Chapter 1: Children, Young Persons and their Families ** Flashcards
OT Act 1989, Section 39 summary
A warrant issued by a judge for Police/social worker to enter, search and uplift children suffering from immediate neglect/harm etc.
(39 just in time)
OT Act - CYP
What if a child is in hospital when a Section 39 warrant is executed?
Direct the Medical Superintendent of that hospital to keep that child/YP at the hospital.
OT Act 1989, Section 42 summary
Warrantless power to uplift children/YP
BELIEVE that it is critically necessary to protect a child or young person from injury or death may without warrant:
- Enter and search, by force if necessary, any dwelling house, building, aircraft, ship, carriage, vehicle, premises of place
- 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.
(42 up to you)
OT Act - CYP
Section 42 - what can you do?
BELIEVE that it is critically necessary to protect a child or young person from injury or death may without warrant:
- Enter and search, by force if necessary, any dwelling house, building, aircraft, ship, carriage, vehicle, premises of place
- 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.
OT Act - CYP
Responsibilities relating to Section 42 warrantless uplift?
When exercising the power:
- Produce I.D.
- Disclose the powers being executed
After exercising power:
- Within 3 days must make a written report to the Police Commissioner
OT Act 1989, Section 48 summary
Child or YP is unsupervised and in a situation where their physical/mental health is LIKELY to be impaired you can TAKE (not detain) them to their parent/guardian/etc. with the CYP’s consent. The parents can also refuse to take them.
If the parents aren’t appropriate, the child can go to OT.
There’s no specified time limit here. It could be the middle of the day. It depends on the circumstances.
Section 48 - What is it/what can you do?
Where a child/YP is found unaccompanied by parent/guardian/usual carer and officer may use reasonable force if necessary to:
a) Take the child/YP to to their parent/guardian if the child wants to go there
b) They don’t want to go to their parents/guardian or that would be inappropriate (e.g. parents unsuitable) place them in the custody of the chief executive (OT)
OT Act 1989, Section 208. Youth Justice.
What are the principles for judges to consider with YJ?
Just read this one and move on…it’s too long to memorise so don’t feel bad.
1) Any court must consider the 4 principals under Section 4A(2)
2a) Criminal proceedings should only be if there is public interest if there are alternative means to deal with the matter
b) Criminal proceedings should not be done to provide assistance to the child or their family.
c) Any measures for dealing with the child/YP should be done to (i) strengthen the family (ii) foster the ability of the family to deal with the child/YP themselves.
d) Children/YP that are going through YJ process should be kept in the community if practical and if the public would remain safe.
e) The child/YP’s age is to be considered when (i) deciding to impose sanctions (ii) the nature of the sanctions
f) Any sanctions imposed should (i) take the form most likely to maintain or promote the development of the child within their family (ii) take the least restrictive approach that is appropriate
fa) Any measures of dealing with the offending should, if practical, address the underlying causes of the offending.
g) (i) When determining measures of dealing with offending consideration should be given to the interests/views of the victim (the victim should be encouraged to participate in the process)
(ii) Any measures should have proper regard for the impact of offending on the victim.
h) The vulnerability of the child/YP entitles them to special protection during any investigation relating to offending or possible offending.
3a) In addition to all these principal’s, a judge must also consider that reasonable and practical measures should be taken or provided to support the child/YP to prevent or reduce offending or reoffending
b) the child should be referred to care, protection or well-being services if that would benefit them.
Subsection 3 doesn’t apply to non-youth aid specialised Police officers.
OT Act 1989, Section 214. Youth Justice.
Arresting a 1J
What is it?
An officer shall not arrest a child/YP unless the officer is satisfied on reasonable grounds
1a) that it’s necessary to arrest the child/YP for the purpose of:
i) Ensuring appearance at court
ii) Preventing further offences
iii) Prevent the loss or destruction of evidence, relating to the offence in question, or prevent interference with any witness of the same offending
2a) The constable has RCTS that the child has committed a category 4 or 3 offence with a maximum penalty of 14 year imprisonment and above
2b) The constable believes that the arrest is required in the public interest.
3) Every constable that arrests a child/YP shall, within 3 days of making the arrest, make a written report to the Commissioner of Police.
4) Every report made pursuant to subsection 3 must state the reason why the child was arrested without warrant.
OT Act 1989, Section 233.
What is it?
Relates to LTA.
Nothing in the provisions of sections 214 to 232 limits or affects the powers of an enforcement officer under any of the provisions of sections 68 to 72 of the Land Transport Act 1998.
This part of the LTA 1998 lays out powers to conduct EBA procedures.
OT Act, Section 214A. Youth Justice.
What is it?
Relates to arresting kids.
The constable may arrest a child/YP without warrant if:
a) the child/YP has been released on bail and:
b) the constable believes on reasonable grounds that:
i) the child/YP has breach a bail condition and
ii) the child/YP has on 2 or more previous occasions breached a condition of that bail (whether or not it was the same condition)
OT Act 1989.
Law note relating to Section 214A.
What is it?
Who to consult with regards to 1J bail K9?
Authority to arrest under this provision (i.e. for breach of bail) must always be obtained from a Youth Aid Sergeant in the first instance, on in the absence, a supervising Sergeant (or above) or a qualified Youth Aid Officer.
This law note explains that Police need to have a robust practice for recording breaches by children/YP so that proper decisions can be made.
OT Act 1989, Section 215, 215A, 216 and
When do you have to read the Youth BOR to these little shits?
6 different times.
1) Before questioning a child/YP when there are RGtS that they’ve committed an offence.
2) Before asking any child/YP any question intended to obtain an admission of an offence.
3) If when talking to a child/YP, an officer forms the view that there are RGtS that the child/YP has committed an offence.
4) If the officer is questioning the child/YP and the child/YP requests the whole BOR or only just part of it.
5) When the child/YP is arrested.
6) When the officer decides to charge the child/YP with an offence.
OT Act 1989, Section 219
What is it?
How long between Youth BOR?
Officers aren’t required to give the Youth BOR to the child/YP is the same explanation has been given to the child not earlier than 1 hour before.
OT Act 1989, Section 221
When is a statement made by a child not admissible?
A statement isn’t admissible unless:
1) Youth BOR given in a language appropriate to age and level of understanding AND
2) Where the child/YP wants to speak/consult with a lawyer or nominated person, they have done that AND
3) The child makes the statement in the presence of one or more of the following persons:
i) a lawyer
ii) nominated person
iii) a parent or adult family member or an adult who isn’t an enforcement officer
Note that there are provisions under section 223 that protect spontaneous admissions.