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New Zealand Law Students JournalLast Updated: 7 April 2024
Communication Assistance and Participatory Rights of Neurodiverse Children in the Youth Justice System
KELLY YOUNG[*]
Abstract—In Aotearoa New Zealand, there is a paucity of studies
pertaining to the safeguarding of neurodiverse children and young people’s
participatory rights under art 12 of the United Nations Convention on the Rights
of the Child. This article focuses on the need for
greater provision of
communication assistance to child and youth offenders with neurodisabilities. In
light of expectations concerning
adequate verbal and non-verbal skills from
young people during the two key stages of the justice system—namely, the
family
group conference and Youth Court—neurodisabilities inhibit
meaningful participation because they are often undetected. Drawing
on existing
research and my review of published Youth Court decisions from 2016 and 2020,
this article provides further evidence
of legal actors’ lack of cognisance
of the prevalence of young people’s communication impairments. The youth
justice
system should provide communication assistance to every offender to
facilitate the exercise of the right to meaningful participation.
A greater
provision¾as envisaged in the communication
assistance scheme implemented by the Ministry of Justice¾would address the current shortcomings of the youth
justice system in meeting its international obligations. Instead of leaving the
cadre of speech language therapists spearheading this initiative, lawyers,
judges and youth justice facilitators could benefit from
learning effective
communication strategies to create an environment which engenders the
participation levels of neurodiverse children
and young people.
Aotearoa New Zealand’s youth justice system situates
child and youth offenders of 10–17 years of age at the forefront
of the
decision-making
process.[1]
In conferences, the whānau and wider familial network are brought together
as a collective to address the youth’s offending
and identify ways to hold
them accountable through the formulation of a
plan.[2]
By contrast, youths who commit serious offences are exposed to the formal
justice system in the form of an appearance in the Youth
Court.[3]
Youths are expected to
engage with myriad stakeholders in environments which are intimidating,
emotionally charged and rife with unfamiliar
legal jargon. However, youth
offenders with neurodisabilities may not have the necessary oral communication
and body language skills
to participate fully in the process, which can
negatively impact a young person’s justice
outcomes.[4]
Internationally,
youths are guaranteed the right to participate meaningfully in the justice
process without hindrance in expressing
their views pursuant to the United
Nations Convention on the Rights of the Child
(UNCROC).[5]
Similarly, in the domestic context, the principles of the Oranga Tamariki Act
1989 provide that the rights of youths are to be upheld
and their opinions given
weight.[6]
Part III of this article
considers, from a human rights perspective, whether Aotearoa New Zealand is
fulfilling its international
obligations to actualise the right of youths with
neurodisabilities to meaningfully participate in the youth justice system. In
particular,
this article examines Aotearoa’s international obligations
under art 12 of the UNCROC—the right to meaningful participation—in
tandem with the Oranga Tamariki Act which confirms the importance of
participation within domestic law. The article draws on Lundy’s
proposed
model of meaningful participation to propose an amended version of the model of
meaningful participation within the New
Zealand context, which interweaves
greater specialist support of communication assistance in the justice
process.[7]
Part IV of this article then analyses existing case studies of family group
conferencing and Youth Court proceedings, whereby the
importance of
communication assistance is highlighted. Further, the need for neurodiverse
youth offenders to engage with the youth
justice system through communication
assistance is evidenced through a case review of published Youth Court decisions
covering the
period spanning 2016–2020.
Part V of the article
discusses the development of additional culturally responsive training modules
for communication assistants
and youth justice actors after exploration of the
perspectives of youth offenders, their whānau and youth justice
professionals.
As a secondary issue, it briefly explores resourcing issues in
respect of training legal actors to have appropriate communication
skills.
Part VI concludes that New Zealand’s youth justice system still
falls short of meeting its international obligations due to
a paucity of
communication assistants to meet the demands of the population. Further, for the
youth justice system to function in
accordance with its ideals, every youth
offender should be provided with one-on-one specialist support from a
communication assistant
at the first point of contact with the justice process.
As a result of aiding neurodiverse youths to understand and engage with matters
affecting them, levels of participation by such youths in the youth justice
system can be expected to increase.
Neurodisabilities are conditions or neurological disorders caused by a compromised nervous system prior to birth, trauma during birth or childhood injury.[8] This umbrella term encompasses a wide array of conditions, including learning difficulties and disorders such as dyslexia; communication disorders; foetal alcohol spectrum disorder; traumatic brain injury; autism spectrum disorder; and attention deficit hyperactivity disorder.[9]
It is estimated
that approximately 60 per cent of youth offenders have some form of
communication difficulty compared to five to seven
per cent of the general
population.[10]
The United Kingdom has an even higher estimate of 60–90 per
cent.[11]
This variance in estimated prevalence is likely due to diagnostic issues, as
youths are capable of, and indeed might well be inclined
towards, hiding their
struggles with communication.[12]
Studies have noted that youths who offend are more likely to have experienced an
array of factors impacting their language development,
such as head injuries,
social disadvantage and neglect.[13]
Recent studies in New Zealand examining the prevalence of neurodisabilities
within the youth justice system have remained consistent
with international
literature.[14]
However, there is a paucity of major studies examining this issue in
Aotearoa.[15]
The
generous estimation of 60 to 90 per cent seems plausible, as the onset of
neurodisabilities in childhood or adolescence¾which are often accompanied by communication
difficulties¾often goes
undetected.[16] To put it simply,
neurodisabilities are hidden disabilities which commonly remain
undiagnosed.[17]
Additionally,
it must be noted that the clinical signs of neurodisabilities vary greatly for
each individual; signs may include difficulty
in speech processing, cognitive
delays, and the inability to control inappropriate conduct. Further, the high
comorbidity rate associated
with these conditions adds an exacerbating
factor.[18] Although not overt,
there is an unspoken assumption of competent communication¾both verbal and non-verbal¾throughout key stages of the youth justice process.
Neurodiverse youth offenders undoubtedly struggle to properly engage with the
legal system. As a result, important processes are conducted on the basis that
they possess competencies which, in reality, they
lack.
Accordingly, youth offenders are
unable to meaningfully engage with key stages of the justice process. For
example, youth offenders
on the autism spectrum can struggle with expressing
emotions through words and may mistakenly be perceived by the various
stakeholders
present in a legal setting as being indifferent to the
offending.[19]
An apology to the victim is usually expected to restore past harms at the family
group conference. However, the inability to appear
as genuinely remorseful
impacts the youth offender’s ability to be involved in the decision making
process. This is because
the plan collectively created by the conference group
should reflect the true views of the youth offender for them to understand
the
wrong done and take accountability for their actions.
Additionally, youths
with specific learning disorders, such as communication disorders, may not be
able to robustly engage with the
justice
process.[20] This is because their
condition affects their ability to convey their own views on the offending or
challenge the evidence being
presented.[21] As a result of delays
or difficulties in processing information and promptly relaying back thoughts
through spoken language, the
other party’s communication may be
misinterpreted to the detriment of the young
person.[22]
These various issues
together constitute an infringement of the participatory rights of neurodiverse
youth offenders. This is most
significant in family group conferences and Youth
Court proceedings whereby participation is especially crucial for the youth
offender
to convey their own narrative of the offending. Furthermore, without
being equipped with the key skills to navigate the two key stages
of the youth
justice system, the ability to meaningfully participate may be compromised. It
is crucial that support be given to every
neurodiverse young person as they
enter the justice process. Through ensuring that youths are supported with
skills needed to navigate
the youth justice system, the ability to meaningfully
participate, as guaranteed under New Zealand’s international obligations
and domestic law, will be facilitated rather than hindered.
An integral aspect of the
youth justice system is the police or court-referred family group conference.
This conference is a formal
meeting arranged for the young person to have a
dialogue with the victim, their whānau and other stakeholders to address
the
offending and collectively construct a
solution.[23]
An appearance in the Youth Court may also be required for serious
offending.[24] These two stages of
the youth justice process are crucial for youth offenders to process information
given to them from various legal
actors, and to allow the youths to formulate a
response which conveys their version of events as to the offending.
