Youth justice: Capturing the essence of our practice
By Mike Doolan
Why youth justice is important
New Zealand is the first Western country in modern times to try something different in responding to young people who break the law and accordingly what we do evokes a lot of interest internationally. Much has been written about our law and our practice, with particular interest in the Family Group Conference. While what we do is important from an international perspective, of much more importance is the potential we have to impact the lives of young people and their families and communities in positive ways. The essence of our practice, and our point of difference, is that we work with families (whanau, hapu, iwi and family groups) to address offending by young people. Family groups are our partners in securing offence resolution – we do not work alone as in the past, relying solely on professional knowledge and processes.
With family groups, we help young people:
- Accept responsibility for their behaviour;
- Put things right with their victims; and
- Take opportunities to develop as good citizens.
Done well, youth justice work will help families grow stronger in managing their young people, will contribute to the development of safer communities and will promote effective and timely administration of justice. Youth Justice Coordinators and Youth Justice Social Workers have important roles in this legal scheme.
Some history of New Zealand's approach to youth offending
Prior to 1989, work with young people who were offending had a child welfare focus, with young people’s interests being the paramount consideration. Interestingly, child welfare laws that existed until 1989 had primarily been a response to the European population of New Zealand.
Until the 1870’s, settler children, whose main value was their contribution to family economies, were subject to the same criminal dispositions as adults. It was between 1870 and 1925, as children began to lose their economic value in the young colony and their asset value was recognised, that reformists sought to provide for needy and deprived children. The methods largely involved removing them from unsavoury or dangerous family environments and providing them with rigorous training and moral programming believed important to equip them for productive, morally correct, adult lives.
The Child Welfare Act 1925 was the first codification of child welfare as a professional activity. In an era characterised by the theories of Freud, Jung and Erickson, professional activity was devoted to determining the antecedents (thought to be causes) of delinquency and indigence and taking curative action. Problem children were seen as the products of detrimental environments that were turning them into anti-social perpetrators. Law and professional activity emanating from this perspective resulted in large-scale alienation of young people from ‘unsuitable’ families, with high levels of state care, fostering and institutionalisation.
New Zealand’s population almost doubled in the twenty years following the second World War, and this period also saw the beginnings of what were to become mass movements of Maori populations off traditional tribal areas and rural farmlands and into cities. The work of statutory children’s services expanded at an enormous rate and for the first time Maori children began to feature and rapidly made up a disproportionate number of the cases (Dalley, 1998). A system of professional practice that had been designed to respond to the needs of settler families and their children – a system based on United Kingdom and United States approaches – was applied to this new intake of client families. There was no adjustment of method that recognised the change in clientele that had occurred. Many Maori children then became alienated from their whanau, hapu, iwi and their hereditary rights ‘in their interests and for their own good’(Doolan, 2009).
Why things needed to change
The 1980’s saw change in New Zealand on a number of fronts and the social services sector was one of these. Following the International Year of the Child in 1979, child legal advocacy became established. Across the community, the paternalism of the state was increasingly rejected, resulting in challenges to the powers of medical, legal, educational and welfare professionals and calls for more openness of communication and more equal status for clients and patients in their relationships with professionals. Undoubtedly the greatest challenge to the professional method came from Maori. Achieving voice in New Zealand society in a manner not seen for more than a century, Maori brought to public attention what happened to whanau, hapu, iwi when public policy and laws made no allowances for differences between peoples in customs, values and beliefs.
As an agency of the state, we (the then Department of Social Welfare) had to grapple with the reality that our laws, policies and procedures disadvantaged Maori in their purpose and in their impact. Research and analysis provided disturbing data about how Maori young people were suffering disproportionate and oppressive treatment in relation to Europeans, because they were Maori (Anich & Nairn 1979). Important voices began to call for change (Tauroa 1983; HRC 1982; WARAG 1985) and this culminated in the influential report Puao te Ata tu (DSW 1988) which had a significant impact on the law reform process already underway. Puao te Ata tu received immediate Government endorsement and became the springboard for doing things in different ways. We were given a mandate to develop law, policy and practice in ways that recognised the customs, values and beliefs of Maori people primarily, but also of all the cultures making up the multi-ethnic society of New Zealand.
