Updated: 01 April 2017
What's Important To Us
It is important to us that Oranga Tamariki staff members who are involved in working with the Youth Court have a good understanding of the processes of the Court and how they relate to us and the people with whom we work.
Staff members must present and conduct themselves in a professional manner in the Youth Court. This enhances the organisation's reputation of delivering quality service and support as required under the Oranga Tamariki Act 1989. We do this by writing informative, clear and concise reports and plans and by responding in a timely manner to directions and referrals made by the Youth Court and others engaged in the youth justice process.
This policy describes the Youth Court process and our roles and responsibilities as required under the Oranga Tamariki Act 1989.
12 and 13 year olds in the Youth Court
In limited circumstances, as outlined in s272, children aged 12 and 13 may appear before the Youth Court and be made subject to the sanctions of the Court. In these cases the child is considered to be a “young person” and will be referred to as such for the purposes of this document, unless otherwise indicated.
Process for when children and young people offend outside of their own communities
Sometimes a child or young person commits an offence away from their own community (e.g. when they are visiting or on holiday in another town). This means that the offending will initially be dealt with by the Police or the Youth Court in the area in which the offence occurred.
In many cases the Police or Youth Court will transfer the matter to the child or young person’s home town for processing. However there will be times when the Police or Youth Court wishes to have the matters dealt with where the offending has occurred.
This will usually involve two sites or two youth justice teams and requires clear communication and cooperation between those involved.
Supported bail and electronic bail
The supported bail programme is a community-based alternative for children and young people who are aged between 12 and 17 years old and would otherwise be detained on remand in an Oranga Tamariki youth justice residence. The length of the programme is typically six weeks, or until a family group conference has been convened and held and the plan accepted by the Court.
The overall objectives of supported bail are that:
- children and young people are assisted to successfully comply with their bail conditions whilst on the programme;
- children and young people are supported to engage in meaningful activities;
- children and young people’s behaviour changes in a positive way;
- the child or young person’s family/whānau are assisted and supported in the monitoring and supervision of their bail conditions; and
- the risk to the community posed by that child or young person’s offending behaviour is minimised.
The current criteria for eligibility into the supported bail programme are:
- previous breaches of Youth Court bail
- a history of failing to appear before the Youth Court
- a demonstrated escalation in the rate and severity of offending
- that police are advocating either Oranga Tamariki or Police custody
- a failure to comply with an order under s283
- on a case by case basis – Oranga Tamariki staff will always consider supported bail as an option even when the charge is denied.
Supported bail must not be continued after the family group conference or as part of the plan. If, at the family group conference, it is decided that support services similar to the supported bail programme are required, these services must be provided from other funding sources and not as a continuation of supported bail.
Oranga Tamariki contract with a number of providers for this service. Please check with your manager to see if the supported bail programme is currently operating in your area.
Electronic monitoring of bail
Electronic monitoring of bail is run by Corrections with whom Oranga Tamariki work collaboratively to administer the electronic monitoring of bail process relating to children and young people.
Electronic monitoring of bail is available for children or young people deemed suitable who are remanded in custody while waiting for a Youth Court hearing. A child or young person on electronic monitoring of bail is released to an approved place of residence by the Youth Court. Special conditions apply, including wearing an electronic anklet and being electronically monitored.
Important things to note:
- All residential staff and field social workers will support and assist Corrections probation officers to contribute to the suitability assessment. The timeframe is within five working days.
- A child or young person who is remanded in a youth justice residence awaiting a Youth Court hearing can apply for electronic monitoring of bail at the family group conference, or discuss with their youth advocate regarding an application for electronic monitoring of bail. For those young people on remand in a residence, a staff member will be required to take part in an interview by Corrections for the electronic monitoring of bail suitability report.
- Oranga Tamariki staff will need to complete the electronic monitoring of bail application template (initially all youth justice residences will have copies) and return to Corrections.
