Oranga Tamariki Act 1989

Question 1

Oranga Tamariki Act 1989:

Under Care and Protection, the age has been redefined and changed to what for the definition of a Young Person?

Answer 1

A person of OR over the age of 14 years, but under the age of 18 years

Question 2

Oranga Tamariki Act 1989:

In what new ways does the new Care and Protection age affect the Police?

Answer 2

When we identify young people in harmful environments (ie: Section 48) … and undertaking child protection investigations

Question 3

Oranga Tamariki Act 1989:

Outline Section 48 … Unaccompanied Minors

Answer 3

When C or YP found unaccompanied, where physical or mental health is impaired, Constable may use force reasonably necessary, take C or YP AND;

(a) with CYP consent, deliver CYP to parent/guardian OR
(b) if CYP does not want to go to parent/guardian … or no parent willing or able to look after CYP … place in OT care

Placement continues until CYP agrees to return to parent etc … OR Application under section 67 … OR where CYP is in need of C and P - the expiry 5 days after CYP was placed in custody OR 3 days in any other case (whichever first occurs - ie: Sect. 42)

Question 4

Oranga Tamariki Act 1989:

Youth Justice Section 208 principles of the act

Answer 4

(a) unless public interest, criminal proceedings not to be instituted if alternative means available
(b) criminal proceedings not to be instituted solely to provide services
(c) any measures be designed to strengthen family or foster ability to develop their own means
(d) CYP offender kept in community where practicable, weighed with public safety
(e) age is mitigating factor: whether to impose sanctions AND nature of sanctions
(f) Sanctions: take form likely maintain and promote development AND take least restrictive form in circumstances
(fa) Measures address causes underlying offending
(g) consideration given to victims AND proper regard for their interests and impact on them
(h) vulnerability of CYP entitles special protection during investigation

Question 5

Oranga Tamariki Act 1989:

Outline Section 214 (1) (a) and (b) - Arrest of CYP without warrant

Answer 5

SHALL not arrest without warrant unless on RG:
(a) necessary to a arrest with/w to:
- ensure appearance before court
- prevent further offences
- prevent loss / destruction of evidence or prevent interference with witnesses
AND
(b) where can be summonsed, that summonsing would not achieve that purpose

Question 6

Oranga Tamariki Act 1989:

Outline Section 214 (2) (a) and (b)

Answer 6

Nothing in subsection one prevents police from arresting CYP where;

• Constable has RC to suspect CYP has committed a category 3 or 4 offence, minimum penalty 14 years + AND
• Constable believes on RG that arrest required in public interest

Question 7

Oranga Tamariki Act 1989:

Outline Section 214 (3), Obligations on Arresting / Enforcement Officer

Answer 7

When arresting a CYP without warrant SHALL furnish a written report within three days after making arrest … And state the reason for the arrest

Question 8

Oranga Tamariki Act 1989:

Outline Section 214A - CYP breach of bail

Answer 8

May arrest without warrant if:

(a) CYP has been released on bail AND;
(b) Constable believes on RG that;
- CYP has breached the condition of that bail AND
- CYP has on two or more previous occasions breached a condition of that bail (Whether or not the same condition)

Authority must be obtained from Youth Aid Sgt in first instance … or Supervising Sgt + … or Qualified Youth Aid Officer

Question 9

Oranga Tamariki Act 1989:

Outline Section 234 - Custody of CYP following arrest

Answer 9

Where CYP arrested Constable SHALL

• Release the CYP; OR
• Where CYP may be bailed (Sect. 21, Bail Act - Police Bail) release them; OR
• Deliver CYP into custody of;
  
  • any parent/guardian OR
  • with agreement CYP, any Iwi or Cultural Social Service
  • with agreement CYP, any other person approved by OT or Police

Question 10

Oranga Tamariki Act 1989:

Outline Section 235(1) (a) to (e) - CYP arrested may be placed in custody of Chief Executive

Answer 10

A Constable, In relation to any CYP arrested;

• must place CYP in custody of OT; AND
• must do “AS SOON AS PRACTICABLE”, AND not later than 24 hrs after arrest

Applies when, Constable believes RG:

• not likely to appear; OR
• commit further offences; OR
• loss/destruction evidence or interference witnesses; OR
• CYP arrested 214(A) and likely to continue BOB.

