Detaining 17-year-old rangatahi in a youth unit of a prison (section 238(1)(f))

Update made to this guidance

This guidance no longer covers situations when a joint application is initiated 'post arrest'.

What the joint application is

The joint application asks the Youth Court to detain a rangatahi aged 17 years in a Corrections youth unit within a prison if the court is satisfied that:

• the order is necessary to ensure the safety of any tamariki or rangatahi who are in the custody of the chief executive of Oranga Tamariki
• a youth unit within a prison is available for the rangatahi to stay in
• all other options available to Oranga Tamariki to safely manage the rangatahi have not been successful.

Restrictions on power of court to order child or young person to be detained in custody – section 239(2A) of the Oranga Tamariki Act 1989

This only applies to 17 year olds. 17 year olds are considered young people under the Act and relevant principles apply.

When a joint application can be made

A joint application can only be made while they are detained in an Oranga Tamariki residence pending hearing, if their behaviour poses significant risk to themselves, or to other tamariki or rangatahi in the chief executive’s custody and it cannot be safely managed within a youth justice residence.

Remand of defendants aged 17 to 20 years – section 175(1A) of the Criminal Procedure Act 2011

Who makes the application

The application is made by the chief executives of Oranga Tamariki and the Department of Corrections, or their delegates.

If the rangatahi is in a youth justice residence:

• the case leader identifies if the rangatahi meets the criteria for detention in a youth unit of a prison and ensures the rangatahi and their whānau or family understand why Oranga Tamariki intends to apply for the transfer and what the process is
• the youth justice social worker consults with Corrections and coordinates the rest of the process.

If the joint application is initiated by a residence

The case leader identifies if a rangatahi meets the criteria for detention in a youth unit of a prison. The primary question that needs to be answered is ‘Is it necessary for the rangatahi to be detained in a Corrections youth unit (rather than an Oranga Tamariki youth justice residence) to ensure the safety of any tamariki or rangatahi who are in an Oranga Tamariki youth justice residence?’

This should be supported by the following considerations:

• Evidence of unmanageability – recent history of care arrangement in a residence. For example: incidents, secure care history, including what attempts Oranga Tamariki has made to manage the rangatahi (what has worked and what hasn’t worked).
• Current incidents (such as physical assaults).
• Current alleged offending and historical offending.
• Are the legal controls of Oranga Tamariki sufficient to manage the behaviour of the rangatahi in a way that keeps other tamariki or rangatahi safe?
• Are the current charges the rangatahi is facing likely to lead to the adult jurisdiction?

The case leader then:

• ensures the rangatahi and their whānau or family are informed of the intention to apply for a transfer to a youth unit of a prison and that they understand the reasons and the process
• consults with Corrections regarding making a joint application
• undertakes the joint assessment with Corrections staff (refer to the targeted YPPA assessment tool and MoU for further details)
• keeps the youth advocate informed of the joint application
• consults with the Team Lead Clinical Practice and the youth justice social worker – the team lead reviews the assessment undertaken by the case leader.

The youth justice social worker:

• completes the joint application and affidavit in consultation with an Oranga Tamariki solicitor and Corrections
• gets the youth justice supervisor and Oranga Tamariki legal services to review the application and affidavit
• consults with the care and protection social worker if the rangatahi has one
• obtains the approval signatures of the joint application from the general manager of Youth Justice Residences and the Corrections signatory
• gives the joint application and affidavit to legal services so they can:
  • submit it to the court registrar
  • make arrangements for the hearing
  • serve the joint application and affidavit on the Police and youth advocate
• keeps the rangatahi and their whānau or family informed of the process
• appears in the Youth Court with legal services.

Sources of information for the joint application and associated affidavit

The joint application and associated affidavit can be informed by various sources of information, such as:

• CYRAS court records (like the history of offending), SOSHI incident reports, secure care history (for example, reasons and retention duration), mental health records
• residence care plan for the rangatahi
• conversations with residence staff
• evidence from the residence that may include past behaviour (for example, assaults against other tamariki, rangatahi or kaimahi) and new offending that has required Police taking action – for example, further criminal charges being laid in the court.

Young Person’s Placement Assessment

If the joint application is initiated while the rangatahi is detained in a residence, Oranga Tamariki and Corrections can also undertake a joint assessment using the targeted Young Person’s Placement Assessment tool (YPPA), which will inform the joint application and affidavit.

As a privacy consideration, you must only collect the information needed to support the decision.

Review at least every 14 days

We must review all tamariki and rangatahi who are detained in an Oranga Tamariki residence or Corrections youth unit in a prison at least every 14 days.

Order under section 238 sufficient authority for detention of child or young person – section 242(1A) and (2B) of Oranga Tamariki Act 1989