Youth justice principles & processes
History of youth justice
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Youth justice principles
This information draws heavily on information kindly provided by Dr Gabrielle Maxwell from a paper entitled "Alternatives to Prosecution for Young Offenders in New Zealand", presented in Hong Kong, February 2002.
In 1989, New Zealand adopted new legislation (The Children, Young Persons and Their Families Act 1989) which established new objects and principles for Youth Justice and set up an innovative system for responding to the young people who offend. The new system emphasises diversion from courts and custody, and, while holding young persons accountable, facilitates the construction of responses that aim to provide for the rehabilitation and reintegration of young people, support for their families, and that take into account the needs of victims. Since then, this system has been hailed as an example of restorative approach to offending by young people, both because of its objects and principles and because of its use of family group conferences for determining the outcomes of the more serious offending by young people.
When a young person offends the Police can respond by, (in reverse order of severity):
- issuing a warning not to reoffend;
- arranging informal diversionary responses after consultation with victims, families and young people;
- where intending to charge, making referrals to Child Youth and Family Services for a family group conference; or
- arresting and laying charges in the Youth Court.
The Youth Court will refer matters to a family group conference before making a decision and will prefer decisions that respond to victims, and keep the young person in the community (where public safety does not require otherwise) and enhance their wellbeing.
At the heart of the system lies the Family Group Conference which enables those involved in the life of the young person and the victim(s) of offending to be involved in decisions that aim to ensure accountability, repair harm and enhance wellbeing. Evaluation has shown that the system is largely successful in achieving its goals and, when they are met, in reducing reoffending and promoting the wellbeing of young people who have offended.
When the Children, Young Persons and Their Families Act 1989 was passed into law it was probably unprecedented in the English-speaking world. The legislation set out in statutory form not only its objects but also a comprehensive set of general principles which govern both State intervention in the lives of children and young people and the management of the youth justice system. Furthermore, there is no doubt that some of these objectives and principles were unique at that time.
The main objects stress promoting the wellbeing of children and their families by:
- providing services which are appropriate to their cultural needs and are accessible;
- assisting families in caring for their children;
- ensuring that young offenders are held accountable for their actions; and
- dealing with children and young people who commit offences in a way that acknowledges their needs and enhances their development.
A series of general principles emphasise the need to:
- involve families in decisions and seek their agreement to decisions;
- consider the wishes of children and young people and their welfare; and
- work in a time frame appropriate to the age of the child or young person.
Specific principles governing the youth justice sections of the 1989 Act emphasise that:
- where public interest allows, criminal proceedings should not be used if there is an alternative means of dealing with the matter;
- criminal proceedings must not be used for welfare purposes
- measures to deal with offending should strengthen the family, whanau, hapu, iwi and family group and foster their ability to deal with offending by their children and young people;
- young people should be kept in the community;
- age is a mitigating factor;
- sanctions should be the least restrictive possible and should promote the development of the child in the family;
- due regard should be given to the interests of the victim; and
- the child or young person is entitled to special protection during any investigations or proceedings.
To some extent these objectives and principles reflect current trends (and tensions) in juvenile and criminal justice practice:
- disillusionment with aspects of a "welfare" approach, which held sway in the first seventy years of the twentieth century; (link to History of the Youth Court);
- the separation of welfare and justice issues;
- the endorsement of certain principles of 'just deserts' (that is, proportionality, determinacy and equity of outcomes);
- an emphasis on accountability and responsibility;
- the protection of children's and young people's rights; a preference for diversion from formal procedures;
- de-institutionalisation and community based penalties;
- a shift in resources from state agencies to the voluntary and private sector; and
- the use of least restrictive alternatives.
More generally, the New Zealand system represented the first legislated example of a move towards a restorative justice approach to offending which recognises and seeks the participation of all involved in the offending and focuses on repairing harm, reintegrating offenders, and restoring the balance within the community affected by the offence. Restorative justice was not a phrase which featured in the New Zealand debates about youth justice in 1989, but the youth justice system generally and family group conferences in particular are now operated and commonly presented as an example of restorative justice in practice since the values underlying family group conferences are seen as reflecting restorative justice values. Both family group conferences and restorative justice give a say, regarding how the offence should be resolved, to those most affected by it - that is, victims, offenders and their 'communities of care' - and both give primacy to their interests. Both family group conferences and restorative justice also emphasise the need to:
- address the offending and its consequences (for victims, offenders and communities) in meaningful ways;
- reconcile victims, offenders and their communities through reaching agreements about how best to deal with the offending; and
- attempt to reintegrate or re-connect both victims and offenders at the local community level through healing the harm and hurt caused by the offending and through taking steps to prevent its recurrence.
The New Zealand system, therefore, incorporates a number of innovative strategies:
- the rights and needs of indigenous people are to be taken into account;
- families are to be central to all the decision-making processes involving their children;
- young people themselves are to have a say in how their offending should be responded to;
- victims are to be given a role in negotiations over possible penalties for juvenile offenders;
- and decision-making is by group consensus.
These strategies are achieved partly through changes in Police and court processes and practice but mainly through the new decision-making forum, the Family Group Conference which enables victims and offenders to meet together with members of the enforcement agency and the family in order to decide on an appropriate penalty. While retaining supervisory control with the Youth Court or Police, the family group conference enables the involvement of the family, the young person and the victim in decision making, at a venue and using a procedure of their own choice, and in accordance with their culture.
