conferences

21 Court not to make orders unless family group conference held
  • Section 281 of the principal Act is amended by repealing subsection (1), and substituting the following subsections:

    • (1) Where a charge against a young person is proved before a Youth Court, the Court must not make an order under section 282 or section 283 unless a family group conference has had an opportunity to consider ways in which the Court might deal with the young person in relation to the charge.

    • (1A) Subsection (1) does not apply if the holding of a family group conference has been waived under section 248 in relation to the offence that is the subject of the charge.

22 New section 281A substituted
  • The principal Act is amended by repealing section 281A, and substituting the following section:

    281A Court to consider whether family group conference should be held
    • If the holding of a family group conference has been waived under section 248 in respect of an offence, the Court must consider whether a family group conference should nevertheless be held in relation to the matter—

      • (a) if the waived requirement to hold a family group conference arose under section 281(1) or (2), before making an order or exercising a power in proceedings relating to or arising out of the offence:

      • (b) in every other case, before hearing the information for the offence.

Record keeping after discharge of information

23 Power of Court to discharge information
  • Section 282 of the principal Act is amended by adding the following subsections:

    • (4) Even though an information has been discharged, records relating to any or all of the following may be retained:

      • (a) the investigation or prosecution of the offence:

      • (b) any consultation that took place as to the offence:

      • (c) any family group conference concerning the offence.

    • (5) Subsection (4) is for the avoidance of doubt, and does not authorise the retention by the New Zealand Police of a record (not being a record of particulars obtained under section 57 of the Police Act 1958) required by law to be destroyed on an acquittal.

Reparation and transfer to District Court for sentencing

24 Orders of the Court
  • (1) Section 283 is amended by repealing paragraph (f), and substituting the following paragraph:

    • (f) order the young person or, in the case of a young person who is under the age of 16 years, a parent or guardian of the young person, to pay to a person (other than the young person) a sum it thinks fit by way of reparation for any or all of the following that the person has suffered through or by means of the offence:

      • (i) emotional harm:

      • (ii) loss of or damage to property:

      • (iii) loss or damage consequential on any or all of emotional harm, physical harm, or loss of or damage to property:.

    (2) Section 283(o) of the principal Act is amended by inserting, after the word years,, the following words or in the case of a young person who is of or over the age of 14 years and against whom the charge proved is a purely indictable offence,.

Transfer to District Court for sentencing

25 Restrictions on power of Court to make certain orders under section 283
  • Section 285 of the principal Act is amended by repealing subsection (6), and substituting the following subsection:

    • (6) The Court may make an order under section 283(o) (that the young person be brought before a District Court for sentence or decision) despite section 290 if—

      • (a) but for subsection (5)(b) or (c) of this section, the Court would have made an order under any of the following:

        • (i) section 283(l) (community work order under section 298):

        • (ii) section 283(m) (supervision with activity order under section 307):

        • (iii) section 283(n) (supervision with residence order under section 311); and

      • (b) the Court considers that it would not be appropriate to make an order under any of paragraphs (a) to (k) of section 283 as an alternative to such an order; and

      • (c) the order is made in respect of a young person—

        • (i) of or over the age of 15 years; or

        • (ii) of or over the age of 14 years and against whom the charge proved is a purely indictable offence.

Reparation

26 New sections 287 to 287D substituted
  • The principal Act is amended by repealing section 287, and substituting the following sections:

    287 Prerequisites to making order to pay reparation
    • (1) Nothing in this section limits the provisions of section 284 (for example, section 284(1)(e) or (f)) or section 287A.

      (2) In determining whether an order under section 283(f) is appropriate or the sum to be paid by way of reparation for consequential loss or damage described in section 283(f)(iii), the Court must take into account whether there is or may be, under law, a right available to the person who suffered the loss or damage to bring proceedings or to make an application in relation to that loss or damage.

      (3) Subsection (2) applies whether or not the right to bring proceedings or make the application has been exercised in the particular case, and whether or not any time prescribed for the exercise of that right has expired.

      (4) Despite subsection (2) and section 283(f), the Court must not order a sum to be paid by way of reparation for consequential loss or damage described in section 283(f)(iii) for which the Court believes that a person has entitlements under the Injury Prevention, Rehabilitation, and Compensation Act 2001.

      (5) Section 320 of the Injury Prevention, Rehabilitation, and Compensation Act 2001 (Corporation to be heard) does not apply where a charge against a young person is proved before a Youth Court.