- Oranga Tamariki staff may be asked by the Corrections probation officer to assist in assessing the proposed bailed address and occupants.
- If electronic monitoring of bail is granted, where possible the social worker should attend with the Corrections officer when the electronic monitoring of bail bracelet is fitted and set up.
- Absences by a child or young person from their bailed address afterhours will require guidance and support from the Oranga Tamariki National Contact Centre and the Corrections electronic monitoring of bail team.
- The assessment report is the responsibility of Corrections.
Attending the Youth Court as a representative of the chief executive of Oranga Tamariki
In most Youth Court list hearings the chief executive is represented by a Court Officer who stays throughout the sitting, assists to manage custody remands, ensures reports are available when required, and speaks on behalf of the chief executive on routine matters.
Social workers may be required to attend on occasion to support young people in the custody of the chief executive, and to respond to specific questions by the Judge in relation to a report that they have provided or a case they are responsible for. Co-ordinators may also be asked to attend on occasion to respond to specific questions by the Judge in relation to when a family group conference will be held or in relation to the specific outcome of a family group conference. Remember that 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.
The most basic requirement is to show respect for the Court – in particular:
- Dress appropriately;
- Be courteous;
- Be mindful of the particular stage of the proceedings. What is your role and what is the role of the chief executive at that particular time?;
- Do not “chatter” or move around unnecessarily while the case is in progress;
- Do not interrupt proceedings. If there is something specific you wish to say to the Judge discuss this with the Court Officer (or solicitor if present) beforehand. Otherwise suggested approach in most circumstances is "speak when spoken to". It may also be helpful to discuss any issues with the Police or youth advocate prior to the commencement of Court;
- Stand whenever speaking to the Judge. Address the Judge as "Your Honour", "Sir" or "Ma’am";
- Do not interrupt the Judge and never become argumentative. Once the Judge has made a decision you are obliged to accept this unless it is decided to appeal. Do not demonstrate open disagreement in Court once a decision is made.
Note: Solicitors do not regularly appear in Youth Court as the chief executive is not usually the "applicant" in Youth Court proceedings. A solicitor may appear on a breach application as the chief executive is the applicant. Always consult a solicitor in high-risk or complicated matters and discuss with the solicitor whether it would be helpful for the solicitor to appear.
Note: If you are in Court and unsure about a question asked of you, you can ask the Court to stand the matter down for a short time to allow you to consult with a solicitor or your supervisor.
Category of offences
- A category 1 offence is a ‘fine only’ offence;
- A category 2 offence is punishable by a maximum term of imprisonment of less than two years (or is not punishable by imprisonment but by a community-based sentence);
- A category 3 offence is punishable by imprisonment for life or a maximum term of imprisonment of two or more years unless listed in Schedule 1 to the Act; and
- A category 4 offence is an offence listed in Schedule 1 to the Act (for example, murder or manslaughter).
Youth Court jurisdiction
All charges commence in the Youth Court.
Charges for murder or manslaughter will transfer to the High Court after the pre-trial process. Charges for category 3 and 4 offences will transfer to the trial court if the young person elects to have a jury trial.
The Youth Court also tries a jointly charged co-defendant of a child, regardless of the age of the co-defendant, if there has been no election of a jury trial (by the child or the co-defendant) and the charges are not murder or manslaughter.
The Youth Court also tries a jointly charged adult co-defendant of a young person if there is not an election for a jury trial and the charge is not murder or manslaughter, unless the Youth Court in the interests of justice orders otherwise.
The Youth Court may also have jurisdiction for a child jointly charged with another person who is to have a jury trial, if the Youth Court, in the interests of justice, orders this.
The Youth Court does not conduct jury trials. If a child or young person is to have a jury trial this will be conducted in the District Court or High Court, depending on the nature of the charge. Preliminary proceedings will be in the Youth Court.
The Youth Court does not deal with minor traffic offences which are not punishable by imprisonment unless they are heard alongside more serious offences.
