Working in the Youth Court Te Kōti Taiohi o Aotearoa

Purpose of this guidance

This guidance is for all Oranga Tamariki staff who work with tamariki or rangatahi and their whānau or family within the Youth Court, Te Kōti Rangatahi or the Pasifika Court. The guidance includes various jurisdictions and informs and guides our practice in this mahi, to achieve the best outcomes to support tamariki, rangatahi, their family, whānau, hapū and iwi, communities, and the victims of youth crime. It also guides our service to the courts and other stakeholders.

Policy: Youth Court

Rights and legislative requirements

Our practice framework helps us make sense of and organise our practice within the context of our role in statutory child protection and youth justice in Aotearoa New Zealand.

Our role in the Youth Court is to advocate for tamariki or rangatahi and their whānau or family. We also help to maintain and restore the oranga of tamariki and rangatahi.

Section 7AA of the Oranga Tamariki Act 1989 requires us to give effect to te ao Māori principles of mana tamaiti, whakapapa and whanaungatanga responsibilities of whānau, hapū and iwi and the improvement of outcomes for tamariki and rangatahiMāori.

Te Tiriti o Waitangi (the Treaty of Waitangi)

Te Tiriti o Waitangi frames our practice relationship between the Crown and Māori. Our practice is framed by te Tiriti, is based on a mana-enhancing paradigm for practice and draws from te ao Māori principles of oranga.

Given the overrepresentation of tamariki and rangatahi Māori in our youth and adult justice systems, we need to help reduce disparities and achieve equity in outcomes for tamariki and rangatahi Māori. Our approach and our response to our Tiriti commitments will be best achieved in partnership with whānau, hapū, iwi, Māori organisations and communities.

United Nations Convention on the Rights of the Child (UNCRoC)

The United Nations Convention on the Rights of the Child (UNCRoC) is an international treaty that enshrines the rights of tamariki and rangatahi in law.

The rights of tamariki and rangatahi are based on what a tamaiti or rangatahi needs to survive, grow, participate and reach their potential. All the rights are connected, they are all equally important and they cannot be taken away from tamariki and rangatahi.

Article 40 outlines rights specifically in relation to Juvenile Justice and is particularly relevant to our work in the Youth Court. Tamariki and rangatahi accused of breaking the law have the right to legal help and fair treatment. The focus should be on solutions to help these tamariki and rangatahi achieve positive outcomes within the context of their whānau or family and communities. Prison sentences for tamariki and rangatahi should only be used for the most serious offences and be the last choice.

Articles 3, 9, 12, 23 and 37 should be considered in the context of the Youth Court and its associated processes – particularly in custodial settings:

• Article 3 states that, when adults make decisions, they should consider how their decisions will affect tamariki and rangatahi. Governments should make sure tamariki and rangatahi are protected and cared for by their parents, or by other people when this is needed. Governments should ensure that the people and places responsible for looking after tamariki and rangatahi are doing a good job.
• Article 9 states that tamariki and rangatahi should not be separated from their parents unless they are not being properly cared for.
• Article 12 states that tamariki and rangatahi have the right to give their opinions freely on issues that affect them. Adults should listen and take tamariki and rangatahi seriously.
• Article 23 states that every disabled tamaiti or rangatahi should enjoy the best possible life in society. Governments should remove all obstacles for disabled tamariki and rangatahi to become independent and to participate actively in the community.
• Article 37 states that tamariki and rangatahi who are accused of breaking the law should not be killed, tortured, treated cruelly, put in prison forever, or put in prison with adults. Prison should always be the last choice and only for the shortest possible time. Tamariki and rangatahi in prison should have legal help and be able to stay in contact with their whānau or family.

Convention on the Rights of the Child | Office of the High Commissioner for Human Rights (United Nations)

Beijing Rules

These rules refer to the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) of 1985. They provide instruction and guidelines on how tamariki and rangatahi ('minors') should be treated by the state while interacting with the justice system. Subtopics include privacy rights, police operations and due process guarantees.