Importantly, as highlighted in Part II, neurodiverse youths are more likely
to lack the requisite competence in oral communication
to effectively partake in
this conference stage, thereby jeopardising the actualisation of their right to
meaningful participation
under art 12 of the UNCROC and the principles of the
Oranga Tamariki Act.
The UNCROC is
an international agreement which recognises youths as holders of myriad core
human rights.[25] The UNCROC
reflects the notion that youths have agency and that fundamental human rights
are specifically tailored to them in an
appropriate manner according to their
age.[26] While the UNCROC is
“very persuasive”¾New Zealand
ratified the UNCROC as a State Party on 6 April 1993¾it is necessary to note that the international
obligations set out in the Convention have not been incorporated into domestic
legislation.[27]
Within the youth justice context, the relevant right is enshrined in art 12.
This provision has important implications for neurodiverse
youth
offenders’ right to meaningful participation in the legal
process.[28]
Article 12 of the
UNCROC sets out the participatory rights of
youths:[29]
(1) States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
(2) For this purpose, the child shall in particular be provided the
opportunity to be heard in any judicial and administrative proceedings
affecting
the child, either directly, or through a representative or an appropriate body,
in a manner consistent with the procedural
rules of national law.
Although
the term “participation” is absent from art 12, it nonetheless
implies that neurodiverse youths have the right
to participate in a meaningful
manner in the youth justice process as they are “capable of forming”
their own narrative
of events in relation to their
offending.[30]
Therefore, any opportunity to do so should be facilitated without external
influence, namely, ensuring that views are freely expressed
and be “given
due
weight”.[31]
While neurodisabilities affect the capacity to engage in dialogue, many
neurodiverse youths are able to formulate their own views
with support from
communication assistants (speech language
therapists).[32] Given the
availability of these services, participation should theoretically not be a
barrier for youth offenders with neurodisabilities.
Notably, however, there have
been certain cases concerning significant neurodisability in which an individual
could not effectively
communicate their own views, even with the support of a
communication assistant. For example, in New Zealand Police v RP, the
young person charged had both foetal alcohol syndrome disorder and attention
deficit hyperactivity
disorder.[33]
The psychologist’s health assessment concluded that communication
assistance would not be sufficient to allow the young person
to participate in
the trial process because of the severity of the impact of those disorders on
their capacity to communicate.[34]
The legal quandary here is how meaningful participation can be facilitated
to the extent required for Aotearoa New Zealand to meet
its obligations under
art 12, in light of the reduced communicative capacity of youth offenders in its
youth justice system.
As Lundy has argued, the failure to practically implement
art 12 of the UNCROC can be largely attributed to the fact that the remit
of the
right is not fully understood.[35]
Specifically, the first limb in relation to young people’s right to freely
express their views in “all matters affecting
[them]” has been
conservatively interpreted in a manner that does not reflect the true intention
of art 12.[36] Lundy asserts that
this is because adults in positions of authority often limit youth participation
to matters which are perceived
by the adults themselves to be relevant to young
people.[37] However, a young
person’s “voice” should not be restricted in the application
of the right. Lundy further argues
that the “right to participate”
entails a requirement for consultation prior to a decision being
made.[38] Meaningful participation
may then require that youths be consulted before decisions affecting them are
made, with the added proviso
that adult authority figures should not simply
assume that a particular matter is not relevant to the young person
concerned.[39] The actualisation of
the art 12 right entails asking youths whether or not the matter at hand affects
them, rather than whether an
adult believes that youth participation in the
decision making process is
appropriate.[40]
It should be
noted that Lundy discusses participatory rights in the context of adult
authority in education, specifically in relation
to seeking out the views of
pupils about policy changes in the school environment in the United
Kingdom.[41] Nonetheless,
Lundy’s work is relevant in the present context because the facilitation
of participatory rights requires stakeholders
within the youth justice system to
perceive youth offenders as unique individuals with differing lived
experiences.[42]
Additionally, as “social actors”, youths have the capacity to
contribute and influence the decision making process despite
their age or
neurodisability.[43] The parallels
with Lundy’s account of art 12 in the context of young pupils expressing
their opinions on policy changes in
education are
clear.[44]
I partially concur
with Lundy’s opposition to restrictive interpretations of art 12.
Specifically, I agree that consultation
with youths is important instead of
leaving all decision making to adult authority figures. However, I argue that
the realisation
of the full extent of the art 12 right in the youth criminal
justice context requires more than just
consultation.[45] Furthermore, art
12 overtly sets out participatory rights with an additional limb requiring that
participation be meaningful¾an important factor
missing from Lundy’s
definition.[46]
As demonstrated
in the wording of art 12, youths are not only to be given the opportunity to
voice their views; their views are also
to be legitimately
considered.[47] As previously
discussed, neurodiverse youths in Aotearoa New Zealand’s youth justice
system often have impaired oral competency,
meaning the ability to process and
respond to spoken information is hindered for many individuals. Therefore,
consulting youths with
neurodisabilities regarding their opinions in a family
group conference or Youth Court proceeding without any form of additional
support will create a barrier to their real “voice” being heard in
the justice process. For example, youth offenders
on the autism spectrum can
experience difficulties in demonstrating their true emotions through appropriate
word use in conversation.[48] This
can, in turn, inadvertently lead legal actors to conclude that the young person
is indifferent to, or feels no guilt for, the
offending. On this plain
interpretation of the wording of art 12, neurodiverse young people are expected
to be able to meaningfully
participate in the justice process without accounting
for their neurodisabilities.
While the thrust of this analysis is centred on
the UNCROC, the United Nations Convention on the Rights of Persons with
Disabilities
(UNCRPD) is also relevant to neurodiverse youth. The UNCRPD takes a
different approach: under art 7, States Parties to the Convention
have an
obligation to allow youths with disabilities “the right to express their
views freely” on matters that affect
them, and to have those views taken
into account.[49]
The issue,
however, is how exactly to safeguard meaningful participation for neurodiverse
youths who currently traverse the youth
justice system, in light of the expanded
definition of art 12 proposed by Lundy.
Lundy’s
revised model of participation includes four limbs which must be met for art 12
rights to be actualised: space, voice,
audience and influence. While
Lundy’s revised model was developed in a pedagogical practice context in
the United Kingdom,
the model applies equally to the youth justice
context.[50] “Space”
pertains to the opportunity given to youths to be involved in the decision
making process, and “voice”
is the free expression of one’s
views, regardless of maturity
level.[51] Additionally,
“voice” relates to the “due weight” aspect in art 12 of
the UNCROC. The young person is to
communicate to a facilitator who has
responsibility for assigning weight to the views being expressed where
appropriate;[52] this achieves the
element of “audience”. The final limb, “influence”,
prevents the danger of facilitators
placing too much emphasis on their own input
in relation to the capacity of the young person by communicating transparently
regarding
how their views will be taken into
account.[53]
Drawing on this
proposed model, the four limbs are arguably met within New Zealand’s youth
justice system¾though perhaps only broadly. With
respect to “space” and “voice”, every youth offender who
is not diverted
from the youth justice system is expected to partake in family
group conferencing. Additionally, depending on the outcome of the
initial
police-referred conference, an appearance in the Youth Court may follow. At this
key stage of the justice process, youths
can freely express themselves when
making amends with victims and have the capacity to enter a plea during the
initial hearing. Moreover,
as per the “audience” and
“influence” limbs, the views expressed by the young person during
conferencing
will be given weight according to what was communicated during the
process. Moreover, how the views itself will be considered will
be conveyed to
the young person through the formulation of a plan at the end of the family
group conference. Lundy’s revised
model in relation to art 12 of the
UNCROC is thus relevant to New Zealand’s youth justice system and its
international obligations
in actualising participatory rights.
