1. Children, Young Persons & Family Harm

Question 1

OTA 1989 - What section relates to Unaccompanied children and young persons?

Answer 1

Section 48

Question 2

OTA1989 Act – What powers do you have in s.48 OTA

Answer 2

(1) Where a child or young person is found unaccompanied by a parent or guardian or other person who usually has the care of the child or young person in a situation in which the child’s or young person’s physical or mental health is being, or is likely to be, impaired, a constable may, using such force as may reasonably be necessary, take the child or young person and –

(a) With the consent of the child or young person, deliver the child or young person into the custody of a parent or guardian or other person usually having the care of the child or young person; or

(b) If –

(i) The child or young person does not wish to be returned to a parent or guardian or other person having the care of the child or young person; or

(ii) No parent or guardian or other such person is willing or able to have custody of the child or young person, –

place the child or young person in the custody of the chief executive by delivering the child or young person to [the chief executive acting through the chief executive’s delegate).

Question 3

What does 48(2) enable Police to do?

Answer 3

2. Placement of a child or young person in the custody of the chief executive shall be sufficient authority for the detention of the child or young person by [the delegate] or in a residence under this Act until –

(a) The child or young person agrees to being returned to a parent or guardian or other person usually having the care of the child or young person who is willing to have the care of the child or young person; or

(b) An application is made to the Court for a care and protection order of this Act and the child or young person is brought before the Court for the purpose of determining whether the child or young person is to be held in custody pending the disposal of the application; or

(c) Where the circumstances of the case indicate that the child or young person is, or may be, in need of care or protection, the expiry of 5 days after the day on which the child or young person was placed in custody, or in any other case, 3 days after that date – whichever first occurs.

Question 4

What does ‘young person’ mean – definition.

Answer 4

A person of or over the age of 14 years but under the age of [18 years].

Question 5

What are the s.208 principles of the OTA 1989 (9)

Answer 5

(1) A court or person exercising powers under the Part, Part 5, or sections 351 to 360 must weigh the 4 primary considerations described in section 4A(2).
(2) When weighing those 4 primary considerations, the court or person must be guided by, in addition to the principles in section 5, the following principles:
(a) that, unless the public interest requires otherwise, criminal proceedings should not be instituted against a child or young person if there is an alternative means of dealing with the matter:
(b) that criminal proceedings should not be instituted against a child or young person in order to provide any assistance or services needed to advance the well-being of the child or young person, or their family, whanau, hapu, or family group:
(c) that any measures for dealing with offending by children or young persons should be designed—
(i) To strengthen the family, whanau, hapu, iwi, and family
group of the child or young person concerned; and
(ii) To foster the ability of families, whanau, hapu, iwi, and
family groups to develop their own means of dealing with
offending by their children and young persons:
(d) that a child or young person who commits an offence or is alleged to have committed 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:
(e) that a child’s or young person’s age is a mitigating factor in determining—
(i) Whether or not to impose sanctions in respect of offending by a child or young person; and
(ii) The nature of any such sanctions:
(f) that any sanctions imposed on a child or young person who commits an offence should—
(i) Take the form most likely to maintain and promote the development of the child or young person within [their] family, whanau, hapu, and family group; and
(ii) Take the least restrictive form that is appropriate in the circumstances:
(fa) 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:
(g) that —
1. (i) in the determination of measures for dealing with offending
by children or young persons, consideration should be given to the interests and views of any victims of the offending (for example, by encouraging the victims to participate in the processes under this Part for dealing with offending); and
2. (ii) any measures should have proper regard for the interests of any victims of the offending and the impact of the offending on them:
(h) that the vulnerability of children and young persons entitles a child or young person to special protection during any investigation relating to the commission or possible commission of an offence by that child or young person.

Question 6

s.214 OTA 1989 relates to the arrest of child and young person, without what?

Answer 6

Warrant

Question 7

Discuss the 4 points of s214 of OTA 1989

Answer 7

(1) Subject to section 214A and sections 233 and 244 of this Act, where, under any enactment, any enforcement officer has a power of arrest without warrant, that officer shall not arrest a child or young person pursuant to that power unless that officer is satisfied, on reasonable grounds, –

(a) That it is necessary to arrest that child or young person without warrant for the purpose of –

(i) Ensuring the appearance of the child or young person before

the Court; or

(ii) Preventing that child or young person from committing further offences; or

(iii) Preventing the loss or destruction of evidence relating to an offence committed by the child or young person or an offence that the enforcement officer has reasonable cause to suspect that child or young person of having committed, or preventing interference with any witness in respect of any such offence; and

(b) Where the child or young person may be proceeded against by way of summons, that proceeding by way of summons would not achieve that purpose

2) Nothing in subsection (1) of this section prevents a constable from arresting a child or young person without warrant on a charge of any offence where –

(a) The constable has reasonable cause to suspect that the child or

young person has committed a category 4 offence or category 3 offence for which the maximum penalty available is or includes imprisonment for life or for at least 14 years, and

(b) The constable believes, on reasonable grounds, that the arrest of the child or young person is required in the public interest.

(3) Every enforcement officer who arrests a child or young person without warrant shall, within 3 days of making the arrest, furnish a written report –

(a) Where that enforcement officer is a constable, to the

Commissioner of Police:

(b) Where that enforcement officer is a traffic officer who is a Police

employee who is not a constable, to the Commissioner of Police:

(c) Where that enforcement officer is an officer or employee of the

Public Service, to the chief executive of the Department of which

that person is an officer or employee:

(d) Where that enforcement officer is an officer of a local authority,

to the chief executive of that local authority.

(4) Every report furnished pursuant to subsection (3) in respect of the arrest of any child or young person shall state the reason why the child or young person was arrested without warrant.

Question 8

What is s214A of the OTA 1989?

Answer 8

A constable may arrest a child or young person without a warrant if —

(a) the child or young person has been released on bail; and

(b) the constable believes, on reasonable grounds, that —

(i) the child or young person has breached a condition of that bail; and

(ii) the child or young person has on 2 or more previous occasions breached a condition of that bail (whether or not the same condition).

Q. What does the Law Note dictate in relation to s214 Power of Arrest?

A. A constable may arrest a child or young person who has been released on bail without warrant if he or she believes on reasonable grounds that the child or young person has breached a condition of that bail, and also that the child or young person has previously breached a condition of that bail on two or more previous occasions (whether or not it was the same condition). Authority to arrest under this provision must always be obtained from a Youth Aid Sergeant in the first instance, or in their absence, a supervising Sergeant (or above) or a qualified Youth Aid Officer.

Question 9

What must you do to ensure compliance with s214A, breaches of bail conditions?

Answer 9

Due to the need to ensure that Police can accurately account for the number of all bail breaches by youth defendants (under 17 years old), recording practices will have to be robust. The minimum recording standard of creating a 6D file for all initial breaches (with alerts created in the original 6D for ongoing breaches, relevant to the initial breach), in line with the National Recording Standards, should be adopted, in order for a previous breach of bail to count towards the standard for arrest.

Question 10

What can Police do if an arrest of a child or young person is made and there are reasonable grounds to believe they will continue to breach bail?

Answer 10

A constable who arrests a child or young person under s214A and who believes on reasonable grounds that they are likely to continue to breach any condition of bail, must place the child or young person in the custody of the Chief Executive in accordance with s235 [Oranga Tamariki Act 1989].

Question 11

What is s 234 of the OTA 1989?

Answer 11

Custody of child or young person following arrest

Question 12

What does s.234 of OT Act allow Police to do?

Answer 12

A. Subject to sections 235, 236, and 244 of this Act, where a child or young person is arrested with or without warrant, a constable shall—

Release the child or young person; or

Where the child or young person may be released on bail under section

21 of the Bail Act 2000, release the child or young person on bail; or

Deliver the child or young person into the custody of—

(i) Any parent or guardian or other person having the care of the child or young person; or

(ii) With the agreement of the child or young person, any Iwi Social

Service or Cultural Social Service; or

(iii) With the agreement of the child or young person, any other person or organisation approved by the chief executive or a constable for the purpose

Question 13

What is s 235 OTA 1989?

Answer 13

Child or young person who is arrested may be placed in custody of chief executive

Question 14

What does s.235 enable Police to do?

Answer 14

(1) Notwithstanding section 234 but subject to section 244, a constable, in relation to any child or young person who has been arrested and if subsection (1A) applies,—

(a) must place the child or young person in the custody of the chief executive in accordance with subsection (2); and

(b) must do so as soon as practicable and not later than 24 hours after the arrest.

(1A) This subsection applies if –

(a) the constable believes, on reasonable grounds, that —

(i) the child or young person is not likely to appear before the court; or

(ii) the child or young person may commit further offences; or (iii) it is necessary to prevent —

(A) the loss or destruction of evidence relating to an offence committed by the child or young person or an offence that the constable has reasonable cause to suspect the child or young person of having committed; or

(A) interference with any witness in respect of any such offence; or

(b) the child or young person has been arrested under section 214A and is likely to continue to breach any condition of bail.

(2)

A child or young person shall be placed in the custody of the [chief executive] pursuant to this section by—

(a) Delivering the child or young person to [the chief executive

(acting through his or her delegate)];

and

(b) Presenting to the [delegate], on the prescribed form, details relating to—

(i) The identity of the child or young person; and

(ii) The circumstances of the arrest of the child or young person; and

(iii) The date and time of the intended appearance of the child or young person before the Court having jurisdiction in the matter in relation to which the child or young person was arrested.