Least restrictive outcome: Under s289 the Court must impose the least restrictive outcome which is adequate in the circumstances.
Recording outcomes from the Youth Court
Every young person who appears before the Youth Court must have a Court record opened in CYRAS and the outcome entered appropriately. This includes all young people who receive a s282 discharge.
Court staff must take care to accurately record directions given by the Court. Court staff must make arrangements to obtain a copy of Court orders promptly after Court and are to check that the order/s accurately reflect the directions given. Any inconsistencies need to be identified and rectified quickly. Legal advice should be sought from solicitors as necessary.
Education and youth forensic information in the Youth Court
Education information is provided in some Youth Courts by the attendance of education officers who provide information directly in the Court and by the provision of “information-only” reports which are supplied through the Ministry of Education in Wellington.
These reports are provided to the Oranga Tamariki Court Officer as information for the family group conferences for those young people appearing in the Court. The report is provided to the court officer by the Ministry of Education and is not considered to be a Court report. This allows the youth justice family group conference co-ordinator to use the information as required during the convening and holding of the family group conference.
Youth forensic service
Information on the alcohol and drug needs, mental health and intellectual disability of young people appearing in the Youth Court will be provided by youth forensic clinicians attending the Court. Any relevant information on these needs for a young person referred for a family group conference will be provided to the Oranga Tamariki Court Officer by the clinician. This information is not considered to be a Court report and the youth justice family group conference co-ordinator may use the information as required during the convening and holding of the family group conference.
Plans developed at a family group conference for Youth Court
The youth justice family group conference co-ordinator will send a signed copy of the plan of the family group conference (e.g. the decisions, recommendations and plan) to the Youth Court to be placed on the young person's file. This must be done a minimum of 24 hours before the next scheduled Court appearance.
This still applies when the family group conference has not reached an agreement. In this case the plan will simply record that no agreement was reached.
Court sanction of the plan developed at the family group conference
At Youth Court the Judge will consider the decisions, recommendations and plans made at a family group conference and may:
- Accept the plan and set a further appearance date which allows sufficient time for the young person to complete the tasks as agreed at the family group conference or;
- Not accept the plan and direct another family group conference to be held or;
- Dispose of the matters before the Court in another way.
The plan developed at the family group conference may be accepted by the Court and proceedings adjourned for the provision of specified reports. Where the plan recommends an order under s283, the following reports will be required:
- A s334 report is required for orders made under s283(k)(l)(m)(n) & (o) and may be requested for s283 (a)-(j) where a Judge sees fit;
- Where the order is made under s283(k)(l)(m) or (n), a s335 implementation plan is also required to accompany the s334 report.
Social work reports and plans for the Youth Court (s334 and s335)
Reports and plans are provided to the Youth Court by a social worker in their professional capacity. It is important that the reports identify the reasons behind the recommended outcome. Reports and plans should include social work analysis and relevant excerpts of any practice work tools or general research that has been relied upon to form the view/s in the report or plan. The report by a social worker is a report by a professional and should demonstrate analysis, expertise, qualifications and training. The plan must contain clear objectives, clear indications of how objectives will be met (or have been met in regard to Effectiveness Reports). They must also state who will be responsible for defined actions and the timeframes within which they will be achieved.
A social worker monitors and reviews all plans agreed at Youth Court where the Oranga Tamariki Act 1989 requires the chief executive of Oranga Tamariki—Ministry for Children to do so (e.g. because of a custodial or supervisory role).
Assessment and planning to identify the needs of the young person
Assessments and/or specialist reports will have been provided where it is necessary to identify the needs and aspirations of the young person in order to make informed decisions about intervention and support. A Tuituia assessment and report will completed for all young people who are subject to a Youth Court order under s283(k),(l),(m) or (n).
Plans will be individualised to address the young person's offending-related needs. In planning, social workers will look to the young person's strengths, and identify ways in which to build self-esteem and pro-social attitudes and behaviours. This may require NGO providers to be engaged and services negotiated and contracted to support the young person's plan.
