Using section 261 in a youth justice family group conference
Updated: 12 January 2025
Care and protection concerns for tamariki and rangatahi who offend can be considered during the youth justice family group conference under section 261 or in a separate care and protection family group conference.
Section 261 cannot be used:
- where current care and protection concerns already exist for te tamaiti or rangatahi and they are the subject of existing care and protection investigation or action
- to review an existing care and protection family group conference or court plan
- when a social worker is allocated to assess or investigate the care and protection concerns and then forms a belief that te tamaiti or rangatahi who has offended is in need of care or protection under one or more sections of section 14(1) – the social worker must refer to a care and protection coordinator under section 18(1).
When section 261 applies
For section 261 to be activated, someone has to tell the coordinator during the convening of the family group conference that they have concerns under section 14(1) and provide some supporting evidence that the coordinator can present to the conference. For example: a judge who wants us to 'apply' section 261 in a youth justice family group conference must tell us what their concerns are as defined under section 14(1) and why they think these concerns exist.
Section 261 only applies if:
- prior to the holding of the family group conference, somebody has provided robust information to the youth justice coordinator about care and protection matters under section 14(1)
- at the family group conference, the youth justice coordinator has taken steps to ensure that the information and advice about any care and protection matters is presented to the family group conference
- the youth justice family group conference has considered the care and/or protection matters and it agrees that te tamaiti or rangatahi is in need of care or protection as defined in one or more of the grounds in section 14(1).
Section 261 does not apply if the youth justice coordinator did not receive information and advice about care and protection matters under section 14(1) during the convening of the family group conference.
The belief that te tamaiti or rangatahi is in need of care and/or protection must be based on one or more grounds under section 14(1). The information supporting the belief/concern(s), which could come from Police, the court, another professional or a family member, needs to be robust and the coordinator must receive it during the convening of the family group conference so that the coordinator can present the information to the conference for consideration – it cannot be introduced unexpectedly at the conference.
Using section 261 to respond to care and protection concerns
A youth justice family group conference that activates section 261 is able to make decisions, recommendations and plans to address those care or protection matters. Those decisions, recommendations and plans are then treated as if the family group conference had been convened under the care and protection part of the Act. In making decisions about care and protection matters, sections 5, 6 and 13 of the Act apply and not section 208.
Plans made under section 261 must meet the requirements under section 29A for the content of plans in section 130 and the review dates and timeframes.
Holding the care and protection family group conference – developing the plan
In considering care or protection matters under section 261, we need to think differently. Section 6 places the welfare and interests of te tamaiti or rangatahi as the 'first and paramount' consideration. This means that, when the conference is considering care and protection issues, the oranga and interests of te tamaiti or rangatahi are the first and paramount consideration during this time, rather than the 4 primary youth justice principles or the considerations laid out in section 4A(2).
When the conference is addressing youth justice matters and developing a plan, principles and considerations from section 4A(2) are taken into acount.
Section 4A(2) of the Oranga Tamariki Act 1989
The youth justice coordinator must be familiar with the care and protection principles and be able to explain to the conference participants the different approach that is taken when dealing with tamariki and rangatahi who offend and why this is so.
The youth justice coordinator must consult with the care and protection social worker, supervisor and/or coordinator before deciding to use section 261 with a view to arranging a separate care and protection family group conference to fully address all the issues for a tamaiti or rangatahi. Or the coordinator could ask for a social worker to further investigate the identified concerns to assist the youth justice family group conference in its decision-making.
The social worker will complete a comprehensive assessment of te tamaiti or rangatahi and their whānau or family with a view to understanding and identifying the circumstances that may have led to or impacted on the offending behaviour.
If there are recent or current care and protection intakes, investigations or interventions for te tamaiti or rangatahi, the social worker must discuss these matters with the allocated care and protection social worker, supervisor and coordinator during the course of the assessment.
If the social worker does form the belief that te tamaiti or rangatahi is in need of care and/or protection on one or more grounds under section 14(1), then the social worker must make a referral under section 18(1) to a care and protection coordinator and advise the youth justice coordinator of the referral, who must continue to consult with the care and protection coordinator to ensure that they are working collaboratively for te tamaiti or rangatahi.
If a section 18(1) referral is not considered necessary, then the social worker can provide advice and assistance for the youth justice conference in considering its response to the offending and in relation to whether there may be underlying factors that are impacting te tamaiti or rangatahi.
Section 251(h) details the conditions under which the social worker can attend the family group conference as an entitled person. Otherwise they can attend the conference as an information giver.
It is important that the accountability for the offending is addressed while ensuring that any decisions, recommendations and plans made in response to the care and protection matters meet the identified needs of and fully support te tamaiti or rangatahi and their whānau or family.
Any care and protection family group conference could be done ‘back to back’ with the youth justice conference. Please note that it is always not possible to hold the conferences on the same day although it is helpful to have them as close together as possible.
In these cases, consideration should be given to holding the care and protection family group conference first and establishing what is necessary for the continued care and safety of te tamaiti or rangatahi. That plan can be presented at the youth justice family group conference (with the care and protection coordinator’s permission) and may well sufficiently address the underlying causes of the offending to the satisfaction of Police and victims, while accountability for the offending can be discussed and agreed through the youth justice process. It is important to ensure that the plans from both conferences align for te tamaiti or rangatahi for whom the youth justice family group conference was held.