Youth Justice Service Pathway guidelines
The Youth Justice Service pathway describes the phases of the youth justice process, including the functions of the Youth Court and Police, the family group conference, and how to implement, monitor and review a family group conference plan or Youth Court Order.
Youth justice is distinct from adult (criminal) justice, and deals with offending by children aged 10-13 years, and young people aged 14-16 years. Its processes and practice are governed by the Oranga Tamariki Act 1989 (part IV particularly, although children who offend are also dealt with by part II).
UNCRoC ensures the right of young people to special care and the right to provision, protection and participation. Because of this need for special protection and care, children and young people who break the law are treated differently from adults who offend. The law makes sure that a young person is dealt with in a way that acknowledges their needs and general wellbeing. It also ensures they are held accountable and are encouraged to accept responsibility for their offending. In this way, young offenders can be held accountable, learn from their mistakes and develop in a socially acceptable way.
The New Zealand youth justice system works on the basis of diversion. It aims to resolve offending without young offenders receiving a criminal conviction, as they would under the criminal justice system. Experience shows that once a young person enters the formal justice system and receives a criminal record, they are more likely to develop a pattern of offending and their offences may get more serious. The aim is to avoid this as much as is possible taking into consideration the safety of the public.
Around 90 per cent of young offenders are now kept out of the Courts. Minor offences are dealt with by the police either through frontline warning or caution, or referral to youth aid for an alternative action plan (as an alternative to instituting formal proceedings). More serious offending is dealt with by Oranga Tamariki through a family group conference, though the young person still may not be prosecuted in Court.
'Alternative action' is action taken by the police that responds to offending but keeps the young person out of the formal youth justice system. Measures can include a home visit from a police youth aid officer, written or face to face apologies, reparation and projects. This may also involve the young person being engaged in pro-social activities. Agreements around education may be developed, and curfews can be agreed with parents.
The action taken by the police will depend on is the seriousness of the offence. It will also depend on whether the child or young person has previously committed any offences and, if so, the number and type of offences.
The Youth Court
Although the New Zealand system successfully supports diversion from the court system for the majority of young people who offend, the most serious cases of young people charged with criminal offences are dealt with by the Youth Court. Every District Court must have a division known as Youth Court (s433).
The Youth Court cannot make any orders sentencing a young person for their offending unless a family group conference has had an opportunity to consider ways in which the Court might deal with the young person in relation to the charge or charges.
After the family group conference has been held, the Youth Court may issue orders which may have been recommended in the family group conference plan or social work plan. If the family group conference is unable to reach agreement, a youth court judge will be asked to make a decision - if a high level order is being considered, they must first consider advice from a social worker (in the form of a social work report and plan: s334, 335).
Young people who commit serious offences such as burglary, robbery or a serious assault or rape, or those who repeatedly offend, may be transferred from the Youth Court to District or High Court either prior to their hearing, or for sentencing. Those young people who commit murder or manslaughter will be transferred from the Youth Court to District or High Court either prior to their hearing, or for sentencing.
Engagement and assessment
The first phase of youth justice work involves the engagement and assessment of the young person and others connected with the young person, or with the offending. This involves the coordinator meeting with and engaging all key participants in the family group conference, particularly the young person, their whānau or family and the victim(s) and obtaining information about the young person and their family's situation.
Police referral and notification of intention to charge
The police may refer a young person to a youth justice coordinator (coordinator) for an intention to charge (ITC) family group conference when the young person is alleged to have committed an offence but has not been arrested and the enforcement officer believes that the public interest requires criminal proceedings to be instituted (s245 (1)(a)).
The next step after referral when the police have an intention to charge a young person is a consultation between the youth aid officer and a coordinator.
This consultation is the first point of engagement for a coordinator where they work alongside the youth aid officer to explore all possibilities for dealing with the matter by means other than the institution of criminal proceedings.