Beijing Rules | Office of the High Commissioner for Human Rights (United Nations)

United Nations Convention on the Rights of Persons with Disabilities

The Convention on the Rights of Persons with Disabilities is an international human rights treaty of the United Nations intended to protect the rights and dignity of persons with disabilities. We know that disabled tamariki and rangatahi experience greater inequities and are more likely to be abused and be left in abusive environments compared with other population groups. Disabled tamariki and rangatahi are particularly vulnerable in the youth justice system, including when they're being processed in the Youth Court and when they're in custody. We ensure that their rights, and their parents' rights, are upheld in ways consistent with the social and rights-based model of disability highlighted in the Ombudsman's report He Take Kōhukihuki.

Convention on the Rights of Persons With Disabilities | United Nations

United Nations Declaration on the Rights of Indigenous Peoples

Issued in 2007, this declaration establishes a universal framework of minimum standards for the survival, dignity and wellbeing of the indigenous peoples of the world and it elaborates on existing human rights standards and fundamental freedoms as they apply to the specific situation of indigenous peoples. Tamariki and rangatahi Māori come under this declaration.

Declaration on the Rights of Indigenous Peoples | Office of the High Commissioner for Human Rights (United Nations)

Legislation, rights and oranga (wellbeing)

Sections 4(1)(i) and 4A(2) of the Oranga Tamariki Act 1989 set out how we practise in youth justice. We give effect to these purposes in the Youth Court by:

• promoting and advocating for the rights and best interests of tamariki and rangatahi in the Youth Court processes, including supporting them while they are on bail or in custody – this also helps safeguard public safety and interest
• assessing and acknowledging their needs so their oranga is maintained and their mana is upheld
• ensuring the interventions (family group conference plans and court orders) prevent or reduce offending or future offending and hold them accountable by encouraging them to accept responsibility for their behaviour
• recognising and considering the rights and interests of victims, such as how they want to be involved in the process and keeping them updated on their case.

When working with tamariki and rangatahi and their whānau or family during the court process, we ensure their mana and rights are upheld, needs are met, and risks are moderated. We support them to have their voices heard, and to participate and understand the process.

Role of the Youth Court

The Youth Court Te Kōti Taiohi o Aotearoa is a division of the District Court. When tamariki or rangatahi aged 12 to 18 years of age commit an offence, they may be arrested and directed to appear before the Youth Court.

Youth Court jurisdiction

Youth Court judges are specially designated District Court judges.

After hours, Justices of the Peace (JPs) or Community Magistrates may preside in the Youth Court. A JP or Community Magistrate can exercise powers in relation to:

• custody pending hearing
• directing a family group conference where te tamaiti or rangatahi has not denied the charge and no plea is entered.
  Section 321(5) of the Oranga Tamariki Act 1989

Lay advocates

While tamariki and rangatahi will have youth advocates appointed to represent them, many Youth Courts also appoint lay advocates. We work alongside these lay advocates and facilitate their involvement and access to tamariki and rangatahi. Lay advocates are not lawyers – they are people with mana or standing in the community of te tamaiti or rangatahi.

Lay advocates support tamariki, rangatahi and their whānau or family (if they're not already represented). They also provide cultural reports to the court when requested, ensuring the court is informed about relevant cultural matters for te tamaiti or rangatahi.

Who appears in the Youth Court

The Youth Court hears charges of criminal offending by tamariki and rangatahi aged 12 to 18 years, other than murder or manslaughter, certain infringement offences (like minor traffic offences), or an offence listed in Schedule 1A of the Oranga Tamariki Act for 17-year-olds. (Schedule 1A lists a variety of serious offence categories.)

Te tamaiti or rangatahi must have been aged 12 to 17 years at the time of the alleged offending.

There is provision (section 2(2)) that allows for rangatahi 18 years and over to be dealt with by the Youth Court for alleged offending as a 'young person' (that is, aged 17 or below).

There are other parts of the Act that place limits on the ability for 19-year-olds to be dealt with in certain ways in the youth jurisdiction (for example, see section 296 regarding the expiry of certain orders under section 283 once a rangatahi turns 19).

Section 2(2)(c) states that we cannot hold a family group conference for a 19-year-old.

In addition, section 2(2)(d) provides that a 19-year-old who allegedly offends as a young person (17 years or under) does not have to be dealt with in the Youth Court if, when the charging document is going to be filed, they have already turned 19 years of age. This means that, instead, Police can lay a charge in the District Court.

However, there will be times where a 19-year-old will be able to be dealt with by the Youth Court, if they were 18 years of age when they had their family group conference, and only in terms of disposition options that do not expire at age 19 (that is, any orders under section 283 that are not listed in section 285).

