Children, Young Persons and their Families

Question 1

OT Act 1989, Section 39 summary

Answer 1

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)

Question 2

OT Act - CYP

What if a child is in hospital when a Section 39 warrant is executed?

Answer 2

Direct the Medical Superintendent of that hospital to keep that child/YP at the hospital.

Question 3

OT Act 1989, Section 42 summary

Answer 3

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)

Question 4

OT Act - CYP

Section 42 - what can you do?

Answer 4

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.

Question 5

OT Act - CYP

Responsibilities relating to Section 42 warrantless uplift?

Answer 5

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

Question 6

OT Act 1989, Section 48 summary

Answer 6

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.

Question 7

Section 48 - What is it/what can you do?

Answer 7

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)

Question 8

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.

Answer 8

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.

Question 9

OT Act 1989, Section 214. Youth Justice.

Arresting a 1J

What is it?

Answer 9

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.

Question 10

OT Act 1989, Section 233.

What is it?

Relates to LTA.

Answer 10

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.

Question 11

OT Act, Section 214A. Youth Justice.

What is it?

Relates to arresting kids.

Answer 11

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)

Question 12

OT Act 1989.

Law note relating to Section 214A.

What is it?

Who to consult with regards to 1J bail K9?

Answer 12

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.

Question 13

OT Act 1989, Section 215, 215A, 216 and

When do you have to read the Youth BOR to these little shits?

6 different times.

Answer 13

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.

Question 14

OT Act 1989, Section 219

What is it?

How long between Youth BOR?

Answer 14

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.

Question 15

OT Act 1989, Section 221

When is a statement made by a child not admissible?

Answer 15

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.

Question 16

OT Act 1989, Section 222(1)

Who can a child/YP nominate as their nominated person?

Answer 16

The child/YP can nominate:

a) a parent/guardian
b) an adult family member
c) any other adult selected by the child/YP
d) If the child refuses to nominate an adult, an enforcement officer can nominate any adult who isn’t an enforcement officer.

Question 17

OT Act, Section 222(2), and (3) and 231

When can an officer refuse to allow a child/YP to consult their nominated person?

What next?

Answer 17

a) when it is likely that the nominated person would attempt to pervert the course of justice OR
b) when the nominated person cannot, with reasonable diligence, be located or that they are unavailable.

(3) The child/YP will be permitted to nominate another person.

Question 18

OT Act, Section 222(4)

What is the duty of a nominated person?

Answer 18

a) take reasonable steps to ensure that the child/YP understands what is happening
b) support the child/YP before and during any questioning (assuming they agree to make a statement)

Question 19

OT Act, Section 229

What is it?

Relates to notifying parents etc. when a child/YP has been arrested.

Answer 19

When a child/YP is arrested, Police must:

a) Notify the nominated person,
b) if the nominated person isn’t the child/YP’s parent/guardian/person’s having the care of the child, notify them

Must be told that they can visit the child/YP.

This must be done unless it’s impracticable to do so.

When the parent (etc.) arrives at the Police station (etc.)

i) they have to be told that they can visit the child/YP.
ii) they have to be explained the Youth BOR
iii) they are entitled to consult privately with the child/YP during that visit

The parent (etc.) is entitled to a private meeting with the child/YP unless an enforcement officer is guarding the child/YP at the time OR it’s reasonable that an officer has to stay with the child to ensure the child safety or prevent any offences.

Question 20

OT Act, Section 234

Custody of child or young person following arrest.

Custody of child after police are finished with them.

Answer 20

After arrest a officer shall:

a) Release the CYP or
b) Release the CYP on bail if eligible or

c) Deliver the child to the care of:
i) Any parent/guardian or person having care of the CYP
ii) With the CYP’s agreement, any Iwi Social Service or Cultural Social Service or
iii) With agreement of the CYP, any other person/organisation approved by the chief executive (or constable for that purpose)

Question 21

OT Act, Section 235

CYP’s who are arrested may be placed in the custody of the chief executive.

How long to decide if the CYP should be given to OT and why would you do that?

Answer 21

If the constable believes, on reasonable ground, that WEEP will occur:

A constable can place the CYP into the custody of the chief executive. As soon as practicable but within 24 hours after the arrest.

