How New Zealand's Youth Justice System Works
When can a young person be considered criminally responsible?
In New Zealand, a child under 10 years of age is not criminally responsible and cannot be convicted of an offence. Police can only respond to offending by children under 10 years old in an informal way, or in a care and protection context.
Young people aged 10 to 13 are also considered children under the Act. Unlike the under 10s, they can be considered criminally responsible under certain circumstances. The system they fall under is a “hybrid of the youth justice and care and protection principles and procedures.”
Until recently, “child offenders” could only be dealt with in a Family Court. In 2010 a law change allowed 12-13 year olds to be prosecuted in Youth Court for serious offending.
Young people aged 14 to 16 are subject to the youth justice system, and if their offending is serious and persistent enough, they can be prosecuted in the Youth Court (or the District Court or High Court for the most serious offences).
The Legal Basis of New Zealand's Youth Justice System
New Zealand's youth justice system is legislated by the Child, Young Persons and their Families Act (1989).
Part 4 of this Act deals specifically with youth justice. According to Section 4(f), when children or young people commit offences, what we need to ensure is that they are:
(i) held accountable and encouraged to accept responsibility for their behaviour, and
(ii) dealt with in a way that acknowledges their needs and that will give them an opportunity to develop in responsible, beneficial and socially acceptable ways.
The first principle of the Youth Justice section of the Act is that:
“...unless the public interest requires otherwise, criminal proceedings should not be instituted against a child or young person if there is an alternative means of dealing with the matter” (Section 208(a))
New Zealand's Youth Justice System in Practice
As the gatekeepers of New Zealand’s Youth Justice system, Police are given a fair amount of discretion in how they can respond to offending by young people. In order from least to most severe, Police can:
Issue a warning to the young person, followed by written notice of the warning.
Give a formal Police caution in the presence of the child or young person and their guardian(s), followed by a written notice of the warning.
Arrange an informal diversionary response known as Alternative Action, in consultation with victims, families and young people
Refer the young person to Child Youth and Family Services for a Youth Justice Family Group Conference, with the option of then also laying charges in the Youth Court.
Arrest the young person and lay charges in the Youth Court.
When young people do come into contact with the criminal justice system, almost 80% will be given some form of diversion by the Police. Around 50% of all Family Group Conferences do not result in Court proceedings.
The need to resort to the Youth Court process is reserved for the most persistent and serious offenders. Penalties at the upper end of severity in the Youth Court come in the form of the following orders: Supervision, Supervision with Activity and Supervision with Residence. The application of these orders is rare.
Click here for a graph of how many young people get to each stage of the youth justice process.
In the 2010/2011 year, 39,000 children and young people were apprehended by Police. Of those, only 611 went on to be dealt with through high-end Court orders, with 28 cases being transferred to the District Court for sentencing.
Just to keep this in perspective, of all New Zealanders aged 14 to 16 years, only 3.8% are referred to Child, Youth and Family (CYF) by Police. Only about 0.4% of 14 to 16 year olds will receive a youth court order.