Placement of a child or young person in the custody of the chief executive under subsection (1) shall be sufficient authority for the detention of the child or young person by [a delegate] or in a residence under this Act, or under the care of any suitable person approved by a [delegate].

No constable shall exercise the power conferred by subsection (1) merely because the constable believes that any child or young person is in need of care or protection (as defined in section 14 of this Act)

Question 15

What is s.236 of OTA 1989?

Answer 15

Young person who is arrested may be detained in Police custody

Question 16

What does s.236 allow Police to do?

Answer 16

(1)

Notwithstanding the provisions of sections 234 and 235 of this Act but subject to section 244 of this Act, where [the chief executive (acting through his or her delegate)] and a constable, being a senior sergeant or a constable who is of or above the level of position of inspector, are satisfied on reasonable grounds—

(a) That a young person who has been arrested is likely to abscond or be violent; and

(b) That suitable facilities for the detention in safe custody of that young person are not available to the chief executive,—

the young person may, on the joint certificate in the prescribed form of [the delegate] and that constable, be detained in Police custody for a period exceeding 24 hours and until appearance before the Court.

(2)

[If a joint certificate is issued]under subsection (1) there shall, within 5 days after the day on which the certificate is issued, be furnished by [the delegate] to the chief executive and by the constable to the Commissioner of Police—

(a) A copy of the certificate; and (b) A written report stating—

(i) The circumstances in which the certificate came to be issued; and

(ii) The duration of the period for which the young person has been detained, or is likely to be detained, in Police custody.

[(3) Any delegation by the chief executive of a function or power under this section must be made to a senior employee or senior employees of the department.

Question 17

What is s.238 of OTA 1989?

Answer 17

Custody of child or young person pending hearing

Question 18

What does s.238 OTA 1989 allow us to do?

Answer 18

(1)

Where a child or young person appears before the Youth Court, the court shall—

(a) Release the child or young person; or

(b) Release the child or young person on bail; or

(c) Order that the child or young person be delivered into the custody of the parents or guardians or other persons having the care of the child or young person or any person approved by the chief executive for the purpose; or

(d) Subject to section 239(1), order that the child or young person be detained in the custody of the chief executive, an iwi social service, or a cultural social service; or

(e) Subject to section 239(2), order that the young person (but cannot under this paragraph order that the child) be detained in Police custody.

(2)

If a child or young person appears before the Youth Court charged with the commission of an offence that the Commissioner of Police determines under section 29A of the Victims’ Rights Act 2002 to be a specified offence, then,—

(a)

before the court makes an order under subsection (1), the prosecutor must—

(i) make all reasonable efforts to ascertain the views (if any) each victim has about which of the types of order that may be made under subsection (1) is the most appropriate to be made by the court; and

(ii) inform the court of those views; and

(b)

after the court has made an order under subsection (1), the Commissioner of Police must inform each victim (whether or not the victim’s views have been ascertained under paragraph (a)) of—

(i) the order made by the court, and

(ii) in the case of any order made under subsection (1)(b), any conditions of bail imposed by the court that—

(A) relate to the safety and security of the victim or 1 or more members of the victim’s immediate family, or of both; or

(B) require the child or young person not to associate with, or not to contact, the victim or 1 or more members of the victim’s immediate family, or both.

(3)

Nothing in subsection (2) prevents the court from making an order under subsection (1), even though the court has not been informed of the views of any victim.

(4) The court must not refuse bail to a child or young person merely because the court considers that the child or young person is in need of care or protection (as defined in section 14).

Question 19

What is Police v D (May 2002)

Answer 19

A youth was removed by police from private property (where he was unlawfully present in possession of alcohol, and drunk) and taken to a police station, pursuant to s 48 of the Children, Young Persons, and Their Families Act 1989 (“the Act”). Prior to being taken to the police station the youth detention under advised a police officer present of his name, address and details of his grandmother, with whom he lived. His telephone number was also given. This information was not provided to the police officers who transported the youth back to the police station. In the processing room at the station the youth was questioned about his details so that his parents or caregiver could be contacted. The youth became agitated when being questioned in the processing room and punched a police officer. The youth was charged with assault on police. The charge was defended on the basis that police had acted unlawfully.

Question 20

What was the ‘issue’ in Police v D?

Answer 20

Counsel for the youth submitted that police had unlawfully detained the youth and should have taken the youth home and not further questioned him at the police station. Police submitted that the youth’s attendance at the station was necessary to facilitate police getting in touch with the caregiver (police having no reliable means to contact the caregiver in public). Police also relied on a particular interest in the youth as he was one of the local youths on a “special list”.

Question 21

What was the ‘decision’ in Police v D?

Answer 21

The Court noted that:

• Section 48 is contained in Part II of the Act and its purpose is the care and protection of young persons.

• Section 48 requires the welfare and interests of the child to be put first.

• Section 48 does not authorise detention of a child or young person at police stations per se, although a police station may provide an intermediary means of delivering the child to their parent, guardian, caregiver or a social worker.

• Although police have an express power under s 48 to use such force as may be reasonably be necessary in delivering the child or young person to the persons stipulated in the section, police ought to minimise potentially harmful experiences, such as being exposed to other adult prisoners in police cells and or being placed in a high security environment.

Question 22

What did the Court find in Police v D?

Answer 22

That:

• Police acted reasonably in taking the youth to the station as an intermediate step in returning him to his grandmother or, failing her agreement to take him, to his being placed in the custody of a social worker.

• Police failed to consider the youth’s interests in choosing to take him through the secure entrance (cell block area) to the police station, given that he was cooperating at the time.

• By taking the youth into the secure area, police detained the youth beyond their lawful authority, which was to deliver him into the care of a parent, guardian or caregiver. The use of the secure area of the station would only be justified in the event that reasonable force became necessary to deliver him into the care of the appropriate person.

• Police failed to ascertain whether the youth preferred to be returned home or to a social worker.

• There was no evidence that police informed the youth as to why he was being detained, and it was not unlikely that the youth considered he was under arrest.

• The police suggestion that further inquiries were necessary indicated that police were blurring the purpose of the youth’s presence in the police station. It was wrong to detain the youth beyond the purposes of s 48 so as to perform an investigation, where police were purporting to rely on s 48 for the detention.

• Police had no need to question the youth, as they had the information that they required to return the youth to the appropriate person.

Comment

• Section 48 of the Act is to be used for the limited purpose of returning a child or young person to an appropriate person where the child or young person’s physical or mental health is being, or is likely to be, impaired.

• Section 48 only allows the police to ‘take’ the child or young person and with their consent return them home.

• If they do not wish to be returned home then police shall place the child or young person in the ‘custody’ (not in police cells) of the chief executive by delivering them to a social worker.

• The Courts will take a dim view where police use the section for other purposes. Consideration should be given to arrest, where necessary, but it must be justified under s 214 of the Act.

• If the child or young person is arrested under s214 they can be released without charge under s 234 (a).

Question 23

What does the caselaw ‘Police v T-M’ relate to?

Answer 23

Arrest guidelines under s214

Question 24

What are the arrest guidelines under s.214 the Police v T-M refer to?

Answer 24

1

2

Section 48 should not be used by police officers for the sole purpose of taking into custody a CYP who is suspected of having committed a crime. The section is limited in its scope and is meant only to apply to unaccompanied CYP’s that need to be placed in a situation of safety.

If a police officer believes that a CYP has committed an offence, arrest may be considered but only if section 214 of the Act would permit it. Section 214 provides that a CYP is not to be arrested unless the officer is satisfied on reasonable grounds that the arrest is necessary for: (i) Ensuring the appearance of the CYP before the Court; or

(ii) Preventing the CYP from committing further offences; or

(iii) Preventing the loss or destruction of evidence or preventing interference with witnesses.

[NB. The section also provides that if the offence committed is purely indictable and the public interest requires an arrest be made, then a police officer may arrest a CYP without warrant.]

3 Section 208 of the CYPF Act requires that criminal proceedings should not be initiated unless there are no other means of dealing with a matter and any proceedings taken must take the least restrictive form appropriate to the circumstances.

4 ……

5 Police may not arrest a young person simply as a means of requiring a young person to face the consequences of offending in a Youth Court.

This is in contrast to adults who may be arrested for this purpose.

6 Generally, unless the CYP is arrested as permitted by section 214, police officers encountering criminal offending by a child or young person must consult a Youth Justice Coordinator with a view to convening a Family Group Conference before the laying of charges in a Youth Court is contemplated. It is one of the roles of the FGC to discuss the offending and decide whether an information should be laid (s245 CYPF Act).

Note: Be aware that some of the above wording has changed due to the terminology adopted by the Criminal Procedure Act 2011.

Question 25

What does Police v T relate to?

Answer 25

s.214 and detention in Police Custody.

Question 26

What were the facts in Police v T?

Answer 26

The defendant, T, was a young person of age 14. On 6 May 1998 he was leaving a Superette with two packets of biscuits and one packet of chips without paying. A police officer who happened to be in the Superette, a police officer in the shop instructed him to stop. T did not. He discarded the food items as he was jumping a property fence, was apprehended, arrested, placed in police custody and charged with shoplifting of goods worth nine dollars. At the time T was the subject of a supervision order relating to 17 charges. T remained in police custody until he was brought to Court, just over 24 hours later. The Youth Advocate questioned the basis of the arrest, the fact that T was not brought to Court and dealt with promptly and the basis of T’s continued detention in police custody. The police submitted that the arrest was necessary to stop T from committing further offences.

