Questions on administration of child justice - Children’s Convention from the United Nations
Please provide information on the measures taken to:
Question 29(a)
- Raise the minimum age of criminal responsibility for all offences and ensure the non-discriminatory, full application of the child justice system to all persons under 18 years of age at the time of the offence, in the light of the Committee’s general comment No. 24 (2019) on children’s rights in the child justice system;
Reply to 29(a)
Following New Zealand’s third Universal Periodic Review in January 2019, New Zealand agreed to consider whether the current minimum age of criminal responsibility, ten years of age, should be increased to align with international standards. The Government is currently monitoring the progress of the Council of Attorneys-General Age of Criminal Responsibility Working Group review led by Western Australia.
It should be noted that very few children go through the youth justice system. The majority of children who offend aged between 10-13 will receive a warning or alternative action by Police Youth Aid. If a child’s offending raises serious concerns for their wellbeing, a family group conference can be convened to make a plan for the child’s wellbeing. This involves the child being dealt with under the care or protection system rather than through the Youth Court.
Children may be referred to Oranga Tamariki for an intention-to-charge family group conference, or be brought before the Youth Court, if they are:
- 10 or older and are alleged to have committed murder or manslaughter
- 12 or 13 and alleged to have committed a serious offence that carries a maximum term of imprisonment of 14 years or more
- 12 or 13, have previously offended and been dealt with via the care or protection or Court system, and are alleged to have committed a serious offence that carries a maximum term of imprisonment of 10 years or more.
17-year olds who commit very serious offences (as listed in Schedule 1A of the OTA) will have those charges transferred to an adult court following first appearance in the Youth Court. This allows for offending by the oldest cohort, on the most serious end of the scale to be heard by a higher court.
Question 29(b)
- Ensure that all children, both boys and girls, deprived of their liberty are separated from adults in all places of detention;
Reply to 29(b)
In 2019, the OTA was changed to include most 17 year olds in the youth justice system. This means most children and young people, where logistically possible, are separated from adult offenders while on remand, appearing in court, and in custody.
Given New Zealand’s relatively sparse population, particularly in some large geographical areas, mixing is sometimes considered to be in the best interests of the child, young person or staff member’s wellbeing.
Some examples of where age-mixing may occur in New Zealand include:
- in detention to and from fixed places (e.g. by Police transport where a mix of young people and adults are arrested as a result of the same offence/s)
- under exceptional circumstances, if a 17 year old poses an unmanageable risk to other young people in a Youth Justice residence, they can be placed in a Corrections Youth Unit
- mixing in facilities due to the small number of cells available in a region, combined with the relatively long distance to a suitable placement (in Police and Court facilities) [1]
- mixing where it may be clinically and developmentally appropriate for a child or young person to undertake a brief (24–48 hour) local admission at an adult health facility with access to a special and separate care area.
The decision to age-mix is a complex one. The young person’s wellbeing will play a significant role in this decision, of which a factor is the young person’s connection to their whānau, whakapapa, and whenua which may influence decisions on where to detain the child.
Question 29(c)
- Avoid the detention of children in police custody, limit the use of all forms of detention to a measure of last resort, for the shortest period of time, and improve conditions of detention where its use is unavoidable;
Reply to 29(c)
The principles of the OTA provide that children (10–13 years old) and young people (14–17 years old) should be kept in the community as far as is practicable and consonant with public safety. When held in custody, children and young people are mostly held in a community-based remand home or a youth justice residence as these are more appropriate than detaining a child in a Police cell.
Oranga Tamariki is working towards more community-based options as an alternative to detention in custody. These community-based options aim to provide a more child and young person centric placement and ensure that young people’s connection to their whānau are upheld and strengthened. In turn, this aims to improve the wellbeing of young people who are held on detention.
A child or young person who is arrested by Police may be held for up to 24 hours in police custody while waiting for placement with the chief executive of Oranga Tamariki where:
- the Police officer believes on reasonable grounds that the child or young person may not appear before the court, may commit further offences, or detention is necessary to prevent loss or destruction of evidence or interference with witnesses; or
- where they have been arrested for repeated breaches of bail and are likely to continue breaching (section 235 OTA).
In limited cases where there are no suitable facilities for the safe custody available to the chief executive and a young person is likely to abscond or be violent, a joint certificate can be issued by the chief executive and a senior Police officer to enable the young person (aged 14–17) to be held in custody for longer than 24 hours and until the next court appearance (section 236 OTA). A Youth Court reviews this continued detention every 24 hours unless clearly impractical. A young person must be brought before the court as soon as possible. Once brought before the Court there is the possibility of a young person being further detained in Police custody.
Question 29(d)
- Address the overrepresentation of Maori and Pasifika children and adolescents in the child justice system, as well as their overrepresentation among those who die by suicide in closed institutions.
Reply to 29(d)
The Ngāpuhi-led remand service, Mahuru, launched in October 2019, is a remand service for tamariki of Ngāpuhi decent who commit a crime and are placed on remand. This service has been built by listening to our partners as they know what works for the young people and whānau with whom they work. In turn, this helps ensure the best outcomes for young people, whānau, and victims.
As of July 2020, Oranga Tamariki is working with a range of iwi and Māori organisations on youth justice placements, and transition support workers in order to better support young people, whānau and victims of youth crime to restore mana to tamariki and rangatahi. There have been no instances of suicide in any Oranga Tamariki institution since 2005.
TPK is undertaking Paiheretia te Muka Tangata – Uniting the Threads of Whānau, a $35 million investment in a multiagency whānau-centred approach that aims to improve outcomes for Māori under 30 and their whānau engaged with the Corrections system. This approach will support improved outcomes for Māori in the youth justice system.
Footnotes
- Sometimes there are only a small number of cells available in regional Courts, where young people may be temporarily held while they await a Court hearing. Young people will be held in a separate cell but may be in close proximity to adults in cells. A small spike in volume of young people or adults on a specific instance can mean some young people may need to be held alongside adults. At the same time, we do not consider moving young people to more distant courts (where more space may be available) is desirable as this may remove the young person from their whānau and home community. Return to text