The CYP needs to be delivered to (OT) and Police need to tell (OT) the:

i) identity of the CYP
ii) circumstances of arrest
iii) date, time and court where the CYP needs to next appear

This needs to be written on the ‘prescribed form’.

This Section is sufficient authority for (OT) to take the care of the child.

This Section CANNOT be used because Police believe that the CYP needs C&P with OT.

Question 22

OT Act, Section 236

Young Person who is arrested may be detained in Police custody.

When can Police hold a CYP in custody following arrest and what’s the procedure?

Answer 22

(OT) and a Police officer with the rank of Senior Sgt or above need to complete a joint certificate (prescribed form). Both parties need to be satisfied on reasonable grounds that:

a) the CYP is likely to abscond OR be violent AND
b) that (OT) haven’t got a suitable place to hold them

The CYP can be held in Police custody for up to 24 hours or when his court case is (whatever is sooner).

(OT) has 5 days to notify the chief executive.
The officer has 5 days to notify the Commissioner.

They have to provide a copy of the certificate and a report stating the circumstances and the duration that the CYP was detained (or likely to be detained) in Police custody.

Question 23

CYP case law

R v Kahu [1995]

Relates to Section 39 warrant and searching the house.

Key points?

Answer 23

In appropriate circumstance, the holder of the warrant may check the supplies of food in the house and open cupboards for that purpose.

A constable was doing this and located cannabis in the cupboards. The offender was charged and appealed the conviction due to these circs but the judge decided that in order for the social worker/constable to decide whether to take the kids they need the best information. This would include checking the cupboards.

Question 24

CYP case law

Pettus v R [2013]

Section 42 vs Section 39

Answer 24

Section 42 warrantless entry has a very high threshold, namely that it is critically necessary to enter to protect a child from injury or death.
Section 39 or 40 warrants have lower threshold for intervention.

Police were investigating some parents for cooking and selling meth. They saw one of the parents leaving a store with equipment for making meth and return home where there were kids living.

They entered under Section 42 to get the kids.

The courts determined this to be unlawful as the danger to the kids wasn’t so serious that other methods for C&P couldn’t be considered.

Section 39 would have been the way to go. The judges love judicial scrutiny.

Question 25

CYP case law

Police v D [2002]

Section 48 purpose and limitations

Answer 25

• Section 48 is used for care and protection. Courts will take a dim view on Police using this Section for anything else.
• Allows Police to ‘take’ a child home with their consent or place into the ‘custody’ of (OT)
• This means they should never be in Police cells or even enter through the same doors as regular prisoners
• A Police station can be used as an intermediary location to facilitate taking the CYP home.
• Taking the CYP into a secure area of the station would only be justified if force was required to take the CYP home etc.
• Welfare of the child first. Police should minimise harmful experiences like being with adult prisoners or being in secure areas.

Question 26

CYP case law

Police v T-M [2002]

Section 48 in lieu of arrest with s214

Late night roaming 1J with WTI’s?

Answer 26

A known youth offender was seen walking in the early hours of a morning through an area with high rates of burglary.

Police invoked s48 and took the CYP to a Police station for an interview about recent burglaries.

Around 3 weeks later, Police went to the CYP’s home address and interviewed him again. The CYP was charged with Burglary.

Police later dropped the charges because there were issues with the case. The CYP was awarded $1000 from Police for misusing the court process.

Decision / Findings
1) s48 should not be used for the sole purpose of taking the CYP into custody. The section is limited in its scope and is only meant to be used to get CYP’s into safety.

2) All CYP arrests have to satisfy WEEP.
3) Police can’t arrest a CYP just to force them into facing the consequences of their actions. In contrast, that’s ok to do to adults.

Question 27

CYP case law

Police v T [1998]

Holding CYP in Police custody after a s214 arrest

Answer 27

A CYP was seen by Police steaking two packets of biscuits from a dairy. Police instructed him to stop so the CYP threw the biscuits down and fled the scene. He was arrested a short time later jumping over fences.

At that time, CYP was under a supervision order relating to 17 other charges.

The CYP was held in Police custody for over 24 hours and appeared before court for shoplifting.

Findings:
The initial arrest may have been justified because the CYP was attempting to flee but the extended period they were in custody was unnecessary and unlawful.

