Detention considerations: Custody orders under s238(1)(d)

The placement of a child or young person on a s238(1)(d) status requires special consideration in order to ensure the detention aspects of the placement are appropriately addressed.

When a child or young person is remanded in the custody of the chief executive under section 238(1)(d), the Ministry must place the child or young person appropriately, after careful consideration.

Section 239(1) requires that an order remanding a child or young person into the custody of the chief executive can only be made where the child or young person appears likely to abscond, commit further offences, or tamper with evidence or witnesses. Given these requirements it is important that any custody placement under s238(1)(d) is sufficiently managed to prevent the child or young person from running away or be in a position to further offend. It is also important to keep them separate from any evidence or witnesses (particularly where the charge is denied).

In most cases, placement in a s364 residence (youth justice residence for a young person, and care and protection residence for a child) will be appropriate, however it may also be possible to arrange a community placement that sufficiently detains the child or young person and guards against absconding, further offending and tampering with witnesses or evidence. If a community based placement is being contemplated the youth justice social worker should turn their mind to the following points:

• The child or young person is detained in custody which requires some clear form of containment and restriction on liberty 24 hours a day. The social worker needs to consider:
  • At no stage should the child or young person be free to roam unsupervised. Identification of people who can provide appropriate supervision for different activities may be required.
  • What activities the child or young person will be engaged in during the day and how they will be supervised in these activities (e.g. whether they will attend a course/programme/centre and whether the person/s delivering the activity is/are able to provide sufficient control or whether additional support is required -for instance a tracker/minder)
  • How the child or young person will be supervised during travel (if travel is required)
  • What the child or young person will do outside of any structured activity (like a course) and who will supervise them during this time
• Section 362 requires that any approved placement must provide for the child or young person's care, control and upbringing
  • This means consideration must be given to health, education and any other needs as well as safe containment.

An important decision for consideration in regard to community based placements under s238(1)(d) is Police v CAP (16 October 2006, YC, Lower Hutt, CRN-062320073, Walsh DCJ) which identified that partial supervision is insufficient to constitute detention:

[44] Where a young person has been "detained in the custody of" CYFS, I consider there must be an element of confinement which must be monitored or controlled at all times by the person so appointed under s362.