All plans must include a focus on engaging the young person in education, training or employment and must take steps to ensure that they are living in suitable accommodation.
Young People have a right to freely express their views and participate in the preparation and review of their plans and their views must be taken into account.
Refer to the Participation and views of children and young people policy for further guidance.
Supporting the young person and their family/whānau
With the plan developed at the family group conference or agreed in Court
The young person's plan must be implemented, monitored and reviewed as per the agreed timeframes. Doing so will support the young person, their family/whānau and the provider of services to complete the plan and achieve its objectives. Contact with the young person and their family/whānau must occur at the frequency necessary to support the plan and the needs of the young person. The young person must be given reasonable opportunities and support to freely express their views. Their views must be taken into account.
While appearing in Youth Court
When young people who are custody to a custody and/or guardianship order in favour of the chief executive and are required to appear in the Youth Court, they will be accompanied by a social worker whose role is to support the young person and provide information.
Section 282 gives the court power to discharge the information – it is then deemed never to have been laid. The Court is able to do this in relation to any offence committed by a child (e.g. 12-13 being dealt with in the Youth Court). However, in relation to young people (14+), s282 is not available for category 4 offences.
Under s282(3) the Court may make any order under s 283(e)-(j) if satisfied that the charge is proved. These orders can be made at the time of the discharge or earlier. This means that if a Court adjourns a matter to allow the child or young person to complete their plan before giving a S282 discharge, the Court can make an order under s283(e)-(j) at the time of the adjournment so the order comes into force immediately.
Section 283 orders from the Youth Court
Supervision order (s283(k))
Supervision is a rehabilitative community-based order for up to six months and requires young people to address the causes of their offending. A supervision order allows the young person to stay in their community under the supervision of a social worker. Regular reporting to a social worker is required and it is an offence to breach a supervision order. The conditions to which the young person must adhere are detailed in the order.
A young person is statutorily required to complete a supervision order of between six and 12 months after a supervision order with residence is completed, or three to six months after the completion of a supervision with activity order.
Regular and informed contact between the social worker and the residential case leader or a provider of the supervision with activity programme is essential in preparing the s334 report and s335 plan for the order. This must continue after being been initiated during the development of the supervision with residence or supervision with activity order.
Sections 305, 306 and 335 outline what can be required in a supervision order. In addition to those requirements, the s335 plan outlines:
- Where the young person will live – this must be a focus for the social worker particularly if the young person has s101 status and/or a return home is not possible. A stable placement option must be secured to ensure a positive transition and outcome;
- How the transition from residence to a home environment will be managed;
- Education, training or employment – it is important that this section reflects and supports what the young person has been doing in the residence and clearly shows how it will be continued in the community;
- Counselling/other treatment requirements – how is the transfer of care to community providers being managed?;
- How criminogenic risks can be minimised including the management of risk periods like evenings and weekends - what is evident in the Tuituia report?;
- The support required for the young person to complete the plan;
- Support required by the parents or caregivers to enable the young person to complete their plan;
- Key contacts in the community that will advance the plan;
- Roles and responsibilities of any community providers post residence;
- Identify who will be the key person to support the young person (in some cases this will be the social worker);
- Identify who will set up initial appointments for the young person;
- Details of any agreed post-release contact by residential staff;
- For orders of eight months or more, the objectives of the plan;
- Consideration of "back-up" options in case the initial placement is not successful or other parts of the plan cannot be implemented satisfactorily.
Supervision orders of eight months or longer must be reviewed no later than six months after the order takes effect, as required by s319A. The review is simpler to complete if the s335 includes a list of objectives to be achieved while the plan is in effect.
Supervision with activity order (s283(m))
A supervision with activity order provides an alternative to a custodial sanction and is designed to keep the young person in the community while confronting them with the harmful effects of their offending behaviour. The order is for up to six months and requires that the young person completes a specified programme activity. The young person may complete a supervision with activity order in their own community or be placed in a programme run by an organisation contracted by Oranga Tamariki for that purpose.