There may be other instances where the District or High Court will deal with offending by tamariki and rangatahi (for example, where a jury trial has been elected, or where they are facing joint charges with other tamariki, rangatahi or adults). 

Youth Court jurisdiction

The Youth Court is required to impose the least restrictive outcome that is appropriate in the circumstances (section 289 of the Oranga Tamariki Act 1989). This includes allowing the opportunity for tamariki and rangatahi to complete their outcomes away from the court and without the imposition of formal orders.

Policy: Youth Court

Youth Court jurisdiction

All charges start in the Youth Court, including those transferred to other courts. When we work in the Youth Court, we need to understand the Youth Court's jurisdiction, offence categories and types of trials to support tamariki and rangatahi and their whānau or family through the court processes.

Sections 272 to 280A of the Oranga Tamariki Act 1989

Policy: Youth Court

Offence categories and types of trials

The categories of offences and types of trials for proceedings are in the Criminal Procedure Act 2011. Schedule 1 lists the offences that are categorised based on maximum penalties. The exception is category 4 offences (murder or manslaughter), which are treated differently because of their significant seriousness, complexity or public symbolism.

Each category of offence has a default trial type, being either a judge-alone trial or a jury trial. In some cases, a judge-alone trial may be presided over by Justices of the Peace or Community Magistrates. Tamariki and rangatahi charged with offences with maximum penalties of 2 years or more imprisonment can choose a jury trial.

• A Category 3 offence is one that is punishable by life imprisonment or by imprisonment for 2 years or more except category 4 offences below.
• A category 4 offence, for example, is murder or manslaughter, which is listed in Schedule 1 to the Act.

Offence categories – sections 71 to 74 of the Criminal Procedure Act 2011

Jointly charged co-offenders

When tamariki or rangatahi are charged with a co-offender, the Youth Court can try the co-offender:

• regardless of the age of the co-offender – unless te tamaiti or rangatahi or the co-offender has chosen a jury trial, or they are charged with murder or manslaughter
• if the Youth Court orders it in the interests of justice.

Jury trials

The Youth Court does not conduct jury trials. If te tamaiti or rangatahi has chosen a jury trial, this will be conducted in the District or High Court, depending on the nature of the charge. Preliminary proceedings, however, will begin in the Youth Court.

Infringement offences

The Youth Court does not deal with infringement offences (such as traffic infringement offences, or infringement offences against the Psychoactive Substances Act 2013, Sale and Supply of Alcohol Act 2012, Summary Offences Act 1981, or section 239A of the Local Government Act 2002) unless:

• te tamaiti or rangatahi is also charged with an offence that the Youth Court has jurisdiction to deal with, and
• both offences arise out of the same event or series of events, and
• the Youth Court considers that:
  • it is desirable that the charges be heard together, or
  • the charges can conveniently be heard together.

Traffic offences in Youth Court jurisdiction

Referrals to a care and protection coordinator under section 280

At any stage of a hearing or during proceedings, if it appears to the court that the rangatahi may be in need of care or protection, it may refer the matter to a care and protection coordinator under section 19(1)(b). The court may also adjourn the proceedings pending the outcome of the referral. We ensure that the care and protection coordinator is informed immediately after court and receives all referral information from the court. This allows the coordinator to respond to the referral as soon as practicable and advise the court of progress with the referral. The youth justice court officer keeps track of progress of the referral to advise the court at the next scheduled hearing.

If an application for a care or protection order is made, the court may adjourn proceedings until the application is determined. In addition, the court may at any time discharge the charge under section 282.

Te Kōti Rangatahi and the Pasifika Court

These courts are designed to help tamariki and rangatahi Māori and Pacific children and young people to better engage and participate in the youth justice process. They are also designed to actively involve Māori and Pacific family, whānau, hapū, iwi and community in the youth justice process.

When te tamaiti or rangatahi does not enter a plea in the Youth Court and the charge is not denied, a direction for a family group conference is made and the judge will offer te tamaiti or rangatahi the opportunity to have the matter heard in either Te Kōti Rangatahi or the Pasifika Court.

While these courts support tikanga Māori and Pacific cultures respectively, they also offer participation to all tamariki and rangatahi who acknowledge and accept these courts' processes and protocols.