Integration of indigenous and western approaches
In Maori custom and law, tikanga o nga hara, the law of wrongdoing, was based on notions that responsibility was collective rather than individual and that redress was due not just to any victim but also to the victim's family. Understanding why an individual had offended was also linked to this notion of collective responsibility. The reasons were felt to lie not in the individual but in a lack of balance in the offender's social and family environment. The causes of this imbalance, therefore, had to be addressed in a collective way and, in particular, the imbalance between the offender and the victim's family had to be restored through mediation. Although many of the older processes of Maori 'law' no longer exist, the whanau meeting is still used by the extended family groups in some areas to resolve disputes. It was this model that was seen as a prototype of a new method for resolving disputes within families in a way that was culturally appropriate for Maori as well as a model of an empowering process for all New Zealand families.
However, it would be a mistake to describe the New Zealand system as the rejection of a Western criminal justice system in favour of the adoption of an indigenous method of resolution (and certainly the advocates of a Maori indigenous model would reject such a depiction. A distinction must be drawn between a system that attempts to re-establish the indigenous model of pre-European times and a modern system of justice, which is culturally appropriate. The New Zealand system is an attempt to establish the latter, not to replicate the former. As such, it seeks to incorporate many of the features apparent in whanau decision-making processes and seen in meetings on marae today. But it also contains elements quite alien to indigenous models (for example, the presence of representatives of the State) and other principles considered equally important: the empowerment of families, offenders and victims. Although families and victims had recognised roles in the resolution of disputes in traditional Maori society, their part in the new system is not necessarily identical with traditional roles.
The idea of a partnership between the State and families in resolving issues that affect their children is a novel one. Thus, in contrast with most systems of juvenile justice, it is intended in the New Zealand system that responsibility be given to families, whanau, hapu, iwi and family groups to respond to their child's offending. The underlying intention is to empower families to deal with offending themselves and to restrict the power of professionals, in particular the power of social service professionals. Thus, except for minor to moderate offending, which is usually dealt with by the Police by means of an immediate warning or other diversionary procedures, families are given the opportunity to be involved in decisions about how to deal with their children's offending.
As noted above, both family group conferences and restorative justice give a say in how the offence should be resolved to those most affected by it - victims, offenders and their 'communities of care'.
The Children, Young Persons and Their Families Act 1989 introduced a group approach to decision-making, the Family Group Conference, that allows all the participants in a particular forum to contribute to the process and to work towards the determination of an outcome. A 'facilitator' is provided whose role is to negotiate between parties with potentially different views, for example, between the family and the victim or between the family and the Police. The aim is to move away from the adversarial and confrontational procedures apparent in courtrooms towards outcomes shaped by the families themselves and agreed to by all the participants, including the victims.
Youth Justice process
The Youth Justice system in New Zealand
The age of criminal responsibility in New Zealand is 10. However, "children" (under the age of 14) cannot be prosecuted except for the offences of murder and manslaughter. In other cases where such children's offending causes concern, they may be dealt with by warning, Police diversion or a Family Group Conference. Alternatively they may be referred to the Department of Child, Youth and Family Services (CYFS) as in need of care and protection and, if necessary, issues of the care and guardianship of these children can be dealt with in the Family Court.
A young person who commits offences beyond the age of 16 is dealt with in the same manner as an adult, that is, in the District Court or, if the offence is serious, in the High Court. The very serious offences of murder and manslaughter committed by any young person aged 10 years or over are automatically transferred by the Youth Court to be dealt with in the High Court (if there is a case to answer after a depositions hearing). The Youth Court can decline to offer Youth court jurisdiction for serious offending (for example, arson and aggravated robbery) which then must be heard in the District Court. There is also provision in other cases for the Youth Court to transfer matters to the District Court after the charge has been proved, depending on the seriousness of the case and the previous offending history of the young person. Such cases are rare. Most charges laid in the Youth Court are resolved in the Youth Court.
The vast majority of offending by young people (83%) is now dealt with under the alternative youth justice procedures under the control of the Police.
The intention underlying the 1989 Act is to encourage the Police to adopt low key responses to juvenile offending except where the nature and circumstances of the offending mean that stronger measures are required to protect the safety of the public. Thus juvenile offenders cannot be arrested unless certain tightly drawn conditions are met.. The most important being that the arrest is necessary:
- to ensure the juvenile's appearance in court,
- to prevent the commission of further offences, or
- to prevent the loss or destruction of evidence or interference with witnesses.
Also, as in most jurisdictions now, it is expected that minor and first offenders will be diverted from prosecution by means of an immediate (street) warning. Where further action is thought necessary, the Police can refer juveniles to the Police Youth Aid section (a specialist unit dealing only with juveniles) for follow-up - for example, a warning in the presence of the parents. Youth Aid may also require an apology to the victim and give the child or young person an additional sanction (for example, some work in the community). Evidence suggests that 44% of children and young people are dealt with by warnings, 32% by Police Youth Aid diversion, 8% by direct referral to a Family Group Conference and 17% by charges in the Youth Court followed by a Family Group Conference.
Youth Justice co-ordinator
The Youth Justice co-ordinator (YJC) is employed by the Department of Child, Youth and Family Services (CYFS). It is his or her responsibility to:
- negotiate with the Police to divert juveniles themselves rather than arrange a Family Group Conference unless the offence is moderately serious or because of previous offending;
- meet with the young person and their family and the victim to inform them about the conference and to consult with them about the arrangements for it, including who will be invited and when and where it will be held;
- convene the conference within statutory time frames and to facilitate the conference; and
- record the outcomes and ensure that all involved are informed about them.
The Youth Justice co-ordinators originally came from a range of backgrounds - for example, social services, probation and the prison system - although more recent appointments have emphasised a social work background. Many are Maori. They are appointed by, and are, officers within CYFS.
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