Supervision with residence order (s283(n))
The supervision with residence order is the only custodial sentence that can be imposed by the Youth Court after a charge has been proven or admitted. The order provides for a period of not less than three months and up to six months in the chief executive’s custody. The placement option must be identified in the s335 plan. In cases of serious offending where a supervision with residence order is made, the practice is that placement occurs in a s364 youth justice residence and is an alternative to custodial options available in the District Court.
If off-site visits or activities are anticipated when the plan is prepared they must be included in the s335 plan. It is also helpful to include possible off-site activities that are anticipated including transition arrangements. It is also helpful to include a general permission enabling the young person to be moved off-site in an emergency situation or for the purpose of attending an important family event (e.g. a tangi).
A supervision with residence order transfers custody to the chief executive of Oranga Tamariki as if a parenting order had been made under the Care of Children Act 2004. The chief executive provides the day to day care but placement is decided by the Court. As the placement decision rests with the Court, the s 335 plan prepared by the social worker must contain the name of the proposed residence. Any anticipated or possible time away from the residence should be included in the plan that is submitted to Court. The young person must be placed in the residence that is identified in the s335 plan once the plan has been approved by the Court.
If there is a need to transfer the young person to another residence that move may only occur with the approval of the Court (s312(3)). The social worker and residential case leader will co-ordinate the move. Contact should also be made with residential services in Oranga Tamariki National Office, as well as the manager of the residence to which the young person is being sent.
The young person’s Tuituia assessment should also be reviewed at this time. A new plan as prepared under regulation 3(2) of the Residential Care Regulations must be developed to take into consideration the young person’s new living arrangements.
It is the key social worker’s responsibility to apply to the Youth Court for approval to transfer the young person from the existing residence to another residence. Court approval must be obtained prior to the transfer. Legal advice should be sought.
Other s283 orders from the Youth Court
Judicial monitoring (s308A)
The Court may direct judicial monitoring of one or more conditions of a supervision order or supervision with activity order if:
- The current order was made under the failure to comply provisions;
- The young person has previously been subject to an order more restrictive than a supervision order;
- The young person has previously been subject to a sentence of home detention or imprisonment or a community based sentence from the District or High Court.
A direction for judicial monitoring requires the young person to attend the Court at least every three months. A social worker must provide a written progress report for the first of those judicial monitoring court appearances. The Court may direct further social work progress reports.
The Police or a social worker may ask the Court to issue a summons directing the young person to attend the court for judicial monitoring. If the young person then fails to attend court, a warrant to arrest may be issued by the Court.
Intensive supervision order (s296G)
An intensive supervision order can be made when a young person has failed to comply with a judicially monitored order.
An intensive supervision order can contain stronger reporting conditions and additional conditions such as curfew, with or without electronic monitoring of compliance of that curfew. Conditions are set down by the Court under s296I, s296J and s306.
A social worker will be allocated to every young person on an intensive supervision order. Regular engagement with the young person is required.
An intensive supervision order is also subject to the conditions that apply to the standard conditions under s305.
Note: The requirement to report to a social worker in s305(b) does not apply here. A young person subject to an intensive supervision order must report to a social worker as provided by s296I.
Electronic monitoring (s296K)
If there is an intensive supervision order in place the Judge may impose a curfew requiring the young person to remain, at one or more specified periods of each day, at a specified address. Section 296K allows the Youth Court to impose an electronic monitoring condition for up to six months to deter breach of the curfew condition.
When the Judge imposes electronic monitoring he or she must also record in writing his or her reasons for doing so.
Review of orders made for periods of eight months or more (s319A)
A review of the s335 Court plan is required when the following orders are made for eight months or more:
- Mentoring order;
- Alcohol and other drug rehabilitation programme order;
- Supervision order (if it accompanies a supervision with residence order).
