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Children, Young Persons and their Families (Oranga Tamariki) Amendment Bill - Submission to the Social Services Commission [2017] NZHRCSub 1 (8 March 2017)
Last Updated: 6 June 2017
Submission on Children, Young
Persons and their Families (Oranga Tamariki) Amendment
Bill
Contact Person:
John Hancock
Senior Legal Adviser
New
Zealand Human Rights
Commission
johnh@hrc.co.nz
Children,
Young Persons and their Families (Oranga Tamariki) Amendment
Bill
Submission of the Human Rights
Commission
Introduction
- The
Human Rights Commission (‘the Commission’) welcomes the opportunity
to provide the Social Services Commission with
this submission on the Children,
Young Persons and their Families (Oranga Tamariki) Amendment Bill (“the
Bill”).
- The
Bill is the second tranche of legislation that implements the recommendations of
the Expert Advisory Group on Modernising Child,
Youth and Family. It follows the
Children, Young Persons and their Families (Advocacy, Workforce and
Age-Settings) Amendment Bill
(“The CYPF AWAS Bill”) that introduced
initial structural amendments to the Children, Young Person and their Families
Act (“the Act”).
- By
contrast, this Bill introduces substantive reforms across the entire legislative
scheme, from the provisions establishing its principles
and purposes through to
the operational clauses that govern practice and procedure. The Commission has
focused its submission on
aspects of the Bill pertaining to:
- Principles
and purposes
- Information
sharing
- Children
with disabilities
- Youth
justice.
- A
full summary of recommendations is set out at the end of the
submission.
- For
the most part, the Bill’s human rights impact is progressive in both form
and intent. For example, it explicitly recognises
and affirms of the rights of
children and young people under the UN Convention on the Rights of the Child
(UNCROC), the UN Convention
on the Rights of Persons (UNCRPD) with Disabilities
to an extent that is unprecedented in New Zealand social sector legislation.
It
also harmonises the upper age threshold of the youth justice system with
international human rights standards.
- Other
aspects of the Bill have more challenging human rights implications that will
require the Committee to carefully balance conflicting
rights and interests
while giving paramount consideration to the safety and well-being of the child.
For example, the Bill introduces
provisions that cut across current
confidentiality duties and greatly increase the ability of agencies to gather
and share data about
children and their families. The Bill’s proposed
amendments to the Act’s care and protection principles also appear to
shift the current family/whānau-oriented approach towards a more
interventionist model that places less priority on placing
children with family,
whānau, hapū or iwi, following removal from parental care. This
aspect, in particular, has generated
considerable concern amongst Māori
social sector stakeholders.
- Furthermore,
review of the care and protection and youth justice system cannot be considered
in isolation of the underlying socio-economic
stressors that lead to, or
precipitate, family and whānau breakdown. This includes household poverty
and material deprivation
as well as the adequacy of support and
capacity-building services for families of disabled children, and disabled
parents. The Commission
reiterates its recommendation in its submission on the
CYPF AWAS Bill[1], that work commences
in parallel on the development and implementation of a comprehensive plan
designed to meet New Zealand’s
commitments under the UN 2030 Agenda for
Sustainable Development. This includes measures such agreeing a national
definition of poverty
and reducing poverty (as so defined) by at least 50% and
ensuring access for all to adequate, safe and affordable housing, by the
target
date of 2030.
Historic abuse claims
- The
Bill is also being introduced against the background of increased public
awareness about historic abuse and ill treatment of children
while in the care
of the state. This includes the establishment of the Confidential Listening and
Assistance Service (CLAS). Through
this process, many hundreds of people shared
their experiences of serious abuse, neglect and ill treatment while in the care
of the
state during childhood[2].
- In
her final report, the Chair of CLAS, her Honour Judge Carolyn Henwood noted the
lack of any legislative “duty of care”
upon state agencies towards
children[3] and recommended, among
other things, that the Government develop and articulate a duty of care to
children[4]. Judge Henwood also
recommended that an urgent independent review be undertaken of the data arising
from the work of CLAS and MSD’s
Historic Claims Team, with the outcomes of
the independent review used to “locate the key touch points of Child,
Youth and
Family for immediate improvements to
practice”.[5]
- The
Commission supports Judge Henwood’s call for an independent review and has
recently written an open letter to the Prime
Minister calling for an independent
inquiry into the abuse of people in state care to take place, on behalf of a
range of signatories
including former residents of state care
institutions.[6]
- The
Commission notes that while the Bill introduces provisions that require the
development of regulations prescribing national care
standards[7] and that amend the
Vulnerable Children’s Act to prescribe specific duties upon government
chief executives directed at children
in the state care
system[8], the systemic failings that
have led to abuse occurring within our state care system in the past have never
been subject to a specific
process of inquiry or examination.
- A
thorough examination of past failings that led to children in state care being
harmed, coupled with formal recognition of the long
term impact of that harm on
those children, is likely to lead to more precise and meaningful policies in the
future. A good example
of this can be seen in Australia, where a series of
public inquiries on the experiences of children in the care
system[9] has informed the development
of detailed, rights-affirmative and child-centred national standards of
care[10].
Recommendation 1
The Commission recommends that the Committee:
- Specifically
acknowledges, and has regard to, the final report and recommendations of the
Confidential Listening and Assistance Service,
and
- considers
whether it can be assured that the Bill contains adequate
safeguards:
- (i) to
maintain the safety of children while they are in the care of the state;
and
- (ii) to
prevent the future occurrence of systemic failures that could lead to abuse of
children in the care of the state.
Terminology,
Principles and Purposes
Clauses 4 and 5, terminology and general
principles
- Clause
4 of the Bill introduces some significant reforms to the current Act’s
terminology. Most significantly, it amends, without
qualification, the
definition of “young person” to include 17 year olds. This has the
effect of raising the upper age
in both the care and protection and youth
justice systems and is a highly important UNCROC implementation step. In doing
so, it follows
the recent 2016 recommendation of the UN Committee on the Rights
of the Child (‘the CRC Committee’) in its 5th period
review of New Zealand.
- Clause
4 also aligns the legislation with the Vulnerable Children’s Act 2014 by
defining a broad range of organisations as “child
welfare and
protection” agencies. In addition to the new department (the Ministry for
Vulnerable Children/Oranga Tamariki)
the definition includes school boards,
early childhood education services, District Health Boards, the Police, Housing
New Zealand
and any agency defined as a ‘regulated service’’
under the Vulnerable Children’s Act. This has the effect
of achieving some
degree of congruence between the two statutory schemes.
