1. Children, Young Persons & Family Harm Flashcards
OTA 1989 - What section relates to Unaccompanied children and young persons?
Section 48
OTA1989 Act – What powers do you have in s.48 OTA
(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).
What does 48(2) enable Police to do?
- 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.
What does ‘young person’ mean – definition.
A person of or over the age of 14 years but under the age of [18 years].
What are the s.208 principles of the OTA 1989 (9)
(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.
s.214 OTA 1989 relates to the arrest of child and young person, without what?
Warrant
Discuss the 4 points of s214 of OTA 1989
(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.
What is s214A of the OTA 1989?
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.
What must you do to ensure compliance with s214A, breaches of bail conditions?
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.
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?
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].
What is s 234 of the OTA 1989?
Custody of child or young person following arrest
What does s.234 of OT Act allow Police to do?
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
What is s 235 OTA 1989?
Child or young person who is arrested may be placed in custody of chief executive
What does s.235 enable Police to do?
(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)
What is s.236 of OTA 1989?
Young person who is arrested may be detained in Police custody
What does s.236 allow Police to do?
(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.
What is s.238 of OTA 1989?
Custody of child or young person pending hearing
What does s.238 OTA 1989 allow us to do?
(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).
What is Police v D (May 2002)
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.
What was the ‘issue’ in Police v D?
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”.
What was the ‘decision’ in Police v D?
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.
What did the Court find in Police v D?
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).
What does the caselaw ‘Police v T-M’ relate to?
Arrest guidelines under s214
What are the arrest guidelines under s.214 the Police v T-M refer to?
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.
What does Police v T relate to?
s.214 and detention in Police Custody.
What were the facts in Police v T?
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.
What was held in Police v T?
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)
- 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.
- 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.
- 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.
What is Police v CG ?
Case law relating to s214 and 236.
What are the facts of Police v CG?
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:
- 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.
- 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.
What was the result of Police v CG?
The information’s were dismissed.
Can you release a child or young person on bail?
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.
If you decide to release the child or young person on bail, When will they have to appear?
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.
Can a young person be released on a summons?
A young person cannot be released on a summons (s245).
What are suitable bail conditions for a child or YP?
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
For children or young persons kept in custody, should you consider an OTB and why?
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.
What must OpToBail’s comply with?
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
What must you do if you want to oppose bail of a defendant aged 12-17 years?
You must seek immediate guidance from a Youth Aid officer.
Do you need to consider Victim’s views on release of child or young person
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)).
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?
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))
What are Police obligations when placing a child or young person in OT custody?
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)
The 24 hour time limit does not what?
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.
Why do you need to advise OT ASAP?
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.
Once the child or young person is released into OT’s custody, they then become what?
The social worker’s responsibility. You can make recommendations about the type of custody but the final decision is with the social worker.
Is there any provision for keeping a child in Police custody for more than 24 hours?
No
What is the purpose of a joint certificate?
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.
Who must complete the joint certificate?
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)
What is the family harm police policy statement?
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.
What does the principle of early intervention mean?
Recognising that early intervention helps to stop and prevent family harm. This requires an eyes wide open approach at all family harm investigations.
What does the principle of culturally appropriate mean?
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
What does the principle of ‘safety’ mean?
• 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.
What does the principle of collecting risk information mean?
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
What does the principle of accountability mean?
· 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.
What does the principle of working collaboratively mean?
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.
What are the characteristics of family harm?
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).
What is important to remember in relation to family harm?
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).
What is family harm?
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.
What is the Power and control wheel?
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.
What is entrapment and resistance?
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.
What is important to note about family harm investigations re children?
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.
How does family harm impact of people with disabilities
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.
Does tech play a role in Family harm?
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’).
When considering whether to grant Police bail for a person charged with a family violence offence, where are they set out?
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.
When deciding whether to grant Police bail, the primary consideration is what?
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.
Are there any restrictions on Police Bail if a protection order is breached?
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)
Does this (s113) apply when the person is charged with another offence in addition to the breach offence. (s23 Bail Act 2000)
Yes