Using s261 in a Youth Justice Family Group Conference
Care and protection concerns for children and young people who offend can be considered under s261 if the conference has received information and advice about those care and protection concerns.
Section 261 cannot be used:
- where current care and protection concerns already exist for the child or young person 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 investigate the concerns and then forms a belief that the child or young person who has offended is in need of care or protection under one or more sections of s14(1) – the social worker must refer to a care and protection coordinator under s18(1).
For s261 to be activated, someone has to tell the coordinator during the convening of the FGC that they have concerns under s14(1) and provide some supporting evidence that the coordinator can present to the conference. For example: a judge who wants us to “apply” s261 in a youth justice family group conference, that judge must tell us what their concerns are as defined under s14(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 s14(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 the child or young person 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 s14(1) during the convening of the family group conference or
- The family group conference did not reach agreement as to one or more s14 grounds
The belief that the child or young person is in need of care and/or protection must be based on one or more grounds under s14(1). The information supporting the belief/concern(s) which could come from the 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.
A youth justice family group conference that activates s261 and agrees that the child or young person is in need of care or protection 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 s208.
Plans made under s261 must meet the requirements under s29A for the content of plans in s130 and the review dates and timeframes.
In considering care or protection matters under s261, we need to think differently. Section 6 places the welfare and interests of the child or young person as the ‘first and paramount” consideration which may cause some tension when dealing with the expectations of the victims and the police. You 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 children and young people who offend and why this is so.
You must consult with the care and protection social worker, supervisor and /or coordinator before deciding to use s261 with a view to arranging a separate care and protection family group conference to fully address all the issues for a child or young person. Or you 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 the child or young person 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 the child or young person, the social worker must discuss these matters with the allocated care and protection social worker, supervisor and co-ordinator during the course of the assessment.
If the social worker does form the belief that the child or young person is in need of care and/or protection on one or more grounds under s14(1), then the social worker must make a referral under section 18(1) to a care and protection coordinator and advise you of the referral. You must continue to consult with the care and protection coordinator to ensure that you are working collaboratively for the child or young person.
If a s18(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 the child or young person.
S251(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 supports the child or young person and their family/whanau.
Note: As entitled persons, victims cannot be excluded from discussions about care and protection matters or any other parts of the conference, other than family time.
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 a close together as possible.
In these cases consideration should be given to holding the care and protection family group conference first and establish what is necessary for the continued care and safety of the child. 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 the 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 the child for whom the youth justice family group conference was held.