While
Lundy’s revised model is substantial and works towards ensuring
participatory rights guaranteed under the UNCROC are actualised,
it is a generic
approach and fails to account for the prevalence of youth offenders with
neurodisabilities (and, thus, potentially
compromised communication abilities).
Additionally, in failing to recognise the importance of facilitating meaningful
participation
through communication assistance, Lundy’s proposed model
does not capture the intrinsic power imbalance between youths and
youth justice
actors.[54]
For instance, some neurodiverse youths are likely to be susceptible to being
cajoled by facilitators into apologising without first
understanding the
significance of their offending; this is not conducive to future
rehabilitation.[55] The deficiencies
in Lundy’s model are largely attributable to the fact that it was
developed to facilitate participation in
the education sphere rather than youth
justice sphere.
For participation to be meaningful, Lundy’s proposed
model should incorporate specialist communication assistance to ensure
youth
offenders can fully engage with the legal process. Family group conferencing and
Youth Court proceedings present the most compelling
case for the need for such
support.
The Oranga Tamariki Act sets out the
legislative framework which governs youth offending in Aotearoa New
Zealand.[56] In addition to the
international obligations under art 12 of the UNCROC relating to the right to
meaningful participation, there
are several guiding principles in s 5 of the
Oranga Tamariki Act underpinning the importance of participatory rights for
youths with
neurodisabilities.
For stakeholders within the youth justice
system who exercise powers under the Oranga Tamariki Act, a young person’s
participation
in the legal process¾which
includes court proceedings and decision making processes that impact their
interests¾is to be
encouraged.[57]
Moreover, it is crucial that assistance is to be provided, if required, for the
youths to express their own
views.[58] Furthermore, the
importance of the youth’s wellbeing is emphasised in the guiding
principles and remains at the heart of the
decision making process within the
youth justice system.[59] In
addition, it is recognised that youth offenders are nevertheless a bearer of
myriad rights, and should therefore be respected
and protected from
harm.[60] The UNCROC and UNCRPD are
included among those rights and must be strictly upheld at all
times.[61] As such, the experiences
of youths with neurodisabilities, and the impacts thereof, should be considered
in a manner tailored to
their needs, especially where difficulties arise such as
an impaired oral competency.[62]
The Evidence Act 2006 expansively defines communication assistance as “any assistance (for example, oral or written interpretation of a language, written assistance, or technological assistance) that enables or facilitates communication” for individuals who are insufficiently proficient in English to understand court proceedings.[63] Additionally, it is available to individuals who cannot give evidence in the absence of support or have a disability affecting their ability to communicate.[64] Under s 80 of the Act, communication assistance can be provided as required.
According to Howard, McCann and Dudley, the association of
the term “communication assistance” has shifted away from the
legislative provision and towards incorporating the relatively new role of the
specialist speech language therapist into the wider
criminal justice
system.[65] This now goes beyond the
mere facilitation of communication as initially envisioned in the drafting of s
80 of the Evidence Act.[66] Since
2012, speech language therapists have been spearheading the communication
assistance initiative in Aotearoa New
Zealand.[67] This specialist support
used within the general criminal justice system is also available in the youth
justice process.
Modelled on the role of the intermediaries from England and
Wales, the communication assistant’s role is to impartially aid
the
understanding and communication of witnesses and defendants during the trial
process whereby evidence is
given.[68] Furthermore, the role is
an active one rather than a mere “passive conduit for questions”.
Certain vocabulary, pacing
and visual aids to explain information are utilised
according to the witness or defendant’s communicative
abilities.[69]
Moreover,
since its inception in 2012, the role of the communication assistant has
extended beyond the remit of conveying a defendant
or witness’ evidence in
the courtroom, compared to its counterpart in England and
Wales.[70]
In the youth justice process, communication assistance can be utilised by youth
offenders at the different entry points of the justice
system, namely, in
initial police questioning, meetings with the youth advocate, family group
conferences and the Youth
Court.[71]
While the role itself is analogous to the intermediary, there is an important
structural difference in the way support is provided.
In England and Wales,
there is a stringent, government-led scheme to provide trained and accredited
intermediaries.[72] In Aotearoa, the
approach has not always been so top-down. Communication assistance was¾and arguably still is¾spearheaded by professionals within the speech
language therapy sphere despite the recent implementation of the Ministry of
Justice’s
Communication Assistance Quality Framework in July
2021.[73]
There is an ongoing issue regarding whether there are adequate specialists
currently available to meet the needs of the many youths
with neurodisabilities.
This is at odds with New Zealand’s obligation to promote their
participatory rights under the Oranga
Tamariki Act and art 12 of the UNCROC.
At its core,
communication represents the interactions between humans, who rely on
communication skills to both send and receive
information.[74]
According to Snow, the notion of oral competency pertains to the two-fold
process of sending out and receiving information during
a spoken
exchange.[75] First, an individual
must be able to process the utterance directed towards them by interpreting the
words before formulating it
into meaning¾which
may be used figuratively or
literally.[76] In a similar vein,
completing this linguistic transaction requires the ability to draw on
one’s own vocabulary to convey a
narrative that is coherent and
grammatically correct.[77]
Furthermore, the dual streams which operate in tandem during a family group
conference or court proceeding demand adequate social
cognition skills. For
instance, discerning another party’s non-verbal expressions, such as body
language, may be needed to
avoid inadvertently creating
hostility.[78]
Ensuring that all
participants in the family group conference and Youth Court are orally competent
is of paramount importance. This
not only allows neurodiverse youths to navigate
the justice process, but ensures that, within the youth justice system, Aotearoa
meets its participatory obligations under domestic law and international
agreements. As stated by McCleod, children and young people
are imbued with
rights and it is vital that adults, as stakeholders, recognise that
communication is a fundamental human
right.[79]
Therefore, the ability to communicate in the two key stages of the youth justice
process should be safeguarded for youth offenders
with
neurodisabilities.[80]
The family group conference is central to
the youth justice system in dealing with youth offenders. The process entails
giving primacy
to the interests of the young person to address their offending
and to take responsibility.[81]
Moreover, the facts of the offence are presented by the police and¾if that account is not disputed by the young
person¾stakeholders present in the meeting, such
as the victim and whānau, will collectively discuss its
impact.[82]
Additionally, the youth offender participates in devising solutions to rectify
the harm and reconcile with the
victim.[83] Finally, a plan is
developed to hold the young person accountable and ensure that they are
supported in adhering to what was decided
in family group conference by the
wider familial network.[84] However,
a further family group conference will be convened if a plan cannot be decided
or a plan has not been followed through by
the young
person.[85] Additionally, the Youth
Court may step in to
assist.[86]
It has been asserted
that the family group conference is premised on restorative justice; that is,
the informal and non-adversarial
forum ostensibly increases engagement and
consequently enhances meaningful
participation.[87] This is because
the conference may take place outside of court at a location mutually agreed by
all participants, such as on a marae,
to incorporate cultural customs or other
needs.[88] It is implied by
scholars, such as Lynch, that youths may be more open to engaging in dialogue
with the victim and their community
in relation to their views on the offending
in a safe environment without the strict formalities of the
court.[89] However, this assumption
may be overly optimistic; family group conferencing is inextricably connected to
the justice process even
if it takes place outside the confines of the
courtroom.
Moreover, the unfamiliar environment heightens stress and anxiety
levels, which may compromise coherent communication for many youths.
