Guidance for working with children who have offended
This key information provides information for youth justice co-ordinators and those working with them to help children who have offended.
- Children who have offended need care and protection, rather than punishment. They must be held accountable for their offending and encouraged to accept responsibility, but legally they are not held criminally responsible.
- If the level of offending means intervention is required, the family group conference process should be the first step. It can deal with both the offending and any care and protection concerns without going through the Court.
- For children who offend, sections 5, 6, and 13 of the Act apply and not s208. However, s13(i) requires that the principle under s208(g) is included in relation to any victims of the child’s offending. This will require the co-ordinator to think differently when working with children who offend – s6 places the welfare and interests of the child as the ‘first and paramount” consideration which may cause some tension when dealing with the expectations of the victims and the police. The co-ordinator 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 who offend and why this is so.
- If possible, the family group conference should be convened by a youth justice co-ordinator who is skilled and experienced in running family group conferences for children who offend. This may mean working across sites as required.
- If the child is known to Oranga Tamariki and already has a social worker allocated, this person must be involved when the child is (re)referred to Youth Justice.
- Victims must be given the opportunity to attend or otherwise take part in the Family Group Conference, and cannot be excluded from any part of it except family time.
Working together: Care and Protection and Youth Justice
It is important that all the known information for every child who is referred to a youth justice co-ordinator for offending is gathered and shared during the convening of the family group conference. Care and protection and youth justice staff must work collaboratively and share the Offending Profile with all staff who are involved with the child and their family to ensure a fully-informed pre-family group conference case consultation is held.
If the child is already involved with Oranga Tamariki, staff from both Care and Protection and Youth Justice should keep meeting regularly to help ensure the best outcome for the child and their family.
Care and protection concerns in addition to s14(1)(e) can also be addressed through the youth justice family group conference process. In some cases, applying for a declaration under s67 of the Act in the Family Court will be necessary. Where the child already has custody or guardianship orders, their social worker should be consulted immediately and be part of the Youth Justice Process.
When a child is referred under s 18(3)
Where Police believe that a child is in need of care or protection under s14(1)(e) on the basis of their offending, a Police officer must report the matter to a youth justice co-ordinator under s18(3).
As part of this referral the youth justice co-ordinator and the Police will meet regarding the case. Police should present a comprehensive report that includes at least:
- a copy of the Youth Offending Risk Screening Tool (YORST) for the child
- the nature, amount and seriousness of the current offending — a summary of facts for the alleged offence(s)
- the child’s details, including family details where appropriate
- the victim’s details
- any alternatives that have already been explored and details of any alternative action plans
- the time period between Police becoming aware of the offending and this consultation
- the effect of the offending on the wellbeing of the child
- any public interest issues.
The youth justice co-ordinator should bring any relevant information that is known to Oranga Tamariki about the child to the consultation.
If the child has recent or active care and protection matters and/or is already subject to custody or guardianship orders, then the youth justice co-ordinator must meet with the care and protection and youth justice supervisors before consulting with the police officer. This will allow the youth justice co-ordinator to gain a good understanding of our involvement with the family and be able to offer viable alternatives to proceeding with the referral at the consultation. It may be appropriate for a social work supervisor to attend the consultation with the co-ordinator to provide further input.
It is important to be clear about what offences the child has allegedly committed and whether they happened recently enough to be relevant to the police referral and within the child’s sense of time (s5(f)).
If the Police believe after consulting with the youth justice co-ordinator that the grounds for 14(1)(e) have been met, a referral for family group conference will be made under s18(3). The conference will then be held under s247(a).
The offending profile
The youth justice co-ordinator must complete the offending profile comprehensively, including details of recent or current care and protection intakes, investigations or interventions, for discussion at the pre-family group conference case consultation.
Before the pre-family group conference case consultation, make the offending profile available for comment to:
- the youth justice supervisor
- social worker(s)
- any other staff involved with the child
- the residential case leader (if the child is in a residence).
The pre-family group conference case consultation
Once the formal referral has been made by the Police, Oranga Tamariki has five working days to hold a Pre-FGC Case Consultation. This must be chaired by the Practice Leader, to ensure that the holistic needs of the child are considered, particularly the care and protection matters that led the Police to make the referral.
A social worker must be allocated to the case (either the child’s care and protection social worker or a youth justice social worker), and a tuituia assessment must be started and all relevant information around the needs of the child and family included. If the child already has a care and protection social worker, they should work together with their youth justice colleagues.
Other meetings should be held as necessary during the convening of the family group conference.
Check the child's developmental level and cognitive functioning, and take this into account when engaging with and formulating plans for them.
An education screen must be completed for every child referred for a youth justice family group conference. You don't need the child’s consent for this process.