Question 27

What was held in Police v T?

Answer 27

Held (finding procedural failures by the police, granting bail to defendant, directing a Family Group Conference and directing that the decision be sent to the appropriate authorities)

1. The continuation of the arrest unnecessarily was in breach of the letter and the spirit of s 214 of the Children, Young Persons, and Their Families Act (the Act). While the initial arrest might have been justified by the fact that the defendant was trying to escape, the timeframe in question must be the time between the arrest and when the defendant could be brought to Court. The mere fact that the defendant had other charges and was the subject of a supervision order did not mean that he could be arrested whenever he re-offended. A single charge of shoplifting was not such as to suggest that the defendant without arrest would continue shoplifting or commit any other offence.
2. Failure to bring the defendant to Court constituted a breach of the young person’s rights under the New Zealand Bill of Rights Act to have the matter dealt with on the same day. A person arrested in the morning ought to be dealt with that afternoon except possibly in unusual circumstances.
3. The fact that the young person had spent 24 hours in police custody including a night in police cells was a serious breach of the law. Given the very limited grounds for the Court to remand a young person in police custody under s239(2) of the Act, the police should be particularly careful not to hold young persons in custody unnecessarily.

Question 28

What is Police v CG ?

Answer 28

Case law relating to s214 and 236.

Question 29

What are the facts of Police v CG?

Answer 29

Two young people TP, aged 14, and CG, aged 16 were charged in relation to an incident that occurred on 7 January 2012. Both young people were initially charged with aggravated robbery jointly with CG’s sister, J-LG, aged 17.

At approximately 6pm two constables spoke to two young girls who said they were the victims of an assault in which one of the girls’ pink wallets was stolen. One of the constables noted the descriptions given in his notebook. He gave evidence that the complainants gave a description of two females one who matched the description of J-L G, aged 17, and the other description he said related to TP. No physical description related to CG according to his evidence.

Police later saw a group of five girls walking down the street and spoke with them. The girls denied any involvement in the aggravated robbery.

One constable took photographs of each of the five girls on the street and said that the purpose of the photographs was because there was some uncertainty as to whether the girls in this group had been the ones involved in the assault.

Based on the description given by the two complainants police concluded that the young people TP and CG and CG’s older sister were involved in the incident. They were both arrested for robbery and taken to the Police station where they were detained in police custody for over 36 hours until they were bailed without police opposition by the Youth Court on a Monday morning.

In supplementary statements filed for the preliminary hearing the constables said that they believed it was necessary to arrest TP and CG without warrant pursuant to s 214 of the Act for the following reasons:

1. To prevent further offending, given that they believed that the girls including TP and CG were together and wanted to walk off away from police.
2. To prevent loss or destruction of evidence relating to robbery. They understood that a pink wallet had been stolen in the alleged robbery and each said she believed that TP or CG would have destroyed or got rid of the wallet and arrest was necessary to prevent this.

The police officers said that they believed it was necessary to prevent interference with witnesses because the complainants lived close by and that intimidation was likely.

The issues for the court concerned the extent to which the warrantless arrests were justified in this case, and the power police had in this case to take the young people into custody after their arrest. In determining that the arrests under s 214 were not justifiable and the appellants could have been proceeded against by way of s 245 summons, the Court relied on the following matters:

• While the arrests were for aggravated robbery (and the court accepted this) no questions were asked of the appellants pertaining to the wallet or its whereabouts. All questions asked were pertaining to assault.

• The appellants complied with police requests for information, and did not threaten to ‘walk away’ during questioning. They were unknown to police and social services agencies.

• The appellants did not know the complainants or where they lived so were unlikely to pose a threat to the complainants.

The court concluded the police officers did not have reasonable grounds to consider that it was necessary to arrest either TP or CG to prevent them committing further offences or to prevent the loss or destruction of evidence or interfering with witnesses.

The consequences of the arrests in this case were severe. One of the appellants was breastfeeding her 4 month-old baby, and was forcibly separated from her child. Both appellants had their clothing removed, including underwear, and were issued with police-issue clothes during their stay.

Section 236 requires joint certification by police and a senior social worker in order for a young person to be detained for longer than 24 hours. There was no such certification in this case. There was no authority in this case for police to detain a young person in police custody for longer than 24 hours without satisfying the provisions of s 236.

Question 30

What was the result of Police v CG?

Answer 30

The information’s were dismissed.

Question 31

Can you release a child or young person on bail?

Answer 31

A. A young person who has been charged may be released on bail under section 21 of the Bail Act 2000. Bail conditions can be imposed by the Police, but these conditions should be discussed with, and agreed to, by the person into whose custody the child or young person is released. This person and the child or young person must sign the bail bond to confirm acceptance of the conditions.

Question 32

If you decide to release the child or young person on bail, When will they have to appear?

Answer 32

They will have to appear at an initial court hearing within seven days. In smaller centres, practice differs, but may mean a special Youth Court sitting.

Question 33

Can a young person be released on a summons?

Answer 33

A young person cannot be released on a summons (s245).

Question 34

What are suitable bail conditions for a child or YP?

Answer 34

Bail conditions must have a clear and reasonable link to the child or young person’s current charges and criminal and bail histories. Selecting appropriate conditions in the first instance will reduce unnecessary arrests for breaches of conditions later

Question 35

For children or young persons kept in custody, should you consider an OTB and why?

Answer 35

You should consider completing an opposition to bail (POL 128Y in Police

Forms> Children and Young Persons) for offenders who need to be kept in custody.

Question 36

What must OpToBail’s comply with?

Answer 36

Bail opposition must comply with the strict requirements of sections 238 and 239 of the OT Act. If statutory requirements are met, the Youth Court may remand the child or young person into either:

• OT custody (s238(1)(d)), or

• rarely, Police custody (s238(1)(e)), or

• Youth Unit of a Prison (s238(1)(f)) where the young person is 17 years old

Question 37

What must you do if you want to oppose bail of a defendant aged 12-17 years?

Answer 37

You must seek immediate guidance from a Youth Aid officer.

Question 38

Do you need to consider Victim’s views on release of child or young person

Answer 38

For victims of an offence specified under section 29 of the Victims’ Rights Act, Police must make all reasonable efforts to ascertain the victim’s views on types of orders the court may make and inform the court of those views.

Police must inform each victim, whether or not the victim’s views have been ascertained, of:

• the order made by the court

• if the child or young person is bailed, any conditions of bail that relate to the safety and security of the victim or their immediate family or require the child or young person not to associate with or contact the victim or their immediate family (s238 (2)).

Question 39

Following the arrest of a child or young person, or in the case of a child who has been arrested and who may be subject to proceedings relating to child offending in the Family Court the child or young person must what?

Answer 39

They must be placed in the custody of the Chief Executive OT as soon as practicable and no later than 24 hours after the arrest if you have reasonable grounds for believing:

the child or young person:

• is not likely to appear before the court, or

• may commit further offences, or

• it is necessary to prevent:

− the loss or destruction of evidence relating to an offence committed by the child or young person or an offence you have reasonable grounds to suspect the child or young person of having committed, or

− interference with any witness in respect of any such offence, or

− the child or young person has been arrested under section 214A and is likely to continue to breach any condition of bail. (s235(1) & (1A))

− the loss or destruction of evidence relating to an offence committed by the child or young person or an offence you have reasonable grounds to suspect the child or young person of having committed, or

− − interference with any witness in respect of any such offence, or

− the child or young person has been arrested under section 214A and is likely to continue to breach any condition of bail.

− (s235(1) & (1A))

Question 40

What are Police obligations when placing a child or young person in OT custody?

Answer 40

When placing a child or young person in OT custody, you must:

• deliver the child or young person to a social worker, and

• give details to the social worker in writing (form POL 235) relating to:

− the child or young person’s identity

− the circumstances of the arrest

− the date and time of the intended appearance of the child or young person before the court having jurisdiction over the matter(s). (s235(2)

Question 41

The 24 hour time limit does not what?

Answer 41

allow you to hold the child or young person solely for the purpose of making further enquiries,

Allow you to delay contacting OT solely to keep the child or young person in Police custody for the maximum period of time.

Question 42

What do you need to advise OT ASAP?

Answer 42

It is important to advise OT as soon as possible to allow the social worker sufficient time to arrange for a suitable placement. A lack of resources, such as a bed, on the part of OT should not affect custody transfer timeframes. Record in the custody module, in whose custody the child or young person is being placed.

Question 43

Once the child or young person is released into OT’s custody, they then become what?

Answer 43

The social worker’s responsibility. You can make recommendations about the type of custody but the final decision is with the social worker.

Question 44

Is there any provision for keeping a child in Police custody for more than 24 hours?

Answer 44

No

Question 45

What is the purpose of a joint certificate?

Answer 45

A young person may be detained in Police custody for more than 24 hours and until their appearance in court only if a joint certificate has been obtained and signed by a delegate of the Chief Executive of OT and senior sergeant (or above). These two people must be satisfied on reasonable grounds that holding a young person for more than 24 hours is necessary where:

• the young person is likely to abscond or be violent, and

suitable OT facilities for the detention in safe custody of the young person are not available.

Question 46

Who must complete the joint certificate?

Answer 46

The joint certificate on the POL 236 must be completed by Police and the OT delegate in these situations. You must provide a copy of this certificate to the Commissioner within 5 days and a written report explaining:

• the circumstances in which the certificate was issued, and

• the duration for which the young person was detained or is likely to be detained in police custody.