    287A Order to pay reparation
    • (1) A sum ordered to be paid under section 283(f)(i) in respect of emotional harm must be limited to reparation for that emotional harm, and must not include an amount for loss or damage of a consequential nature.

      (2) A sum ordered to be paid under section 283(f)(ii) in respect of loss of or damage to property must be limited to the cost of replacement or (as the case may require) the cost of repair, and must not include an amount for loss or damage of a consequential nature.

      (3) No sum may be ordered to be paid to a person under section 283(f) for emotional harm, or loss or damage consequential on emotional harm, or both, unless that person has suffered through or by means of the offence physical damage, or loss of or damage to property, or both.

      (4) No order under section 283(f) can impose an obligation on a person to perform work or service for the person who suffered the harm, loss, or damage.

    287B Court to have regard to capacity to pay reparation
    • If a person against whom an order may be made under section 283(f) has insufficient means to pay the total value of the loss, damage, or harm, the Court may order that person to do either or both of the following:

      • (a) pay a sum by way of reparation for an amount less than the value of the loss, damage, or harm:

      • (b) pay a sum by instalments in respect of the loss, damage, or harm.

    287C Conditions of order to pay reparation
    • (1) If the Court orders a person to pay a sum by way of reparation under section 283(f), it must determine the conditions of the order in respect of the following matters:

      • (a) the total amount to be paid by the person by way of reparation:

      • (b) whether the amount is to be paid in 1 lump sum or in instalments:

      • (c) if the amount is to be paid in 1 lump sum, whether it is to be paid immediately or at some specified future date:

      • (d) if the amount is to be paid in instalments, the frequency and amounts of the instalments.

      (2) The Court may not impose a condition that an amount to be paid in 1 lump sum must be paid immediately unless the Court is satisfied that the person has sufficient means to pay it immediately.

    287D How payments to be applied if fine and reparation
    • If a person fined under section 283(d) is also ordered to pay a sum by way of reparation under section 283(f), payments received from the person must be applied first in satisfaction of the amount due by way of reparation under the order under section 283(f).

Expiry of Youth Court orders

27 New section 296 substituted
  • The principal Act is amended by repealing section 296, and substituting the following section:

    296 Expiry of orders
    • (1) In this section,—

      relevant time means the commencement of section 27 of the Children, Young Persons, and Their Families Amendment Act (No 4) 2004

      specified order means—

      • (a) an order under section 283(c) (to come before the Court, if called upon within 12 months, so that the Court may take further action under section 283); or

      • (b) an order under section 283(k) (placing the young person under the supervision of the chief executive or a specified person or organisation); or

      • (c) an order under section 283(l) (a community work order under section 298); or

      • (d) an order under section 283(m) (a supervision with activity order under section 307); or

      • (e) an order under section 283(n) (a supervision with residence order under section 311).

      (2) If it does not expire sooner, a specified order made at or after the relevant time expires at the latest of the times specified in whichever of the following paragraphs apply to the order:

      • (a) if it is an order under section 283(c), 12 months after it is made; and

      • (b) if it is an order under section 283(l), when the period specified under section 298(2)(a) (and within which the community work must be performed) expires; and

      • (c) if it is an order under section 283(n), when the period specified in the order required by section 311(2) expires; and

      • (d) if it is a specified order of any kind, 6 months after whichever of the following events occurs last:

        • (i) the order is made:

        • (ii) the young person in respect of whom it is made attains the age of 17 years.

      (3) If it does not expire sooner, a specified order made before the relevant time expires 6 months after the young person in respect of whom it is made attains the age of 17 years.

Cancelling and replacing supervision orders and supervision with activity orders

28 Failure to observe conditions of supervision order or supervision with activity order
  • Section 309 of the principal Act is amended by inserting, after subsection (1), the following subsections:

    • (1A) An application under subsection (1) must be made before the time at which the order expires under section 296; but so long as it is, the Court may act in relation to it under subsection (2) after the order expires.

    • (1B) However, the Court may accept an application under subsection (1) made within 7 days after the time referred to in subsection (1A) and may respond to that application in accordance with subsection (2) order expired, and may act under subsection (2) in relation to the application, if satisfied that—

      • (a) the failure to comply with the condition of the order was a serious failure; and

      • (b) there is a good reason (for example, that information about the failure came to notice too late to apply) why the application could not reasonably have been made before the time at which the order expired.