- Furthermore,
the Bill establishes, as the first general principle set out under s 5(1), the
principle that “the child’s or young person’s rights
(including those rights set out in UNCROC and the United Nations Convention
on
the Rights of Persons with Disabilities, which New Zealand has affirmed) must be
respected and upheld and the child or young person
must be treated with dignity
and respect at all times.” Like the raising of the upper age of the
youth justice system, this is a highly significant recognition of the human
rights of children
and young people subject to the Bill’s
jurisdiction.
Clause 9 - Participation principles
- Clause
9 of the Bill introduces a new s 5A that establishes “principles of
participation”, which apply to all decisions
made under the legislation.
These principles require that:
so far as is practicable, when a person makes a decision affecting a child
or young person, the child or young person must be encouraged
and assisted to
participate in the decision-making process and the child’s or young
person’s views must be taken into
account by the decision maker
decision makers making written decisions must set out the child’s or
young person’s views in their decision and, if those
views were not
followed, include the reasons for not doing so
so far as is practicable, a decision affecting a child or young person,
and the reasons for that decision, must be explained to them.
- The
principles of participation advance the participation rights of children under
Article 12 of UNCROC, and as such should be commended.
New section 5A also
codifies professional best practice as a standard statutory requirement. This
reform also is reflective of the
child-centred approach recommended by the
Expert Panel and follows on from the CYPF (AWAS) Bill’s introduction of
provisions
that enable the establishment of an independent advocacy service for
children in the care system.
Clause 13 - Care and protection principles
- Clause
13 of the Bill updates the care and protection principles under section 13 of
the Act. These principles have particular operational
importance, as they drive
practice decisions made under the care and protection provisions under Part 2 of
the Act.
- Clause
13 introduces significant amendments to the current care and protection
principles, perhaps the Bill’s most contentious
and controversial
amendments. The most obvious structural change is a refocused hierarchy of
principles. Under current s 13, the
first care and protection principle provides
that “the primary role in caring for and protecting a child or young
person lies with the child’s or young person’s family,
whanau, hapu,
iwi, and family group.”
- This
principle is entirely missing from clause 13 and is replaced at the top of the
hierarchy with the principle that “intervention should occur early to
improve the safety and well-being of children, young persons, and their families
and to
address risk of future harm.” The primary role of family,
whānau, hapū and iwi is not acknowledged or reflected anywhere in
clause 13. This is a significant
change and one that is out of step with the
UNCROC principle that parents, or as the case may be, legal guardians, have the
primary
responsibility for a child’s upbringing and
development[11].
- The
proposed new care and protection principle under new section 13(2)(j), which
negates any duty of confidentiality that service
providers and professionals
have to children they are working with, is also inconsistent with UNCROC and has
problematic practical
implications. The Commission accordingly recommends that
it is deleted from clause 13 of the Bill. This particular matter is addressed
in
more detail in paragraphs 52-54 of this submission.
- It
is important to note that clause 13 does not cut out the rights of families and
whānau to participate and give consent to
interventions that arise. It also
provides that assistance should be provided to family, whānau, hapū
and iwi to enable
them to provide “a safe, stable and loving” home
in cases where there is a risk of the child’s removal. In addition,
the
threshold for removal is set at a higher level than the current legislation,
namely circumstances where there is a serious risk
of physical or emotional
harm.
- Nevertheless,
the lack of any recognition of the primary role of family, whānau,
hapū and iwi has significant operational
implications in circumstances
where a child is removed. It is notable that under clause 13, new section 13(g)
does not place any
explicit requirement upon decision-makers to consider the
primary role of family, whānau, hapū and iwi in circumstances
where a
child has been removed.
- This
aspect of the Bill has particular ramifications for Māori children, who are
disproportionately the subject of CYF interventions
and removal
orders.
Impact/ramifications of the Bill on Māori children and their
whānau
- In
many respects, the Bill is progressive in its approach. For example, Clause 4
also introduces a number of new terms regarding Māori
children and their
whānau. These are:
mana tamaiti (tamariki), defined as “in relation to a
person who is Māori, means their intrinsic worth, well-being, and capacity
and ability to
make decisions about their own life”’
whakapapa, defined as “in relation to a person, means the
multi-generational kinship relationships that help to describe who the person
is
in terms of their mātua (parents), and tūpuna (ancestors), from whom
they descend”
whanaungatanga, defined as “’in relation to a
person —
(a) the purposeful carrying out of responsibilities based on obligations to
whakapapa:
(b) the kinship that provides the foundations for reciprocal obligations and
responsibilities to be met:
(c) the wider kinship ties that need to be protected and maintained to ensure
the maintenance and protection of their sense of belonging,
identity, and
connection
- The
inclusion of these terms formally incorporates Māori cultural values into
the legislative terms of reference under which
decisions about children will be
made. On the face of it, this can be seen as a significant step in advancing the
principles of the
Treaty of Waitangi and the UN Declaration on the Rights of
Indigenous People within the child welfare system.
- The
Bill goes on to introduce a number of purposive clauses that, on their face,
appear to enhance the responsiveness of the legislation
to Māori children
and their whānau.
- This
includes Clause 12, which introduces a new section 7A that establishes duties
upon the Chief Executive to improve outcomes for
Māori. This includes a
requirement that “the policies, practices, and services of the
department must have regard to the mana and whakapapa of Māori children and
young persons and the whanaungatanga responsibilities of their whānau,
hapū, and iwi.” It also requires setting of measurable outcomes
to reduce disparities and development of “strategic partnerships”
with
iwi and Māori organisations. This is broadly responsive to the
recent recommendation of the CRC Committee that the New Zealand Government
“strengthen its
efforts to improve the cultural capability of care and
protection system and its engagement with Māori communities...whanau,
hapū and
iwi.”[12]
- While
the Commission supports the intention of Clause 12, we consider that it should
be strengthened through the introduction of a
direct duty to develop and
implement strategic partnerships with iwi and Māori organisations.
Clause 12 currently contains a relatively nebulous duty to “seek
to
develop” such partnerships.
- Furthermore,
the omission of any mention of Whānau Ora from Clause 12 is somewhat
incongruous, given that it is the key Government
policy and bespoke service
delivery mechanism for addressing the well-being and health of Māori
whānau. The Commission
considers that Clause 12 ought to include a
provision that requires the department to ensure that any strategic partnership
entered
into with iwi or a Māori organisation integrates Whānau Ora
within its framework.
- The
Commission notes that Clause 12 imposes a further duty upon the Chief Executive
to publicly report on performance under s 7A.