(s236 (1) & (2)

Question 47

What is the family harm police policy statement?

Answer 47

Family harm is a high priority for Police and reducing the number and impact of family harm episodes is a key Police strategy. Police take every opportunity to prevent harm and reduce offending and victimisation. Police is committed to a prompt, effective and nationally consistent approach to family harm episodes in collaboration with other agencies/iwi and with community partners.

Question 48

What does the principle of early intervention mean?

Answer 48

Recognising that early intervention helps to stop and prevent family harm. This requires an eyes wide open approach at all family harm investigations.

Question 49

What does the principle of early culturally appropriate mean?

Answer 49

Responses to family harm should be culturally appropriate and, in particular, responses involving Māori should reflect tikanga. This requires a sensitive approach at all family harm investigations that acknowledges the culture of those involved and provides culturally appropriate solutions, as relevant

Question 50

What does the principle of ‘safety’ mean?

Answer 50

• Ensuring all parties are made safe and kept safe, particularly victims, whose safety is paramount. This may include facilitating access to support services to help secure safety.

• Children are especially vulnerable (though they may not be the primary victim) and before leaving the premises, attending officers must ensure they have no concerns regarding any child’s safety.

• Officers must also be aware that attending family harm episodes is one of the most dangerous parts of their job and that precautions may be necessary to secure their own safety.

Question 51

What does the principle of collecting risk information mean?

Answer 51

Collecting specific risk information to enable effective assessment, planning and risk management to victims and to guide decisions around appropriate actions for offenders. Family harm processes include the SAFVR measure and dynamic risk assessment at the scene which combined determine the total concern for safety. The total concern for safety also contributes to a multi-agency risk score when combined with the risk assessed by other agencies

Question 52

What does the principle of accountability mean?

Answer 52

· Holding predominant aggressors and offenders to account for their actions, by activating a prompt and comprehensive response. This includes undertaking a thorough quality family harm investigation and where evidence of criminal offending exists, the decision to charge and filing of a charge will reflect the nature of the offending and be made in accordance with the Solicitor-General’s Prosecution Guidelines.

· Where offenders may benefit from supportive interventions to change their behaviours, directing them into programmes that will stop and prevent harm.

Question 53

What does the principle of working collaboratively mean?

Answer 53

Police must

• Coordinate responses to family harm through Family Violence Coordinators/Family Harm Specialists across relevant internal work groups, including FHTs, CPTs, ASA Teams, Youth Aid and Youth Education Teams, CIB, Iwi/Pacific and Ethnic Liaison Officers and other frontline employees.

• be part of a coordinated collaborative multi-agency table response that aims to enhance information sharing and meet the multiple and varied needs of families.

• provide quality information to multi-agency tables which enables the best support for families in need.

• apply active case management principles and processes.

Question 54

What are the characteristics of family harm?

Answer 54

Family harm encapsulates a holistic view of the issues occurring within families and their ensuing detrimental effects. The harm generated within families is caused by multiple factors that tend to exist against a backdrop of adverse circumstances (vulnerabilities, compounding factors and negative behaviours).

Question 55

What is important to remember in relation to family harm?

Answer 55

It can impact anyone, including occurring in families who are affluent. All family harm investigations require an open mind.

There are wide-reaching societal consequences from family harm including crime, poor physical and mental health and poverty. The costs from failing to address family harm are extremely high. Māori are grossly over-represented in family harm statistics, both offending and victimisation, and across all areas of the vulnerabilities, compounding factors and negative behaviours in the diagram above. This in part stems from the historical trauma Māori suffered (refer to training on the legislative impacts on Māori through colonisation and the impacts of urbanisation).

Question 56

What is family harm?

Answer 56

Family violence is a subset of family harm. Family violence includes of family harm physical, sexual or psychological abuse within domestic relationships. There continued may be behaviour that is coercive or controlling and causes cumulative harm. It can be a single episode or a number of episodes forming a pattern of behaviour or series of events. An act of violence is often an escalation of an ongoing pattern of coercion and control.

Question 57

What is the Power and control wheel?

Answer 57

A model used to understand coercion and control in family violence is the Duluth power and control wheel which highlights the tactics of abuse most universally experienced by battered women. Tactics include intimidation, isolation, emotional and economic abuse and using children to manipulate. (See the handout on coercive and controlling behaviour). An example of intimidation is abusers use of overt threats and actual harm to animals as a tool to control their family. 36.5% of intimate partner violence victims/survivors report a pet or animal had been injured or killed.

Question 58

What is entrapment and resistance?

Answer 58

Another concept that helps to explain the complexity of family harm dynamics is entrapment and resistance. Victims are trapped by an abusive partner’s coercive and controlling behaviours. Victims of family harm commonly suffer from low self-esteem and isolation caused by the violent behaviour. Victims are unable to act or to leave the violent relationship for many reasons, including the fear of further violence. Victims often need external help to extract them and may use violence to wrench themselves free.

Question 59

What is important to note a family harm investigations re children?

Answer 59

That a family harm investigation could also identify children and young people in the role of predominant aggressor. For example, children exposed to family harm and who may have experienced a lack of stability through multiple placements as a result of state care may be more at risk of inflicting family violence on parents or caregivers as they get older.

Question 60

How does family harm impact of people with disabilities

Answer 60

People with disabilities and other people (e.g. due to their age or health condition or to any other cause) may also be particularly vulnerable to family harm.

Question 61

Does tech play a role in Family harm?

Answer 61

An area of increasing concern is the use of technology in family harm. Use of technology provides aggressors with a pervasive way to control, coerce, stalk and harass their victims. It includes a range of behaviours. These include sending abusive text messages or emails, making continuous threatening phone calls, spying on and monitoring victims through the use of tracking systems, abusing victims on social media sites, and sharing intimate photos of the victim without their consent (‘revenge porn’).

Question 62

When considering whether to grant Police bail for a person charged with a family violence offence, where are they set out?

Answer 62

They are set out in the Bail Act 2000. Part offences 1 of the Bail Act 2000 sets out the rules for bail generally and Part 2 of the Act (sections 21-26) those relating to Police bail.

Question 63

When deciding whether to grant Police bail, the primary consideration is what?

Answer 63

The safety of the victim and their family members, linking the victim to appropriate support and services, and the possible need for the defendant to have a cooling off period to ensure the victim’s safety. Any condition may be imposed on bail that a Police employee considers necessary to protect the victim and their family members.

Question 64

Are there any restrictions on Police Bail if a protection order is breached?

Answer 64

Yes, if the person has been arrested under section 113 of the Family

Violence Act 2018 and charged with an offence against section s112 of that Act they must not be granted Police bail during the 24 hours immediately following the arrest unless there is a court hearing earlier than this where court bail can be determined (s7 Bail Act 2000)

Question 65

Does this (s113) apply when the person is charged with another offence in addition to the breach offence. (s23 Bail Act 2000)

Answer 65

Yes

Question 66

When there are restrictions on bail for FH, what must Police do?

Answer 66

The arrested person must be brought before a court as soon as possible. At the expiry of the 24 hour period and pending a court appearance, follow standard procedures for determining whether the person should be granted Police bail.

Question 67

What is the paramount consideration for police?

Answer 67

The need to protect the victim of the alleged offence and their family members, and all protected persons, is the paramount consideration for the court when determining whether to grant bail (s8 Bail Act 2000).

Question 68

Who can authorise Police Bail?

Answer 68

You must have the authority of a supervisor of or above the position level of sergeant before releasing a family violence defendant on Police bail.

Question 69

What must you consider when thinking about bail?

Answer 69

In most cases, there is a presumption that a defendant is to be bailed. Any opposition to bail must fit within criteria detailed in section 8 of the Bail Act, which includes whether there is a risk to the victim and their family members, and all protected persons.

Question 70

what is Section 8(5) of the Bail Act?

Answer 70

Provision for the need to protect the victim of the alleged offending is the paramount consideration when deciding whether to grant bail for breaching a protection order.

Question 71

When deciding whether to oppose bail in family violence cases, the prosecutor must consider what?

Answer 71

In addition to the factors detailed in section 8(1) and (2) of the Bail Act, the need to ensure the victim and their family’s safety and any safety plans in place. A wide range of factors will be relevant and the information gathered during the investigation and the collection of risk information is critical.

Question 72

Bail conditions should always be tailored so that they are what?

Answer 72

Are specific and relevant to the defendant’s identified risks and/or alleged offending. In family violence cases, conditions must reflect the need to ensure the victim’s safety and that of their family members and all protected persons. This could include non-association with named persons or requiring the defendant to reside at a named address. (Only in exceptional circumstances should a defendant in a family violence-related case be bailed to the victim’s address).

Question 73

If a person on electronic monitoring (EM) bail is served with a PSO relating to the address at which they are required to reside, they will be unable to what?

Answer 73

Remain there for the duration of the order and therefore unable to comply with standard condition 5 of their bail bond.

Question 74

What should you do when you attend a 5F at an EM addy?

Answer 74

An incident of family harm at an EM address is likely to bring to attention risks pertaining to continuing EM bail at that address. Consider opposing continuation of EM bail to that address in this situation.

Question 75

New Zealand Police is often judged by the way its employees represent it. It is therefore necessary to what?

Answer 75

Maintain a high standard of personal and professional conduct and for employees to behave in a manner consistent with the organisation’s view that family violence in all forms, is unacceptable.
Family harm is unacceptable conduct and will not be tolerated or condoned by the Police.