As a result of the consultation, the police may decide to either:
- pursue an alternative action or diversion through their own processes
- formally notify the coordinator that they have an intention to charge the young person with the alleged offence.
The coordinator cannot refuse a formal notification. Therefore, upon receiving this notification, the coordinator must convene the family group conference under s247(b).
Family group conference preparation
It's the coordinator's job to set about contacting and meeting with all the key participants of the family group conference. The first contact is always a key opportunity to explore more fully what is happening for the young person and their whānau or family and to engage them in a process of finding solutions. It is important to remember that success through the YJ process requires both engaging the young person and their whānau or family in the process and also the victim(s).
Early assessment will assist in identifying the young person's needs and providing the right supports and opportunities that will help them positively change their behaviour. The coordinator may request the allocation of a social worker to support the young person and their whānau or family.
Examples of assessments or resources that may be used in this stage include: Cage Kessler Suicide screens, Health and Education Assessments, the Young Person and Family Consult, and Towards Wellbeing (TWB). The particular assessments that are used will depend on the young person's situations and needs.
Early work with the victim(s) will assist in ensuring they understand the process, can actively participate, express their views and have confidence in their safety and wellbeing throughout the process.
Seeking solutions: The family group conference
The family group conference is a formal meeting for the young offender, their youth advocate, members of the family group/whānau/hapū/iwi, the enforcement officer and any victims to decide how the young offender can be supported to address their offending and be encouraged to take responsibility for their behaviour. The aim of the family group conference is to identify ways in which the young person can be supported and reduce the likelihood of future re-offending. A successful outcome of a family group conference plan would see the maintenance and promotion of the young person's development and a strengthening of the whānau or family so they are better able to manage the young person themselves. The interests of the victim is also taken into account with the young person accepting responsibility for their offending behaviour and being accountable for their actions.
The law requires that all participants of the family group conference agree to the plans, and agreement is reached in the vast majority of youth justice family group conferences.
The family group conference is the key mechanism through which young people can be diverted from the court system. Even when the matter is laid in Youth Court, a family group conference is always required to consider ways in which the matter might be dealt with by the Court.
People who may attend the family group conference
- The child or young person
- A parent or guardian or a person having care of the child/young person
members of the child/young person's whānau or family, or extended family group
- The coordinator
- The informant, intended informant, or their representative (usually an enforcement officer/police youth aid officer)
- Any victim(s) or a representative of the victim
- Any barrister or solicitor, youth advocate or lay advocate representing the child/young person
- A social worker (in some situations)
- A representative of a service involved with the young person (in some situations)
- Any person appointed as agent for the Court where the young person is under the guardianship of the Family or High Court
- Any other person the whānau or family or family group of the child/young person wishes to be present
Other people with special information may attend as necessary. These people are there to give advice, not to make decisions.
The family group conference meeting:
Information and advice giving
The information and advice giving step involves all members of the conference. It involves a clear discussion about why the family group conference is being held and what the issues are. The summary of facts (what the police say happened) is presented.
The young person is given the opportunity to admit or deny the police allegations (s259). If it is denied, the conference will be adjourned and the matter given back to the police or the Court to decide what to do.
The information and advice giving phase of the family group conference also provides an opportunity to discuss the issues that have been raised. Everyone is encouraged to discuss what has happened, the impact of the offending on others, and what needs to be done to hold the young person accountable and to put the matter right. The victim is given the chance to speak and to say what action they believe the young offender should carry out to put matters right. Important in any family group conference is the need to consider any triggers to offending, and what might be influencing the young person's offending behaviour. This provides an opportunity for the conference to explore the young person's needs and what can be done to support them. In the case of a child offender, it is important to consider and address any care and protection concerns.