If the screen recommends further assessment, consent must be sought from the child to refer them for an education assessment completed by an educational psychologist from Group Special Education.
Health and education assessments
We should complete comprehensive health and education assessments for all children who offend.
These should be either a Gateway assessment, or the Youth Justice health and education assessments. We need consent from the child and their parent(s) or guardian to complete these — do your best to convince them to take part.
If a child who offends is brought into the care of the Chief Executive before the Family Group Conference is held (under sections 78, 101, 102, 110(2)(a), 139 or 140), we'll need to decide which assessments to complete at the pre-FGC case consultation.
The assessments should be done before the family group conference. Check with the assessors when they'll be able to do the assessments — the family group conference can be delayed by using s249(6) if necessary.
The physical and mental well-being of a child is important to the success of any intervention and even minor health conditions can impact negatively on a child. The health assessment is a wide ranging primary screening process using a holistic approach that focuses on identifying the risks and resiliencies for the child or young person and formulating a plan towards protective factors. Health assessors can attend family group conferences to provide information and give advice around the health needs of the child.
The role of education and the child’s school is also vital in these cases. The Ministry of Education and the child’s school including their principal, teacher, social worker in school (SWiS) and guidance counsellors can hold a wealth of information on a child’s history, their family situation, behavioural trends and educational achievement. Every effort must be made to have a school representative, as an information giver, at the conference. If the child has already shown worrying behaviours at school, contact may already have been made with social services within the school’s catchment area. It is important to know what services are already engaged with the child and their family.
Role of the youth justice co-ordinator
The role of the youth justice co-ordinator for convening family group conferences for children who offend is no different than those for young people. Note that because every family group conference referred under s18(3) is convened by a youth justice coordinator under s247(a) of the Act, s249 applies. Therefore the family group conference must be convened within 21 days after the day the referral was made.
Section 249(6)(b) of the Act requires conferences to be completed within one month of convening. The one month timeframes starts on the day that the conference date is set.
The youth justice co-ordinator is responsible for ensuring that:
- the offending profile is prepared for, and completed at, the pre-family group conference case consultation and that it is made available to the appropriate staff prior to the pre-family group conference case consultation
- the child and his or her parent(s) are informed about the value of having health and education assessments completed and for making every effort to get their consent.
s261 allows the youth justice family group conference to consider whether the child is in need of care and/or protection on other s14(1) grounds, provided that the conference has been provided with comprehensive information and advice about those concerns. It is the role of the youth justice coordinator to take steps to ensure that the conference has that information and advice — see s261(1) and s255(1).
Care and protection concerns
Care and protection concerns under s14(1)(e) for children who offend will always be discussed and considered in the family group conference as these are the grounds for the referral under s18(3). Section 258(a) enables the conference to consider such matters relating to the care and protection of a child as the conference thinks fit, and to make decisions, recommendations and plans relating to the care and protection of the child, having regard to the principles in sections 5, 6 and 13. The concerns can come from the police, other organisations or people who know the child and their family.
Where current care and protection concerns already exist for the child, it is not appropriate to use s261 to address them nor to review an existing care and protection plan in the youth justice family group conference.
Role of the social worker
All children who are referred to a youth justice co-ordinator because of their offending under section 18(3) must be allocated a social worker who will assess the child’s strengths, risks and needs prior to the family group conference.
If the child:
- already has a care and protection social worker allocated, consideration must be given to how the relationship between that social worker and a youth justice social worker will be managed for the benefit of the child. Both social workers have a role to play in this process and allocating a care and protection social worker as a key or co-worker will ensure the family group conference has access to vital historical information on the child and their family.
- has no current history with Oranga Tamariki, a youth justice social worker must be appointed at the earliest opportunity.
The social worker will complete a comprehensive assessment of the child and their family/whānau 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, the social worker must discuss these matters with the care and protection supervisor and co-ordinator during the course of the assessment.
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 concerns, meet the identified needs of and fully supports the child and their family/whanau.
If the social worker believes:
- the child's circumstances warrant an investigation under s17, they should make a report of concern under s15
- the child is in need of care and/or protection on grounds other than section 14(1)(e), then they may make a referral is made under section 18(1) to a care and protection coordinator and advise the youth justice coordinator of the referral. The youth justice coordinator will consult with the care and protection coordinator and supervisor to decide whether their concerns can be addressed in the youth justice family group conference under s261, or whether a care and protection family group conference should also be held. Any decision will be informed by the assessment information and the s18(1) referral from the social worker. If the social worker is satisfied that the concerns have been met through the youth justice family group conference, the s18(1) referral can be withdrawn
- one or more siblings of the child is in need of care and protection, they must make a referral to a care and protection coordinator under s18(1) and inform the youth justice coordinator. The care and protection family group conference could be done ‘back to back’ with the youth justice conference. 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.