The Commission supports the
inclusion of this public accountability provision, but considers that,
commensurate with the partnership
principle, horizontal accountability to
Māori iwi, hapū and whānau is also required. This could be
achieved through
the establishment of a statutory board comprising of
representatives of iwi and Māori organisations to whom the chief executive
must report to in the performance of his or her duties under s 7A(2).
Recommendation 2
The Commission recommends that Clause 12 (new section 7A) is amended as
follows:
- The
current obligation to “seek to develop strategic partnerships” is
amended to a duty to develop and implement strategic partnerships
with iwi and Māori organisations
- Introduce
a provision in s 7A(2) to require the department to ensure that any strategic
partnership entered into with iwi or a Māori
organisation integrates
Whānau Ora within its framework
- Introduce
a provision that establishes a statutory board of representatives of iwi and
Māori organisations to whom the chief
executive must report to in the
performance of his or her duties under s 7A.
- Both
the Bill’s general principles and care and protection principles contain
provisions that affirm the cultural rights of
Māori children and their
families. These include the following requirements:
That “consideration is given to the significance of the
child’s or young person’s wider whānau, hapū, and
iwi, and
links to whakapapa or the equivalents in the culture of the child or young
person”;
That when a decision under the Act is made about a child or a young person
who is Māori, “the mana and well-being of the child or young
person are protected by recognising the whakapapa and whanaungatanga
responsibilities
of their whānau, hapū, and iwi” as well as
“the importance of whakapapa and whanaungatanga is recognised by
ensuring that wherever possible, their whānau, hapū, and
iwi can
participate in those decisions.”
That “any intervention with the whānau of a child or young
person who is Māori should recognise and promote the mana tamaiti
(tamariki) and the whakapapa of that child or young person and relevant
whanaungatanga rights and responsibilities.”
That where a Māori child or young person is, or is to be, removed from
their immediate family, whānau, or usual caregivers,
all decisions made
should “recognise and promote the importance of mana tamaiti
(tamariki), whakapapa, and whanaungatanga” and reflect that
“whanaungatanga and the whakapapa of the child or young person are
important and should continue to be honoured on an ongoing basis
wherever the
child or young person lives.”
- However,
there is currently considerable concern amongst Māori
organisations[13] that the Bill
removes the current statutory requirements under s 13(2)(b)-(d) and, in respect
of removals, s 13 (f)-(h), that affirm
and prioritise the primary role of
whānau, hapū and iwi in care and protection proceedings.
- This
aspect of the Bill creates dissonance between its general principles and its
operational provisions. For example, clause 8 introduces
a general principle
under new section 5(b) that affirms the primary role of a child’s whanau
and immediate family in their
upbringing[15]. Clause 8 also
affirms the UNCROC rights of children and young people as having overarching
application[16]. In addition, clause
12 provides that the duties upon the Chief Executive under new section 7A are
“imposed in order to recognise
and provide a practical commitment to the
principles of the Treaty of Waitangi.”
- It
is difficult to predict whether the Bill’s proposed amendments of the s 13
care and protection principles will result in
more children, or more Māori
children, being uplifted than at present. The “serious risk of harm”
threshold for
removal under clause 14 of the Bill is set higher than the current
legislation.
- However,
this is not the only implication. By cutting across the rights affirmed in the
general principles, clause 13 sends a mixed
signal to care and protection
practitioners and service providers. The general principles ought to be
reflected throughout the body
of the legislation. To do otherwise risks diluting
their implementation in practice, in effect reducing them to statements of
aspiration.
Most importantly, this Bill should be aiming to generate support
amongst whānau, hapū and iwi for the new operating model
and
department rather than concern or opposition.
Recommendation 3
The Commission recommends that the Committee:
- review
clause 13 for consistency with the general principles under clause 8;
and
- further
to that review, consider whether clause 13 should be deleted and current s 13
retained.
Should the Committee retain Clause 13 of the Bill, the Commission
recommends the following amendments:
- The
principle regarding the primary role of family, whānau, hapū and iwi,
as currently expressed in s 13(2)(b) of the Act,
is retained.
- That
new section 13(2)(g) is deleted and replaced with current sections
13(2)(f)-(h)
- That
new section 13(2)(j) is deleted
Other issues of note
- Of
further note is that the principle that the welfare and best interests of the
child is a paramount consideration in all decisions
made under the legislation
has been moved from s 13(1) to its own stand-alone section under s 4A. The
Commission supports this approach,
which serves to highlight the overarching
applicability of the principle and reflects the approach of the Care of Children
Act 2004
which governs the care of children and guardianship
jurisdiction.
- Another
significant change is the Bill’s amendment of s 4 of the Act which
currently sets out its “objects”. Clause
6 of the Bill changes s 4
to replace “objects” with “purposes”, a subtle semantic
shift. Overall, clause
6 establishes a broader set of purposes than the
incumbent s 4, and is more child-centred, providing for greater recognition of
the
rights, well-being and interests and cultural needs of children.
- However,
unlike the incumbent section, clause 6 does not require the establishment of
support services that seek to improve outcomes
for children and young persons,
merely the promotion of them. This weakens the Bill’s ability to provide
leverage to new support
service initiatives and is not reflective of the
state’s duty under Article 4 of UNCROC to actively resource measures that
enable the realisation of the economic, social and cultural rights of children
and young people. The Commission recommends that clause
6 of the Bill be amended
to retain the duty upon the department to establish support services and
facilities.
Recommendation 4
The Commission recommends that Clause 6 of the Bill is amended to retain
the obligation upon the state to establish services (through amendment of
new s 4(1)(a))
The care and protection system
- The
Bill introduces a number of amendments to Part 2 of the Act which contains the
provisions that govern the operation of the care
and protection system. We have
focused on the following aspects:
- Grounds
for care and protection intervention
- Information
gathering and sharing
Grounds for care and protection
intervention
- Section
14 sets out the grounds for a care and protection intervention and, as such, is
perhaps the most important operative provision
within Part 2 of the Act. A
Family Court declaration that a child is need of care and protection must be
made in respect of one or
more of the s 14 grounds.
- Clause
14 of the Bill retains most of the current s 14 grounds. However, it contains a
couple of significant amendments. The first
is the introduction of a
“serious harm” threshold. New section 14 provides that “A
child or young person is in need of care or protection if the child or
young person has suffered, or is likely to suffer, serious harm”.
Clause 14 then goes on to list the current grounds as
“circumstances” that may result, or likely may result,
in serious
harm.
- Most
importantly, clause 14 does not limit a declaration of care and protection to
the listed grounds or “circumstances”.
Instead the existence of
serious harm, or its likelihood, is enough. This differs from the current system
which requires that applications
must fall within one of the prescribed s 14
grounds in order for a declaration to be made.
