New Zealand Police v JF [2021] NZYC 251

Published 15 July 2021

Burglary — aggravated burglary — contemporaneous proceedings in different courts — age of criminal responsibility — fetal alcohol spectrum disorder — pushback — "crossover kids" — Oranga Tamariki Act 1989, ss 4, 5, 7AA, 14, 15, 17, 18, 19, 83, 84, 91, 92, 96, 101, 163, 178, 187, 198, 208, 260, 261, 261, 272, 280, 280A, 272A, 282, 326, 333 & 336 — United Nations Convention on the Rights of the Child, art 40 — Committee on the Rights of the Child General comment No. 24 (2019) on children’s rights in the child justice system UN Doc CRC/C/GC/24 (18 September 2019) — Waitangi Tribunal He Pāharakeke, He Rito Whakakīkingi Whāuarua Oranga Tamariki Urgent Enquiry (Wai 2915,2021) — Police/Oranga Tamariki v LV [2020] NZYC 117. The child (aged 13) faced six charges in the Youth Court: five of burglary and one of aggravated burglary. He was also before the Family Court on the same charges as well as a range of other matters, and was subject to plans before both the Family and Youth Courts. The Court observed that it was unsatisfactory for the child to be before two courts at the same time, especially given that the Family Court proceedings covered some of the same matters as those in the Youth Court. Given that the child was only 13, the Court had the power to refer the matter back to the Family Court to have the case dealt with on a care and protection basis and to discharge the Youth Court proceedings (a power known as "pushback"). The Court observed that the child was a "crossover kid" who was caught up in both the care and protection and youth justice systems. A well-coordinated response, in line with both the Act and international law, was required in order to keep the child from becoming drawn into the criminal justice system. This meant ensuring that there were proceedings in one court only (the Family Court), and that the child had one lawyer, one social worker and one plan. The proceedings needed to include the child's whanau, hapu and iwi and to promote their wellbeing, including their health and cultural wellbeing. The Court directed that the Youth Court proceedings be adjourned and the Family Court proceedings be brought forward so they could occur on the same date; a family group conference (FGC) occur to consider the pushback option; and that the recommendation to dismiss the charges before the Youth Court be considered at the FGC. Judgment date: 16 June 2021. * * * Note: names have been changed to comply with legal requirements. * **