Whānau or family private deliberations
The family group conference is a model that puts the whānau or family at the centre of decision-making. The law requires that families are provided with an opportunity during the family group conference to talk privately about the issues and what might be done to address them. During this time family group members can discuss what they think is a realistic and achievable course of action, taking into account the interests of the victim. No professionals or victims are present at this time, although whānau or family may want to involve other people. It is important to remember, nevertheless, that the family group conference overall, and the private deliberation phase in particular, is a family-led process where the family group are able to make decisions and plans that will support their young person to change their offending behaviour and make amends for their actions.
Decisions, recommendation and plans
After the whānau or family has completed their private deliberations and has come up with what they want to see in a plan, the conference comes back together and the coordinator helps to reach an agreed outcome. Sometimes it may be necessary to firm up the ideas in the family's plan and this may require further discussion and negotiation by all members of the family group conference.
In most cases family group conferences agree about what should be done. If agreement can't be reached, the matter may go to Court and a judge will decide how to settle it.
After the family group conference, copies of the plan will be given to everyone affected by the decisions. The coordinator has responsibility for making sure that the plan is reviewed. If it is not working, or circumstances change, the coordinator must be told immediately so another family group conference can be called if necessary.
In cases where the young person has already appeared in the Youth Court the family group conference plan will be submitted to the Court for its endorsement. Sometimes a report from a social worker may be requested and orders made to support the family group conference plan.
Changing behaviour and enhancing wellbeing
The third phase of the youth justice social work process is referred to as changing behaviour and enhancing wellbeing. This phase involves supporting the young person and their whānau or family to give effect to their family group conference plan or the social work plan which supports orders made in the Youth Court.
Implementing, monitoring and reviewing a family group conference plan or Youth Court orders
The first few days and weeks after a family group conference reaches agreement or orders are made is a crucial time for ensuring the plan is properly implemented. If the plan or elements of the plan take too long to get started, there is a risk that the young person and others involved in the plan will lose focus and motivation to see that the plan is successfully completed. The young person and their whānau or family may need a lot of support at this time.
A key aim in the monitoring and reviewing of plans is to support and strengthen the child or young person within their family, whānau, hapū, iwi and community. Effective monitoring is a means of helping the young person to keep focused on their plan, to help them resolve any issues that arise, to identify and promoting their success and improvement, and support their engagement in activities that are likely to reduce reoffending. The active engagement of and pro-social adults within the community is important here as the young person will need all the help they can get to resist negative peer pressure and further offending.
Depending on the level of offending and the complexity of the family group conference plan, the degree and quantity of monitoring required will vary. In many instances it will be appropriate for a social worker to monitor a family group conference plan, but it may also be more appropriate for the whānau or family, other significant adults, community groups, or a service provider to monitor some or all elements of the plan. The agreed monitoring process will enable the child/young person to complete the plan, and provide assurance that the plan has been appropriately completed at the time of review.
A review of a family group conference plan and an effectiveness report for a social work plan allows for an evaluation of whether the plan has achieved its desired outcomes. Reviews are undertaken by either the coordinator or the social worker involved with the young person.
The family group conference plan is always formally reviewed at its point of completion (the exact timing should be identified in the family group conference plan) but may also be reviewed at various stages during the plan if agreed by the family group conference, or if it becomes clear that things are not progressing as expected.
Effectiveness reports are required to be provided to the Court for community work and any kind of supervision orders. The effectiveness report should be finalised and laid in Court as soon as practicable after the end of the order.
Variation or cancellation of orders
If it is clear that parts of a Youth Court Order cannot be implemented or completed, or all efforts to ensure that the young person complies have failed, then the social worker can apply for a Variation to, or Cancellation of the Order.
The Court may substitute or add new conditions to the original Order or an alternative Order can be made.
At the successful completion of a family group conference plan the judge may discharge the young person under s282 or s283. A discharge under s282 gives the young person a fresh start, the charge is deemed never to have been laid. Effectiveness reports are required to be provided to the Court for community work and any kind of supervision orders. The effectiveness report should be finalised and laid in Court as soon as practicable after the end of the order.