Rangatahi courts and Pasifika courts | Youth Court of New Zealand

Te Kōti Rangatahi

There are 16 Kōti Rangatahi that we attend and service.

Te Kōti Rangatahi works within the same legal structure as the Youth Court.

Te Kōti Rangatahi is usually held on marae and follows Māori cultural processes. All Kōti Rangatahi operate on the same principles, although each has their local tikanga (protocols and processes).

The process in Te Kōti Rangatahi generally begins with a karanga, followed by a mihi whakatau and waiata where te tamaiti or rangatahi and their whānau are welcomed and supported by kuia and kaumātua.

Te tamaiti or rangatahi is then encouraged to share their pepeha. Whānau are encouraged by the court and Oranga Tamariki to actively participate in the court and family group conference process as appropriate. Kaimahi also participate in this process by sharing their pepeha.

Te tamaiti or rangatahi and their whānau are also supported to establish and maintain whakapapa and whanaungatanga connections with their hapū and iwi in this process. We support this by engaging with kuia and kaumātua alongside te tamaiti or rangatahi and their whānau.

Working with Māori: Te Toka Tūmoana

Pasifika Court

There are currently 2 Pasifika Courts, both in Auckland. We attend and service these courts.

The Pasifika Court works in the same legal structure as the Youth Court and may be held in Pacific churches or community centres. They follow cultural processes relevant to the Pacific Island culture of the children or young people and their family. Elders are also present at court to provide cultural support and advice to the children or young people and their families through the court process. We engage with Pacific Island elders and facilitate their connection with the children or young people and their families during the court process.

Working with Pacific children or young people and their families means being aware of how their worldviews are shaped by their Pacific Island identity, cultural values, beliefs, such as faith, languages, and sense of belonging. Their worldviews will sit on a continuum from traditional to contemporary.

When we work in the Pasifika Court, we focus on partnering with Pacific families, providers and communities to improve outcomes for Pacific children or young people and their families, acknowledging that they belong to a range of different communities.

It is critical that we consult early in the process with Pacific kaimahi, community agencies and services, to ensure we understand the culture of the child or young person and their family. Where required, we engage professional interpreters to facilitate the child or young person and their family's understanding and participation in the youth justice process.

Working with Pacific peoples: Va'aifetū

Interpreters when English is not the first or preferred language

Engaging with the Youth Court, Te Kōti Rangatahi and the Pasifika Court

All kaimahi who attend court need to understand the court processes and how to work within them to support te tamaiti or rangatahi and their whānau or family.

Appearing before the court can be a confusing, stressful, traumatic and anxious experience for te tamaiti or rangatahi and their whānau or family. Although tamariki and rangatahi will have youth advocates appointed for them by the court, the court can also appoint lay advocates to support them. If we become aware that there may be language difficulties, then we should ask the court to appoint an interpreter. The court can also request cultural reports to assist them in their decision-making.

We also advocate for and support tamariki and rangatahi by meeting with them and their whānau or family prior to court, to give them as much information as possible and answer any questions they may have about the court process so that they are aware of what may happen. This is even more critical when tamariki or rangatahi may be held in custody. We encourage them to actively participate in the process by talking with their lawyers and the presiding judge so that their voices are heard. We keep checking in with them to ensure that their legal and human rights are being upheld throughout their interactions with the court, and associated processes like bail and custody.

Tamariki and rangatahi in care or custody are particularly vulnerable, especially those with intellectual, mental or physical disabilities. We have a role in helping them and their whānau or family understand the proceedings and decisions made. We can recommend to the court that a Communication Assistant with the appropriate cultural and language skills is appointed to help explain matters to them and their whānau or family and to make sure their views are presented and understood. There are organisations that provide these services in the courts like More Talk and Talking Trouble. (Check with the local Partnering for Outcomes advisor for any approved organisations.)

VOYCE Whakarongo Mai is a non-government organisation that offers independent advocacy and connection services for tamariki and rangatahi with care experience. We can help connect them and their whānau or family with VOYCE.

VOYCE Whakarongo Mai

Whakamana te tamaiti or rangatahi through advocacy

Advocacy for parents and whānau or family

When a tamaiti or rangatahi is detained in the custody of the Oranga Tamariki chief executive, we quickly find the most appropriate care arrangement for them.

