1.1 Oranga Tamariki Act 1989

Question 1

What is the age of a child?

Answer 1

Under 14 years old.

Question 2

Section 39 (1) - What is a place of safety warrant?

Answer 2

It is issued by the court when a child or young person is suffering, or likely to suffer, ill-treatment, neglect, deprivation, abuse, or harm.

Question 3

Section 39 (3) of the Oranga Tamariki Act 1989 give Police the power to do what (4)?

Answer 3

1. Enter and search, by force if necessary, any dwelling house, building, aircraft, ship, carriage, vehicle, premise or place
2. If that person believes on reasonable grounds that the child is suffering, or is likely to suffer ill-treatment, neglect, deprivation, abuse or serious harm
3. Remove or detain by force if necessary, the child or young person and place them in the custody of the chief executive or
4. Where the child is in hospital, direct the Medical Superintendent of that hospital to keep that child or young person in that hospital.

Question 4

What power does section 42 of the Oranga Tamariki Act 1989 confer?

Answer 4

Any constable who believes on reasonable grounds that it is critically necessary to protect a child or young person from injury or death may, without warrant,—
(a)
enter and search, by force if necessary, any dwellinghouse, building, aircraft, ship, carriage, vehicle, premises or place:
(b)
remove or detain, by force if necessary, the child or young person and place the child or young person in the custody of the chief executive.

Question 5

What are the three requirements of Police when invoking their power under section 42 of the Oranga Tamariki Act 1989?

Answer 5

1. Produce evidence of identity.
2. Disclose the power being used.
3. Report to commissioner within 3 days.

Question 6

What powers are conferred by section 48 of the Oranga Tamariki Act 1989 and when can you use them (4)?

Answer 6

1. When a CYP is unaccompanied.
2. Their physical or mental health is likely to be impaired.
3. You may detain and place in the custody of their guardian
4. Or, if they don’t consent or if the guardian doesn’t want them, the chief executive..

Question 7

Discuss some of the youth justice principles stipulated in section 208 of the Oranga Tamariki Act 1989. There are 10 in total.

Answer 7

1. Criminal proceedings should only be instituted when in the public interest and there is no alternative means.
2. Criminal proceedings should not be instituted just to provide assistance.
3. Measures for dealing with offending should be designed to strengthen the family and foster their ability to deal with the offending.
4. CYPs should be kept in the community where able.
5. Age is a mitigating factor in sanctions.
6. Sanctions should promote the development of the child and family.
7. Measures for dealing with offending should address the underlying causes.
8. Measures for dealing with offending should consider the victim’s interests and views.
9. CYPs are entitled to special protection during any investigation.
10. The resolution of offending should support the CYP to prevent offending and refer them to well-being services where necessary.

Question 8

What are the five conditions under which you might justify the arrest of a CYP according to section 214 of the Oranga Tamariki Act 1989?

Answer 8

In order to:

1. Prevent interference with a witness.
2. Ensure appearance in court.
3. Prevent further offending.
4. Prevent the loos or destruction of evidence.
5. RGTS the commission of an offence with a max over 14 years and it is in the public interest.

Question 9

What two conditions must be met before arresting a CYP for breach of bail under section 214A of the Oranga Tamariki Act 1989?

Answer 9

1. RGTB a condition has been breached.

2. Two previous breaches of that bail have occurred.

Question 10

Who should you seek to give authority to arrest a CYP for breach of bail under section 214A of the Oranga Tamariki Act 199?

Answer 10

Authority must 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 11

According to sections 215-217 of the Oranga Tamariki Act 1989, when should you inform a CYP of their rights (4)?

Answer 11

215 - Before questioning a CYP whom there are reasonable grounds to suspect of having committed an offence
- if grounds to arrest the CYP for refusing to provide details and cannot be served with a summons

215A - when questioning a CYP in relation to the CYP’S involvement in any offence rights are to be explained on request

216 - When an officer decides to charge a CYP

217 - When arresting a CYP

Question 12

Section 218 - What manner should a CYP rights be given?

Answer 12

In a manner and language that is appropriate to the age and level of understanding of the CYP

Question 13

Section 219 - When do you not have to re-advise a CYP of their rights?

Answer 13

Nothing in sections 215, 215A, 217 requires the rights be re-given if they were advised no earlier than 1 hour prior

Question 14

Section 222 - Who can be a nominated person (4)?

Answer 14

• Parent or Guardian of the CYP
• An adult member of the CYP’S family or Whanau
• Any other adult selected by the CYP
• If the CYP fails to nominate, any adult (not being an enforcement officer) nominated by an enforcement officer

Question 15

According to section 236 of the Oranga Tamariki Act 1989, who must authorise ongoing detention in police custody following arrest?

