Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand

Children in conflict with the law... Asking the Hard Questions International Association of Youth and Family Judges and Magistrates XVII World Congress Belfast, Northern Ireland, 31 August 2006 Judge Andrew Becroft Principal Youth Court Judge Te Kaiwhakawa Matua o Te Kooti Taiohi

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 3 Footer txt Secondary school student physics exam question: Discover the height of this building using a small barometer?

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 4 Footer txt Eight key questions to consider when children come into conflict with the law

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 5 Footer txt But first some “non-questions”... “Givens” or “assumptions” Specialist legislation for child offenders A separate criminal Children’s/Youth Court (or a Criminal Division of a multi-jurisdictional Children’s Court) Specialist “protections” for children/young people eg: restrictions on police arrest, name suppression etc Specialists should deal with children in conflict with the law at every stage of the process, eg specialist police, social workers, child advocates/lawyers

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 6 Footer txt 1. At what age should children be held criminally liable for their actions ?

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 7 Footer txt 2. To what extent should child offending be considered as raising care and protection issues?

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 8 Footer txt 3. Do all children who break the law need to be charged and brought to Court?

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 9 Footer txt 4. Should the state’s power to resolve child offending be (partially) transferred to families, victims & communities?

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 10 Footer txt 5. Should children actively participate in formal criminal processes?

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 11 Footer txt 6. Should a child ever be transferred to the adult criminal court for trial/sentence?

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 12 Footer txt 7. Are our responses to young offenders “evidence based” and consistent with best international practice?

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 13 Footer txt 8. What use should be made of prison and detention centres for young offenders?

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 14 Footer txt Outline Starting point: the need for a principled approach Eight issues Conclusion

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 15 Footer txt Who Am I? I speak to you this morning in four capacities :- A former young person (like most of you!) A former lawyer A Judge A father

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 16 Footer txt …as a father Dear Dad Whenever I have a problem I always follow your advice….. And ask Mum Happy Father’s Day

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 17 Footer txt 1. A principled approach to child justice How children who break the law are dealt with is a test of a nation’s maturity Children/young people are not “junior” adults; they are adolescents & developmentally different in all respects Part of teenage years to test boundaries, take risks and challenge authority Beware of a so-called “golden age” of the past (illusory), when teenagers were not a challenge

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 18 Footer txt 1. A principled approach to child justice (cont) “There are a number of children running about the streets of Dunedin … without the control of parents. If the Government does not take them in hand … they will become … members of a criminal class.” “There is a definite relationship between the increase in the number of children on the streets and the increase in juvenile crime.” Headlines from The Otago Daily Times 1884 and 1886 (from Dr Gabrielle Maxwell)

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 19 Footer txt A principled approach to child/youth justice Child/youth justice is often a political football Subject to pendulum swings and populist pressures In western countries Youth Justice increasingly perceived as “soft” and “ineffective”; not sufficiently “punitive There must be a principled approach

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 20 Footer txt A Principled approach to Youth Justice UNCROC is the most universally accepted human rights document in history Provides fundamental guiding principles as to “trial”/ “treatment” “deeds”/“needs” of young offenders: Article 40 (clauses 3 & 4) is crucial Any discussion of child & youth justice must start here

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 21 Footer txt 2. Eight key questions to consider when children come into conflict with the law

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 22 Footer txt 1. At what age should children be held criminally liable for their actions ?

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 23 Footer txt 1. At what age should children be held criminally liable for their actions ? Wide disparity between various countries as to the age of criminal responsibility Eg…Portugal = 16; England = 10 UNCROC does not prescribe a specific minimum age UN Committee on Rights of the Child has criticised jurisdictions in which the minimum age is 12 years or below Complex questions of maturation and development; cultural norms may be involved A legitimate area of public debate

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 24 Footer txt 1. At what age should children be held criminally liable for their actions ? “Doli incapax”, a rebuttable presumption that children are criminally incapable, is a useful protection In New Zealand, the age of criminal liability is 10 However, the only criminal offences for which a child aged between 10 and 13 can be charged with are murder and manslaughter

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 25 Footer txt 2. To what extent should young offending be considered as raising care and protection issues?

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 26 Footer txt 2. To what extent should youth offending be considered as raising care and protection issues? Perhaps the great issue of child/youth criminal law??

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 27 Footer txt

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 28 Footer txt 2. To what extent should youth offending be considered as raising care and protection issues? (cont) Two conflicting issues arise 1.When, and on what basis, is offending by children/young people to be viewed primarily as a care and protection issue, and when is it to be considered a criminal issue? In other words, how do we avoid “criminalising” behaviour that has at its centre, welfare/child protection issues?

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 29 Footer txt Associated Issues: How are care/ protection issues to be identified and assessed? How is it established these issues are causative of offending? This bears on the issue of the age of criminal responsibility

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 30 Footer txt 2. Where young offenders are dealt with in the criminal court, how should their care and protection needs be dealt with? – “Welfarising” the response? – Risk of prolonging proceedings? – Proportionality of response comprised?