What changes did the 1989 law bring about?
This law differs from previous child welfare legislation in two significant respects – in the construction of the legal scheme on the one hand and on issues of culturally respectful process on the other.
(i) The Legal Scheme
The Youth Justice provisions of The Children, Young Persons and their Families Act 1989 see children and young persons as having rights and responsibilities. The interests of the child or young person who offends are no longer paramount as they were in previous law – rather their interests must now be balanced with those of their families, their victims and the wider community. They are to be held accountable for acting contrary to law and helped to understand the impact of their offending on their victims and their own families. Importantly, because of their age and immaturity they are, nevertheless, entitled to special protections in that process.
The Act seeks to limit their involvement with the formal criminal justice system by prescribing alternatives to prosecution. Police are encouraged to deal with trivial or nuisance offending by way of warnings and formal cautions. Family Group Conferences are instituted for responding to more serious or persistent offending. Court appearances are reserved for serious offences where the public interest warrants court involvement or when a family group conference has been unable reach an appropriate resolution of the matter. In whatever way the state intervenes, it is required to do so in ways that both strengthen the relationship between children or young persons and their families, and strengthens families’ capacity to manage and care for them.
(ii) Culturally Respectful Process
Maori calls for greater levels of self-determination in matters relating to their children led to the formulation of a decision-making construct, known as the family group conference, as the central decision-making method to be used whenever there was a risk of the use of coercive powers by the state. By means of the family group conference, Maori, and indeed peoples of all cultures and ethnic groups, can ensure culturally appropriate processes were employed in reaching decisions about responding to the deeds and needs of their young people.
The child or young person is neither subservient to, nor autonomous from, the family, but rather they and their family – now conceived more broadly as all those connected to the child or young person by kinship or relationships of significance - are centrally and eternally engaged with one another. The family group conference positions family groups to take leadership in working with the state’s professionals to resolve concerns and formulate plans about children and young persons coming to notice. The family group conference is the mechanism that gives expression to the Act’s emphasis on the importance of maintaining and strengthening relationships between young people and their families and resolving matters within the context of family systems wherever it is possible to do so. Rather than taking over from families, the role of state professionals is to defend and support kin networks in exercising their responsibilities of parenting and nurturing children, and assisting and supporting them to find solutions when things go wrong (Cockburn 1994).
In 2006, we introduced our youth justice practice framework which supports the principles of the legislation and strengthens the evidence base of our work.
What is expected of you
All professionals operating under the Act - Youth Justice coordinators and social workers, judges, police, legal advocates and community service providers – have a collective responsibility for achieving the goals and objectives of the Act. Put simply, these professionals are expected to collaborate with each other and with families to encourage young people to forgo a life of crime and become, instead, good citizens, with all the improvement in quality of life such a transition can provide.
You are a social worker or coordinator by reason of your knowledge and skills, your experience and your capacity to work cross-culturally, where this is necessary. By disposition, you will have a strong desire to help families halt the development of criminal careers in young people and help young people develop as good citizens, as well as helping victims achieve justice and protecting the community from future offending. You have the assistance of practice tools and frameworks provided by the Ministry but essentially, reliance is placed predominantly on your judgement and professionalism in working within the Youth Justice legal scheme. In particular, we look to you to:
1. Ensure children and young persons are held accountable, and encouraged to accept responsibility, for their offending behaviour.
2. Promote ways whereby children and young persons might repair the harm they have caused.
3. Ensure that the needs of community protection are recognised in any measures taken.
4. Ensure that a child or young person’s family, whanau, hapu, iwi and family group have effective participation and leadership in the making of decisions and plans and ensuring that regard is paid to their views.
5. Ensure that consideration and due weight is given to the wishes of a child or young person in any measures taken, and that any decision affecting a child or young person should be made and implemented in a timeframe appropriate to their sense of time.
6. Ensure that professional activity, and any measures taken, focus on strengthening and maintaining the relationship between a child and young person and their family, whanau, hapu, iwi and family group.
