New Zealand Police/Oranga Tamariki v LV [2020] NZYC 117

Published 12 March 2020

Disposition — assault — aggravated robbery — burglary — unlawful use of cars — theft — failing to stop — reckless driving — substance abuse issues — methamphetamine — Family Court crossover — "crossover kids" — care and protection concerns — neglect — physical, sexual, emotional abuse — family violence — amendments to legislation — Youth Justice principles — whanaungatanga — tikanga Māori — welfare and best interests of young person — discrimination against Māori — principle of active protection — duty of good faith — duty of consultation — criminalisation of care and protection — Oranga Tamariki Act 1989, ss 4, 4A, 5, 7, 7AA, 208, 282, 283 & Part 1 — Summary Offences Act 1981 — United Nations Convention on the Rights of the Child, arts 2, 3, 37(b) & 40 — UN general comment no 24 (2019) — Treaty of Waitangi — Tiriti o Waitangi. The young person appeared in the Youth Court in the crossover list for disposition of a raft of charges in the Youth Court and approval of a plan in the Family Court. The Judge summarised the young person's extremely difficult upbringing, which involved being uplifted by Oranga Tamariki as a baby, nearly 30 different placements, exposure to physical, sexual, and emotional abuse and family violence. There was a complete failure on behalf of Oranga Tamariki and other involved agencies to protect her from harm, live up to obligations under the Treaty of Waitangi, or protect her mana tamaiti. The Judge expressed concern that even after significant changes to the Oranga Tamariki Act (the Act) in July 2019, no processes or proactive steps were taken to enact those amendments in relation to the young person. A s 282 discharge was granted on all charges. This would have the practical effect of making it as if the charges were never laid. The police opposed a s 282 discharge being granted in relation to two aggravated robberies but the Judge found the young person had been held accountable (she had been put in secure Youth Justice residence for the maximum period) and referenced UN general comment no 24 which states young people are less likely to reoffend if they are not labelled or stigmatised with their past mistakes. Finally, the Judge rejected the submitted Family Court plan as it failed to comply with the Act. The Judge urged that a family group conference be held with proper consultation of the young person's hapū and iwi. Any plan made would need to nurture the young person, address her trauma, provide proper care and be culturally appropriate for her as a young Māori woman. Judgment Date: 27 February 2020. * * * Note: names have been changed to comply with legal requirements. * * *