The Children, Young Persons, and Their Families Act 1989 (renamed the Oranga Tamariki Act in 2017) has governed responses to child and youth offending since it was enacted. The Youth Court and the family group conference system was established under this act.
Principles of youth justice
Children and young people are involved in decisions about how to deal with their offending along with their family and the victims, whose interests are also taken into account. Offenders are held accountable for their behaviour and encouraged to accept responsibility without necessarily being criminalised. Formal court proceedings and sanctions such as residential care are avoided wherever possible. Most children and young people remain within their family or family group. Support is given to help families deal with the offending.
Youth justice processes
There are several different options for responding to young offenders.
Response of youth offenders
Most young offenders expressed remorse for their actions as part of a family group conference. One said ‘[M]eeting the victim affected me. What we thought was such a little thing did so much harm.’ Another said ‘[T]he victim never turned up [to the conference] and I was disappointed by that. I wanted to do a verbal apology but they wouldn’t let me. I was genuinely sorry.’1
When the offending is relatively minor, police give a warning to the young person and their family, pointing out the harm that has resulted and the likely consequences of future offending. In 2014 a fifth of young offenders were dealt with in this way.
A police Youth Aid officer meets with the young person and their family (and sometimes the victim) to work out a plan that will make the young person accountable and prevent further offending. In 2014, 43% of young offenders were dealt with in this way.
A victim’s opinion
Some victims of youth offending find family group conferences a helpful part of the healing process. One victim said ‘[I]t was a chance to express how you feel and this gives you a certain amount of relief. Now I understand why he did it and where it came from – especially after meeting the family. I don’t feel so angry now. That doesn’t excuse what happened but I can see it might change.’2
Family group conferences
The family group conference (FGC) is at the heart of the youth justice system. The young person, their family or whānau and the victims come together with a coordinator and a representative of the police. Young people are referred there either directly or by the Youth Court. The group discusses what has happened and tries to reach an agreement about a recommended plan for repairing harm, and preventing future re-offending. When plans are completed this is the end of the matter.
The Youth Court deals with young people aged 14–16 who have been arrested or sent there after a FGC. Some 12-13 year olds may also come before the court if they have allegedly committed very serious offences, or are serious repeat offenders. In 2014 less than a third (31%) of young offenders were prosecuted in the Youth Court.
If the charges are not denied, the Youth Court refers matters to a family group conference and is guided by its recommendations. Once plans are completed, the court usually dismisses or discharges the case, though it can make orders such as supervision or reparation.
In the Youth Court charges against a young person who has denied them are ‘proved’ if the presiding judge decides the prosecution has shown the offence was committed beyond reasonable doubt. This is the equivalent of an adult being found guilty, but the word ‘proved’ does not have the same kind of stigma attached to it as ‘guilty’.
If charges are denied, the case is heard in the Youth Court. In the most serious cases (6% in 2014) a conviction is entered and sentencing is carried out by the District Court or High Court. Murder or manslaughter cases are heard in the High Court, and other serious charges can be heard in the District Court.
Rangatahi and Pasifika Courts
Rangatahi Courts operate like the Youth Court but are held on marae and follow Māori cultural processes. Pasifika Courts are held in Pasifika churches or community centres and draw on Pasifika cultural values. The first Rangatahi Court was held in Gisbourne in 2008. By 2015 there were 12 Rangatahi Courts and 2 Pasifika Courts.
Both these specific versions of the Youth Court address offending by young people in ways that connect them to their families, their communities and the culture of their people. They are designed to involve the wider community in supporting offenders to find new directions in their lives and cutting rates of reoffending.
Young offenders using the Rangatahi Courts and the Pasifika Courts must first admit to the charges they are facing in the Youth Court. Often family group conferences are held to work out a plan for the young offender and this plan is monitored by a Rangatahi or Pasifika Court. While Māori and Pasifika cultural practices inform the work of these courts, they are open to non- Māori and non-Pasifika youth.
Rangatahi and Pasifika court processes involve a judge, a representative of the NZ Police, elders, a social worker, court staff, whānau, a youth advocate (usually a lawyer), a lay advocate and the victim if they choose to attend. Rangitahi courts begin with powhiri and Pasifika courts often start with a prayer. Elders have an important role the court process.
Evaluation of the operation of Rangatahi Courts in 2012 indicated that it was important for Ministry of Education, Ministry of Health, and Child, Youth and Family (now Oranga Tamariki—Ministry for Children) to work together to explore options for young offenders before they appear in court and a rehabilitation plan is developed.
Rights of young offenders
When being questioned by the police, children and young people may make a statement but are not required to do so. A parent or adult supporter must be present during interviews. Lawyers can represent young people without cost. Youths must be fully informed of their rights and the legal processes in language and in a manner that they can understand at all stages, including within a court.