Chapter 1 - CYP & Families

Question 1

Explain Section 39(1) - Place of Safety Warrant?

Answer 1

Any District Court Judge, or issuing officer, who on application in writing is satisfied on reasonable grounds for suspecting that a child or young person is suffering, or is likely to suffer. ill-treatment, neglect, deprivation, abuse, or harm may issue a warrant authorizing any Constable or chief executive to search for the child or young person.

Question 2

An application for a warrant under s39(1) may be made by who?

Answer 2

• Constable, or

- Chief executive (social worker, or any other person authorised under a delegation to carry out that function)

Question 3

Explain Section 39(3) - Place of Safety Warrant?

Answer 3

(3) Any person executing search for any child/young person may:

• Enter/Search by force if necessary any dwelling house, building, aircraft, ship, carriage, premises or place
• IF RGTB that the child/young person has suffered, or is likely to suffer, ill-treatment, serious neglect, abuse, serious deprivation or serious harm.
• Remove/Detain by for if necessary the child/young person and place in the custody of the chief executive; or
• Where child/young person is in hospital, direct medical superintendent of hospital to keep in hospital.

Question 4

Explain Section 42 - Search without warrant?

Answer 4

(1) Any Constable who RGTB that it is critically necessary to protect a child/young person from injury or death, may w/o warrant:
- Enter/Search by force if necessary any dwelling house, building, aircraft, ship, carriage, vehicle, premises or place:
- Remove/Detain and place into custody of the chief executive.

On first entering, produce evidence of identity, and disclose that those powers are being executed under this section. Shall within 3 days after power exercised forward to the Commissioner of Police a written report on the exercise of the power and the circumstances in which it came to be exercised.

Question 5

Explain Section 48(1) - Unaccompanied Children and Young Persons?

Answer 5

Child/young person found unaccompanied by a parent/guardian/other person who usually has the care, in a situation in which the child/young person’s physical or mental health is being, is likely to be impaired, a constable may using as much force as necessary, take the child/young person and:

a) with consent of the child/young person, deliver into the custody of a parent/guardian/other person having care, or
b) If -
(i) the child/young person does not wish to be returned, or
(ii) no parent/guardian/other person having care is willing or able to have custody,

Place in custody of the chief executive.

Question 6

Explain Section 48(2) - Unaccompanied Children and Young Persons

Answer 6

Placement of child/young person in the custody of the chief executive shall be sufficient authority for detention under this Act, until:

(a) Child/young person agrees to being returned to parent/guardian/other person with care or parent etc are willing or able
(b) Application is made to the Court for a care and protection order, child/young person brought before the Court to determine if they are to held in custody pending the disposal of the application, or
(c) Circumstances of the case indicate that the child/young person is or may be in need of care or protection, the expiry of 5 days after the day on which placed in custody etc, or 3 days after that date, whatever occurs first.

Question 7

The term young person means what?

Answer 7

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

Question 8

What are the four primary considerations in relation to the Well-being and best interests of Child or Young person?

Answer 8

(a) the well-being of and best interests of the child or young person; and
(b) the public interest (which includes public safety); and
(c) the interests of any victim; and
(d) the accountability of the child or young person for their behaviour

Question 9

Explain Section 208 - Principles?

When weighing up those 4 primary considerations, the Court or person must be guided by the following principles…

Criminal proceedings should not be instituted against a child/young person

Answer 9

(a) unless public interest requires, or if there is an alternative way of dealing with matter
(b) to provide assistance/services needed to advance the well-being of the CYP or their family etc
(c) measures for dealing with offending should be designed to strengthen and foster the ability of family, whanau, hapu, iwi etc to develop their own way of dealing with their CYP
(d) CYP who commits offence should be kept in the community if practicable, consonant with ensuring safety of public
(e) CYP’s age is a mitigating factor in determining whether or not to impose sanctions in respect of offending, and the nature of such sanctions
(f) any sanctions imposed on CYP should, take the form most likely to maintain and promote development within their family group, and take the least restrictive form appropriate in circumstances.
(fa) any measures for dealing with offending should address the underlying causes for offending
(g) considerations to be given to interests and views of victims of offending
(h) vulnerability of CYP entitles CYP to special protection during any investigation

Question 10

Explain Section 208(3) - Principles Continued?

Answer 10

If a court or person is exercising a power for the purpose of resolving alleged offending by CYP, they must be guided by (in addition to the other principles listed):

a) Reasonable and practicable measures or assistance should be taken or provided to support the CYP to prevent offending
b) CYP should be referred to care and protection, or well-being services under this Act, if they would benefit them.

Question 11

Explain Section 214(1) - Arrest of a CYP without warrant?