Answer 15

A senior sergeant or above.

Question 16

Describe an important case law decision surrounding section 48 of the Oranga Tamariki Act 1989.

Answer 16

Section 48 should not be used by police for the sole purpose of taking a CYP into custody who is suspected of committing a crime. If police believe has committed an offence, only arrest if 214 would permit.

208 principles requires that proceedings should not be initiated unless there are no other means of dealing with a matter and any proceedings must take the least restrictive form appropriate to the circumstances

Question 17

Under section 221 of the Oranga Tamariki Act 1989, what would lead to a statement being inadmissible?

Answer 17

No oral or written statement made or given by a child or young person is admissible in evidence unless they have been explained their rights in a manner and language they understand.

Question 18

According to section 235 of the OT Act, when may a CYP be placed in the custody of the chief executive (2)?

Answer 18

If a Constable believes on reasonable grounds that one or more aspects of WEEP may occur, may place the child in the custody of the chief executive as soon as practicable and not later than 24 hours after the arrest.

Question 19

The executing of a warrant issued in the name of the Chief Executive may be performed by who?

Answer 19

A social worker or any other person authorised under a delegation to carry out that function.

Question 20

An officer is not prevented from arresting a CYP if…

Answer 20

There are RGTS the CYP has committed a category 3 or 4 offence where the maximum penalty is 14 years or above.

Question 21

What does section 223 of the Oranga Tamariki Act 1989 stipulated with respect to spontaneous admissions?

Answer 21

Any oral submissions may be admissible without the requirements of section 221 if the officer has not had a reasonable opportunity to comply with the 221 requirements.

Question 22

Section 48 of the Oranga Tamariki Act 1989: Describe the important relevant case law.

Answer 22

Section 48 should not be used by police for the sole purpose of taking the CYP into custody who is suspected of committing a crime.

Question 23

When can you veto a CYPs choice of nominated person?

Answer 23

1. The person would attempt to pervert the course of justice.
2. They cannot, with reasonable diligence, be found.
3. They are not available within a period of time that is reasonable in the circumstances.

Question 24

A law note was published in October 2013 with respect to arresting CYPs for BOB. What were the two key findings?

Answer 24

1. Authority to arrest should be obtained from a Youth Aid Sergeant or (in their absence) a supervising sergeant or qualified Youth Aid Officer.
2. Bail breaches should be recorded under a 6D occurrence and subsequent breaches should be entered against this occurrence.

Question 25

According to section 229 of the Oranga Tamariki Act, what obligations do you have when you bring a CYP in for questioning regarding their nominated person (3)?

Answer 25

1) You must advise their nominated person as soon as practicable and allow them to visit them.
2) If the nominated person is not their parent/guardian/carer, you must notify their parent/guardian/carer.
3) Allow them to consult privately with the CYP.

Question 26

According to section 234 of the Oranga Tamariki Act, what are your options following the arrest of a CYP?(3)

Answer 26

1) Release the CYP
2) Bail them
3) Deliver them into the custody of a parent/guardian/carer, a social service, or a person/organisation approved by the chief executive or a constable for that purpose

Question 27

What was held in R v Kahu in relation to the search of an address under section 39 of the Oranga Tamariki Act?

Answer 27

The searching of cupboards for food was justified for establishing the living conditions of the child and whether or not they are at risk. The cannabis located during this search was found during a reasonable search and was deemed admissible.

Question 28

What was held in Pettus v R in relation to the removal of CYPs from an address where methamphetamine was believed to have been manufactured?

Answer 28

They should not have been detained under section 42 because there was no immediate risk. The threshold for invoking section 42 of the OT act is very high. It must be believed that removal is critically necessary to protect a child from injury or death. The threshold for section 39 and 40 is lower.

Question 29

According to section 236 of the Oranga Tamariki Act, what must happen before a young person is detained in police custody?

Answer 29

A senior sergeant and the chief executive must be satisfied on reasonable grounds that:

1) A young person who has been arrested is likely to abscond or be violent: and
2) Suitable facilities for the detention in safe custody of that young person are not available to the chief executive.

Question 30

When is a joint certificate issued under the Oranga Tamariki Act 1989?

Answer 30

When a young person is to be held in police custody as agreed upon between police and Oranga Tamariki.

Question 31

What are the reporting requirements following the holding of a young person in police custody?

Answer 31

Within five days of the joint certificate being issued, a copy of the certificate and written report should be furnished to the Commissioner by the constable and to the chief executive by the delegate.