Warrant to arrest young person for purpose of having him or her brought before Court dealing with specified application

29 New heading and sections 320A and 320B inserted
  • The principal Act is amended by inserting, after section 320, the following heading and sections:

    Warrant to arrest young person for purpose of having him or her brought before Court dealing with specified application

    320A Court may issue warrant on application by Social Worker or member of police
    • (1) In this section, specified application means any of the following applications, lodged in a Court by the chief executive, a Social Worker, or the person or organisation supervising, or specified in, the order to which that application relates, or under whose supervision the young person is placed:

      • (a) an application under section 299(1) to have a community work order under section 298 cancelled on the grounds that the young person has failed to comply with the order:

      • (b) an application under section 309(1) to have a supervision order under section 283(k) or a supervision with activity order under section 307 cancelled on the grounds that the young person has failed to comply with a condition of the order:

      • (c) an application under section 310(3) to have a supervision order under section 283(k), or a supervision with activity order under section 307, or a condition of such an order, cancelled, suspended, imposed, or varied:

      • (d) an application under section 316(1) to have a supervision with residence order under section 311 cancelled on the grounds that the young person has absconded from the custody of the chief executive.

      (2) For the purpose of having the young person brought before the Court dealing with the specified application, a Social Worker or, a member of the police, or the person who lodged the specified application may (whether or not a summons has been issued) apply to a Court in which a specified application has been lodged for the issue of a warrant to arrest the young person.

      (3) The Court must not issue a warrant under this section unless satisfied that—

      • (a) all reasonable efforts have been made to locate or, as the case requires, to serve the specified application on, the young person; and

      • (b) those efforts have failed.

      Compare: 2002 No 9 s 72(3)

    320B Execution of warrant under section 320A
    • (1) A warrant under section 320A (the warrant) may be executed only by a member of the police.

      (2) The warrant must be directed to a member of the police by name or generally to every member of the police, but in either case may be executed by any member of the police.

      (3) For the purpose of executing the warrant, the member of the police executing it may at any time enter on to any premises, by force if necessary, if he or she has reasonable grounds to believe that the young person against whom it is issued is on those premises.

      (4) The member of the police executing the warrant must—

      • (a) have the warrant with him or her; and

      • (b) produce it on initial entry and, if requested, later; and

      • (c) if he or she is not in uniform, produce evidence that he or she is a member of the police.

      (5) The warrant is a process for the purposes of section 38(3) of the Police Act 1958.

    Compare: 2000 No 38 s 36(2)–(4); 2002 No 9 s 72(4).

30 Amendments consequential on enactment of section 29
  • (1) Section 299 of the principal Act is consequentially amended by adding the following subsections:

    • (3) An application under subsection (1) must be served on the young person to whom the order relates and on any parent or guardian or other person having the care of the young person.

    • (4) Nothing in subsection (3) requires an application under subsection (1) to be served on a young person who is arrested under a warrant under section 320A.

    (2) Sections 309 and 316 of the principal Act are consequentially amended by adding the following subsection:

    • (4) Nothing in subsection (3) requires an application under subsection (1) to be served on a young person who is arrested under a warrant under section 320A.

Victims

31 Persons entitled to be present at hearing
  • Section 329(1) of the principal Act is amended by inserting, after paragraph (c), the following paragraphs:

    • (ca) a victim of the offence or alleged offence, or a representative of that victim:

    • (cb) if a victim of the offence or alleged offence is a child or young person, a parent or guardian of that child or young person victim, unless that parent or guardian is charged with the commission of, or convicted or found guilty of, or pleads guilty to, the offence concerned:

    • (cc) any reasonable number of people who accompany a person described in paragraph (ca) or paragraph (cb) to give him or her support:.

Informant's right of appeal against order of Youth Court

32 New section 353A inserted
  • (1) The principal Act is amended by inserting, after section 353, the following section:

    353A Informant's right of appeal against order of Youth Court
    • (1) If a Youth Court, on determining an information, finds that a young person has committed an offence and makes in respect of the young person an order under section 283, the informant may appeal against the order to the High Court.

      (2) However, an appeal under this section may be brought only if the Solicitor-General's written consent to the appeal has been obtained and is lodged with the notice of appeal.

      (3) A document evidencing that written consent may be signed on behalf of the Solicitor-General by a person who is or purports to be a Crown Counsel.

      (4) An appeal under this section lapses on the date specified in paragraph (b) and must be deemed to have been dismissed by the High Court for non-prosecution if—

      • (a) the appeal is brought against an order under section 283(n) (that is, a supervision with residence order under section 311); and

      • (b) the hearing of the appeal has not started by the date on which the young person concerned is released from the chief executive's custody under that order.