Question 76

When responding to family harm episodes involving its employees, Police must what?

Answer 76

Balance its responsibilities as an employer to support employees and their families and to act consistently and appropriately, with the public interest and the reputation of Police in mind.

Question 77

There is added complexity for employees involved in a family harm episode due to the fact they work for Police. Two simultaneous actions should occur, what are they?

Answer 77

• Normal Police response applies

• welfare considerations are important for both parties and the shift supervisor should, where appropriate, refer the matter to the local Welfare Officer.

Question 78

What must Police also carefully consider?

Answer 78

• the impact of any criminal offending on the ability of an employee to remain a Police employee

• the compatibility of an employee convicted or found guilty of a family violence offence and/or being the respondent of a protection order, to continue in a policing role.

Question 79

When do these policies and procedures apply?

Answer 79

The policies and procedures detailed in this section apply when:

• it comes to a Supervisor’s attention that an employee may be experiencing or be involved in family harm (as either a person at risk and/or person posing risk). This includes any anecdotal evidence that may suggest this is the case

• Police attend a family harm investigation and although no offending is disclosed a PSO or warning has been issued and/or Police are concerned about the possible continuation or escalation of family harm

• Police attend a family harm investigation and offending is disclosed where an employee is a victim or an offender

• Police become aware that a temporary or final protection order has been issued relating to an employee (as either a protected person or as a respondent).

Question 80

What are District Commanders and National Managers responsible for?

Answer 80

Ensuring that these policies and procedures operate within their district or place of work.

Question 81

Employees involved in family harm are encouraged to what?

Answer 81

A. Seek support by:

• ringing a confidential number (0800 327 669) to contact the Employee Assistance Programme (EAP), or

• discussing their concerns with their Supervisor and/or Welfare Officer. Such disclosure remains confidential unless the conduct disclosed is of such a nature that it should be investigated and/or prosecuted.

Question 82

Wherever possible, Police should what?

Answer 82

Support and educate employees to assist them in dealing with issues to prevent and/or reduce the likelihood of family harm escalating and offending occurring.

Question 83

Employees who suspect or are aware of another employee being either a person posing risk or person at risk of family harm are encouraged to what?

Answer 83

. report this confidentially by reporting it to their own Supervisor or a Welfare Officer so that a discrete and confidential approach can be made to that person and support provided.

Question 84

What is also important that Police recognise and support in the family unit to best enable any changes that are needed to resolve the issues?

Answer 84

Police must be aware of and sensitive to victims of family harm or complaints about family harm from spouses or partners of Police employees. These people are in a complex situation and alienating them from Police would isolate them and leave them with limited places to go for assistance. These cases or notifications should be responded to by Family Violence Coordinators/Family Harm Specialists

Question 85

What do Police do when you attend a 5F where an Employee is engaged in family harm occurrences - no offence?

Answer 85

Where Police attend any family harm investigation but no offence is determined, the risk measures within OnDuty will determine our level of concern for safety, which will then inform the frontline safety plan actions that you take, ie as a minimum, checking if someone has a working phone, confirming if we have the phone number, and if they are prepared to call us for help. If a Police employee is identified (as the person posing risk or person at risk) attending officers must also report this confidentially to their supervisor who will contact a Welfare Officer to arrange for appropriate Police contact as soon as possible and oversight of referral to appropriate support groups.

Question 86

What do Police do when you attend a 5F where an Employee is charged or convicted of family violence offending?

Answer 86

A. Employees who commit a family violence offence must be treated as any other member of the public.

B. The fact of an employee’s arrest or charging for family violence offending must be reported immediately by the shift Supervisor to the District

C. Employee Practice Manager and Police Professional Conduct Manager who will advise the relevant District Commander or National Manager. Code of conduct procedures will apply.

D. Welfare contact and counselling support through the EAP must be offered to the victims of the offending and if appropriate, the alleged offender, along with confidential contact numbers that they may use.

E. The Employee Practice Manager in consultation with the National Manager: Police Professional Conduct at Police National Headquarters (PNHQ) must consider the employee’s suitability to continue working in their current role and if any variation in duties is appropriate.

Question 87

What do Police do where a police employee is a respondent of a Protection Order?

Answer 87

Protection orders may be issued against a Police employee without any prior offending. With or without a prior criminal history a protection order must be treated as a serious matter.

Question 88

Officers who serve a protection order on a Police employee are required to what?

Answer 88

A. send a copy of it to the employee’s District Commander or National Manager (or the Deputy Chief Executive: People if the respondent is at superintendent level or above).

Question 89

What must Employees who become a respondent of a protection order do immediately?

Answer 89

Report the fact in writing, including details of the proceedings to their Supervisor, who must inform the Human Resources Manager and Police Professional Conduct Manager for their district or service centre.

Question 90

If a PO is served do Code of conduct processes apply?

Answer 90

Yes

Question 91

What happens if employees fail to advise Police of the fact that they are a respondent of a protection order?

Answer 91

The non-reporting may be viewed as an aggravating factor when considering the nature of the conduct disclosed.

Question 92

What should you do when dealing with an employee who is an applicant or protected person under a protection order?

Answer 92

Encourage them to report this confidentially to a Police Welfare Officer and/or their Supervisor so that appropriate support and advice can be provided through EAP.

Question 93

When dealing with Protection orders, how do firearms impact on police officers?

Answer 93

Protection orders contain a standard prohibition preventing the possession and use of any weapons including firearms. This means employees with constabulary powers cannot carry their appointments (batons/spray/taser) or be issued with a firearm, without being in breach of the order. These restrictions also apply to authorised officers or Police employees involved in training, Police weaponry or exhibit handling of firearms and weapons. Police must avoid being complicit in any such breach and must be extremely careful not to increase risk to any person protected by the order by allowing such a breach to occur.

Question 94

Can Police officers apply to the court to vary protection order conditions?

Answer 94

Yes. The court hears applications to vary standard conditions of a protection order including those relating to weapons. It is important to note that victim safety is the paramount consideration and the court must have regard to the victim’s views in making any such variation.

Question 95

Can Police support the employee in this process?

Answer 95

Police may in rare cases consider assisting an employee with an application to vary the standard condition relating to weapons in a protection order under section 108 of the Family Violence Act 2018. Before supporting such an application Police must conduct their own enquiries to determine whether or not such a variation is appropriate. These enquiries must consider the nature, duration and type of family harm disclosed, any offence history, the employee’s role and the views of any person protected by the order.

Question 96

Who has the final say?

Answer 96

The final decision on whether Police will support an application under section 22 will be made by the DCE People in consultation with the National Manager: Criminal Investigations Group upon receipt of the report from the district

Question 97

If orders are made to direct a police officer to a programme what should police do?

Answer 97

Where any Police employee is directed or wishes to attend programmes or counselling to resolve issues relating to family harm, Supervisors should take all practicable steps to facilitate this

Question 98

If a member of Police is involved in a 5F, what must you try to enable?

Answer 98

Confidentiality. Family harm issues are sensitive and highly personal. Care must be taken to ensure that all employees involved (as a person at risk or person posing risk) are treated sensitively with regard to privacy as appropriate in the circumstances.

Question 99

What are Police safety orders (PSOs)?

Answer 99

The are immediate orders issued by a qualified constable (or a constable authorised by a qualified constable) at a family harm episode. PSOs require a bound person to surrender any weapon in their control or any firearms licence and vacate any land or building occupied by a person(s) at risk regardless of whether the bound person has a legal or equitable interest in it. PSOs can be issued for up to ten days.

Question 100

What do PSO’s do?

Answer 100

PSOs provide an additional tool for police attending family harm episodes. They enable frontline officers to take immediate action to protect persons at risk of family harm when an investigation fails to establish sufficient evidence of an offence. A PSO provides time for the person at risk to seek support and assistance, including applying for a temporary protection order if desired and for the bound person to cool down and also seek support and assistance.

Question 101

Police will determine whether it is necessary to issue a PSO during a family harm or other investigation. Once this determination is made Police will what?

Answer 101

Issue and serve the PSO in the prescribed form and according to the procedures stipulated in this chapter. Support will be arranged for the person at risk. Police will pursue breaches of PSOs via the court.

Question 102

Are PSO’s the only answer?

Answer 102

PSOs are just one possible response to a family harm episode.
The Police family harm policy and procedures (and the requirement to complete a family harm investigation in OnDuty) only apply when Police attend a family harm episode and the parties involved are in or have been in an intimate partner relationship or are family members. These relationships are two of the four categories defined in the Family Violence Act 2018 as domestic relationships.

Question 103

Are flatmates considered covered by a PSO?

Answer 103

Normal Police responses apply to family violence involving the other categories of domestic relationships ie flatmates and close personal relationships.

Question 104

What section are PSO’s issued under?

Answer 104

PSOs are immediate orders issued by a qualified constable (or a constable authorised by a qualified constable) under s28 Family Violence Act 2018.

Question 105

Do we need the consent from the person at risk to issue one?

Answer 105

No The person at risk’s consent is not required.

Question 106

Can The Court us to issue a PSO?

Answer 106

The orders do not need to be issued by a court (although they can be in some circumstances). A constable can also issue an order on judicial direction (s46 )

Question 107

How must a PSO be issued?

Answer 107

In the prescribed form

Question 108

Who is a qualified constable?