- The
amendment provides child protection agencies and the Court with the discretion
to bring proceedings/make a declaration in individual
cases which may not fall
within any of the prescribed circumstances but still demonstrate the existence
or likelihood of serious
harm.
- The
introduction of a “serious harm” requirement raises the intervention
threshold. Current s 14 does not refer to “serious
harm”, although
the grounds themselves cover circumstances where harm, deprivation, neglect and
so on exists. The Bill’s
explanatory note explains that the policy
rationale was to simplify the law. However, this may not necessarily be the case
in practice,
as this approach introduces more discretion for a decision-maker to
determine whether a child is in need of care and protection.
- The
threshold is consistent with the care and protection principle under clause 13
(new s 13(2)(f)) and may enable a clear delineation
between those cases that
qualify for differential non-statutory response, such as referral to a
Children’s Team or NGO support
provider, from cases that require a
statutory response.
- However,
it is also notable that the “serious harm” threshold proposed under
clause 14 is not reflected in the notification
threshold under clause 15 which
provides for confidential reporting of cases where “a child is harmed or
is likely to be harmed”.
Nor is it reflected in the investigation
provision under clause 17 which provides for no further action in cases where no
identifiable
risk of harm is evident. This raises the question of whether the
proposed threshold of serious harm is set too high, and that harm,
on its own,
would have greater protective effect.
Recommendation 5
The Commission recommends that the Committee review clauses 14-17 of the
Bill to ensure that:
- the
legislative threshold for intervention is set at a level that provides an
adequate, rights-consistent level of protection; and
- is
applied consistently across the relevant Part 1 and Part 2
provisions
Information gathering and sharing
- Clause
38 repeals the current information gathering provisions under s 66 of the Act
and replaces it with a more detailed information
gathering and sharing regime
under new sections 65A to 66O. Information sharing and gathering practices will
be guided by a Code
of Practice established under s 66J.
- While
effective procedures regarding information are essential in ensuring that
children at risk of harm are kept safe, the Commission
shares the Privacy
Commissioner’s concerns regarding the workability of clause 38 in its
current form. The Commission supports
the Privacy Commissioner’s position
that any clause in the Bill that enables information sharing must clearly define
the purposes
for which information is obtained and disclosed and provide greater
specificity as to the agencies to whom it applies.
- Turning
to clause 38 itself, section 65A sets in place the principle that any person or
agency operating under the information gathering
and sharing regime must have
regard to the care and protection principle under s 13(2)(j), which
states:
The well-being and interests of any child or young person, in general,
take precedence over any duty of confidentiality owed by any
person in relation
to that child or young person or to any person who is a family member of that
child or young person or in a domestic
relationship with that child or young
person (within the meaning of section 4 of the Domestic Violence Act
1995):
- Section
13(2)(j) appears to have been tailor-made for application to this part of the
Bill. It trades off the right of the child to
privacy (and by association the
right of the child to have their view respected in cases where a child makes a
disclosure in confidence)
against over-arching welfare and best interests
considerations. The approach is problematic when measured against Articles 12
and
16 of UNCROC and appears inconsistent with the CRC Committee’s recent
recommendation that the New Zealand Government “take all measures
necessary to fully protect the right of the child to
privacy”[17] . It also
gives rise to an internal inconsistency, given that the general principles under
Clause 8 [new s 5(1)(a)] of the Bill, require
that the child’s UNCROC
rights “must be respected and upheld...at all
times”.
- The
Commission notes that legal privilege may be raised as a ground to withhold
disclosure of a request under s 66(2). However, other
service areas where a
practitioner may owe a duty of confidentiality – such as health,
psychological services or counselling
– are not provided with a similar
exception. This has problematic ethical and practice implications. It may also
deter children
and their families from accessing such services.
- Exceptions
to confidentiality already exist in law. Information Privacy Principle 11 of the
Privacy Act enables agencies to make good
faith disclosures to prevent or lessen
a serious threat to the life or health of an
individual[18]. In respect of family
members, it is an offence for members of a child’s household to fail to
take reasonable steps to protect
the child from risk of serious bodily harm,
death and sexual
assault[19].
- Notwithstanding
the facility for the child’s views to be taken into account under new s
66I and the inadmissibility clause under
new section 66(3), the Commission
re-emphasises its position that new section 13(2)(j) should be deleted from the
Bill. It is important
that practitioners retain a statutory basis to protect
client confidentiality in cases where it is appropriate to do so. The
Commission considers that clause 38 (new section 66(2)) should be amended
accordingly.
- Of
further significance is the Bill’s introduction of provisions that enable
information gathering for the purpose of making
policy decisions regarding
service provision, planning and strategy. Section 66E enables requests to be
made for information regarding
a class of children or young people, as well as
individuals. This contrasts markedly from the current legislation which only
enables
information gathering in respect of an individual child or young person
in an individual case.
- The
Bill provides for some public transparency regarding the use of bulk data
through a dataset provision for (s66D) which sets in
place obligations upon an
agency to publish on an internet site the following information; the source and
type of information gathered,
the purpose of the datasets created and the
privacy safeguards in place. However, the Commission notes the Privacy
Commissioner’s
concerns that the Bill does not provide any legal authority
for agencies to produce combined datasets or link or analyse datasets
of
information and is inconsistent with other statutory authorities which expressly
authorise and constrain information matching
regimes.
- The
Bill (s 66C) also seeks to provide agencies with a broad discretion to use
information obtained about a child or young person
for a different purpose than
that for which it was collected. Section 66C(a)(ii) notably enables the use of
information to make or
contribute “to an assessment of risk or need in
relation to a child or young person, or class of children or young
persons”. This appears to be intended to underpin the use of
predictive risk modelling.
- The
Government’s intention to use predictive risk modelling in the child
protection system has been evident since the development
of the White Paper on
Vulnerable Children in 2012. The Ministry of Social Development has undertaken
work to develop a Privacy, Human
Rights and Ethics Framework (PHRE Framework)
for predictive risk modelling, which it brought to public attention through its
periodic
reporting obligations under
UNCROC[20]. The matter was addressed
by the CRC Committee in its 2016 Concluding Observations on New Zealand, in
which it recommended that the
Government [ensure] that the Privacy, Human
Rights and Ethics framework governing predictive risk modelling takes in
consideration the potentially
discriminatory impacts of this practice, is made
public and is referenced in all relevant legislation.
- However,
the PHRE Framework is not mentioned in the Bill’s explanatory note, and
there is little information available on MSDs
website about its current status.