As espoused
by Snow, legal processes with restorative underpinnings, such as the family
group conference, are highly verbal and emotionally
charged, akin to a
“second language” environment in which nuance is not
understood.[90] Additionally, as
youth justice interventions are premised on communication, the assumption of
adequate oral competency is incredibly
problematic for youths with
neurodisabilities. For example, for youths with specific language difficulties
or brain injuries, or
who are on the autism spectrum, the inability to
understand the other party’s experience of the offending and the failure
to
respond accordingly through appropriate words and body language inadvertently
create a negative “impression of shallowness,
low credibility, and/or low
empathy for the victim”.[91]
Hughes suggests this is likely to lead to stigmatisation of neurodiverse
youths, who may be characterised as unremorseful or misbehaving
on
purpose.[92] Undoubtedly, this has
the effect of inhibiting the ability of youths with neurodisabilities to
meaningfully participate in legal
processes such as the family group conference,
despite having the right to do so. The family group conference is inherently
demanding;
the restoration of the harm done to the victim extends beyond a mere
apology from the
offender.[93]
Instead, it is an act of “symbolic reparation” by which genuine
remorse restores the other party’s dignity in this
exchange.[94] Therefore, the
sincerity of the apology may be called into question in the case of
linguistically disadvantaged neurodiverse
youths.[95] For example, the
inadequate expression of remorse in conjunction with inappropriate non-verbal
communication¾such as avoiding eye contact with
the victim¾paints an image of
insincerity.[96] Furthermore, it is
plausible that the plan formed to hold the offender accountable, which follows
on after the engagement with the
victim in the family group conference, does not
truly reflect the views of the neurodiverse young person in responding to their
own
offending.
There is specialist support at the key stages within New
Zealand’s youth justice system for neurodiverse youth offenders who
offend. Communication assistants, who tend to be speech language therapists, are
available for individuals with language difficulties¾although specialist interventions such as the use of
communication assistants remains limited due to resourcing
issues.[97] Furthermore, as family
group conferences are not publicised because they involve youth offenders,
little information is available
regarding whether, and to what extent, levels of
participation are increased by communication assistance for youths with
neurodisabilities.
Additionally, if there is participation, the question remains
as to whether it is meaningful participation pursuant to art 12 of the
UNCROC.
A 2018 study by Lount and others found
that five of eight male youth offenders with no known history of brain injuries
or significant
mental illness did not understand, at the macro-level, the court
proceedings in which they were
involved.[98]
Subjects reported feeling that they had no agency over their own affairs due to
a lack of “voice”.[99]
For example, one young person stated “I feel I was asking myself: what are
they talking about?”. The inference is that
the young person did not
understand what was being said during the court process and struggled to
participate in the courtroom as
a
result.[100] This experience is
largely attributable to the unfamiliar legal jargon and complex language used by
legal actors. In this case, it
affected the ability of the young people involved
to speak out with confidence.[101]
The youth justice process, as demonstrated in this study, can be complex for
young people to navigate, let alone for those with a
neurodisability affecting
their communication.
Similarly, a study by Makker, Clendon and Doell found
that the lack of engagement resulting from feelings of shame due to not
understanding
Youth Court proceedings is often misconceived as adverse
behaviour.[102]
This is problematic because it prevents opportunities to participate and
compromises the “basic rights and access to justice”
of
youths.[103]
Notably, these
studies are broad; they look at the youth justice population holistically. Youth
offenders with neurodisabilities experience
these compounding risks and
vulnerabilities in the courtroom to an even greater
degree.[104] Moreover,
neurodiverse youths are more likely to inadvertently undermine their own
participation by omitting certain details in the
Youth Court, due, in part, to
widespread knowledge gaps in the justice system regarding specific developmental
needs.[105]
The need to support neurodiverse youth offenders to engage with the youth justice system meaningfully through communication assistance is further evidenced through certain decisions of the Youth Court. These published judgments, although scarce, acknowledge how communication assistance can ensure youths with neurodisabilities can participate fully in navigating family group conferences and the Youth Court. However, as court proceedings in the youth jurisdiction are generally conducted privately, it is necessary to note that public access to decisions from 2016 onwards is limited.[106] The published decisions represent only a fraction of the matters heard in the Youth Court.[107]
The following case review of published Youth Court decisions covers the period spanning 2016–2020. There are 193 published decisions available at the time of writing. In searching for cases involving neurodiverse youth, I used the keyword “neurodisability” which failed to generate any results in the District Court database.[108] This may be because “neurodisability” is not a widely recognised term in the legal system, and accordingly, it did not appear in any published decisions. I then tried a variation of “communication”, “communication assistant” and “communication assistance”, and the results listed the same eight decisions which came within the scope of those three specific keyword searches. Only six decisions seem to be relevant to this article because the role of the communication assistance and the implementation specialist support were considered valuable. Their importance in facilitating communication in the youth justice process were either explicitly or tacitly acknowledged by various legal actors in the court process. Therefore, I have focused on those six decisions for my methodology in this case review. Overall, only 3.1 per cent of the 193 reported Youth Court judgments dealt with the issue of providing communication assistance to neurodiverse youth offenders.
No communication assistant was present in the courtroom in any of the six cases I reviewed. Accordingly, it is reasonable to infer that zero per cent of the judgments had a communication assistant facilitating the youth’s expression of their own views. However, this is perhaps unsurprising because the questions raised in the decisions were whether the youth offender was considered fit to stand trial, and whether it would be in the interests of justice to keep the trial in the Youth Court for joint charges between several defendants with differing levels of severity. In other words, the issues with respect to the youth offenders in the cases seem to be one of capacity. The proceedings that gave rise to these six judgments did not, therefore, seem to require a communication assistant to be present because it would not have assisted the judge in determining any of the issues at hand.
Five out of the six decisions
involved a judge or another legal actor, such as a clinical psychologist,
acknowledging the need for
a communication assistant. This makes up 2.6 per cent
of the overall published Youth Court judgments. In R v LF, one of the
three offenders was to be tried in the District Court, and the judge considered
that while joint charges were to be tried
together, it would be in the interests
of justice to keep the two other offenders¾who
played smaller roles in the offending¾in the
Youth Court.[109] This was because
the environment of the Youth Court was more appropriate for the young person
with a low cognitive function to effectively
engage with the trial
process.[110] Moreover, the
importance of accommodating the youth’s cognitive impairment through
communication assistance was acknowledged
and arrangements could be made
accordingly.[111] However, it was
unclear whether the young person was ultimately provided with a communication
assistant because the judge was silent
as to appointing
one.[112]
Additionally, the
other judgments involved the judge explicitly appointing a communication
assistant for the youth offender. In New Zealand Police v AZ, the judge
and psychologist both emphasised the crucial role of the communication assistant
within the criminal justice process and
a specialist for the family group
conference was appointed
accordingly.[113]
Similarly, in New Zealand Police v HJ, communication assistance was
viewed as necessary to ensure the neurodiverse youth offender’s
participation to the fullest extent
possible in the trial and any future family
group conferences.[114] This
sentiment was also acknowledged in R v ZF by the judge and R v AU
by the judge and psychologist, albeit in the latter decision it was in relation
to aiding the young person to understand the charges
against them, as they had
severe neurodisabilities which impacted their oral
communication.[115]
Moreover, in two of the six decisions, no mention of communication assistance was explicitly made. There was, however, an implied indication that communication difficulties of the young person should be addressed promptly before their next court appearance. In New Zealand Police v AZ, the psychologist acknowledged that support in relation to impaired communication should be given for the young person to adequately give evidence.[116] Furthermore, there were doubts from the first psychologist in R v AU as to the youth offender’s ability to communicate with their lawyer regarding their defence as a result of severe comorbidity of neurodisabilities.[117]
In contrast, communication assistance was identified but deemed unhelpful in supporting the youth offender at trial in New Zealand Police v RP.[118] This is the only outlier of the decisions pertaining to communication assistance. As noted from the decisions in this case review, communication assistance is valuable because it can usually facilitate participation for neurodiverse young people with impaired communication skills. However, the clinical psychologist’s report provided to the court in RP considered that the ability to engage in dialogue was too poor even with the aid of a communication assistant, as there were difficulties in conducting a defence and instructing the lawyer.[119] Ultimately, the young person was declared unfit to stand trial by the judge because of the severity of their neurodisabilities.[120]
Through
reviewing the limited published decisions of the Youth Court, judges undoubtedly
acknowledged the importance of meaningful
participation through participation
throughout key stages of the youth justice system. Furthermore,
neurodisabilities that impact
the ability to communicate in those key stages
should not act as a barrier to realising participatory rights. As seen in the
decisions,
communication assistance has sometimes been appointed by the judge or
acknowledged by stakeholders, such as lawyers and psychologists,
within the
justice process. Furthermore, the specialist support of communication assistance
was also acknowledged in the outlier
judgment of New Zealand Police v RP,
though it was determined that communication assistance would not be
effective in supporting the young person’s ability to communicate
because
they were not fit to stand trial in that case.
