CHALLENGES TO JUVENILE TREATMENT IN NEW ZEALAND
Pamela Phillips*
I. INTRODUCTION
This paper examines the challenges ofthe Children, Young Persons and TheirFamilies Act 1989.
II. THE CHILDREN, YOUNGPERSONS AND THEIR FAMILIESACT 1989
A. Introduction
The New Zealand Children, Young
Persons and Their Families Act of 1989
( C Y P & F A c t) c a m e in t o e f f e c t o n 1
November 1989. The legislation
introduced new principles and proceduresfor dealing with young people who had
committed offences, and provided forjurisdiction al s eparation bet weenchildren and young people in need of careand protection and those who had
committed offences. The legislation ineffect moved practice from a ‘welfare’a p p ro a c h to y o u n g p e o p l e w ho ha doffended towards a ‘justice’ approach.
B. Theoretical BaseAt the tim e of d eve lopm ent of thelegislation in New Zealand much of thedebate about the most appropriate way of
dealing with young people who offended
centred on two models - the welfare modeland the justice model.
The table below represents acomparison between the two models.

Welfare (needs)

Justice (deeds)

1. How offending is viewed (causes of crime).
Offending is due to criminal individual
pathology, family breakdown or community disruption.

The process of growing up is characterised by testing boundaries and trying
new things out. Therefore behaviour
that can be classed as criminal is a normal part of growing up. Some individuals become serious offenders.

2. Intervention.
The causes of the offending should befound and dealt with. The ‘needs’ of thechild or young person should be focusedon rather than the offence.

Intervention should be offence or ‘deeds’related.

* Coordinator Community Conferencing,
Queensland, Australia(New Zealand)

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Welfare (needs)

Justice (deeds)

3. Child’s or young persons involvement.
Programmes should focus on the needsof the individual.

A child or young person has rights thatshould be protected. They should beheld accountable for their actions,although age is recognised as a factor
when determining the appropriate sanction.

4. Family/whanau involvement.
Family are seen as part of the problem,or as being unable to provide adequate
care and control of their child or young
person.

Family seen as part of the solution andentitled to be primary players in thedecision making process.

5. Victim involvement.
Victims have no right to be involved in
the outcome. They are seldom seen as
helpful.

Victims have a valid and legitimate
entitlement to participate in the processof holding the young person accountable
for their offending.

6. Criminal justice system.
The criminal justice system is used toaccess welfare resources for the child or
young person and their family.

Intervention by way of the criminal justice system should be delayed as long aspossible. Such interventions tend toachieve outcomes that are unlikely tohave a positive effect on the offending
behaviour.

C. Social BackgroundA number of issues emerged at thesame time and shaped the legislation.
These issues included:

little value in Maori customs, values andbeliefs.

1. Growing Dissatisfaction among
Practitioners
The apparent lack of effectivenesswhen working with young offenders wasresulting in a growing dissatisfaction
among practitioners in the youth justicefield and this was reflected in the wider
community.
2. Self-determination for Maoris
Mao ri were making new andde termined e fforts to secure self
determination in a mono-cultural legalsystemwhichdemonstrably
discriminated against Maori and places
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3. Rejection of Paternalism of the Stateand its Agents
Concern was being expressed in thewider community about the needs toredress the imbalance between the powerof the state and its agents and that ofindividuals and families involved in thecriminal justice system.
4. Lack of Impact on Levels of Offending
Costly therapeutic programmes wereemerging as part of the problem andacknowledged as having no impact on thelevels of offending. Pressure was forming
to free up resources for other uses and toseek more positive outcomes for youngpeople.

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5. Due Process for Young People
Concerns were also emerging inrelation to the process of dealing withyoung people who had committed offences
and the sentence outcomes that they werereceiving. Courts were dismissing cases
where the police had failed to observe
procedural safeguards in the questioning
and arrest of young people and increasing
numbers of young people were being sent
to adult courts for sentence.
D. The Reform Process
In 1984 the Government of the day
determined that problems with the careand protection provisions could not be
remedied by legislative amendment andordered a full review of the Children andYoung Persons Act of 1974.
Much of the attention focused on thecare and protection provisions of the Act.
The reforms under w ay in the youth
justice provisions elicited little debate.
Either the youth justice reforms wereswamped by the debates relating to thecare and protection reforms or they heldwidespread acceptance.
E. Feature of the Law
1. Principles
The youth justice provisions of the Act
have their own set of principles distinct
from the provisions relating to the carea nd protection p ro visions. All thoseworking under the Act must apply theseprinciples.
The principles are summarised in thepaper “Restorative Justice Initiatives inNew Zealand.” A further principle thatapplies is that:•The vulnerability of young people
entitles them to special protection
during any investigation in relation tothe commission of an offence.

2. Age of criminal responsibilityChild under 10 years: No child under
the age of 10 years can be charged with
an offence—no criminal responsibility.
Child offenders aged between 10 and
13 years can be charged with murder ormanslaughter. The prosecution must
prove that the child knew that the act oromission was wrong and contrary to law.
In these cases a preliminary hearing isheld in the Youth Court and, if a prima
facie ca se is esta blished, the case istransferred to the High Court for hearing,and sentencing if found guilty.
For other offences child offenders canbe referred for a Family Group
Conference if the police believe they are
in need of care and protection because of
their offending, and the public interest
requires such action. Any court action isin the Family Court.
Young offender is aged between 14 and16 years is dealt with in the Youth Court,
or can be convicted and transferred to theDistrict Court for sentence.
3. Limitations on Arrest and Procedural
Safeguards During Investigations
The law limits the powers of police toarrest in preference to proceeding by wayof summons. New procedures governed
police actions when questioning a young
person suspected of having committed anoffence and established the rights ofchildren and young people to consult withother. For example no statement made bya child or young person is admissible
unless it was made in the presence of atrusted or neutral.
4. New diversion process and the FamilyGroup Conference
T h e r e w e r e t w o m a j o r d e f e c t s indiversionary mechanisms previously
adopted by New Zealand. Firstly, they101