- The
Commission considers that any attempt to introduce predictive risk modelling in
the child protection system ought to be done through
the development of an
Approved Information Sharing Agreement (AISA), a regulatory instrument vested
under the Privacy Act. AISA’s
are required to be vetted by the Privacy
Commissioner and developed in consultation with relevant agencies. The
Commission further
considers that any AISA that seeks to authorise information
sharing required for predictive risk modelling should explicitly confirm
that it
has been developed under the PHRE Framework and meets all applicable privacy,
ethical and human rights standards.
- Should
the Committee retain clause 38, the Commission considers that, in order for the
Bill to better reflect the CRC Committee’s
recommendation as regards the
PHRE Framework, s 66D could be amended to provide for a specific notification
requirement in relation
to datasets compiled for risk modelling
purposes.
- Another,
more wide-ranging, approach would be to ensure that the proposed Code of
Practice under s 66J includes reference to the predictive
risk modelling and the
PHRE Framework. This could be done by amending 66J to require the application of
all relevant privacy, human
rights and ethical considerations in making any
decision under sections 66 to 66I.
Recommendation 6
The Commission recommends that the Committee note the concerns of the
Privacy Commissioner regarding clause 38, and make amendments
to the Bill to
ensure that any clause that enables information sharing:
- provides
a clearly defined set of purposes for which information may be used or disclosed
and which provides for immunity from any
consequences for disclosures made in
good faith; and
- clearly
specifies which agencies fall under the definition of “child welfare and
protection agencies.
In addition, the Commission recommends that the Committee amend clause 38
to:
- Amend
new s 66(2) to retain a statutory basis for practitioners to protect client
confidentiality in cases where it is appropriate
to do so.
- Amend
66D to provide for a specific public notification requirement in relation to
datasets compiled for risk modelling purposes.
- Amend
the Code of Practice (s 66J) to include within the Code an obligation to apply
all relevant privacy, human rights and ethical
obligations in making any
decision under sections 66 to 66I.
Care of children with disabilities
- The
Bill introduces a fundamental amendment to the way in which the legislation
responds to the care of children with disabilities.
Current sections 141 and
142, which provide for agreements for the extended care of children who have
disabilities which require
high levels of support, have been repealed in their
entirety.
- This
has the practical effect of removing any legislative distinction between the way
in which children with disabilities will be
dealt with under the care and
protection system, as compared to other children.
- This
amendment follows the Ministry of Social Development’s 2015 review of
section 141 and 142. The review considered this approach
alongside other
options, namely amendment of sections 141 and 142 to improve advocacy for
children involved in those processes and
retention of the status quo.
- The
“mainstreaming” of care decisions regarding children with
disabilities was initially proposed in a 2006 independent
review[21]. This review recommended,
among other things, that the s 141/142 regime be amended to reflect the formal
custody procedures under
s 101 of the CYPF Act, noting that this would enable a
more robust and inclusive FGC process, greater systemic responsiveness and
would
enable the repeal of s 142 placements.
- The
full repeal of sections 141 and 142 was supported by New Zealand’s
Independent Monitoring Mechanism on the
UNCRPD[22] and a review of the
sections was recommended by the UN Committee on the Rights of Persons with
Disabilities in their 2014 Concluding
Observations on New
Zealand[23]. The Commission
emphasised this position in our submission to MSD on the sections 141 and 142
review. However, in that submission,
we noted that caution ought to be taken in
applying a purely s 101 approach, as many children with disabilities who require
a high
level of service support would not otherwise have care and protection
needs that would necessitate a statutory intervention.
- The
Commission also recommended in its submission to MSD that repeal is accompanied
by provisions that enhance children’s access
to independent advocacy and
increase participation opportunities in decision-making. The Bill is responsive
in some respect as, together
with the preceding CYPF AWAS Bill, it enhances
independent advocacy and participation rights for children generally. However,
it
does not provide for any specific advocacy support for children with
disabilities per se.
- The
Commission also recommended to MSD that enhanced oversight and review processes
are introduced. The Bill does this, to some degree,
through mainstreaming
– mainstream temporary and extended care agreements under section 139/140
are subject to frequent review
and may not be extended beyond a year, compared
to s 141 agreements which are subject to one year review and renewal.
Furthermore,
the Bill’s information gathering provisions increase the
scope for data collection and monitoring of outcomes.
- A
question, arises, however, as to how the Bill will reasonably and appropriately
accommodate the needs of children with disabilities
and take their views into
account in decision-making processes, per the UNCRPD
requirements[24]. Neither the
Bill’s s 5 general principles, nor its s 13 care and protection
principles, contain any specific principle regarding
children with disabilities
(although new s 5(a)(i) does affirm the rights of children under the UNCRPD).
- In
addition, the Bill does not introduce any new care and protection grounds under
s 14 that are designed to cover children who would
otherwise fall under s141 and
142. This means that the general grounds under s 14(1)(b), 14(1)(d) and 14(1)(f)
are most likely to
apply, and the existence of the likelihood of serious harm as
a prerequisite.
- These
gaps could be addressed through the introduction of a specific care and
protection principle under s 13, in the form of a new
s 13(2)(l) that reflects
the Article 23 UNCRPD requirements concerning the rights of children with
disabilities to family life:
“any intervention regarding a child or young person with a
disability must ensure that their needs are accommodated through
the provision
of comprehensive information, services and support, including independent
advocacy, to the child, young person and
their family at the earliest
opportunity”
Recommendation 7
The Commission recommends that the Committee amend clause 13 to introduce
a specific care and protection principle under s 13, in
the form of a new s
13(2)(l), which provides:
“any intervention regarding a child or young person with a
disability must ensure that their needs are appropriately accommodated
through
the provision of comprehensive information, services and support, including
independent advocacy, to the child, young person
and their family at the
earliest opportunity”
Youth Justice
- As
noted above, the Bill is bringing about the most significant amendment to the
youth justice sector since the CYPF Act was first
introduced in 1989, namely the
raising of the upper age of the jurisdiction to include 17 year olds, thereby
bringing it into compliance
with UNCROC. The Commission also welcomes clause
109’s extension of the brief of Youth Advocates – legal counsel who
are appointed by the Youth Court to represent a young person charge with an
offence – to pre-Court “intention-to charge”
Family Group
Conferences (FGCs) which are dealing with moderate to high level offending by a
young person[25].
New youth justice principles
- Clause
92 introduces two new youth justice principles under new section 208(2), which
requires decision-makers to consider:
(a) what reasonable and practical measures or assistance could be taken or
provided to support the child or young person to prevent
or reduce reoffending;
and
(b) whether the child or young person would benefit from being referred to
care, protection, or well-being services under this Act.