However, there should be a
broader understanding by all legal actors within New Zealand’s youth
justice system of neurodisabilities
and how this may hinder the ability of young
offenders to fully engage in the justice process. As evident from the six
published
decisions, those raising the issue of the provision of communication
assistance came mostly from both the judge and psychologist.
It may be the case
that other legal actors in the wider youth justice system are unable to spot the
signs of communication difficulties.
Indeed, it seems likely considering how
often neurodisabilities go undiagnosed and the frequency with which lack of
communication
from youth offenders is mistakenly attributed to misbehaviour.
Additionally, legal actors may lack knowledge of the communication
assistance
available.
This raises the question of how New Zealand can better support
its neurodiverse youth, whether by training more individuals as speech
language
therapists or by equipping all legal actors with the skills to successfully
engage with neurodiverse youth offenders.
New
Zealand’s youth justice system is predicated on assisting with the
rehabilitative efforts of youth offenders through informal
processes which are
markedly different to their adult counterparts. Underpinned by a dialogic focus,
the different stages of the
youth justice process¾such as family group conferencing and the Youth
Court¾lean heavily on active communication and
engagement with an array of stakeholders.
In theory, the non-punitive nature
of these processes should promote the meaningful participation of youths in
addressing their own
offending, as envisaged by art 12 of the UNCROC and the
principles of the Oranga Tamariki Act. However, youths with neurodisabilities
face additional barriers to meaningful participation, as evidenced by their
experiences in family group conferencing and court proceedings.
Although
Lundy’s proposed model aims to bring to life the underlying intention of
art 12 of the UNCROC, this article suggests
that the model must adapt to meet
the needs of neurodiverse youth offenders. Specifically, the four limbs proposed
by Lundy should
be interwoven into the communication assistance model currently
provided to youth offenders. This would help to facilitate the free
expression
of the young person’s own views during decision making in the family group
conference and the Youth Court. By augmenting
existing practices with this
expanded model of meaningful participation, Aotearoa’s youth justice
system can move closer to
actualising participatory rights for neurodiverse
youth offenders.
Although the Youth Court and family group conferences
facilitate meaningful participation of youths with neurodisabilities through
communication assistance, this occurs only to a limited extent. There remains a
dearth of professional speech language therapists
trained as communication
assistants in New Zealand to ensure greater provision of these services in the
youth justice system. The
case review indicates that there is currently little
understanding amongst legal actors of the communication difficulties which
youths
with neurodisabilities may experience.
New Zealand’s youth
justice system thus falls short of functioning as it ideally should in meeting
its international obligations
to actualise the right to meaningful participation
for youths with undetected neurodisabilities. Although some neurodiverse youths
have been supported by communication assistance, the insufficient number of
specialists available hinders the ability of young offenders
to engage
effectively in the justice process. Furthermore, without a concrete
government-led policy to ensure training of more communication
assistants and
providing baseline knowledge of effective communication strategies to legal
actors, it is unsustainable to continue
to place the burden of spearheading this
specialist support on a small number of communication assistants in
Aotearoa.
As Howard, McCann and Dudley note, the facilitation of
“positive communication experiences” to encourage youth offenders
to
confidently participate in family group conferences and court processes without
stigmatisation is “not simply a nicety,
but a necessity and legal
obligation,” as it ultimately affects them and their
future.[121] The following section
considers how the participatory rights of youths can be upheld, with a focus on
upskilling speech language
therapists and training further communication
assistants, as well as mainstreaming communication assistance by equipping all
legal
actors with appropriate strategies and neurodisability awareness.
Communication assistance is crucial in supporting neurodiverse
youths who often have communication impairments in navigating the key
stages of
the justice process. This is because the youth justice system as a whole has an
unspoken expectation of oral competency,
even though neurodisabilities impact
the verbal and non-verbal skills required to attain this competency. As alluded
to in Part II,
there remains a tension that has yet to be addressed in practice.
This tension is two-fold.
First, there are only two organisations¾Talking Trouble Aotearoa NZ and Moretalk¾providing communication assistance to youth offenders
nationwide. Given the current shortage of professional speech language
therapists,
it is not clear whether participatory rights of youths can be fully
actualised without training more communication
assistants.[122] Additionally, the
importance of accessibility to communication assistance has been emphasised by
youths themselves, their families
and professionals who have worked within the
justice process, such as Sally Kedge from Talking Trouble Aotearoa
NZ.[123]
Secondly,
there is a question as to whether communication assistance strategies should be
brought into the youth justice system. Should
such a change occur, every legal
actor in the youth justice system, such as youth justice facilitators, lawyers
and judges who interact
with youths, would be equipped with the knowledge to
facilitate meaningful participation and expected to use this knowledge in
practice.
Moreover, a report produced by the Donald Beasley Institute¾considered in more detail in Part V.C below¾highlights the need to teach legal actors how to
facilitate communication.
In 2021, Howard, McCann and Dudley conducted a study on communication assistance that involved a small sample of five young people supported by a communication assistant and five family members. [124] The study’s key finding was that communication assistants play an important role in making the legal process “easier” for the parties involved.[125] Communication assistance was viewed favourably and perceived as being valuable by the participants throughout the study. These findings affirm that communication assistance is an important means of strengthening participatory rights.[126]
Howard, McCann and Dudley’s 2020 study¾involving 28 individuals who had either received communication assistance or worked with an assistant in their professional capacity¾produced findings regarding attitudes towards communication assistance similar to their 2021 study.[127] The role of the communication assistant was perceived as helping Aotearoa New Zealand’s youth justice system to fulfil its obligations in producing therapeutic outcomes because it was “believed” that the young person, despite their communication impairments, could understand what was occurring during the legal process.[128] Furthermore, the professionals considered that engagement levels increased because the young person could convey their own views in their interactions with their youth advocate, both in family group conferences and during court proceedings.[129] Moreover, not only could neurodiverse youth offenders respond to questions being posed to them, they could also convey their own narrative regarding the offending and challenge the evidence being presented.[130] The youths in this study were perceived as being able to meaningfully participate due to the support provided by communication assistants as the provision of support prompted a rise in engagement levels.[131]
In my
interview with Sally Kedge, director of Talking Trouble Aotearoa NZ, she shared
her insights as a communication assistant who
supported young people in family
group conferences and the Youth
Court.[132] Kedge argues for a
“radical rethinking” of the current youth justice system for it to
function as it should¾specifically, by ensuring
justice is accessible through participation for youths with speech language
needs. While communication strategies
such as using plain language and visual
aids have proven to be effective¾which is in
line with the general consensus regarding the benefits of communication
assistance, as detailed above¾a systemic
approach to safeguarding participatory rights is suggested by Kedge. Kedge
observed that there is still an issue that not
every youth offender with
neurodisabilities is being supported with specialist interventions because of a
shortage within the profession.
Furthermore, neurodisabilities are often
undetected or masked by youths due to shame.
Through greater provision of
specialist support, youths may feel more confident in participating in legal
processes which affect them
because they can understand what is being spoken to
them, and form opinions and articulate their views in response accordingly
through
oral communication and appropriate body language. However, greater
provision of specialist support entails resourcing more trained
speech language
therapists for every young person who filters into the youth justice system,
even if there is no diagnosis of a neurodisability.