7. Promote and give effect to plans that allow children and young persons to develop in responsible, beneficial and socially acceptable ways, linking them and their families to programmes and services that address unsatisfactory life conditions.
8. Advocate community-based dispositions as a high priority, reducing the need for, and the use of, custodial provisions.
9. Employ the Care and Protection provisions of the Children, Young Persons and their Families Act 1989 where a compulsion to undertake treatment or therapy, or the enter public care is thought necessary.
10. Work to develop strategies that address levels of offending in local communities.
Will all the effort be worthwhile?
Yes, it will. Research has shown that the systemic change has had some very positive outcomes, which can be even better if we intensify our effort (MacRae & Zehr 2004; Maxwell et al 2004). Cases going to court and disposals involving custody are well down on pre-1989 levels. Most young people who begin offending are successfully diverted by Police or do not re-offend after one family group conference. Family group conferences reach consensus about measures alternative to court in the majority of cases. Most family group conference plans include a repair of the harm that has been caused and at least half incorporate services provision that assists the reintegration of more troubled and troublesome young people within their families and communities. The presence of victims at family group conferences has been shown to promote restorative outcomes and the whole system has become more restorative and less punitive over time.
Moreover, not only is reported youth offending not spiralling out of control, it is declining. Data published in 2007 show that 2006 had the lowest police apprehension rate for youth offending since at least 1995. There has been a reduction of 10.3% in the apprehension of 10-13 year olds in the 10 years to 2006 across all categories of offences. In respect of 14-16 year-olds, apprehension rates have trended downwards from 1889 per 10,000 population of 14-16 year-olds in 1995 to 1591 in 2006. There have been reductions in all categories of offending except violence (which has escalated in all age groups in the community other than 10-13 year-olds) although closer analysis shows that this one increase is almost totally accounted for by an increase in the least serious form of violence in the category, that of common assault (Cormack & Hall 2007).
New Zealand research concludes that positive effects have resulted from family and community empowerment, putting right the wrong that has been done and providing appropriate services that help young people reintegrate with mainstream society (Maxwell et al 2004).
Youth justice coordinators and social workers are key players in bringing this about.
References
Anich, Z. & Nairn, M. (1979). The Rights of the Child and the Law. A Conference Paper. Wellington: Human Rights Commission.
Cockburn, G. (1994). The Children, Young Persons and their Families Act 1989: Past, present and future. In R. Munford & M. Nash (Eds.). Social Work in Action, 85-103. Palmerston North: Dunmore Press.
Cormack, T., & Hall, T. (2007). Court in the Act, 31, September 2007. Wellington: Department of Courts.
Dalley, B. (1998). Family Matters: Child Welfare in 20th Century NZ. Auckland: University Press.
Doolan, M. (2009). Understanding the Purpose of Youth Justice in New Zealand. Aoteaora New Zealand Social Worker XX (3), 63-70.
DSW (1988). Puao te Ata tu (Daybreak). Report of the Ministerial Committee on a Maori perspective for the Department of Social Welfare. Wellington: Department of Social Welfare.
HRC (1982). Report of the Human Rights Commission on Representations by the Auckland Committee on Racism and Discrimination on Children and Young Persons Homes administered by the Department of Social Welfare. Wellington: Department of Social Welfare.
MacRae, A., & Zehr, H. (2004). The Little Book of Family Group Conference New Zealand Style. Intercourse, PA: Good Books.
Maxwell, G., Robertson, J., Kingi, V., Morris, A., & Cunningham, C. (2004). Achieving Effective Outcomes in Youth Justice. Wellington: Ministry of Social Development.
Tauroa, H. (1983). Report of the Advisory Committee on Youth and the Law in our Multicultural Society. Wellington: Department of Social Welfare.
WARAG Report (1985). Report of the Women Against Racism Action Group. Wellington: Department of Social Welfare.
Suggestions for further reading
Watt, E. (2003). A History of Youth Justice in New Zealand. Court in the Act, 6. Wellington: Department of Courts.