- The
second principle listed above is a practical amendment which may serve current
practice approaches. Many of the young people who
appear in the Youth Court have
care and protection or general health and welfare needs, and indeed many have
statutory care and protection
status (ie. are in CYF care or guardianship or are
subject to an extended care agreement). This has led to Youth Courts in many
regions
establishing a CYF “interface” or “crossover”
list, which seeks to harmonise decision-making in respect of
a young person who
is subject to concurrent youth justice and care and protection proceedings.
- In
practice, these new principles may lead to the Youth Court more frequently
referring young people to a care and protection co-ordinator
under s 261. This
process can be used to mitigate against the risk that a young person may be held
in youth justice custody for an
extended period due to factors that are
ostensibly care and protection related – such as not having a viable bail
address due
to instability at home or through the lack of an appropriate or
available caregiver or supervising adult.
- In
respect of the proposed principle to undertake “reasonable and practical
measures”, it is notable that the current
youth justice principle under s
208(fa) is much stronger, providing that “any measures for dealing with
offending by a child
or young person should so far as it is practicable to do so
address the causes underlying the child’s or young person’s
offending”.
- The
Commission considers that the current principle under s 208(fa) could be further
strengthened to take specific account of the
high proportion of young people
with a neuro-disability who appear in the youth justice system. The Principal
Youth Court Judge has
previously drawn attention to the link between youth
offending (and subsequent custodial incarceration) and the existence of unmet
needs due to recognised or unrecognised learning and behavioural
disabilities[26]. A major UK report
produced in 2012 found that incidence rates of speech and language impairment
amongst young offenders ranged from
60-90%, specific reading impairments, such
as those associated with dyslexia, affected between 43-57% of young offenders,
as compared
to 10% across the general population; and that incidence of Autistic
Spectrum Disorder amongst young offenders was around 15% as
opposed to 0.6%
across the general population[27].
- In
addition, in its current form, section 208 is notable for not including a
principle that reflects the UNCROC principle under Article
37(b) that detention
of young people be as a last resort and for the shortest possible period of
time. Instead s 208 provides that
“a child or young person who commits an
offence should be kept in the community so far as that is practicable and
consonant
with the need to ensure the safety of the public” and that
sanctions “take the least restrictive form appropriate in
the
circumstances”.
- In
its 2016 submission to the CRC Committee, the Commission recommended the
incorporation of the Article 37(b) UNCROC principle into
s 208, a position later
reflected in the CRC Committee’s Concluding Observations which recommended
that the New Zealand Government
“limit the use of detention to a measure
of last resort and for the shortest period of
time”[28].
- The
Commission accordingly recommends that clause 92 is amended to incorporate the
Article 37(b) principle into s 208. This would
bolster current and future
efforts aimed at minimising custodial outcomes wherever possible and
appropriate, particularly in respect
of remands.
- The
Commission also wishes to bring the Committee’s attention to the issue of
seclusion within care and protection and youth
justice residences. In its last
report on New Zealand, the UN Committee on the Convention Against Torture
recommended that the New
Zealand Government prohibit the use of solitary
confinement and seclusion against children and young
people[29]. We note that the Bill
does not seek to amend the secure care provisions in the current
Act[30].
- The
Commission welcomed the recent Supplementary Order Paper to the Education
(Update) Amendment Bill which seeks to prohibit seclusion
in schools, and we
consider that a similar position should be considered for the care and
protection and youth justice jurisdiction.
We consider the prospective
development and implementation of national care standards will provide an
important opportunity to develop
practices, procedures and facilities that will
both adequately respond to incidents of crisis in youth justice and care and
protection
facilities, and mitigate against their
occurrence.
Recommendation 8
The Commission recommends that the Committee amend clause 92 to
introduce:
- a
new principle under s 208 that expressly requires that any detention of a child
or young person under Part 4 of the Act is a last
resort measure and is for the
shortest appropriate period of time.
- Amend
current section 208(fa) to provide that “any measures for dealing with
offending by a child or young person should so
far as it is practicable to do so
address the causes underlying the child’s or young person’s
offending, including any disability that impacts upon the child or young
person’s learning or behaviour.
The Commission recommends that the Committee investigates the use of
secure care under s 367-383A of the Act.
Exceptions to Youth Court jurisdiction for 17 year olds/remand to prison
youth units
- While
the Bill raises the upper age of the youth justice system, it does not extend
the youth justice jurisdiction to all 17 year
olds who are charged with an
offence. Clause 108 (which amends s 272) provides that 17 year olds who are
charged with any of the
serious offences listed in schedule 1A of the Bill will
continue to be prosecuted as adults in the District
Court[31].
- Furthermore,
the Bill introduces a new s 238(1)(f) that enables the Youth Court to remand 17
year olds into custody of the youth wing
of a prison. This is subject to the
requirement that a Youth Court may only make such an order on the application of
the chief executives
of MSD and Corrections in circumstances where it is
necessary for the safety of the young person (new clause 94/ s 239(2A)).
- The
Commission is nevertheless concerned that new s 238(1)(f) has the effect of
formally integrating the adult prison system into
the youth justice
jurisdiction, and considers that the priority should be ensuring that youth
residential facilities are adequate
to accommodate all young people remanded
into custody by the Youth Court. In addition, the provision will lead to the
mixing of young
people with adults, an outcome which breaches Article 37(c) of
UNCROC, unless it can be demonstrated that the mixing is in the best
interests
of the young person
concerned[32].
- The
Commission thereby recommends that new s 238(1)(f) is deleted. In the
alternative, the Commission would recommend that clauses
94 and 95 should be
amended to incorporate the Article 37(b) and (c) requirements.
- This
could be done by amending clause 94 (by adding new s 239(2A)(d)) that requires
the Court to be satisfied that the order is in
the best interests of the young
person, and amending clause 95 (by adding new s 241(3) that requires that any
order made under s
238(1)(f) must be reviewed by the Youth Court within 72 hours
of its issuance and within every 7 days following the first
review.
Recommendation 9
The Commission recommends that new section 238(1)(f) is deleted from
clause 95 of the Bill.
In the alternative, the Commission recommends that the Committee:
- Amend
clause 94 to introduce a new s 239(2A)(d) that requires a court to be satisfied
that an order under s 238(1)(f) is in the best
interests of the young
person
- Amend
clause 95 to require that any order under s 238(1)(f) must be reviewed by
the Youth Court within 72 hours of its issuance and within every 7 days
following the first review
of the order
Police custody remands
- The
Bill does not seek to amend or repeal s 238(1)(e), the provision that enables
Courts to remand a young person into police custody.