Answer 108

A qualified constable is a constable of or above the position level of sergeant. They must hold the substantive position level or otherwise be formally appointed or authorised under section 63 Policing Act 2008 to the appropriate position level.

Question 109

What are the immediate effects of a Police safety orders?

Answer 109

They require a bound person to:

A. surrender any weapon in their possession or control and any firearms licence held to a constable.

B. vacate any land or building occupied by a person(s) at risk regardless of whether the bound person has a legal or equitable interest in it

C. provide a cooling down period where the person at risk has time and space to seek support and assistance, including applying for a temporary protection order if desired and for the bound person to seek support and assistance.

Question 110

What are the longer effects of a Police safety orders?

Answer 110

They require a bound person must not:

· engage in behaviour that amounts to any form of family violence against a person at risk

· make any contact with a person at risk that is not authorised (see below)

· encourage any person to engage in behaviour against or to make contact with a person at risk, where the behaviour or contact, if engaged in or made by the bound person, would be prohibited by the order.

· Contact by the bound person with a person at risk is authorised and not in breach of an orders no-contact condition, if the contact is:

· reasonably necessary in an emergency

· permitted under any special condition of any relevant protection order

· necessary in order to attend a family group conference

· necessary to attend a proceeding before a court or person acting judicially or to attend any matter associated with such a proceeding which would be jointly attended (e.g. a restorative justice conference).

Question 111

How does a PSO effect on parenting orders ?

Answer 111

Q. If a bound person is a party to a parenting order or agreement, that parenting order is suspended. Any day to day contact or care of a person provided for in the parenting order has no effect and the provisions of the safety order apply. (See also related information about parenting orders in Factors to consider when deciding to issue a Police safety order in this chapter.)

Question 112

How do you decide whether to issue an order and for how long?

Answer 112

A. A qualified constable or a constable authorised by a qualified constable may issue a PSO against a person (who becomes a bound person) who is or has been in a family relationship with another person (the person at risk) if the constable has reasonable grounds to believe, having regard to specified matters (see below), that the issue of an order is necessary to help make the person at risk safe from family violence. s28

Question 113

What if you arrest someone for an offence and then do not charge them, can you issue a PSO?

Answer 113

If a person is arrested for a family violence related offence, but it is later determined that there is insufficient evidence to charge for that offence, a PSO can subsequently be issued.

Question 114

Can you issue a PSO when you charge the person posing risk with a FV offence?

Answer 114

PSOs cannot be issued if the person posing risk is charged for a family violence offence. In these cases, bail conditions may be set which essentially serve the same purpose as a PSO.

Question 115

What about young people, can we issue a PSO to a Child or young person?

Answer 115

If Police are satisfied that the person who is posing risk is aged 16 years old or over and that the order is justified by special circumstances.

Question 116

What is the person posing risk is the subject of a protection order and the applicant is the person at risk?

Answer 116

It is likely that the behaviour complained of will constitute a breach of the order. Every effort should be made to obtain sufficient evidence so that an arrest can be made.

Question 117

What if you do not have sufficient evidence to arrest for an offence in a 5F?

Answer 117

An officer can serve a PSO if there is not sufficient evidence to arrest. This takes the pressure off the protected person to protect themselves (as they cannot consent to the offender living with them and allows for any parenting orders to be suspended). It is also aligned with the victim graduated response model. In these situations, seek advice from your supervisor or Family Violence Coordinator/Family Harm Specialist.

Question 118

When deciding whether it is necessary to issue a PSO, consider, if applicable what?

Answer 118

The total concern for safety determined during the family harm investigation and range of safety actions suggested in the frontline safety plan.

Question 119

Should you consider hardship when issuing a PSO?

Answer 119

For the purpose of a PSO, consider hardship caused to any person including the family.

Question 120

When considering hardship, if hardship may be caused, consider such things as what?

Answer 120

· who will have the family car

· who is in charge of family finances and holds Eftpos cards/money

· the financial ability for the bound person to find alternative accommodation and transport

whether any child has a disability or illness requiring more intensive care and support

Question 121

What are police responsibilities in relation to parenting orders?

Answer 121

You must take reasonable steps to establish whether any adult family member of the household holds, or is in the process of obtaining, a parenting order relating to children of the household. The bound person may have had a parenting order made against the person at risk whom you intend to protect and a violence finding may have been made against them by the Family Court. Be aware of dangers to the children for reasons not immediately apparent. If a parenting order is in place the Family Violence Coordinator/Family Harm Specialist should be informed.

See also the information on the effect of Police safety orders on parenting orders when the bound person is a party.

Question 122

PSOs come into force when?

Answer 122

· Immediately after they have been served and continue in force for the period specified in the order. This period cannot exceed 10 days

Question 123

The issuing officer decides on the duration of the order. They must have regard to what?

Answer 123

· carefully consider the impact of the order on the family (e.g. hardship to any person, including the person posing risk, and the welfare of the children).

· As a starting point, you should begin with considering a 24 hour duration and then factor in other relevant considerations, for example:

· weekends, public holidays, and an individual’s ability to access the courts, if necessary (e.g. the person at risk may wish to seek a protection order)

· how long it will take for the family to access appropriate support services and make ongoing arrangements for their safety.

· What must we also take into consideration re duration?

· The longer the duration of the order, the more complex the decision making is likely to be and the greater the likelihood that there will have been an offence.

Question 124

What are your powers and how long can you detain someone to issue a PSO?

Answer 124

· Police can detain the person against whom a PSO is to be issued for up to two hours to allow you to obtain the necessary authority and to issue and serve the order on that person.

· The two hour period commences when the constable decides that a PSO is necessary (and seeks authorisation from a qualified constable if required)

remove the person from the premises and to a Police station or place used as a Police station (e.g. a patrol car) during the period of the detention. In some situations and for short periods, detention within the home may be appropriate.

Question 125

person who refuses to remain at the place where they are detained for a PSO to what?

Answer 125

They commit an offence and is liable on summary conviction to a fine not exceeding $500

may be arrested without warrant.

Question 126

If you are unable to issue and serve the order within two hours, you must what?

Answer 126

Release the detained person. You then have a period of 48 hours to issue and serve the order on that person. The opportunity to serve a safety order will expire if it has not been served within that time period. The 48 hour period commences from the time a qualified constable authorises the issuing of the PSO.

Question 127

What are the steps for issuing a PSO

Answer 127

• Do we need to provide any support as a result of serving a PSO

· Be aware that there is the potential for continued risk to a person at risk despite a safety order being issued. You should take all practicable steps to ensure that as part of implementing the frontline safety plan or other safety measure:

A. relevant and appropriate specialist support will be contacted for the person at risk and that their immediate safety is assured

B. if required, advocacy for the person at risk is arranged as soon as possible to enable contact to occur (e.g. interpreters, sign language experts)

C. support and a temporary place to reside is available to the bound person

Question 128

What should the officer issuing the PSO do?

Answer 128

· Where possible, and ideally while still at the scene, ring a family violence support agency as part of the frontline safety plan (as relevant).

Question 129

What steps should Police take after serving a PSO.

Answer 129

1

Fully explain to the person at risk and the bound person the nature, duration and effect (conditions) of the order. This explanation can happen prior to, at the time of serving or, in the person at risk’s case, as soon as possible after the safety order is served.

Note: Consider using an Iwi, Pacific or Ethnic liaison officer to liase with families where language and cultural issues may be a factor.

2

Section 42 Police safety order: Risk and needs assessment The provision of a PSO Risk and Needs Assessment Service is a requirement of the Family Violence Act 2018, however the service will not be available until there is sufficient procurement of service providers.

The Service is an opportunity for Police and providers to enhance safety by supporting family and whanau in the intermediate term, following a family violence episode. The Service will work closely with the bound person to identify underlying issues and behaviour by creating a plan to support sustainable behaviour change.

The Service will integrate with existing parts of the system such as ISR, Whängaia Ngā Pā Harakeke and FVIARS, potentially developing additional entry points to the Service in the future

3

Capture and issue PSO in OnDuty

Note: If OnDuty is not available, BCP enables you to record the PSO in NIA immediately by contacting the Crime Reporting Line (CRL) via 0800 NZP PSO. The PSO must not be manually entered into NIA.

4

Upon serving the safety order (and after explaining its effect and consequences for breach) you must ensure that the bound person:

• immediately surrenders all firearms or weapons (and a firearms licence if held) in their possession or control (see below)

• vacates the land or building occupied by the person at risk. It is irrelevant whether the bound person has a financial interest in that place.

Take all practicable steps to obtain contact details for the bound person so that police can contact them and discuss prevention options. See Preventing and detecting breaches for more information.

5 At the time of service, Police must demand surrender of all firearms and the firearms licence under s37.
If:
• the bound person holds a firearms licence, also consider invoking the provisions of ss27 or 27A of the Arms Act (revocation of licences)
there is belief that the bound person may be in possession of or have access to firearms, also consider invoking s18 of the Search and Surveillance Act (warrantless searches associated with arms). A report must be sent to the Commissioner within three days if this power is exercised.
6 Police must provide suitable storage for all weapons seized under the Family Violence Act 2018 or Arms Act 1983 for the period of the suspension of the firearms licence.
7 If you have not already done so, contact the appropriate agency to ensure appropriate assistance and support services are in place for the person at risk (including any children residing with them) according to the frontline safety plan (as relevant). See Arranging support for the person at risk when the order is issued.

8 Before the end of your shift:
• complete the family harm investigation in OnDuty, or other investigation.

Question 130

What should Police do with the person at risk while the PSO is in place?