RESOURCE MATERIAL SERIES No. 59had been constructed around panels ofprofessionals and co-opted community
members and functioned as quasi-judicial
bodies, and secondly they were bypassed
when police exercised their powers ofarrest.
The policy imperative was to find asolution that was not bypassed by arrest,
was not susceptible to net widening, andwhich eliminated the quasi-judicial panelapproach. The result was thede velop ment of the fam ily groupconference, convened and facilitated by a
new statutory official, known a s theYouth Justice Coordinator.
The restoration of harm ony isfu ndamen tal to th e Family Grou pConference. From the outset, thepresence of harmony will maximise thepotential for relationships between allp articipa nts to m ove a w ay fro m theadversarial and confrontational
atmosphere common to the criminal court
and set the scene fo r a ne gotiate doutcome.

c.

d. Status of Family Group Conference
The family group conference has astatus in any proceedings and has theright to make representations.
e. Hearings in the Youth Court
All hearings of the Youth Court are tobe held separately from other Courts.
The C ourt schedules hea rings toensure that waiting times arem i n i m i s e d a n d c o n g r e g a t io n i ncommon waiting areas are kept to aminimum.
6. Court Orders
A n e w ta r i f f o f c o u r t o r d e r s w a s
established. Major changes occurred at
the top of the tariff with the introduction
or lim ita tions be ing impo se d o n thefollowing orders:•5. The Youth Court.
A new Youth Court was established asa subsidiary of the District Court. Thekey features of this are:•a. Designated JudgeNo judge may be designated a Youth
Court judge unless they are suitableb y w a y o f t r a i n in g, e x p e r i e n c e ,personality and understanding of thesig nifican ce and impor tanc e ofdifferent cultural perspectives andvalues.

•b. Legal representation
All young persons must be legally
represented , with the Court
appointing a youth advocate where nop riva te arra ngem ents ha ve be enmade.

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Lay advocates
Courts may, in addition, appoint layadvocates to ensure the Court is madeaware of all relevant cultural matters.

••

Community work order—not morethan 200 hours.
Supervision order—no longer than 6months.
Supervision with activity order—3months, can be followed by asupervision order for 3 months.
Supervision with Residence order—3
mont hs , mu st b e fol lowed by asupervision order for up to threemonths.
Transfer to District Court—only if
nature of offence and circumstances ofthe offender requires this.

F. Flow chart of the Youth Justice
SystemA f lo w chart of the Youth Justicesystem is attached as appendix 1.

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III. TEN YEARS ON
The youth justice system has now beena feature of the New Zealand system forten years.
Goal
Diversion:
Keeping young people out of courts andout of custody

Accountability:
Young people taking responsibility for
their offending and putting right theharm they have done to others
Enhancing well-being and strengthening families:
Families receiving services that will
strengthen them to respond to theirfamilies needs.
Due process:Ensuring that young peoples rights areprotected.

Family participation:
Involving families and young people inmaking decisions for themselves andtaking charge of their lives.

The following table demonstrates theresults against the goals of the youth
justice system.

ResultCourt appearances pre 1988: 10,000 13,000
Court appearances post 1989: 2,500 3,000
Residential beds pre 1988: 250
Current residential beds: 75
FGC’s per year: 5,700 - 6,500
95% of young people were held accountable for their offending.

Appropriate programmes not always
available. Families felt they wanted
more support.
Proper procedures not always followedby police in relation to questioning of
the young person. At times young people
felt pressured to admit an offence.
Families participated fully, however
only one third of the young people felt
involved in the process.

Victim involvement:
Involving victims in decisions about
what should happen to ‘put right thewrong’ and ‘restore harmony’.

41% of victims attended their conference.

Consensus decision making:
Reaching agreement between the conference participants on what shouldhappen.

95% of conferences reached agreement
about what should happen.

Cultural appropriateness:
Providing for different ways of resolving
matters and obtaining services, depending on the culture of the young person
and their family.

At times the processes were quite foreign to participants particularly families from the Pacific Islands.

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IV. CONCLUSIONThe Children, Y oung Persons a nd
Their Families Act 1989, changed the faceof Youth Justice in New Zealand. Thereh a ve be en tre m en do us suc ce sse s in
reducing the numbers of young people inresidential care and appearing before theCourts. Victims have been for the first
tim e involved in decision-m aking inrelation to the offence committed againstthem.
In recent years the body of research on
risk and protection factors andinterventions known to work with young
offenders has been growing. The
Department of Child, Youth and Family
Services has recently been incorporated
into a strategy aimed at the most highrisk recidivist offenders—it is hoped that
this strategy has a similar success to theintroduction of the Act.

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Appendix 1
Flow Chart Indicating Pathways Through the System
YOUNG PERSON DETECTED
FOR ALLEGED OFFENDING

No action; warning; orother informal police action

Arrest

No Charge

Referral to YouthAid Section

Police warning orwarning andinformal sanction

ChargeDiscussion withYouth JusticeCo-ordinator

YOUTH COURT

FGC

Guilt denied

Released, atlarge or on bailNo denial

Remandedin custody

Remandedin custody

FGC recommends tocourt regarding
placement

Defendedhearing

Acquitted

No denial

Released, atlarge or on bailDenialRefer back toYouth Aid

FGC recommends tocourt regarding
placement

Proved

FGC makesrecommendations
and prepares plans

FGC makes
recommendations
and prepares plans

Youth Court
Disposition

Withdrawn ordischarged

Court
orders

Implementationof FGC decision

Summons toYouth Court

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