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 31 Footer txt In New Zealand... If at any stage in the proceedings, it appears to the Youth Court that a young person may be in need of “care and protection”…… the Youth Court may refer matters to a Care and Protection Co-ordinator, adjourn proceedings, and eventually discharge them absolutely.

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 32 Footer txt 3. Do all children who break the law need to be charged and brought to Court?

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 33 Footer txt 3. Do all young people who break the law need to be charged and brought to Court? No Up to 80% of child offenders will offend only as teenagers and will age out of offending with prompt, firm, community-based intervention Laying charges, for that group, is counter-productive Diversion/ “alternative action” rates should be at least 80%?!

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 34 Footer txt Section 208(a): “Unless the public interest requires otherwise, criminal proceedings should not be instituted against a child or young person if there is an alternative means of dealing with the matter”

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 35 Footer txt In New Zealand 76% - 84% of youth offending dealt with by police supervised “diversion”:- –Formal warning & discussion with young offenders and their families –“alternative action”: prompt, firm, community based accountability

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 36 Footer txt Figure 1: Diversion Rates per 10,000 distinct cases in Youth Court aged 10–16 years; 1987 to 2001

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 37 Footer txt 4. Should the state’s power to deal with offending be (partially) transferred to families, victims and the community?

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 38 Footer txt 4. Should the state’s power to resolve child offending be (partially) transferred to families, victims & communities? Family Group Conferences are used for all cases in the Youth Court which are “not denied” or proved FGC’s attended by offender and his/her family; victim and supporters, community supporters and “professionals” A plan is developed for approval and monitoring (for months or longer) by the Youth Court. If completed usually there will be an absolute discharge If no agreement, or agreement that formal Youth Court Orders are required, Youth Court will make formal orders

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 39 Footer txt 4. Should the state’s power to resolve child offending be (partially) transferred to families, victims & communities? Three key elements of the FGC process are: 1. The partial transfer of power from the State, principally the Courts’ power, to the community. 2. The Family Group Conference as a mechanism for producing a negotiated, community response. 3. The involvement of victims as key participants, making possible a healing process for both offender and victim. Judge Fred McElrea (NZ)

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 40 Footer txt 5. Should children actively participate in formal criminal processes?

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 41 Footer txt 6. Should a child ever be transferred to the adult criminal court for trial/sentence?

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 42 Footer txt 7. Are our responses to young offenders “evidence based” and consistent with best international practice?

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 43 Footer txt 7. Are our responses to young offenders “evidence based” and consistent with best international practice? We have never known more about what works with young offenders and what doesn’t……. For instance there seems to be two types of young offenders….

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 44 Footer txt “A substantial body of longitudinal research consistently points to a very small group of males who display high rates of antisocial behaviour across time and in diverse situations. The professional nomenclature may change, but the faces remain the same as they drift through successive systems aimed at curbing their deviance: schools, juvenile-justice programs, psychiatric- treatment centres, and prisons” (Moffit: 1996)

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 45 Footer txt 8. What use should be made of prison and detention centres for young offenders?

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 46 Footer txt Does prison work…? (From Lipsey,1992) Intervention Type Prepared for employment Behaviour contract Institutional training Court/Probation Offender Counselling Family Counselling Deterrent Sentencing Change in expected re-offending rate 35% decrease 25% decrease 15% decrease 10% decrease 8% decrease No change 25% increase

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 47 Footer txt Figure 2: De-carceration: number of cases receiving custodial sentences:

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 48 Footer txt Conclusion In New Zealand…... The Children, Young Persons & Their Families Act, 1989…..introduced a revolution. 3 things in particular changed: 1. The number of young offenders charged in the Youth Court was significantly reduced. Firm, prompt, community-based responses are used for at least 80% of youth offending.

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 49 Footer txt Conclusion 2.With the introduction of the Family Group Conference (FGC), a restorative justice approach was developed, representing a partial transfer of sentencing power to the community and families, but with the victim centrally involved 3.There was a profound reduction in rates of imprisonment

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 50 Footer txt Conclusion Despite less use of Court processes and charging use of a Family Group Conference system involving victims less use of imprisonment, youth offending has remained relatively stable over the last 5-8 years

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 51 Footer txt Hemi’s song I’m sorry for all the pain that I caused Putting your family through something I could never have stopped And now I’m staring at the stars thinking of what i have done Something stupid of course what was I thinking of Looking for my mentality but that was lost Back in the days BC id be pinned to a cross But instead I’m writing this rhyme because you gave me a chance So in the words that I write You should know that they came from my heart You opened my eyes despising what I had done Look above and find the strength to carry on….

Te Kooti Taiohi o Aotearoa The Youth Court of New Zealand 52 Footer txt Hemi’s song verse 2 The stupid things I’ve done in my life Creating enemies that want to bring a lot of strife We’d fight On the streets Is probably where you would see me Drugged out struggling to breath But now im down on my knees With a million apologies Please time freeze wish I could turn back the time Rewind but its all over and done A new era begun The sun has risen And its shining through This song I compose is dedicated to you.