      (5) For the purposes of subsection (4)(b), the manager of a residence from which the young person has been released must, if that manager knows of the appeal under this section, notify the Registrar of the High Court that the young person has been released.

    (2) Section 355(1)(a) of the principal Act is consequentially amended by inserting, after the expression section 353, the words or section 353A.

Functions of Care and Protection Resource Panels

33 Functions of Care and Protection Resource Panels
  • (1) Section 429(c) of the principal Act is repealed.

    (2) Section 429 of the principal Act is amended by adding, as subsection (2), the following subsection:

    • (2) In performing the function in subsection (1)(a), a Care and Protection Resource Panel must provide advice that the Panel considers is likely to promote co-ordination of the provision of services by the community to—

      • (a) children and young persons in need of care or protection; and

      • (b) the families and family groups of those children and young persons.

Consequential amendment

33A Consequential amendment to Criminal Records (Clean Slate) Act 2004
  • Section 19(3) of the Criminal Records (Clean Slate) Act 2004 is amended by repealing paragraph (f), and substituting the following paragraph:

    • (f) the eligible individual's criminal record or information about an eligible individual's criminal record is relevant—

      • (i) to an investigation under section 17A(1)(a) of the Children, Young Persons, and Their Families Act 1989 of a report under section 15 of that Act of ill-treatment or neglect of a child or young person; and

      • (ii) to a child and family assessment under section 17A of that Act of—

        • (A) the matters contained in a report under section 15 of that Act of ill-treatment or neglect of a child or young person; and

        • (B) the risk of harm to the child or young person raised by those matters; and

      • (iii) in relation to any procedure under Part 2 of that Act arising from an investigation or assessment of that kind (including, without limitation, holding a family group conference or a Family Court's consideration of an application for a declaration that a child or young person is in need of care or protection); or.

Part 2
Amendment to Criminal Justice Act 1985

Purpose

34 Purpose of this Part
  • The purpose of this Part is to re-enact spent provisions of the Criminal Justice Act 1985 relating to remanding young persons to penal institutions.

Remanding young persons to penal institutions

35 New sections 142AC and 142AD inserted
  • The Criminal Justice Act 1985 is amended by inserting, before section 142A, the following sections:

    142AC Special provisions until 1 July 2008 as to young persons remanded or committed for trial or sentence
    • (1) On and from the commencement of section 35 of the Children, Young Persons, and Their Families Amendment Act (No 4) 2004 and until the close of 30 June 2008, subsections (2) to (6) of this section apply instead of subsections (1) to (3) of section 142.

      (2) Despite anything in any other enactment,—

      • (a) no person under the age of 15 years may be remanded to a penal institution pending the hearing or trial of any charge or pending sentence:

      • (b) no person who has attained the age of 15 years but has not attained the age of 17 years may be remanded to a penal institution pending the hearing or trial of any charge or pending sentence, except where the person is charged with or has been convicted of a purely indictable offence (within the meaning of section 18 of the Sentencing Act 2002).

      (3) No person who has attained the age of 15 years but has not attained the age of 16 years may be remanded to a penal institution pending trial or sentencing unless,—

      • (a) in the case of a remand pending trial, the court is satisfied that the period that the person is likely to be on remand pending trial will not be less than 2 months; and

      • (b) the chief executive, or an officer of the department authorised in that behalf by the chief executive, has furnished to the court a certificate stating that detention of the young person in the custody of the chief executive under an order under this section for the likely period of remand would be likely to prejudice the ability of the department to meet demands to detain other young persons in the department's residences under similar orders; and

      • (c) the court is satisfied that remand to a penal institution is in all the circumstances appropriate.

      (4) In subsections (2) and (3) of this section, a reference to a penal institution does not include a police jail.

      (5) For the purposes of subsection (3) of this section,—

      chief executive means the chief executive of the department

      department means the department that is, with the authority of the Prime Minister, for the time being responsible for the administration of the Children, Young Persons, and Their Families Act 1989.

      (6) Subject to subsections (2) and (3) of this section and to the Children, Young Persons, and Their Families Act 1989, the provisions of subsections (4), (4A), (4B), and (5) of section 142 apply in respect of every person who is under the age of 17 years and who is charged with or convicted of any offence in a District Court or the High Court.

    142AD Expiry of section 142AC
    • Section 142AC expires at with the close of 30 June 2008.


Legislative history

22 June 2004Introduction (Bill 159–1)
29 July 2004First reading and referral to the Social Services Committee

  • 1 1989 No 24