A report setting out the results of the review and a revised plan must be provided to the Court within six months of the order coming into effect. The report must cover which objectives of the plan have been achieved and what needs to occur for the remainder of the objectives to be achieved.
Recommendations must be made regarding any orders in place with reasons for any such recommendations. The report must contain a statement as to whether the recommendations are agreed to by the persons referred to in s191. The Court will specify the review date at the time of making the order.
Expiry of orders (s296)
Any recall, parenting education, mentoring, alcohol or drug, supervision, community wor, supervision with activity or supervision with residence orders will expire when the young person reaches 18, unless it has expired sooner.
Restrictions on making certain orders (s285)
Section 285 places some restrictions on the making of orders
The general effect of the section is:
- The Court cannot make a recall order (283(c)) together with a supervision, community work or supervision with residence order;
- The Court cannot fine a child or young person unless it is satisfied that the child can pay the fine within 12 months;
- Reparation and restitution orders cannot be made against the chief executive or a person appointed under s110 as a guardian;
- No additional order, except admonishment, can be made where the child or young person is convicted and transferred to the District Court;
- Community work, supervision with activity and supervision with residence orders cannot be made concurrently or cumulatively with each other or with any community based sentence, home detention or imprisonment orders made under the Sentencing Act; (orders served concurrently are served at the same time; orders served cumulatively are served one after the other);
- Where the child or young person is already subject to a community work order, supervision with activity or supervision with residence order, (or a Sentencing Act sentence of imprisonment, home detention or a community-based sentence), the Court may only order community work, supervision with activity or supervision with residence if the existing order will expire no later than 14 days after the make of the new order.
If the Court would have made a community work, supervision with activity or supervision with residence order but is prevented from doing so by this section, the Court may make a s283(o) order if it considers that no other order under s283 would be appropriate. The young person must be 15 and over, or 14 and over on a category 4 offence or a category 3 offence with a maximum penalty of 14 years or more imprisonment.
The purpose of transition planning is to:
- provide a seamless transition for young people from residential care to community based care (this includes escorting arrangements);
- discuss the conditions of the proposed supervision order, or the need to vary existing or impose new conditions for the plan that has already been directed;
- assist the social worker to complete the s334 report and s335 plan for the young person prior to leaving the residence;
- stipulate the level of supervision, monitoring, and any additional conditions that will promote the successful completion of the young person’s plan;
- reduce the likelihood of reoffending and re-admission to a residence.
Split sentencing (s311(2A) for supervision with residence and s307(2) for supervision with activity
When a charge is proved in the Youth Court, orders are made under s283. If more than one order is appropriate, the Youth Court is usually required to make those orders at the same time. Commencement dates can vary. However when a supervision with residence order is made or when a supervision with activity order is made, split sentencing enables a case to be brought back to the Youth Court to latterly consider the appropriateness/duration/conditions of any following supervision order. There is no provision under 'split sentencing' to make other types of orders.
Whether split sentencing occurs is a decision made by the Court. It does not happen as a matter of course. If a social worker considers that split sentencing is appropriate, this should be raised in the s334 report - include the reasons why split sentencing is recommended.
Supervision with residence: When imposing a supervision with residence order the Youth Court must also make a supervision order. The direction for a supervision order need not be made when the supervision with residence order is made. The Court may adjourn the proceedings to a date before the expiry of the supervision with residence order for the supervision order to be made. It is likely that the supervision order will be made at the early release hearing required before the young person has completed two thirds of the supervision with residence order.
Supervision with activity: When imposing a supervision with activity order the Youth Court may also make a supervision order (s307(2)). When imposing a supervision with activity order the Youth Court may adjourn the proceedings to a date before the expiry of the order to consider the making of a supervision order.