Answer 11

Officer shall not arrest a CYP pursuant to 214A, 233 and 244 of this Act, unless satisfied on RG that:

a) necessary to arrest CYP without warrant for the purpose of -
i) Ensuring the appearance before the Court, or
ii) Preventing from committing further offences, or
iii) Preventing loss or destruction of evidence relating to an offence committed by CYP, preventing interferences with witnesses.
b) CYP may be proceeded against by summons, that proceeding would not achieve that purpose

Question 12

Explain Section 214(2) - Arrest of CYP without warrant?

Answer 12

Nothing in (1) prevents a Constable from arresting a CYP without warrant on a charge of any offence where -

a) RGTS that the CYP has committed a cat 3 or 4 offence where the max penalty is or includes imprisonment for life/14years +
b) Constable RGTB that the arrest of the CYP is required in public interest.

Question 13

Explain Section 214(3) - Arrest of CYP without warrant?

Answer 13

Every enforcement officer who arrests a CYP without warrant shall, within 3 days of arrest, furnish a written report -

a) Is a constable to the Commissioner of Police:
b) Is a traffic officer who is a Police employee, not a constable to the Commissioner
c) Is an officer or employee of the Public Service, to the chief executive of the department of which that person is an officer/empl.
d) Is an officer of local authority, to the chief executive of that local authority

(4) every report must state the reason why the CYP was arrested without warrant.

Question 14

Explain Section 214A - Arrest of a CYP in breach of bail condition?

Answer 14

A Constable may arrest a CYP without warrant if -

a) the CYP has been released on bail; and
b) the Constable believes on reasonable grounds that -
i) the CYP has breached a condition of that bail; and
ii) the CYP has on two or more occasions breached a condition of that bail (whether or not the same condition)

Question 15

Law Note: Excerpt - October 2013 edition of ten one

What was held in relation to the authority to arrest a CYP on breaches of bail?

Answer 15

Authority to arrest under this provision must always be obtained from a Youth Aid Sergeant in the first instances, or in their absence, a supervising Sergeant or above or a qualified Youth Aid Officer.

A Constable who arrests a CYP under s214A and who RGTB that they are likely to breach any condition of bail, must place the CYP in the custody of the Chief Executive in accordance with s235 (OT Act 1989)

Question 16

Explain Section 215 - CYP to be informed of rights before questioned by enforcement officer?

Answer 16

Every enforcement officer, before questioning any CYP whom there are RGTS of having committed an offence, or before asking any questions intended to obtain admission of offence, explain:

a) CYP may be arrested if, by refusing to give his/her name and address, cannot be served with summons, and
b) CYP is not obliged to accompany enforcement officer to any place to be questioned, if consents can withdraw consent, and
c) CYP is under no obligation to make/give any statement, and
d) CYP consents to make/give statement, may withdraw at any time, and
e) Statement made/given may be used in evidence in any proceedings, and
f) CYP is entitled to consult with and make/give statement in the presence of a barrister/solicitor/ nominated person

Nothing in subsection a) or b) of (1) applies if CYP is under arrest

Question 17

Explain Section 215A - Rights to be explained to CYP on request?

Answer 17

Subject to s233 and s244 of this Act, where -

a) Any enforcement officer is questioning a CYP in relation to their involvement in the commission of any suspected/offence, and
b) That CYP makes any enquiry relating to any of the matters set out in any paragraphs a) to f) of 215(1) of this Act -

That enforcement officer shall explain to that CYP those matters, appropriate to the enquiry that was made.

Question 18

Explain Section 216 - Enforcement officer to explain rights to CYP who is to be charged with an offence?

Answer 18

Subject to s233 and s244 of this Act, where -

a) enforcement officer is questioning CYP in relation to an offence, and
b) decides to charge that CYP with an offence, shall explain to that CYP
c) except where the CYP is under arrest, the matters specified in a) and b) of s215(1) of this Act, and
d) the matters specified in paragraphs c) to f) of s215(1) of this Act

Question 19

Explain Section 217 - Rights to be explained to CYP who is arrested?

Answer 19

Every enforcement officer shall, on arresting any CYP pursuant to s214 of this Act, explain to that CYP the matters specified in paragraphs (c) for (f) of s215 pf this Act

Question 20

Explain Section 218 - Explanations to be given in manner and language appropriate to age and level of understanding of CYP?

Answer 20

Every explanation given to a CYP pursuant to s215, s215A, s216, or s217 of this Act shall be given in a manner and in language that is appropriate to the age and level of understanding of the CYP

Question 21

Explain Section 219 - Explanations not required if CYP already informed of rights?

Answer 21

Nothing in s215, s215A, s216, s217 of this Act requires any explanation to be given to a CYP if the same explanation has been given to the CYP not earlier than 1hour before the later explanation.