The provision is intended
to be a last resort measure to cover circumstances where no CYF residential beds
are available. Accordingly,
various procedural checks are in place, such as a 24
hour monitoring and reporting requirement. However, external systemic stressors
have periodically led to increases in the number of young people in CYF youth
justice custody, leading to an increase in the numbers
of young people subject
to police custody orders under s 238(1)(e).
- Police
cells do not conform to international human rights
standards[33] as regards an
appropriate custodial environment for young people and the practice has been
subject to criticism, both domestically
and internationally, for many years. The
2012 Joint Thematic Review (JTR) undertaken by the IPCA, OCC and the Commission
issued a
number of recommendations designed to reduce the frequency of the
practice, improve related systemic processes and mitigate its detrimental
impact
on young people. The JTR fell short of recommending a law change (although that
particular question was not part of its original
brief). The CRC Committee
referred to the JTR report in its 2016 Concluding Observations, recommending
that New Zealand “intensify its efforts to implement the
recommendations made by the Joint Thematic Review of Young Persons in Police
Detention
to reduce the detention of children in police custody, improve
detention conditions and limit the use of detention to a measure of
last resort
and for the shortest period of
time.”[34]
- However,
since the issue of the JTR report, momentum in support for full repeal of s
238(1)(e) has gathered. Recent incidents of young
people being held in police
custody have led to judicial comment that the practice of remanding young people
in police cells under
s 238(1)(e) breaches
UNCROC[35]. The Children’s
Commissioner has also publicly called for an end to the practice through full
repeal of s 238(1)(e) due to
both its inconsistency with UNCROC and the
demonstrable harm it inflicts upon the young people who are subject to
it[36].
- The
Bill provides an ideal opportunity to address s 238(1)(e) once and for all. The
Commission accordingly recommends that the Committee
takes the opportunity to
repeal s 238(1)(e), albeit subject to a sunset clause which enables it to be
phased out over time. During
the phase out period, relevant JTR recommendations
should be implemented (such as increasing the use of CYF monitored s 238(1)(c)
remands, for example) to ensure an effective transition.
- In
addition, clause 112 amends s 364 of the Act to place an obligation upon the
chief executive, when deciding upon the number of
location of youth justice
residences, to “consider establishing a sufficient range and number of
community-based residences
to be available for children and young persons who
are detained in the chief executive’s custody under section
238(1)(d)”
- This
clause has particular significance in this regard, as it has the potential to
increase the number of custodial remand beds, thus
mitigating against the use of
court-ordered police cell remands. It provides a logical basis for a phase-out
repeal of s 238(1)(e).
Recommendation 10
The Commission recommends that the Committee repeal s 238(1)(e), subject
to a sunset clause that provides that repeal comes into effect
2 years after
enactment. During the 2 year transition period, MSD is assigned with the primary
responsibility of implementing the
recommendations of the Joint Thematic Review
most relevant to phase out of s 238(1)(e).
SUMMARY OF RECOMMENDATIONS
Recommendation 1
The
Commission recommends that the Committee specifically acknowledges and has
regard to, the final report and recommendations of
the Confidential Listening
and Assistance Service, and considers whether it can be assured that the Bill
contains adequate safeguards:
- to
maintain the safety of children while they are in the care of the state;
and
- to
prevent the future occurrence of systemic failures that could lead to the abuse
of children in the care of the state.
Recommendation
2
The Commission recommends that Clause 12 that introduces duties upon
the Chief Executive to improve outcomes for Māori is amended
to:
- provide
for a duty to develop and implement strategic partnerships with
iwi and Māori organisations
- require
the department to ensure that any strategic partnership entered into with iwi or
a Māori organisation integrates Whānau
Ora within its
framework
- establish
a statutory board of representatives of iwi and Māori organisations to whom
the chief executive must report to in the
performance of his or her duties under
s 7A.
Recommendation 3
The Commission recommends that
the Committee review the care and protection principle in clause 13 for
consistency with the general
principles under clause 8 and, further to that
review, consider whether clause 13 should be deleted and current s 13
retained.
Should the Committee retain Clause 13 of the Bill, the Commission
recommends the following amendments:
- The
principle regarding the primary role of family, whānau, hapū and iwi,
as currently expressed in s 13(2)(b) of the Act,
is retained.
- That
new section 13(2)(g) is deleted and replaced with current sections
13(2)(f)-(h)
- That
new section 13(2)(j) is deleted
Recommendation 4
The
Commission recommends that Clause 6 of the Bill is amended to retain the
obligation upon the state to establish support services that seek to
improve outcomes for children and young persons.
Recommendation 5
The Commission recommends that the Committee
review clauses 14-17 of the Bill to ensure that the legislative threshold for
intervention
is set at a level that provides an adequate, rights-consistent
level of protection and is applied consistently across the relevant
Part 1 and
Part 2 provisions.
Recommendation 6
The Commission recommends that the Committee
note the concerns of the Privacy Commissioner regarding clause 38, and make
amendments
to the Bill to ensure that any clause that enables information
sharing:
- provides
a clearly defined set of purposes for which information may be used or disclosed
and which provides for immunity from any
consequences for disclosures made in
good faith; and
- clearly
specifies which agencies fall under the definition of “child welfare and
protection agencies.
In addition, the Commission recommends that
the Committee amend clause 38 to:
- Retain
a statutory basis for practitioners to protect client confidentiality in cases
where it is appropriate to do so.
- provide
for a specific public notification requirement in relation to datasets compiled
for risk modelling purposes
- Amend
the Code of Practice provision to include within the Code an obligation to apply
all relevant privacy, human rights and ethical
obligations in making any
information sharing decision.
Recommendation 7
The
Commission recommends that the Committee amend clause 13 to introduce a specific
care and protection principle under s 13, in
the form of a new s 13(2)(l), which
provides that:
“any intervention regarding a child or young person
with a disability must ensure that their needs are appropriately accommodated
through the provision of comprehensive information, services and support,
including independent advocacy, to the child, young person
and their family at
the earliest opportunity”
Recommendation 8
The
Commission recommends that the Committee amend clause 92 to:
- Introduce
a youth justice new principle under s 208 that expressly requires that any
detention of a child or young person under Part
4 of the Act is a last resort
measure and is for the shortest appropriate period of time.
- Amend
the youth justice principle under current section 208(fa) to provide that
“any measures for dealing with offending by
a child or young person should
so far as it is practicable to do so address the causes underlying the
child’s or young person’s
offending, including any disability
that impacts upon the child or young person’s learning or
behaviour.