Early release from custody under a supervision with residence order (s314)
Young people subject to a supervision with residence order are entitled to an early release after two thirds of the supervision with residence order if the Youth Court is satisfied:
- they have not absconded or committed any further offences;
- their behaviour and compliance have been satisfactory (or any misbehaviour or non-compliance has been minor);
- they have complied satisfactorily with all conditions to undertake specified programmes/activities.
The Court sets a date for the early release hearing after the supervision with residence order is made. That early release hearing date is on the date when exactly two thirds of the full order has been completed or no more than seven working days earlier. If the Court is satisfied that the early release criteria has been met, then the young person is released from s311 custody immediately. The supervision order will then commence.
A s314 report is prepared by the residential case leader to assist the Court in its determination of whether the young person can be released early from custody.
The social worker prepares the s335 plan for the supervision order which will identify what interventions are required to support the young person. The needs and risks for the young person will have been clearly identified by the Tuituia assessment and others as required. It is important that all those needs and risks are addressed. Understanding what has been done at the residence for the young person will ensure continuity in any continued treatment requirements in the community.
The report by the residential case leader should ideally contain a statement as to whether the report writer considers that the young person has complied with the s314 early release criteria. However the decision as to whether early release occurs is solely for the Court to make. It is important that there is a consensus between the social worker and the residential case leader on whether or not early release is supported. If there is no agreement, then it is preferable to avoid a conclusion as to compliance and rather the report should simply provide all information to the Court that will assist the Court to make a decision. Even if there is a belief that the young person is unlikely to receive an early release, the s335 plan must still be completed and lodged with the Court as the final decision remains with the presiding Youth Court judge.
If the Court is satisfied that the young person has sufficiently complied with the conditions of s314, then the young person can be released from the supervision with residence order on the day of Court. The young person does not return to the residence after attending court if the Court approves the early release.
Where a young person has resided at two (or more) residences during their period of supervision with residence, the residence at which the young person is residing at the time of the pre-release meeting is responsible for compiling and providing one s314 report for the court. Input for this report should be sought from the young person’s previous residence(s).
Early release not supported or contentious
When early release for the young person is not supported by Oranga Tamariki the residential case leader seeks legal advice from their regional solicitor before submitting the s314 report to the Youth Court at least three working days before the hearing day. The s334 report and s335 plan will also be filed at this time if the supervision order has not already been made. In particularly difficult cases the attendance of the solicitor at the Youth Court should be considered; a solicitor is always present for 12 and 13 year olds who offend.
Release of young persons who do not receive an early release and non-release days (s317)
If a young person is not granted early release under s314, the young person is released from custody on the given expiry date of the supervision with residence order, unless that day is a ‘non-release’ day.
To avoid any confusion, s317 of the Oranga Tamariki Act 1989 defines non-release days – that is; days on which a young person cannot be released from custody.
A non-release day means a day that is—
(a) Saturday, Sunday, Good Friday, Easter Monday, Anzac Day, Labour Day, the Sovereign's birthday, or Waitangi Day; or
(b) a day in the period commencing with 25 December in a year and ending with 15 January in the following year; or
c) in respect of release from a particular place, the anniversary day of the region in which that place is situated.
If a supervision with residence order ends on a day that is a non-release day, the young person must be released on the nearest preceding day to that non-release day (e.g. the day immediately before the non-release day). The social worker must take this into consideration when completing the s334 report and s335 plan for the Youth Court
On release, day to day care of the young person reverts to the person who legally had day to day care of the young person immediately before the supervision with residence order was made.
Application/declaration to cancel, vary or suspend a Youth Court order (s296B and 296E)
Sometimes a young person will ignore or not comply with Youth Court orders. This can be for a number of reasons and it is important that social workers monitor their cases on a regular and ongoing basis to identify any non-compliance before it becomes a significant problem. It is important that Oranga Tamariki meet any obligations that we have under the plan so that we do not inadvertently give the young person an excuse not to comply with the terms of an order against them.
If a young person is not complying with the terms of an order, the social worker should discuss the non-compliance with the young person, their family and any provider of services, to see if minor changes to the arrangements will make it possible for the plan to be achieved.