Currently, communication
assistance is being mainstreamed as judges and youth advocates have been
educated with the relevant skills
in facilitating communication at initiatives
led by communication assistants. However, Kedge suggests that until the
implementation
of communication strategies is complete across the wider youth
justice network¾at which stage the role of the
communication assistant would be reserved only for those with severe
neurodisabilities¾the specialist service as it
currently stands should be provided to every youth offender.
Kedge’s
observations show that greater and continuous basic training concerning
communication assistance is paramount to safeguarding
young people’s right
to meaningful participation in the youth justice system. Moreover, given that
they interact with youths
with neurodisabilities, awareness of communication
impairments and how to facilitate engagement should be extended to other legal
actors within the wider justice network accordingly.
The Donald Beasley Institute
is a national research organisation specialising in disabilities, particularly
learning disabilities.
In 2014, the Institute published a report on developing a
responsive legal system for intellectually disabled people, demonstrating
the
importance of legal actors understanding communication
impairments.[133]
It must be noted that although the report focused on adult offenders in the
criminal justice system, the report’s implications
from the interviews
with legal actors are also germane to professionals working in the youth justice
system. By picking up signs
of impaired oral competency and utilising strategies
to facilitate neurodiverse youths’ engagement in the justice process,
the
wider youth justice system can work towards actualising meaningful
participation.
Of the 15 lawyers interviewed in the report, several stated
that it would be beneficial to have knowledge in dealing with the various
differing levels of comprehension from their
clients.[134]
Furthermore, those lawyers suggested that some form of education could help them
to develop strategies in ensuring that those who
traverse the justice system are
able to understand and communicate during their
encounter.[135]
Similarly, the
13 judges in the report recognised the importance of responding appropriately to
the communication impairments of offenders
in
court.[136] Additionally, it was
reported that those judges had adapted certain strategies to support the
participation of individuals with intellectual
disabilities, such as using
simple language akin to communication
assistants.[137] The judges
further noted that, in their experience, some lawyers were able to use
strategies to assist with the communication of
information to their clients
because they had “empathy, experience and an openness to doing things
differently”, while
other lawyers appeared unable to do
so.[138] This highlights the need
for developing skills within the youth justice system on a broader scale; that
is, training all legal actors
to facilitate the understanding of youths with
neurodisabilities, which is likely to increase levels of participation.
The studies into attitudes towards communication
assistance and legal actors’ knowledge of dealing with communication
impairments
demonstrate the necessity for communication strategies to be
utilised to a greater extent within the youth justice system in Aotearoa.
I also
argue in favour of training a greater number of communication assistants and
mainstreaming the specialist support through
further education without placing
undue burden on the current profession of communication assistants to lead this
movement. This
small cadre of speech language therapists has been spearheading
communication assistance. While this is commendable, there is still
a question
as to whether more should be done within New Zealand’s unique context¾especially considering the overrepresentation of
rangatahi Māori in the youth justice
population.[139] Therefore,
increasing the knowledge of legal actors, as well as the training and provision
of communication assistance, is recommended.
In July 2021, the Ministry of Justice produced the
Communication Assistance Quality Framework, formally establishing a framework
for
qualifications, training of communication assistants, provision of
communication assistance and future
evaluation.[140] The Quality
Framework aims to increase accessibility to equitable justice outcomes for those
who utilise this specialist
support.[141]
From July 2021
onwards, accredited speech language therapists, specialist teachers, nurses who
specialise in the field of mental health,
psychologists and occupational
therapists are eligible to be employed as communication
assistants.[142] Those from these
specific professions must have at least three years’ work experience in
assessing communication.[143]
Moreover, competence in engaging with individuals with some form of
neurodisability, such as acquired brain injuries and difficulties
with language,
is required.[144]
It is
currently unclear how many professionals have taken this opportunity since July
2021 because this information has not been publicly
reported.
The training
programme for communication assistants will be offered first by communication
assistance providers.[145] The
Ministry of Justice assists by continuing to develop additional mandatory
modules, which every communication assistant is required
to
complete.[146] At present, there
are six training modules developed by the Ministry of Justice, which take
approximately 10 minutes each to
complete.[147]
Notably, Aotearoa’s colonial history¾which is pertinent to the overrepresentation of
rangatahi Māori in the youth justice system¾is absent from the training modules.
Furthermore, the training modules do not cover the recognition of
one’s own potential biases in interactions with a youth offender.
This is likely because the Quality Framework emphasises self-reflection
in being aware of prejudicial conduct during delivery of
communication
assistance.[148] However, I argue
that placing the onus on communication assistants is problematic because there
is no formal training regarding diversity
and cultural responsiveness.
Furthermore, this may place additional pressure on communication assistance
providers, such as Talking
Trouble Aotearoa NZ and Moretalk, to teach their
trainees on this area in tandem with providing professional training on
facilitating
the communication of youth offenders. Moreover, a 10 minute module
is not sufficient to equip trainees with adequate skills to understand
the lived
experiences of youths who filter through the youth justice system, and to
provide culturally appropriate support.
Interestingly, the Quality Framework
provides that the responsibility in facilitating communication extends beyond
the profession
of communication assistants, and that every legal actor working
within the justice system should be aware of potential communication
difficulties.[149] For example,
children over the age of 12 are not automatically provided with a communication
assistant.[150] Therefore,
individuals such as youth advocates must make an application for this specialist
service based on “subjective grounds”,
which entails picking up
signs of difficulties with comprehension, expressions and behaviours indicating
a need for communication
assistance.[151]
The training
given to legal actors such as lawyers and judges to enable them to better
identify disengaged behaviour and information
processing issues is not described
in detail. However, this is likely because this training is beyond the scope of
the Ministry’s
Quality Framework. Nonetheless, it is of utmost importance
to mainstreaming communication assistance to the wider youth justice network
through education.
As part of the Quality Framework, the Ministry will review
Talking Trouble Aotearoa NZ and Moretalk’s training annually for
the first
three years and make adjustments from their
evaluation.[152] This is to
improve effective facilitation of engagement and communication for individuals
who require communication
assistance.[153] However, results
from an evaluative body are currently not available because this review is
internal (ie between the Ministry and the two communication assistance
providers).[154]
Existing literature in both overseas and domestic spheres
has demonstrated that youths have difficulty communicating in the unfamiliar
youth justice system environment, and this is exacerbated for those with
neurodisabilities.[155] It is
crucial to have direct interventions that can ensure the actualisation of the
right to meaningful participation pursuant to
art 12 of the
UNCROC.[156] Therefore, I argue
there should be greater training of communication assistants to meet the demands
of neurodiverse youths who require
communication support in family group
conferences and the Youth Court.
An increase in this specialist support is
anticipated following the recent release of the Ministry of Justice’s
Communication
Assistance Quality Framework, which extends eligibility beyond the
profession of speech language
therapists.[157] However, there is
a dilemma as to whether communication assistants can provide culturally
responsive services because the profession
is small. I suggest the Ministry
should develop additional modules to be completed by communication assistants
instead of shifting
the onus to the profession, as not all communication
assistants themselves have knowledge of the lived experiences of youth offenders
who come into contact with the youth justice system.
Notably, the
Ministry’s module regarding professional conduct states that communication
assistants must demonstrate respect
and cultural safety (ie showing
respect regardless of one’s disability, age or ethnic
identity).[158] However, training
which helps participants to identify their biases is absent from modules,
meaning some communication assistants
may fail to ensure cultural safety due to
these personal biases. I suggest training programmes should be developed to
teach about
diverse lived experiences, reflecting a range of sociocultural
demographics represented in New Zealand. This may improve education
and
awareness within the profession to a greater extent than 10-minute modules
do.[159]
Furthermore, it would
be undesirable for the burden of facilitating communication to fall squarely on
the shoulders of communication
assistants. As reported by the Donald Beasley
Institute, in studies of professionals’ perspectives and in the
Ministry’s
Quality Framework, legal actors should have baseline skills in
supporting youth.[160] Strategies
developed by communication assistants have proven to be effective, with
individuals who have worked with communication
assistants reporting that they
have incorporated the same strategies¾such as
simplifying complex language and using visual aids¾into their own
practices.[161]
This suggests
that for many legal actors in the youth justice system, issues of communication
and oral competency are not at the fore.