The Commission recommends that the Committee
investigates the use of secure care under s 367-383A of the Act.
Recommendation 9
The Commission recommends that new section
238(1)(f) that provides for the remand of 17 year olds into a youth unit in a
prison is
deleted from clause 95 of the Bill.
In the alternative, the
Commission recommends that the Committee:
- Amend
clause 94 to introduce a new s 239(2A)(d) that requires a court to be satisfied
that an order under s 238(1)(f) is in the best
interests of the young person;
and
- Amend
clause 95 to require that any order under s 238(1)(f) must be reviewed by
the Youth Court within 72 hours of its issuance and within every 7 days
following the first review
of the order
Recommendation
10
The Commission recommends that the Committee repeal remands into
police custody under s 238(1)(e), subject to a sunset clause that
provides that
repeal comes into effect 2 years after enactment. During the 2 year transition
period, the Ministry of Social Development
should be assigned the primary
responsibility of implementing the recommendations of the Joint Thematic Review
most relevant to phase
out of s 238(1)(e).
[1] Human Rights Commission,
Submission on the Children, Young Persons and their Families (Advocacy,
Workforce and Age Settings) Amendment Bill, at para
40
[2] The Confidential Listening
and Assistance Service met with 1103 people during its tenure, 78% of whom had
been in child welfare care.
See Judge Carolyn Henwood, Some Memories Never
Fade: Final Report of the Confidential Listening and Assistance Service
[2016], p 18, accessed
https://www.dia.govt.nz/diawebsite.nsf/Files/Confidential-Listening-and-Assistance/$file/Confidential-Listening-and-Assistance-Service-Final-Report-Some-Memories-Never-Fade.pdf
[3]
ibid p 13
[4] ibid p 37,
Recommendation 5(a)
[5] ibid,
Recommendation 6
[6] Human Rights
Commission, Never Again; E Kore Ano, An Open Letter to the New Zealand Prime
Minister; http://www.neveragain.co.nz/; as at 1
March 2017, 2712 signatures had been added to the open letter via the Never
Again; E Kore Ano website
[7]
Clause 119, New section 447(fa)
[8]
Clause 133 – NOTE: The Vulnerable Children’s Plan, which is the
subject of this clause, is yet to be
developed
[9] Such as Australian
Human Rights Commission, Bringing Them Home; The Stolen Generation Report
(1997),
https://www.humanrights.gov.au/publications/bringing-them-home-report-1997
and Australian Senate, Forgotten Australians: A report on Australians who
experienced institutional or out-of-home care as children, (2004)
www.aph.gov.au/~/media/wopapub/senate/...inquiries/...care/.../report_pdf.ashx
[10]
Department of Families, Housing, Community Services and Indigenous Affairs,
An Outline of National Standards for out-of-home care, (2011)
https://www.dss.gov.au/sites/default/files/documents/pac_national_standard.pdf
[11]
UN Convention on the Rights of the Child, Article
18.1
[12] UN Committee on the
Rights of the Child, Concluding Observations on the Fifth Periodic Report of
New Zealand, CRC/C/NZL/CO/5, 30 September 2016, para
28(b)
[13] The Maori
Women’s Welfare League has taken the step of lodging proceedings with the
Waitangi Tribunal which claims the Bill
breaches the Treaty of
Waitangi14 under Articles II and III – see Statement of Claim
dated 2 December 2016; accessed
http://img.scoop.co.nz/media/pdfs/1612/CCF04122016.pdf
[15]
Clause 8, new section
5(b)(i)
[16] Clause 8, new
section 5(a)(i)
[17]
CRC/C/NZL/CO/5 paragraph 20
[18]
Privacy Act 1993, Information Privacy Principle
11(f)(ii)
[19] Crimes Act 1961,
section 195A
[20] The Commission,
Office of the Privacy Commission, Crown Law, among others, were subsequently
consulted with during the Framework’s
development
[21] Carpinter and
Harrington (2006) The Best of Care? An Independent Review of Issues at the
Interface of Disability Support and Care and Protection, see pp15-16,
accessed
http://www.cyf.govt.nz/documents/about-us/news/the-best-of-care.pdf
[22]
Independent Monitoring Mechanism, Making Disability Rights Real, Whakatuturu
nga tika hauatanga, Second Report of the Independent Monitoring Mechanism on the
Convention
on the Rights of Persons with Disabilities, June 2014,
Recommendation 21, p 73
[23] UN
Committee on the Rights of Persons with Disabilities, Concluding Observations
on the initial report of New Zealand, CRPD/C/NZL/CO/1, October 2014, para
46
[24] UN Convention on the
Rights of Persons with Disabilities, Articles 5.3, 7.1, 7.3,
23
[25] Clause 97, new section
248A – the threshold is set at offences with a maximum imprisonment of 10
years. This includes burglary
and robbery
(non-aggravated).
[26] Judge
Andrew Becroft, From little things, big things grow – emerging youth
justice themes in the South Pacific, Australian Youth Justice Conference,
20-22 May 2013, p 22-23
[27]
Office of the Children’s Commissioner for England, Nobody made the
connection: prevalence of neurodisability in young people who offend,
October 2012, p 9-10,
https://www.childrenscommissioner.gov.uk/sites/default/files/publications/Nobody%20made%20the%20connection.pdf
[28]
CRC/C/NZL/CO/5 paragraph
45(d)
[29] UN Committee Against
Torture, Concluding Observations on the Sixth Periodic Report of New Zealand,
May 2015, CAT/C/NZL/CO/6, paragraph
15(b)
[30] Children, Young
Persons and their Families Act 1989, Sections
367-383A
[31] The offences listed
in Schedule 1 are, for the most part, all “purely indictable”
offences. Prior to the 2014 amendments
to the CYPF Act, these offences did not
automatically qualify for Youth Court jurisdiction.
[32] New Zealand maintains a
reservation in respect of Article 37(c). However, the Commission notes that the
Department of Corrections
have developed a “test of best interests”
(TBI) operational policy for under 20 year old male prisoners – see
http://www.corrections.govt.nz/resources/policy_and_legislation/Prison-Operations-Manual/Movement/M.03-Specified-gender-and-age-movements/M.03.html
[33]
UNCROC Article 37(c); Rule 31.1-13.5 UN Standard Minimum Rules on the
Administration of Juvenile
Justice
[34] CRC/C/NZL/CO/5
paragraph 45(d)
[35] Police v
BM, Youth Court, Christchurch, 28 November 2016, Minute of Judge Murfitt at
[6]
[36]
http://www.stuff.co.nz/national/86975405/remanding-children-to-solitary-confinement-degrading-breach-of-rights
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