Question 11

Oranga Tamariki Act 1989:

Outline Section 235(2) - CYP arrested may be placed in custody of Chief Executive (prescribed form)

Answer 11

CYP shall be placed in OT by;
- delivering CYP to OT or delegate AND

Prescribed form;

• ID of CYP; AND
• Circumstances of arrest; AND
• Date/Time of intended appearance for Court

NOTE: No Constable to place CYP in OT care because belief CYP in need of C and P

Question 12

Oranga Tamariki Act 1989:

Outline Section 236 (1) (a) and (b) - CYP arrested may be detained in Police custody

Answer 12

Where OT (CE or Snr SW) and S/Sgt +, satisfied on RG;

• that YP who’s arrested likely abscond or be violent AND
• suitable facilities for detention not available

YP may, on signed joint certificate, be detained in Police custody for more then 24 hrs AND until appearance before Court

Question 13

Oranga Tamariki Act 1989:
Outline Section 236 (2) (a) to (b) - CYP detained in Police custody

If joint certificate signed, how many days to furnish Copy of Certificate and what should the Written report state

Answer 13

If joint certificate signed, 5 days for OT and Police to furnish;

• Copy of Certificate
• Written report stating:
  
  • Circumstances AND
  • Duration YP detained, or likely to be detained in Police Custody

Question 14

Oranga Tamariki Act 1989:

Outline Section 238 (1) (a) to (e) - Custody of CYP pending hearing

Answer 14

Where CYP appears in Youth Court, Court shall;

(a) Release CYP; OR
(b) Release on Bail; OR
(c) Order CYP delivered into custody of parent/guardian/care giver approved by OT;
(d) Order CYP be detained in custody of OT, Iwi SS, or Cultural SS;
(e) Order YP (NOT child), be detained in Police Custody

Question 15

Oranga Tamariki Act 1989:

Outline Section 238 (2) (a) to (b) - Custody of CYP pending hearing “Specified Offence” (Sect. 29A, VR Act 2002)

Answer 15

If YP charged with Specified Offence;

(a) - before Youth Court makes order under 238(1), Prosecutor must;
- make reasonable effort to ascertain view victim(s) … (about Release/Bail/Custody etc); AND
- inform Court of those views; AND

(b) After Court makes order, Police must inform victim(s)
- of order made; AND
- any bail conditions relating to victims safety; OR
- Non Association or non contact

NOTE: 238(4) - Court must not refuse Bail merely because Court considers CYP in need of C and P

Question 16

Oranga Tamariki Act 1989:
Outline what was held in Police v D, Section 48 Detention, Youth found unlawfully on private property drunk, gave his deaths, later assaulted Police in custody in secure area

Answer 16

• By taking Youth into secure area, police detained him beyond their lawful authority, which was to deliver him to parent/guardian or caregiver.
• Use of secure area, only justified in event where reasonable force necessary to deliver Youth to appropriate person
• No evidence that police informed Youth reason he was detained, and likely that Youth considered he was arrested
• Cannot use section 48 for purpose of investigating other matters
• Police failed to ascertain whether Youth wanted to go home or to a social worker

Question 17

Oranga Tamariki Act 1989:

Outline what was held in Police v T-M, Arrest guidelines under 214, Youth interviewed over burgs in Whangarei

Answer 17

Judge Boshier commented:

• Police must find a demonstratable need to arrest as limited by section 214
• section 48 not to be used for purpose of taking Youth into custody suspected of crimes … He listed the following:
• Don’t use Sect. 48 to take CYP in to custody for suspected crime
• If suspect Offence, use s. 214 if applies
• Reminder s. 208, crim. proceedings should not be initiated if no other means of dealing with it, take least restrictive form
• if no arrest, police must consult YJC, convene FGC, before laying charges.

Question 18

Oranga Tamariki Act 1989:
Outline what was held in Police v T, YP on Supervision Order was shoplifting, did runner, got caught, held in custody and bought to YC next day

Answer 18

• continuation of arrest unnecessary, in breach of letter and spirit of law
• initial arrest justified, (prevent escape) … in question was the time frame from arrest to being bought to Court
• Failure to bring YP to Court constituted a breach of NZ BOR, to have matter dealt with on the same day
• Fact the he was held in Police custody over 24 hours was a “serious breach of the law”

Question 19

Oranga Tamariki Act 1989:
Outline what was held in Police v CG, Two YP charged with Agg. Robbery and third adult sister (17), kept in custody after arrest for 36 hours, then taken to YC. No opp. to bail, arrested under 214(1).

Answer 19

Court concluded:

• arrest under 214 not justifiable, no RG to prevent further offences or loss/destruction evidence, interference witnesses (no questions put to defendants about stolen property)
• s.236 requires joint certificate signed to be detained longer then 24 hours, (not done in this case)

Question 20

Oranga Tamariki Act 1989:

Can a YP be charged and released on a summons?

Answer 20

Answer: NO
A CYP may be released on bail under section 21 with Bail conditions imposed by police and those conditions agreed to by the person the CYP is released into the custody of

Question 21

Oranga Tamariki Act 1989:

If you want to oppose bail for 12-16yr old, who should you consult ?

Answer 21

You MUST seek immediate guidance from an experienced Youth Aid Constable if you want to oppose bail

Question 22

Oranga Tamariki Act 1989:
Once a child is released into the custody of OT, the placement becomes the social workers responsibility. You can make recommendations on the nature of the custody … Is the social worker obliged to follow your recommendations?

Answer 22

Answer: NO