Compulsory training modules currently
available should extend to the legal profession, albeit the extent of training
which can be
provided to legal actors largely depends on whether there is
adequate resourcing available at the governmental level. These preliminary
conclusions notwithstanding, further research¾which is beyond the scope of this article¾is needed to determine the best approach forward in
mainstreaming communication assistance in the youth justice system.
New
Zealand’s youth justice system falls short of meeting its obligations
under art 12 of the UNCROC in the absence of tailoring
specific specialist
interventions to neurodiverse youths with communication impairments. The
barriers experienced by youth offenders
with regard to participatory rights
remain an unaddressed problem requiring urgent attention.
Based on
Lundy’s model of meaningful participation, youths with neurodisabilities
who face family group conferencing and court
appearances should receive
communication assistance swiftly, regardless of diagnosis. As the literature
supports, communication strategies,
such as simplifying language and utilising
visual aids, assist youths with conveying their views and processing
information. Because
the Ministry of Justice has set out guidelines for the
greater provision of communication assistance, it is anticipated there will
be
an increase in communication assistants to meet the current demand in the
future.
However, as demonstrated by the Donald Beasley Institute report and
by my case review of the published judgments from the Youth Court
database,
there is an additional barrier in realising participatory rights: there is a
lack of general knowledge regarding neurodisabilities
and compromised oral
competency by all legal actors in the youth justice system. This must be
promptly addressed. It is essential
that legal actors within the system are
taught broad communication strategies which can assist with the interactions of
neurodiverse
youths who traverse the youth justice system. Communication
assistants have been providing baseline knowledge to some institutional
actors.
The need for greater awareness and understanding has been highlighted in the
Ministry of Justice’s Communication Assistance
Quality Framework. This
further demonstrates the importance of mainstreaming communication assistance
and knowledge in the wider
youth justice network. It has also been suggested
that the Ministry should develop and extend the current communication assistance
training modules to all legal actors.
In summary, although neurodisabilities
and compromised oral communication skills are additional barriers for youth
offenders, it is
argued that Aotearoa’s youth justice system can fulfil
its international obligations by addressing its shortcomings. Communication
assistance facilitates engagement with the legal process at a deeper level, and
through greater provision of communication assistance
to youths with
neurodisabilities, New Zealand can safeguard and actualise the right to
meaningful participation guaranteed under
art 12 of the UNCROC.
[*] LLB(Hons), BA Auck. Solicitor, Capstone Law. The author wishes to acknowledge Dr Katherine Doolin for her support and guidance, and Sally Kedge from Talking Trouble Aotearoa NZ for sharing her insights and experiences as a communication assistant.
[1] The age range of “children” who offend are 10–13 years of age while “young people” are between the ages of 14–17. Although the United Nations Convention on the Rights of the Child uses the term “child” to refer to those under 18 years of age, this article uses the term “youth” to include children and young people.
[2] Gabrielle Maxwell and Allison Morris “Youth Justice in New Zealand: Restorative Justice in Practice?” (2006) 62 J Soc Issues 239 at 240.
[3] Andrew Becroft “Playing to Win – Youth Offenders Out of Court (And Sometimes In): Restorative Practices in the New Zealand Justice System” (15 July 2015) Ministry of Justice <www.justice.govt.nz> at 6.
[4] The recent term “neurodiverse” encompasses a variegated spectrum of neurological conditions such as autism and dyslexia. “Neurodisability” is still an accepted term within existing literature, however, and will be used interchangeably with “neurodiverse” in this article.
[5] Convention on the Rights of the Child 1577 UNTS 3 (signed 20 November 1989, entered into force 2 September 1990), art 12.
[6] Oranga Tamariki Act 1989, s 5(1).
[7] Laura Lundy “‘Voice’ is not enough: conceptualising Article 12 of the United Nations Convention on the Rights of the Child” (2007) 33 BERJ 927 at 931–933.
[8] Susan Baidawi and Alex R Piquero “Neurodisability among Children at the Nexus of Child Welfare and Youth Justice System” (2021) 50 J Youth Adolesc 803 at 804; and Nathan Hughes and others Nobody made the connection: The prevalence of neurodisability in young people who offend (Children’s Commissioner for England, October 2012) at 18.
[9] Hughes and others, above n 8, at 18–19.
[10] Kelly Howard, Clare McCann and Margaret Dudley “‘It was like more easier’: Rangatahi (Young People) and Their whānau (Family) Talk About Communication Assistance in the New Zealand Youth Justice System” (2021) 21 Youth Justice 210 at 210.
[11] Nathan Hughes and Prathiba Chitsabesan Supporting young people with neurodevelopmental impairment (Centre for Crime and Justice Studies, December 2015) at 3.
[12] Howard, McCann and Dudley, above n 10, at 211.
[13] At 211.
[14] Nessa Lynch Neurodisability in the Youth Justice System in New Zealand: How Vulnerability Intersects with Justice (Dyslexia Foundation of New Zealand, 30 May 2016) at 7.
[15] Sarah A Lount, Suzanne C Purdy and Linda Hand “Hearing, Auditory Processing, and Language Skills of Male Youth Offenders and Remandees in Youth Justice Residences in New Zealand” (2017) 60 JSLHR 121 at 121.
[16] Hughes and Chitsabesan, above n 11, at 3–4; and Lynch, above n 14, at 3–4.
[17] Hughes and Chitsabesan, above n 11, at 3.
[18] Baidawi and Piquero, above n 8, at 810–811; and Hughes and Chitsabesan, above n 11, at 4.
[19] Hennessey Hayes and Pamela Snow Oral language competence and restorative justice processes: Refining preparation and the measurement of conference outcomes (No. 463, Trends & issues in crime and criminal justice, Australian Institute of Criminology, November 2013) at ‑3–4.
[20] At 3–4.
[21] At 2.
[22] At 4.
[23] Oranga Tamariki Youth Justice Family Group Conferences (OT1007, July 2019) at 4.
[24] Maxwell and Morris, above n 2, at 248.
[25] Ton Liefaard “Child-Friendly Justice: Protection and Participation of Children in the Justice System” (2016) 88 Temp L Rev 905 at 907–908.
[26] Nessa Lynch and Ton Liefaard “What is Left in the “Too Hard Basket”? Developments and Challenges for the Rights of Children in Conflict with the Law” (2020) 28 Int J Child Rights 89 at 91.
[27] Nessa Lynch Youth Justice in New Zealand (3rd ed, Thomson Reuters, Wellington, 2019) at 58; and Nessa Lynch “Youth Justice in New Zealand: A Children’s Rights Perspective” (2008) 8 Youth Justice 215 at 217.
[28] Stephanie Rap “A Children’s Rights Perspective on the Participation of Juvenile Defendants in the Youth Court” (2016) 24 Int J Child Rights 93 at 94.
[29] Convention on the Rights of the Child, above n 5, art 12.
[30] Lothar Krappmann “The weight of the child’s view (Article 12 of the Convention on the Rights of the Child)” (2010) 18 Int J Child Rights 501 at 501–502; and Convention on the Rights of the Child, above n 5, art 12.
[31] Krappmann, above n 30, at 502; and Convention on the Rights of the Child, above n 5, art 12.
[32] Lynch Youth Justice in New Zealand, above n 27, at 203.
[33] New Zealand Police v RP [2020] NZYC 214 at [16].
[34] At [14].
[35] Lundy, above n 7, at 929–930.
[36] At 930–931.
[37] At 930–931.
[38] At 929–930.
[39] At 929–930.
[40] At 929–930.