It may be useful to have a family meeting or hui-a-whānau prior to the family group conference.
Bringing all the key family members together with the child can prepare everyone for the family group conference by sharing information and establishing ways to meet the intent of the conference.
Holding the family group conference
Before a family group conference held under s247(a) can proceed, and make decisions, recommendations and plans, it must first ascertain whether the child admits the offence.
If the child admits the offence, the family group conference then considers if the child is in need of care and/or protection under s14(1)(e) in relation to the offending. If both are agreed, the family group conference can then make decisions, recommendations and plans under the care and protection principles set out in sections 5, 6, and 13 of the Act. However, s13(i) requires that the principle under s208(g) is considered in relation to any victims of the child’s offending.
Care and protection concerns for children who offend (other than s14(1)(e)) can be considered under s261 if the conference has received robust information and advice about those care and protection concerns. If the conference agrees that the grounds for these concerns are met, decisions, recommendations and plans can be made that address the concerns.
If the conference does not agree that the concerns are met then no decisions, recommendations or plans can be made and the matter is referred back to the person who raised the concerns. It is then up to that person to consider whether a report of concern under s15 should be made. However, the conference can still go on to address any underlying causes of the offending that have been identified for the child or young person that have not met the threshold for a concern under s14(1).
The child must also be held accountable for the offending and encouraged to accept responsibility for their behaviour. They must be dealt with in a way that acknowledges their needs and will give them the opportunity to develop in responsible, beneficial, and socially acceptable ways as provided in s4(f) — however, it's important to remember that the youth justice guiding principles in s208 do not apply to children who offend – see s258(a)(ii) and s260(2)
It is important to ascertain the child's developmental level and cognitive functioning. This must be taken into account when engaging with and formulating plans for them.
If a care and protection family group conference is also to be held
If a subsequent care and protection family group conference is to be held for the child, it is important that any decisions, recommendations and plans made in the youth justice family group conference for a child in response to the s14(1)(e) concerns are considered in the light of the forthcoming care and protection family group conference. This include any care and protection conference that includes siblings of the child who has offended.
Non-agreement of the care and protection concern under s14(1)(e)
If the child admits the offending but the conference does not agree that the child is in need of care or protection under s14(1)(e), this creates a non-agreement and no plan can be progressed as a family group conference outcome.
Possible ways of dealing with this are:
- If the family group conference has been provided with information relating to other grounds under 14(1) and the conference agrees that the child is in need of care and/or protection on one or more of those grounds, the conference can still make decisions, recommendations and plans. It is likely that the conference will then be able to address at least some of the presenting behaviours of the child and the underlying causes. This may be sufficient planning to satisfy the Police that further action in relation to the offending is not necessary.
- The family group conference ends with a non-agreement and the coordinator and the social worker leave the conference. The Police could then ask the remaining participants to stay to discuss the possibility of reaching agreement on the basis of police alternative action. Any plan would be the responsibility of the Police to implement and monitor.
- In any other case, the Police would seek a declaration under s67 as per their belief noted in the referral under 18(3).
Note: if the child doesn't admit to the offending, it is inappropriate to make decisions that assume the offending occurred.
Making and monitoring plans
Plans made for a child must meet the requirements under s29A for the content of plans in s130 and the associated review dates and timeframes
In addition to accountability for the offending, plans must appropriately address the child’s care and/or protection needs. It is important to ensure that the interventions align with each other and that any existing care and protection plans are taken into consideration
The outcomes for the child need to be clearly specified, and the plan should precisely state the tasks, responsibilities and timeframes agreed to in order to get there. It is essential that the plan addresses the immediate safety of the child. It should also consider what happens if the plan starts going off track.
It must be clear which parts of the plan relate to the youth justice matters and which to the care and protection concerns under s14(1)(e) and any other agreed grounds under s14(1). Ideally the plan should be written in two distinct parts — clearly labelled “Youth Justice” and “Care and Protection” with independent timeframes for each part although at times some timeframes will cross over between the two.
The child should not be held longer in the youth justice space than is necessary to appropriately address the offending. The measures to address the care and protection concerns will often extend beyond the completion of the accountability parts of the plan.
Work to the S.M.A.R.T (Specific – Measurable – Achievable – Reviewable – Timeframe) formula.
Creative solutions are encouraged, provided they're achievable and monitored for progression and completion. Think outside the box — look for ways that the family/whanau, community organisations and government ministries, particularly health and education, can support the child and contribute to a good outcome.
It's important to show how the tasks contribute to the expected outcomes of the family group conference and that participants in the plan have a clear understanding of how they are to complete the tasks set for them.