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Custody for children and young people following arrest

Updated: 09 November 2021

Note that Oranga Tamariki and New Zealand Police have agreed an updated interpretation of section 235 of the Oranga Tamariki Act 1989.

Child or young person who is arrested may be placed in custody of the chief executive – section 235 of Oranga Tamariki Act 1989

It is important to both Oranga Tamariki and Police that, when a rangatahi is placed in the custody of the Oranga Tamariki chief executive, the most appropriate placement for them is found and that it is found quickly.

Previously, when section 235 was used, te tamaiti or rangatahi was required to be detained, although this did not necessarily mean in a residence. Only a limited number of places nationally meet the requirements for detention. We have now reached the view that section 235 placements in the chief executive’s custody authorise but do not require detention.

In our view, the updated interpretation promotes a rights-based approach when dealing with the liberty of tamariki and rangatahi at a pre-trial stage and before they have been brought before a court. This better aligns to our commitments under the United Nations Convention on the Rights of the Child (UNCROC). The change also means that, for eligible rangatahi, we can now offer a greater range of placements and potentially offer smaller, therapeutic placements as well as options closer to or with their whānau, family and support networks. This decreases demand for short-term places in the more institutional secure residences and allows us to provide options in communities where there is no property currently available that permits detention.

We have jointly developed guidance about what should be considered when deciding on the most appropriate placement option, including whether detention is appropriate in the circumstances. Police and Oranga Tamariki have worked together at all points in the development of this new guidance, which was issued simultaneously to Police and Oranga Tamariki kaimahi on Friday 5 November.

Police custody and placements in residences for 12 and 13 year olds

Twelve and 13 year olds charged in the Youth Court under certain circumstances are treated as if they are young people (s272). There are some exceptions with regard to custody that are detailed in s272A.

Twelve and 13 year olds may not be held in police custody longer than 24 hours and s236, s238(1)(e), s239(2) and s242(2) do not apply to 12 and 13 year olds charged with an offence. It is important that staff are aware of these exclusions and apply them appropriately.

Section 365(3) requires all less restrictive placements that are reasonably practicable, available and appropriate will be considered for 12 and 13 year olds before a decision can be made to place them in a s364 youth justice residence under s365(1).

Continued detention over 24 hours in Police cells for young people: s236

Section 236 allows, in limited circumstances, for young people to be held in police cells for a period exceeding 24 hours and until appearance in the Youth Court. First, a s236 certificate must be signed by a Police officer (rank of Sergeant or above) and a supervisor from Oranga Tamariki.

A s236 certificate can only be signed if the Police and Oranga Tamariki agree that:

the young person is likely to abscond or be violent, and
the chief executive does not have suitable facilities available to detain the young person in safe custody.

A s236 certificate can be entered into prior to the passing of 24 hours in Police custody. A s236 certificate can be signed once the criteria is met (i.e. the young person is assessed as likely to abscond or be violent and the chief executive does not have suitable facilities available).

Before a joint certificate under s236 is considered, the social worker will visit the young person and explore all other non-custodial options in consultation with the young person and whānau or family or caregiver and discuss them with the Police. The social worker will also complete a Substance and Choices Scale (SACS), the Kessler and Suicide/Suicide Risk Assessment screening at that time.

This information will be shared with the supervisor who is responsible for signing the s236 certificate for Oranga Tamariki. The supervisor must consider this information against the criteria for the continued policy custody and make an informed decision about the young person’s situation.

In after-hours situations a National Contact Centre supervisor may be the signatory to the joint certificate. The duty social worker will advise the National Contact Centre supervisor of the current situation and what has been tried to avoid the continued detention of the young person. The National Contact Centre supervisor will take into consideration the view of the duty social worker before agreeing to sign a joint certificate.

If Oranga Tamariki do not agree that the young person is likely to abscond or be violent or if Oranga Tamariki considers that it has suitable facilities to detain the young person in safe custody, then the grounds for a s236 certificate are not met.

If Oranga Tamariki do not agree that the grounds for a s236 certificate are met the young person cannot be detained in police custody and will then be placed in the custody of Oranga Tamariki under s235(2) as the Police have already assessed under s235(1) that the young person cannot be released or bailed under s234.

Under s236, the start time used to calculate the 24 hour period for a young person detained in Police cells for Oranga Tamariki is the time of the arrest. This must be accurately obtained from the Police and recorded in the placement record in CYRAS. The placement record is opened once the s236 joint certificate has been signed.

For every 24 hour period the young person is in police custody the young person must be seen in person by the social worker. The social worker must also complete a Substance and Choices Scale (SACS), the Kessler and Suicide/Suicide Risk Assessment screening and alert the Police to any change in the young person’s mood.