Answer 130

Contact them within 24 – 48 hours of the order being served, to:

· check for any breaches that may have occurred, and

ensure the person at risk understands what constitutes a breach

Question 131

Unless impractical to do so, police should also re-visit who ?

Answer 131

The bound person while the PSO is in place if the bound person is considered high risk.

Question 132

The police visit after service of pso should serve to do what?

Answer 132

· provides a time to engage with the bound person and offer support services to address family harm at a time when Police are not responding to a call for service

ensures the bound person understands the PSO, what constitutes a breach and consequences of any breach. This is particularly important if the bound person was intoxicated at the time the order was served and may not have understood the conditions and consequences of the order.

Question 133

What action should police take for breach of a PSO?

Answer 133

Although breaching a PSO is not an offence, the bound person can still be taken into custody if a constable believes on reasonable grounds that the bound person has refused or failed to comply with the order or a condition of the order. You may use reasonable force when arresting the person.

Question 134

If a bound person is taken into custody for breaching a PSO, you must what?

Answer 134

· bring them before the court within 24 hours

· make a complaint to the court requesting that it makes an order under section 45 of the Act (see Powers of the court below)

· if the person cannot be brought before a court within 24 hours, at or before the expiry of the period, you must release the person and summons them to appear. The person can be arrested and brought before the court if they fail to appear as summonsed.

Question 135

If a PSO is breached, what happens to the original PSO?

Answer 135

It remains in existence for the duration of which it was originally issued.

Note: It is appropriate to advise a bound person who breaches a PSO that they are ‘detained’ or ‘being taken into custody’. While it is not critical, the latter option is preferable and the person must be advised the reason why they have been taken into custody.

Question 136

What if the bound person has absconded after the breach ?

Answer 136

Where the bound person has absconded after breaching the PSO, you must capture the breach in On Duty / or advise CRL. You have one month from the time of the breach to locate the bound person and to bring them into custody. You then have 24 hours to bring them before the court. A complaint is filed and an order sought under s45.

Question 137

Can you apply for a WTA for BOPSO?

Answer 137

You may also apply to the court for a warrant to arrest to be issued under section 51 and it must be recorded as an alert in NIA. This warrant provides for a power of entry using reasonable force if you have reasonable belief that the bound person is at a specific address. You must then:

bring the person before the court as soon as possible - (note civil rules of evidence will apply)

make a complaint to the court in the prescribed form so that the court can exercise its jurisdiction under section 45 .

If a warrant to arrest has been issued for breach of a PSO and the bound person has not been located and brought before the courts within one month, the matter must be brought back before the court to seek leave to withdraw the warrant.

Question 138

If the bound person is not at the specific address or has absconded and a warrant to arrest is sought, you should what?

Answer 138

Look for the bound person for one month (depending on the case) after the expiry of the PSO.

The warrant to arrest alert expires automatically after ten days in NIA but the warrant remains active in court. The warrant must be withdrawn. This can be done with some coordination at area level within ten days to one month after the issue of the warrant. (Note that over time the significance of the breach and the sanctions available to the court become less relevant).

Question 139

If a PSO is not an offence to breach, what do you do?

Answer 139

A charging document is not filed for the breach of an order, as a breach is not an offence. Breaches of PSOs should be filed using the complaint form and must be sworn at court by the constable named on the complaint.

Question 140

Can Complaints be filed electronically like charging documents?

Answer 140

No. A copy of the POL 2142 is electronically transmitted to court, however the original must still be sworn by the constable at the court

Question 141

If the court is satisfied that the bound person has refused or failed to comply with a PSO the court may what?

Answer 141

Q. continue with the existing order for the duration of which it was issued, or

R. if the order has not expired, direct that another order be issued in substitution for the earlier order for a period not exceeding 10 days. This must be served as soon as practicable, or

S. if the order has expired, direct that another order is issued against the bound person, or

adjourn the proceedings so that a District Court judge can consider whether a temporary protection order should be issued

Question 142

What if a new order is instructed to be issued by the court

Answer 142

If the judge or judicial officer determines that a new or substituted PSO is to be issued, the Police prosecutor will arrange to have the court directed PSO issued by a role-holder in the following order:
A. an officer of the court; if not present, then…
B. a constable of a district within the vicinity of the court (it’s likely that the nearest station will be called to send a constable to the court); if this is not possible, then…
C. the prosecutor (if they are a constable).

Question 143

Do Police need to Notify the person at risk?

Answer 143

Prosecutors must advise the person at risk of the court decision and any subsequent action. If the person at risk is not present at court, then the prosecutor, officer of the court or constable must try to contact them to advise them of the court outcome.

Question 144

What must you prove for the offence of failing to remain for serving a PSO?

Answer 144

Offence

You must prove the person…

Powers

Penalty

Failing to remain while a safety order is issued s32(2)

having been detained by a constable who is proposing to issue a PSO, the person posing risk refused or failed to remain at the place where they were detained or any other place taken to during the detention.

You can arrest without warrant any person who has failed or refused to remain in Police custody for the two hour time period in which you can detain for the purpose of issuing a safety order.

a fine not exceeding $500.

(Category one offence)

Question 145

You must take into account what matters listed in s29 of the Act when dealing with a person 16 years or 17 years?

Answer 145

whether it is likely that the person posing risk:

a. has inflicted, or is inflicting family violence against the person at risk, and/or any other person with whom the person posing risk has a family relationship

b. will inflict or again inflict family violence against the person at risk

· the welfare of any children residing with the person at risk

· the hardship that may be caused if the order is issued, and

· any other matter that may be considered relevant.

Question 146

What other advise must Police consider?

Answer 146

Advice from Oranga Tamariki regarding care and protection and eligibility for transition service requirements. Consider where the child can live for the duration of the order, eg with whänau or friends. Whenever possible, consider views of that family, whānau, hapū, iwi, and family group. Oranga Tamariki may be able to provide information to assist in addressing these considerations via the National Contact Centre

• Placement that causes harm Previous interactions with Police History of mental illness / intellectual disability Presence or history of abuse of alcohol and/or drugs Immediacy of the order, what are the unintentional consequences risks associated with the child or any other members of the family or whānau

• (safety planning around placement)

• Existing orders that may require a person to reside at a determined address (eg bail conditions set by the Court)

• Risk and safety planning

• Unintended consequences or risks associated with the ‘person at risk’ if a PSO is not issued.

• Any other matter you believe is relevant.

Question 147

While attending a 5F, Police will determine whether it is necessary to issue a PSO as a result of a quality Family Harm Investigation. The issue of a PSO for a child should be the last option and should only be issued where it is permitted by the Act. What are the steps?

Answer 147

Step

Action

1

Have all reasonable steps been considered and taken to mitigate risk to person at risk?

· Identifiable offence - consider arrest without warrant (apply s 214 Oranga Tamariki Act 1989)

· Identifiable offence - consider youth aid referral

· No identifiable offence - Involve the family and or whānau in identifying alternative actions.

2

Refer to Matters guiding issue and duration below.

3

Determining ‘special circumstances’

A PSO may only be issued against a child aged 16 or 17 years where there are special circumstances. This may be the case where the child’s behaviour has reached a point where there is little room for alternatives. Special circumstances may include:

A. Reasonable grounds to believe that the issue of an order is necessary to help make the person at risk safe from serious family violence, and

B. The ‘total level of concern’ (SAFVR and Dynamic) in OnDuty is High, and

C. Approval from a Senior Sergeant or above has been obtained, and

D. The authorising Senior Sergeant has consulted with Oranga Tamariki

(National Contact Centre regarding placement / status)

4 If criteria in step 3 are met, special circumstances may exist to issue a PSO
A. Complete a quality 5F – investigation in OnDuty and submit for review
B. Follow joint guidance from Police and Oranga Tamariki
C. Record your decision making, consultation with Oranga Tamariki
D. Record justification for duration, i.e. issue PSO for the minimum time required to ‘cool off’
E. Ensure that the person posing risk, family and / or whānau of the young person are fully informed and understand the implications of the PSO
F. Update NIA with any relevant information throughout the duration of the
PSO

Question 148

Issuing a PSO against a child should be viewed as what?

Answer 148

• last resort. It should principally be used as a means to “cool down” after a situation of reported family violence. The needs of children are different to adults when considering the use of a PSO. The Act states that PSO’s cannot be issued if the person posing risk is a child unless satisfied that the child is aged 16 or 17 years old and that the order is justified by special circumstances. s31

The duration for which a PSO is issued in relation to a child aged 16 or 17 must be the least restrictive amount of time possible. This will ensure that the order is as effective as it can be and have minimal unintended consequences.

Question 149

How do we treat children differently when considering a PSO?

Answer 149

We need to treat children differently. A person aged 16 or 17 is a child for the purposes of the Act. A holistic approach should be considered that enables staff to see the child as a whole person. This includes (but is not limited to) their developmental potential, health needs, whakapapa, language and communication needs, cultural identity and values, gender and sexual orientation, and disability if any. This means that decisions on duration of the PSO, how conditions are communicated and supports put in place, need to consider the individual circumstances and context of each child, taking into account their views, as well as those of their families and whānau

Question 150

When issuing a PSO to a person aged 16 or 17, Police must what?

Answer 150

Police must explain the purpose, duration and requirements of the PSO to the bound person, and any person at risk. Ensure that the child understands the consequences that follow. They may need additional support to ensure they understand what is explained to them and are equipped in sufficient measure, to meet their obligations (i.e. definition of contact). s33

Question 151

Discuss detention or a 16 year old and 17 year old?