[41] At 929–930.
[42] See Luke Fitzmaurice “Children’s voices in system reform: A case study on children and young people’s participation within the modernisation of Child, Youth and Family” (2017) 29(1) ANZ Soc Work 41 at 42–43.
[43] At 42–43.
[44] Lundy, above n 7, at 930–931.
[45] Krappmann, above n 30, at 513.
[46] At 513.
[47] Convention on the Rights of the Child, above n 5, art 12.
[48] Hayes and Snow, above 19, at ‑3–4.
[49] Convention on the Rights of Persons with Disabilities 2515 UNTS 3 (signed 13 December 2006, entered into force 3 May 2008), art 7.
[50] Lundy, above n 7, at 931–933.
[51] At 933–935.
[52] At 937.
[53] At 937–939.
[54] Nessa Lynch “Restorative Justice through a Children’s Rights Lens” (2010) 18 Int J Child Rights 161 at 174–176.
[55] At 174–176.
[56] See Oranga Tamariki Act, s 1(1), which provides that the Act may also be cited as the Children’s and Young People’s Well-being Act 1989.
[57] Oranga Tamariki Act, s 5(1)(a).
[58] Section 5(1)(a).
[59] Section 5(1)(b).
[60] Section 5(1)(b)(i).
[61] Section 5(1)(b)(i).
[62] Section 5(1)(b)(viii)(A).
[63] Evidence Act 2006, s 4 definition of “communication assistance”.
[65] Howard, McCann and Dudley, above n 64, at 300.
[66] At 301–302; and Evidence Act, s 80.
[67] Howard, McCann and Dudley, above n 64, at 301.
[68] At 300.
[69] Penny Cooper and David Wurtzel “A Day Late and a Dollar Short: In Search of an Intermediary Scheme for Vulnerable Defendants in England and Wales” [2013] Crim LR 1 at 2.
[70] Kelly Howard, Clare McCann and Margaret Dudley “‘It’s really good...why hasn’t it happened earlier?’ Professionals’ perspectives on the benefits of communication assistance in the New Zealand youth justice system” (2020) 53 ANZJ Crim 265 at 266.
[71] Howard, McCann and Dudley, above n 70, at 266–267.
[72] Cooper and Wurtzel, above n 69, at 2.
[73] Howard, McCann and Dudley, above n 70, at 267; and Ministry of Justice “Communication Assistance Quality Framework” (July 2021) <www.justice.govt.nz>.
[74] Sharynne McLeod “Communication rights: Fundamental human rights for all” (2018) 20 Int J Speech-Lang Pathol 3 at 3.
[75] Hayes and Snow, above n 19, at 2.
[76] At 2.
[77] At 2.
[78] At 3.
[79] McLeod, above n 74, at 8.
[80] At 8.
[81] Maxwell and Morris, above n 2, at 243.
[82] Oranga Tamariki, above n 23, at 4
[83] At 4.
[84] At 4.
[85] Maxwell and Morris, above n 2, at 249.
[86] Oranga Tamariki, above n 23, at 4.
[87] Lynch, above n 54, at 179.
[88] Public Service Commission “Better Public Services Result 4 - Case Study: Empowering whanau on marae [archived]” (19 February 2015) <www.publicservice.govt.nz>; and Oranga Tamariki, above n 23, at 3.
[89] Lynch, above n 54, at 179.
[90] Pamela Snow “Restorative Justice Conferencing, Oral Language Competence, and Young Offenders: Are These High-Risk Conversations?” (2013) 20(1) Prevention Researcher 18 at 19.
[91] Pamela C Snow and Dixie D Sanger “Restorative Justice conferencing and the youth offender: exploring the role of oral language competence” (2011) 46 Int J Lang Commun Disord 324 at 330.
[92] Nathan Hughes Neurodisability in the youth justice system: recognising and responding to the criminalisation of neurodevelopmental impairment (Working Paper 17/2015, The Howard Leage for Penal Reform, 2015) at 9.
[93] Masahiro Suzuki and William R Wood “Is restorative justice conferencing appropriate for youth offenders?” (2018) 18 Criminol Crim Justice 450 at 454–455.
[94] At 454–455.
[95] At 451–455.
[96] At 451.
[97] Howard, McCann and Dudley, above n 70, at 266; and Hughes and Chitsabesan, above n 11, at 4.
[98] Sarah A Lount and others “Tough talk: Youth offenders’ perceptions of communicating in the Youth Justice system in New Zealand” (2018) 51 ANZJ Crim 593 at 593 and 602.
[99] At 593 and 600–601.
[100] At 601.
[101] At 600–605.
[102] Laura Makker, Sally Clendon and Elizabeth Doell “Speech-language pathologists’ perspectives of communication strategies for young people in the New Zealand youth justice system” (2022) 24 Int J Speech-Lang Pathol 585 at 590–591.
[103] Lount, Purdy and Hand, above n 15, at 123.
[104] Karen Bryan and others “Language difficulties and criminal justice: the need for earlier identification” (2015) 50 Int J Lang Commun Disord 763 at 767.
[105] Natalie R Kippin and others “Language diversity, language disorder, and fetal alcohol spectrum disorder among youth sentenced to detention in Western Australia” (2018) 61 Intl J L & Psychiatry 40 at 41.
[106] District Court of New Zealand “Search” <www.districtcourts.govt.nz>.
[107] District Court of New Zealand, above n 106.
[108] The Youth Court is at the District Court level, therefore published Youth Court decisions are also included in the District Court database.
[109] R v LF [2020] NZYC 660 at [9]–[13] and [20].
[110] At [30].
[111] At [30].
[112] At [30].
[113] New Zealand Police v AZ [2018] NZYC 368 at [21(e)] and [33].
[114] New Zealand Police v HJ [2016] NZYC 168 at [30]–[31] and [33(e)].
[115] R v ZF [2019] NZYC 182 at [25]; and R v AU [2020] NZYC 34 at [52]–[60].
[116] New Zealand Police v AZ, above n 113, at [21].
[117] R v AU, above n 115, at [12].
[118] New Zealand Police v RP, above n 33, at [14].
[119] At [14].
[120] At [17].
[121] Howard, McCann and Dudley, above n 10, at 224.
[122] See Makker, Clendon and Doell, above n 102, at 593–594.
[123] Interview with Sally Kedge, communication assistant and director of Talking Trouble Aotearoa NZ (Kelly Young, Auckland, 9 May 2021).
[124] Howard, McCann and Dudley, above n 10.
[125] At 217–218.
[126] At 223.
[127] Howard, McCann and Dudley, above n 70, at 277–279.
[128] At 272.
[129] At 272–273.
[130] At 272.
[131] At 272.
[132] Interview with Sally Kedge, above n 123.
[133] Brigit Mirfin-Veitch and others Developing a more responsive legal system for people with intellectual disability in New Zealand (Donald Beasley Institute, September 2014).
[134] At 30.
[135] At 30.
[136] At 51.
[137] At 52.
[138] At 53.
[140] Ministry of Justice, above n 73.
[141] At 4–6.
[142] At 9.
[143] At 9.
[144] At 9.
[145] At 10.
[146] At 10.
[147] Ministry of Justice “Communication assistance training modules” <www.justice.govt.nz>.
[148] Ministry of Justice, above n 73, at 14.
[149] At 8.
[150] At 20.
[151] At 19.
[152] At 10.
[153] At 16.
[154] At 10.
[155] Howard, McCann and Dudley, above n 70, at 280.
[156] Paula Cronin and Rebecca Addo “Interactions with youth justice and associated costs for young people with speech, language and communication needs” (2021) 56 Int J Lang Commun Disord 797 at 799.
[157] Ministry of Justice, above n 73, at 9.
[158] Ministry of Justice, above n 147.
[159] Ministry of Justice, above n 147.
[160] Mirfin-Veitch and others, above n 133.
[161] Howard, McCann and Dudley, above n 71, at 276.
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