Attending court as a representative of Oranga Tamariki

In most Youth Court list hearings, Oranga Tamariki is represented by a court officer (generally a supervisor or senior practitioner) who is present during the hearing.

The court officer:

• helps manage custody remands
• ensures reports are available when needed
• speaks on behalf of the chief executive on routine matters.

At Youth Court list hearings, social workers may need to:

• attend to support tamariki or rangatahi in the custody of the chief executive
• respond to specific questions by the judge in relation to a tamaiti or rangatahi they are working with and supporting, or a report they have provided
• provide any other information to the court.

Youth justice coordinators also attend court to make first contact with te tamaiti or rangatahi and their whānau or family when a family group conference has been directed.

They may also be asked to respond to specific questions by the judge in relation to:

• when a family group conference will be held
• the outcomes of a family group conference.

The proceedings of a family group conference are privileged and cannot be shared with the court. Only the plan developed at the family group conference can be shared with the court.

We consult Legal Services if we require legal advice and support. Together we consider whether it would be helpful to have a solicitor appear in the Youth Court. If a social worker intends to file any applications and affidavits in the Youth Court, they send these documents to Legal Services for review.

Times when social workers may want support from Legal Services include (but aren't limited to):

• breach applications (including where seeking a warrant to arrest)
• cancellation and suspension of Youth Court orders
• files that have proceedings in other jurisdictions (for example, Family Court, District Court, High Court)
• matters that engage other legal frameworks (for example, processes under the Mental Health (Compulsory Assessment and Treatment) Act 1992, Criminal Procedure (Mentally Impaired Persons) Act 2003, or Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003).

Policy: Youth Court – Engaging with the Youth Court

If we are in court and are unsure about a question we've been asked, we can ask the court to stand the matter down for a short time so we can consult with a solicitor or our supervisor.

Recording outcomes from the Youth Court

A court record in CYRAS is opened for every tamaiti and rangatahi who appears before the Youth Court, where the court outcome is entered. Most sites have a casenote template to record specific details of who attended the court hearing and the outcome, including bail details. This includes all tamariki and rangatahi who receive a section 282 discharge. (A section 282 discharge means that the charge against te tamaiti or rangatahi was deemed never to have been filed in the Youth Court.)

The role of Oranga Tamariki court staff is to:

• accurately record directions given by the court
• get a copy of the court orders and the Police Summary of Facts (where a family group conference is directed) promptly after a court hearing
• check that the orders accurately reflect the directions given
• ensure the information we provide reflects the wider impact of offending on oranga (wellbeing) and can restore the mana of te tamaiti or rangatahi and their whānau or family
• ensure the lived experience and collective knowledge of te tamaiti or rangatahi and their whānau or family is actively promoted in planning documents presented to the court.

If Oranga Tamariki court staff identify any inconsistencies in court records, these need to be resolved quickly. Legal advice should be sought from solicitors as necessary.

Policy: Youth Court – Recording outcomes from the Youth Court

Concurrent proceedings in the Youth and Family Courts

Some tamariki and rangatahi who appear in the Youth Court also have current care and protection concerns and/or matters in the Family Court. In these situations:

• we inform the judge, so all matters are considered
• the care and protection social worker for te tamaiti or rangatahi attends the Youth Court hearing with te tamaiti or rangatahi, alongside the youth justice social worker – this is to provide the judge with current care and protection concerns and plans.

If a Cross-over Court is operating, where the judge deals with both the care or protection and youth justice matters, we ask Legal Services if it would be appropriate to ask the Youth Court to move proceedings to the Cross-over Court.

When te tamaiti or rangatahi offends outside of their own community

Sometimes tamariki and rangatahi commit offences outside of their own community (such as when they are in another town or city). This means that the offending will initially be filed by the Police in the Youth Court nearest to where the offence occurred.

In many cases, the Police or Youth Court will transfer the matter to where te tamaiti or rangatahi lives for their hearing. However, there will be times when the Police or Youth Court want to have the matters dealt with where the offending occurred.

This will usually involve 2 sites, or 2 youth justice teams, and requires urgent and clear communication and cooperation between those involved. The Youth Justice court officer or supervisor needs to ensure this happens. This helps youth justice coordinators comply with the statutory timeframes for convening and holding the family group conference.

Communication with te tamaiti or rangatahi and their whānau or family also needs to be well coordinated to ensure they are being included and have clarity and understanding about the process and next steps.