The social worker will continue to look for suitable alternatives to the continued Police custody of the young person. This will include contact every morning with Residential Services in National Office to check on the availability of a place in a s364 (youth justice) residence. It would also be useful to check again in the afternoon as vacancies can occur at short notice. After hours, the National Contact Centre supervisor will negotiate with the closest residence for an emergency bed

Daily contact with the whānau or family is also encouraged as appropriate options for placement within the immediate or extended family may present themselves.

Oranga Tamariki and the Police are required to provide a written report to the chief executive and the Commissioner of Police respectively within five days after the day the s236 certificate was issued. A copy of the report must also be sent to the General Manager, Youth Justice Support, National Office, Oranga Tamariki.

The social worker’s report includes the circumstances in which the certificate came to be issued, and the duration of the period for which the young person has been detained (or is likely to be detained) in police custody.

Preparing for Youth Court

When the young person appears before the Youth Court, the Oranga Tamariki representative will be fully prepared and able to offer the Court a range of options for the continued detention or otherwise of the young person. The information gathered about the young person during their custody will be important in preparing these options.

Custody of a child or young person pending hearing

Under s238 when a child or young person appears before a Youth Court, there are a range of options for the Court to use when considering custody of the child or young person pending a hearing.

NB for the purposes of s238 (excluding s238(1)(e)), 12 and 13 year olds charged in the Youth Court under certain circumstances are treated as if they are young persons (s272).

Section 238(1)(a)

The Court can release the child or young person with no conditions. Custody reverts to the person or persons who held the custody of the child or young person immediately prior to arrest.

Section 238(1)(b)

The Court can release the child or young person on bail. The child or young person is released on condition that they attend the next court hearing.

There can also be a range of additional bail conditions which must be adhered to in order for the bail to continue. If any condition of bail is breached, a warrant for arrest may be issued and the bail is likely to be revoked.

Conditions can be imposed to ensure the child or young person appears in court at the next set date, does not interfere with witnesses or evidence and does not commit an offence while on bail. (s31 Bail Act 2000). These may include:

Living at a given address
Being at that address between given hours and presenting to Police if and when they check (curfew)
Reporting to the local Police station regularly (often weekly or twice-weekly on a given day)
Not contacting the complainant, the victim or any prosecution witnesses
Not contacting or associating with co-offenders
Not going near a given address (usually the victim’s)
Not consuming alcohol and/or drugs
Not driving
Not leaving the home without parental consent
Not engaging in an activity without parental consent.

Custody reverts to the person or persons who held custody immediately prior to arrest.

The Court cannot refuse bail to a child or young person because the Court considers that the child or young person is in need of care and protection (s238(2)).

Section 238(1)(c)

The Court can order the child or young person be delivered into the custody of:

their parents or caregivers or other persons caring for them; or
any person approved by a social worker – this could be the parents or caregivers, an approved Oranga Tamariki caregiver, a group home or with an organisation providing a care service.

The child or young person is not in the custody of the chief executive under s238(1)(c) as custody is transferred to whomever the Court orders the child or young person to be delivered to.

A status of s238(1)(c) requires that the following checks be completed before a social worker is able to approve the placement of the child or young person:

Police check of prospective caregiver and all other household occupants aged 17 years and older
CYRAS check on prospective caregiver and all other household occupants
Interview with prospective caregiver.

If the Court wishes to grant custody to a person approved by the social worker, it will usually be necessary for the hearing to be adjourned to allow an urgent consideration of the proposed caregiver/s.

There is no board payment obligation for the chief executive in this situation. Refer to the caregiver assessment and approval policy for more information.

Section 238(1)(d)

The Court can order the child or young person to be detained in the custody of the chief executive, an iwi social service, or a cultural social service.

Where the custody is to the chief executive, there is no legal requirement for a child or young person to be placed in a s364 residence. However it is good practice to inform the Court if a community placement is possible or likely.

Where a s364 residence is not considered necessary, a community placement may occur. Full consideration must first be given to the caregiver's capacity to provide an appropriate level of supervision. In particular, the placement must be appropriate to avoid absconding, further offending, loss or destruction of evidence, or interference with any witness (s239). The full caregiver assessment and approval process must be completed.

When a child or young person is placed in the community it is important that they are carefully and clearly informed that they are ‘detained’ in the custody of the chief executive. They are not free to roam and if they do roam or abscond, they commit an offence (under s120 of the Crimes Act 1961).

Each placement should be made on a case by case basis, depending on the circumstances of the child or young person.

Custody is transferred to the chief executive (except when the order is made in favour of an iwi social service or cultural social service).

Section 238(1)(e)

A Court may order a young person (but not a child) to be detained in Police custody.

This order is the highest tariff within the range of s238 orders. The Court must first be satisfied that:

The young person is likely to abscond or be violent; and
The chief executive does not have suitable facilities available to detain the young person (in practice this will usually mean a place in a youth justice residence is not immediately available or other circumstances require the young person to be placed or remain in police custody).

When a young person is placed under 238(1)(e), the social worker will continue to look for suitable alternatives to the continued Police custody of the young person.

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