Answer 151

You may detain a child for a period not exceeding 2 hours to issue a PSO. Note: This does not trigger a ‘power of arrest without warrant and so the protections in s 214 Oranga Tamariki Act 1989 are not a requirement. However, rights under s23 Bill of Rights Act 1990 apply.

If you are proposing to issue a Police Safety Order against a child, you may detain that child (including moving that child to a Police station) for a period, not exceeding 2 hours, to:

• obtain authorisation to issue the order

• issue the order

• serve the order.

Question 152

What if the 16/17 YO fails to remain for service of pso?

Answer 152

It is a criminal offence if the child fails or refuses to remain at the place where they are detained (absconding). You may arrest the bound child without warrant if they fail or refuse to remain at the place where they are detained. This applies regardless of whether an order is issued or served.

As this is a criminal offence, matters related to absconding from a place of detention will be dealt with dealt with in the Youth Court.

There is a power of arrest without warrant where a child fails or refuses to remain and so the protections regarding arrest in section 214 of the OT Act will apply.

• If a child is detained for a PSO and fails or refuses to remain the child is committing an offence and is subject to a penalty not exceeding $500.

• If a child fails or refuses to be detained at an address specified in the PSO, this will be dealt with in the Youth Court

Question 153

Discuss the distinctions between when a person ‘may be taken into custody’and being ‘arrested’.

Answer 153

While there is a technical distinction between these two terms for legal reasons, there is little practical difference. A person who has been taken into custody for breach of a PSO pursuant to section 43(2)(a) of the Act, can only be held for up to 24hrs to be brought before a District Court. If this is not possible, they must be summonsed on the prescribed form. It is appropriate to advise a bound person who breaches a PSO that they are ‘detained’ or ‘being taken into custody’. While it is not critical, the latter option is preferable and the person must be advised the reason why they have been taken into custody.

Note: Section 214 (arrest of child or young person without warrant) of the

Oranga Tamariki Act 1989 does not apply where the child has breached a PSO or a condition of a PSO, as this is an arrest provision. Nevertheless, the child could be taken into custody in the same way as an adult

Question 154

What is good practice when dealing with 16/17 YO’s and PSO’s

Answer 154

Although taking into custody is not described as an “arrest” in section s.43, it is good practice to consider the protections in section s214(1) of the Oranga Tamariki Act 1989 prior to detaining a child. The protection that would likely be relevant is that the action is necessary to prevent further offending s214 (1)(a)(ii) and issuing a summons would not achieve that purpose s214(1)(b). Note that as this is not technically an “arrest” it does not authorise the use of other Oranga Tamariki Act 1989 sections such as s234 to deal with placement.

Question 155

What are Protection orders and related property orders?

Answer 155

They are a court ordered mechanism providing safety for victims of family violence. Police may be involved in serving protection orders and must serve them if:

• the respondent holds a firearms licence, or

• the respondent is believed to be in possession of or have access to a firearm (whether or not they have a licence), or

• service is assessed as being a significant risk to the server, or

• the protection order is granted without notice.

Question 156

What are Police service of protection orders

Answer 156

They are are crime prevention and victim focused safety opportunities. Police can also give the respondent a clear message about accountability if they breach. To ensure safety of victims and police, serving protection orders must be afforded priority and carried out without delay.

Question 157

Police will ensure What?

Answer 157

• robust information sharing, collaborative risk assessment and safe service delivery practices for protection orders will be developed and implemented in conjunction with courts

• at the time of service, police will demand surrender of all firearms and firearms licences

• staff safety is of paramount importance when determining appropriate methods to seize firearms or firearms licences

• the officer serving a protection order will contact the victim and inform them that service has occurred

• all breaches of protection orders and related property orders will be taken seriously and if there is sufficient evidence, it is expected that in most cases the offender will be arrested and prosecuted for the breach.

In relation to weapons, it is a condition of every protection order that the respondent must not what?

· possess, or have any weapon (firearm, airgun, pistol, restricted weapon, ammunition or explosive) under their control

· hold a firearms licence.

Question 158

What must the respondent surrender to Police?

Answer 158

Any weapon in their possession or under their control (whether or not it is lawfully in their possession or under their control) and any firearms licence held by them:

· as soon as practicable after the protection order is served on them (and within 24 hours of the service), and

· on demand made, at any time, by a constable. (s98-102 )

Question 159

On the making of a protection order, any firearms licence held by the respondent is what?

Answer 159

Also deemed to be suspended. The licence is deemed to be revoked when an order becomes final. (s99)

Question 160

Police must what in relation to weapons?

Answer 160

Retain any weapons surrendered to them on the issue of a protection order for the period of the licence suspension and, except in circumstances where the weapon may be lawfully retained, return the weapon to the person as soon as practicable after the suspension ceases to be in force. (s98)

Question 161

In all cases where Police serve protection orders, the ‘prevention first’ mindset should be applied. What is it?

Answer 161

A. Police service of a protection order is a problem solving opportunity to prevent ongoing family violence crime and victimisation within an often dysfunctional family or a ‘crime family’. Serving a protection order also enables Police to connect with those in our community who may have had no previous reported episodes of family harm documented by Police. This awareness enables Police to provide a more effective response to any reported subsequent breach of the protection order.

Question 162

Orders must be served having regard to these core principles that are part of the principles that guide effective Police responses to family harm what are the service principles?

Answer 162

Q. In all cases where Police serve protection orders, the ‘prevention first’ mindset should be applied. What is it?

A. Police service of a protection order is a problem solving opportunity to prevent ongoing family violence crime and victimisation within an often dysfunctional family or a ‘crime family’. Serving a protection order also enables Police to connect with those in our community who may have had no previous reported episodes of family harm documented by Police. This awareness enables Police to provide a more effective response to any reported subsequent breach of the protection order.

Q. Orders must be served having regard to these core principles that are part of the principles that guide effective Police responses to family harm what are the service principles?

Responsibilities

Protect the safety of all parties, especially the protected person/s and serving officer, by assessing risk. This assessment may mean initiating a graduated victim response, (e.g. creating and actioning a victim intervention plan (VIP) for the applicant). (See ‘Victim Focus’ in Victims (Police service to victims)).

Risk information should be collected before and during service. Any intelligence gained must be documented and recorded in NIA. This will assist future safety and crime prevention planning as part of the graduated victim response.

Respondents should be given clear messages during Police service of orders that they are accountable should they breach. Clearly explain the provisions of the order and the consequences of a breach. This increases the deterrent impact of the orders by ensuring respondents have no excuse to breach them. Police service also includes ensuring the respondent understands the requirements of attending an assessment and non-violence / prescribed service.

Court staff, Police records staff, Family Violence Coordinators/Family Harm Specialists, and other Police staff must develop and implement robust information sharing, collaborative risk assessment and safe service delivery practices.

Question 163

What are the steps for serving a PO

Answer 163

Step

Action

1 - 4

…….

5

On receipt of the order, the O/C station nearest to where the respondent resides must:

• check that recording standards have been met

A. assess all relevant information to determine and what other police actions may be required, eg:

B. an Inspector or above to consider the revocation of firearms licences under s27 Arms Act 1983

C. where the respondent is believed to be in possession of or have access to firearms, a warrantless search for firearms under s18 Search and

D. Surveillance Act 2012

E. a graduated victim response, eg a Police visit to the applicant, or creating and actioning a victim intervention plan (VIP) for the protected person.

6

Police must serve protection orders if:

· the respondent holds a firearms licence, or is believed to be in possession of or have access to a firearm (whether or not they have a licence), or • service is assessed as being a significant risk to the server, or

· the protection order has been granted without notice.

All other protection orders should be served by court staff.

7

At the time of service, Police must demand surrender of all firearms and the firearms licence under s98. Respondents who fail to surrender all firearms in their possession on demand or their firearms licence, may be arrested for breach of the protection order.

If…

also consider invoking…

the respondent holds a firearms licence

the provisions of s27 Arms Act 1983

(revocation of licences)

there is belief that the respondent may be in possession of or have access to firearms

s18 Search and Surveillance Act 2012 (warrantless searches associated with arms).

A report must be sent to the

Commissioner within three days if this power is exercised.

Local processes must be in place to ensure firearms have been seized and surrendered within 24 hours.

8

Police must provide suitable storage for all weapons seized under the Family Violence Act 2018 or Arms Act for the period of the suspension of the firearms licence.

Note: Dispose of firearms according to s28 Arms Act 1983 when a final order is made.

9

The police officer who serves a protection order must:

A. without delay, give notice to the OC station nearest to where the copy of the order was served

B. ensure that the victim is contacted and informed that service has occurred

C. document this victim contact in the victims node in NIA

D. forward notice of service back to the Family Court, either hard copy or electronically

E. maintain national recording standards. Note: This is critical to ensure that all staff responding to calls for service in the future have reliable, accurate, relevant and updated information to act on

F. ensure the protection order (including a copy of the protected person’s affidavit if provided for service on the respondent) is deleted from the Police file record once served. Any court document (not owned by Police) that was provided to Police for service must not be retained in order to comply with the Privacy Act 2020.

Question 164

Under section 236 of the OT Act, who may make the decision to hold a child or young person in police custody?

Answer 164

The chief executive acting through his/her delegate, a constable being a senior sergeant or a constable who is of or above the level of inspector