The fact that the CYP had a history of offending didn’t mean that he could be arrested whenever he offended. There was not enough to suggest that the CYP would continue to commit offences if he wasn’t arrested.

This was a breach of the BORA because a person arrested in the morning ought to be dealt with that afternoon expect in unusual circumstances.

Question 28

CYP case law

Elia v R [2012]

Youth rights and spontaneous admissions.
s215 - when to provide youth rights
s223 - Spontaneous admissions are admissible

Answer 28

Following a serious aggravated robbery, a Police officer spoke with CYP(John) at his home address because he was a potential witness. Police spoke with John with his mother present.
When asked about the robbery, John got ‘nervous and upset’. Police asked him about it and John indicated that he may have been involved in the robbery.

Police conducted a formal interview with John after reading him the BOR. In this statement, John indicated that CYP(Steve) was also involved.

Steve was taken to a Police station the next day and an interview was conducted with his mother. Halfway through the officer left the interview and Steve’s mother told Steve not to tell Police anything.

Police returned and suggested that the mother be replaced by another nominated person because she was attempting to pervert justice.

FINDINGS:
A judge ruled that John’s initial admissions at home were inadmissible because the officer should have given him his rights when he saw John was nervous. This would reasonably form a suspicion in the officers mind that John was involved in the offence.
John’s interview was deemed admissible.

The first half of Steve’s interview was deemed admissible but the second half was deemed inadmissible because the BOR wasn’t explained to him again after the nominated person changed.

The initial admissions were made without the youth BOR and were inadmissible. This calls into question any further admissions made even after the youth BOR are explained. The seal is cracked with the first admission.

Question 29

CYP case law

S R v K [2002]

s222 and choice of nominated person.

Answer 29

a 12yo CYP was a suspect for a homicide. Police found the CYP and he agreed to accompany the Police to his fathers house nearby.

The father states that the CYP had been at home with him the night of the murder.

The CYP and the father agreed to go with Police to the Police station. On the way, the BOR was given to the CYP.

Police believed that the father was a potential alibi witness and deemed him unsuitable to be a nominated person.

The mother’s locating was unknown. The CYP had an adult sister who may be suitable as a nominated person but Police determined that it was be better to bring in an independent person.

An independent person acted as the nominated person and the CYP made admissions to the homicide and took part in a video reconstruction.

HIGH COURT
Police were in breach of the act because they didn’t inform the CYP that he didn’t have to accompany them and that he could leave the interview at any stage.

The judge was unhappy that Police didn’t let the CYP chose another nominated person after his father was deemed unsuitable.

The High Court judge deemed the video admissible because the appropriate youth BOR was explained.

COURT OF APPEAL
Overturned the decision and deemed the interview and video reconstruction inadmissible because the CYP wasn’t allowed to choose which family member or adult he wished to support him.

It’s not the place of Police to decide who the nominated person will be or veto anyone. The support of a fair minded stranger is not sufficient and is not what the legislation intended. This should only be used when the CYP refused to choose someone etc.

Question 30

CYP case law

S v Police [2006]

Spontaneous admissions after the CYP was told he wouldn’t be charged

Answer 30

Police visited a 15yo CYP to speak about unresolved car thefts and burglaries. The officer told the CYP that anything he told Police wouldn’t end in charges being laid. It was more of an intel interview of sorts. The pair drove around and the CYP made admissions to various 4211’s and burglaries.

During this, the CYP made unexpected admissions to two aggravated robberies.

The officer told the CYP that these weren’t the kind of offences that Police would overlook.

He told the CYP that he wanted to talk about the agg robs and that it might lead to prosecution.

Everything was done right from that point (BOR, nominated person etc.) and charges were laid for agg rob.

The CYP was found guilty of both charges in the Youth Court.

High Court Appeal
The judge deemed a spontaneous admission to be one that is made entirely without external stimulus or constraint. The offer of impunity plainly influenced the CYP’s decision to make admissions so they were not spontaneous and deemed inadmissible.

Staff wishing to resolve cases by seeking admissions and indicating an intention not to charge should ensure that they are very specific about the boundaries of that offer.

Question 31

CYP

What is the care and protection age?

Answer 31

Of or over the age of 14 years but under the age of 18 years