Question 22

Explain Section 221 - Admissibility of statements made by CYP

Answer 22

Applies to -

• CYP being questioned
• CYP under arrest
• CYP being charged
• CYP detained in custody following arrest

No statement is admissible unless:

• Rights given
• Consultation with lawyer/nominated person if wish to
• Gives statement in presence of lawyer/nominated person

Question 23

Explain Section 222 - Nominated persons

Answer 23

Nominated persons may be;

• Parent/guardian
• Adult member of family/whanau or family group
• Any other adult as selected
• If fail/refuse to nominate can be any person nominated by an enforcement officer (but not an enforcement officer)

Question 24

Explain Section 222 - Nominated persons, who can be refused and what is there role?

Answer 24

Can refuse a nominated person if -

• Likely to pervert cause of justice
• Cannot be located or is unavailable within a reasonable period of time

Role of nominated person -

• Take reasonable steps to ensure CYP understands matters explained under s221(2)(a) (rights)
• To support CYP before and during questioning, during the making/giving of any statements

Question 25

Explain Section 223 - Section 221 not to apply where statement made before requirements of that section can be met?

Answer 25

Spontaneous oral statements admissible before opportunity to fulfil 227

Question 26

Explain Section 229 - Parents/guardians to be informed

Answer 26

Must advise nominated person that CYP has been taken after arrest/questioning, may be visited. Must advise parents/guardians.

Persons informed may:

• Visit CYP
• Be explained rights
• Entitled to consult with CYP privately

Private consultation may be declined if:

• Enforcement officer is guardians CYP
• Subject to reasonable conditions as may be necessary to ensure safety of CYP or to prevent commission of an offence.

Question 27

Explain Section 234 - Young person arrested must be?

Answer 27

• Released
• Released on bail
• Delivered to custody of:
  Parent/guardian/other person having care, Iwi (cultural, social service, with agreement of CYP), any person or organisation approved by chief executive.

Question 28

Explain Section 235 - CYP arrested must be placed in custody of chief executive?

Answer 28

Subject to 1A, CYP arrested must place that CYP in the custody of chief executive as soon as possible but not more than 24 hours
1A:
- unlikely to appear in court
- likely to commit further offences
- necessary to prevent loss/destruction of evidence relating to offence
- interference with witness
- arrested under s214A (breach of bail)
CYP must be placed in the custody of chief executive by delivery and supplying identity, circumstances of arrest, date/time of appearance in court.

Question 29

Explain Section 236 - Young persons detained in Police Custody?

Answer 29

Subject to s234, s235
Senior Sergeant or above may authorise young person to be detained in Police custody if (joint certificate):
- Young person is likely to abscond or be violent, and
- 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 24hours and until appearance before the court.

Question 30

Law notes - R v KAHU (powers under a s39 warrant)

Explain this case law?

Answer 30

• Visited by a social welfare officer, acting on a place of safety warrant under s39.
• Accompanied by a Police officer who had obtained, but did not use warrant under MODA75 and Sum proceedings Act 1957
• Social worker explained the right to enter house and check food situation/see children/remove children named
• While checking cupboards for food, Police located Cannabis, appellant arrested, children removed
• Appellant appealed

Court found that it was not unreasonable for the cupboards to be checked under s39, as this falls under checking living conditions. The person executing warrant must make an independent judgement as to whether the child should be removed or detained.

Question 31

Law notes - PETTUS v R (search without warrant)

Explain this case law?

Answer 31

• Charged with manufacturing meth, possession of materials for meth and ill-treatment or neglect of children.
• Police suspected meth manufacturing so obtained footage leaving store with materials capable of being used
• Police executed a warrant over premises and vehicles
• CYF present at warrant, 12-year-old son detained
• Blood, urine samples taken from children but did not yield any evidence of meth manufacturing in samples
• Deemed not within the scope of any implied power to remove children under s42

s42 - very high threshold, namely a belief that removal is critically necessary to protect child from injury/death, should have used s39 or s40 in this matter.

Question 32

Law notes - Police v D (detention under s48)

Explain the case law?

Answer 32

• Youth removed by Police from private property (in possession of alcohol and 1K), taken to Police station (s48)
• Youth provided name, address and details of his grandmother, whom he lived with.
• Details were not passed onto transporting officers.
• Youth became agitated as he was being questioned for these details once again, punched officer, charged with assault

Court held - s48 purpose is the care and protection of YP, requires welfare and interest of YP to be put first, does not authorise the detention of YP.

Police acted reasonably in taking the YP to the station as an intermediate step in returning him to care. Police failed to consider the youth’s interest, Police detained youth unlawfully, failed to ascertain if YP wanted to be taken home, no evidence of Police informing YP of detention (rights), no need to question youth.