If actual changes need to be made to the plan, then an application can be made using s296E to vary the plan.
If the social worker considers that the young person has failed to comply without reasonable excuse, then it will be necessary to escalate the proceedings by making a failure to comply application under s296B.
Any breach applications must be discussed with the solicitor who will be likely to check the paperwork (as the application is filed in their name).
If it is necessary to vary, suspend, cancel or substitute the court orders, the social worker is required to file an application in the Youth Court. Each application must also be served on the young person and the parent or guardian or other person having the care of the young person. A copy must also be sent to the young person’s youth advocate.
There are two pathways to cancel, suspend, vary or substitute orders. If the young person fails to comply without a reasonable excuse then s296B allows an application to be made to cancel, vary or substitute because of a failure to comply. The other pathway is a no-fault based application made under s296E.
Youth Court responses to failure to comply with orders
The grounds for the application are that the young person failed to comply, without reasonable excuse, with one or more conditions of the order. The social worker must specify which condition or conditions of the order with which the young person has failed to comply. Check in with your solicitor before you file the application.
Where the application is defended the solicitor will manage the case.
A social worker can be the applicant when the failure to comply relates to an order for a parenting education programme, a mentoring programme or an alcohol and drug programme. The chief executive can be the applicant when the failure to comply relates to a supervision order, an intensive supervision order or a supervision with activity order.
If the Court declares that a young person has failed to satisfactorily comply without reasonable excuse, the Youth Court may:
- cancel the order and substitute another order;
- suspend the order temporarily;
- suspend a condition of the order temporarily;
- impose a further condition of the order;
- vary a condition of the order;
- make an intensive supervision order (this is only an option if the non-compliance related to a supervision or supervision with activity order that was being judicially monitored under s308A).
If the Court is considering a substituted order it will usually need to direct a family group conference be held first (s281(2)).
Warrant to arrest a young person who has failed to comply to ensure attendance at Court
The Youth Court can issue a warrant, to have the young person arrested and brought before the Youth Court, if it is satisfied that:
- All reasonable efforts have been made to locate or serve the breach application on that young person, but those efforts have failed; or
- The breach application has been served on that young person, but he or she has failed to appear before the Youth Court.
An application for the issue of a warrant can be made by the social worker if the social worker is the applicant in a failure to comply declaration relating to:
- Parenting programme- s283 (ja) - includes orders made against the young person and against the parent or guardian or other person having the care of the young person;
- Mentoring programme - s283 (jb);
- Alcohol or other drug rehabilitation programme - s283 (jc);
- Supervision - s283(k);
- Community work - s283(l);
- Supervision with activity - s283(m);
- Supervision with residence - s283(n);
- Intensive supervision - s296(G).
Effectiveness reports (s320)
An effectiveness report is required to be filed with the Youth Court on the expiry of the following orders:
- Parenting programme - s283 (ja) - includes orders made against the young person and against the parent or guardian or other person having the care of the young person;
- Mentoring programme - s283 (jb);
- Alcohol or other drug rehabilitation programme - s283 (jc);
- Supervision - s283(k);
- Community work - s283(l);
- Supervision with activity - s283(m);
- Supervision with residence - s283(n);
- Intensive supervision - s296(G).
The person or organisation providing the community work or providing a programme (if they are named on the order) must provide the effectiveness order. If the young person has been under the supervision of any other person or organisation, then the report will be prepared by that person or organisation. When several orders are in place naming the chief executive, the social worker can prepare a separate effectiveness report for each order. Alternatively, one report can be prepared but it must contain headings and a discussion about the effectiveness of each particular order.
The report must provide enough detail to enable the Court to ascertain how effective the order has been for the young person (s320(4)). In some cases it may be appropriate to provide additional information (e.g. a counsellor's report). Any report prepared by a social worker must be approved by the youth justice supervisor.