Report to the Ministry of Social Development
Safeguarding our children: Updating the Children, Young Persons, and their Families Act 1989
Overall Summary of Submissions
2 August 2007
Allen and Clarke Policy and Regulatory Specialists Limited
PO Box 10 730
Wellington 6143
New Zealand
Phone + 64 4 890 7300
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Website: www.allenandclarke.co.nz
Contents
Contents iii
Executive Summary v
1 Introduction 1
1.1 Submissions received 1
1.2 Structure of this report 2
2 Overall views on the Children, Young Persons, and their Families Act 1989 3
2.1 Overall views of the CYPF Act 3
2.2 Technical amendments 4
3 Principles 9
3.1 The Act’s guiding principles 9
3.2 Participation by children and young people 10
3.3 Other proposed amendments to the principles 11
4 Care and Protection 13
4.1 Interagency collaboration and information sharing 13
4.2 The upper age limit of the Act 20
4.3 Transition from care provisions 22
4.4 Preventative services 25
4.5 Clause-by-clause analysis 25
4.6 Other issues 30
5 Children with Disabilities 33
5.1 Pathways to enter the care and protection system 33
5.2 Provisions to support families of children with disabilities 35
5.3 Clause-by-clause analysis 37
5.4 Other issues 37
6 Child Offending and Youth Justice 39
6.1 Structure of the provisions relating to child offenders 39
6.2 Proposed amendments related to young offenders 39
6.3 Entitled persons at the Family Group Conference 43
6.4 Youth Court-ordered bail 45
6.5 Youth Court orders 46
6.6 Provisions for victims 51
6.7 Clause-by-clause analysis 52
6.8 Other comments 54
7 Other comments 59
7.1 Resourcing 59
7.2 Social work practice 60
7.3 Service provision 61
7.4 Research 61
7.5 Training 62
7.6 Issues relating to the project 62
7.7 Miscellaneous issues 63
Executive Summary
This report summarises submissions made to the Ministry of Social Development on the discussion document, Safeguarding our Children: Updating the Children, Young Persons, and their Families Act 1989.
Submissions received
Ninety-five submissions informed this report. Submissions were received from service providers, government agencies and Crown entities, legal organisations, professional bodies, child/youth advocates, individuals, employees of the Ministry of Social Development, and academics. Submissions were generally well-considered, targeted, and focused on areas of specific interest to the submitting agency.
Methodology
All submissions were reviewed, coded to a standard coding framework, and entered into an Access-derived database. From this, specific reports by both theme and individual submitter were drawn and used to inform this report.
Overall comments on the Children, Young Persons, and their Families Act
The majority of submitters did not comment generally about the CYPF Act; however, those that did raised the following key points:
· The Act is supported because it is an internationally renowned statute that supports good outcomes for children. Submitters were also particularly supportive of the family group conference model, and the Act’s principles.
· Support for the CYPF Act was tempered with concern that the implementation or operationalisation of the Act creates issues rather than there being issues with the legislation itself, especially those issues related to resourcing.
Submitters noted that the wording in the Act could be simplified to make the Act easier to interpret, more practitioner-friendly, to apply consistent terms across legislation, and to support children, young people and their families to better understand the Act. Submitters were also keen to ensure that any amendments should not dilute the protections currently provided.
Submitters supported reviewing the Act’s structure to reduce complexity and make it more accessible and easier to navigate. There was some support for drawing all of the provisions relating to youth justice into one place.
There was no consensus regarding the balance between prescription and the use of principle-based approaches to legislation.
A statutory mechanism to ensure accountability for decisions made under the Act was seen as desirable. Examples provided included quality assurance processes, audit processes, review boards, statutory complaint processes, and an independent monitoring agency.
Principles
Submitters were supportive of the existing range of principles (where direct comment was received); however, the majority of comments provided related to children’s participation, or on identifying other potential principles for consideration. The key findings included:
· There was strong support for proposals to strengthen children and young person’s participation in proceedings that affect them. Compliance with New Zealand’s obligations under the United Nations Convention on the Rights of the Child (UNCRC) was a key reason for supporting such amendments.
· Four submitters were equivocal in their support, citing sufficiency of the existing provisions or concerns about prescription.
· A range of new/enhanced principles were proposed including a clearer statement about victims’ rights, principles relating to ensuring cultural considerations, ensuring that the principles clearly reflect UNCROC, to ensure that actions are conducted within the child’s timeframe, ensuring that young offenders’ rights are explicit, expressing the child’s right to safe transportation, and a principle requiring inter-agency collaboration.
Care and Protection
Interagency collaboration and information sharing
Submitters generally considered interagency collaboration and information sharing together. Key points raised covered the following:
· There was support for greater legislative mandate for interagency collaboration, particularly to improve outcomes for children and young people. There was support for both the New South Wales model and the Western Australian text.
· There was strong support for improving the information sharing provisions of the CYPF Act as there is some confusion about what information sharing is permitted (for example, between health authorities and CYF employees). Few specific amendments were proposed. Submitters also noted the need for better feedback loops from the Ministry of Social Development to families, service providers, and others involved in a case.
· The ambiguous legislative status of Care and Protection Resource Panels was identified as a contributing factor to practice concerns such as decisions not being implemented or followed up by social workers.
· Submitters who were less clear about support for legislative amendment to promote information sharing noted that it is important for children to be involved in providing information about themselves and their families.
· Only one submitter (Ministry of Justice) noted that the Privacy Act provided a better vehicle for improving information sharing (as opposed to including provisions in the Act).
Preventative services
Few submitters commented on this issue, although there was support for a clearer statutory mandate to support and resource preventative services. No specific amendments were proposed.
Upper age limit for eligibility
The majority of submitters supported an increase in the upper age limit for eligibility under the Act to 18 years, predominantly on the grounds that the current provisions are inconsistent with New Zealand’s obligations under UNCROC. Potential service implications associated with increasing the eligibility age were also identified. The relationship between the proposed amendment and the discussion on transition from care indicated that some submitters who supported an increase in age also supported transition provisions (rather than using transition provisions as an alternative to extend care to young people aged 17 years).
Six submitters did not support increasing the age range, or were uncertain about this. Justifications related predominantly to the relationship between various rights and duties conferred on a person based on their age (eg, ability to drive or marry, prosecution age limits, etc.). Two submitters supported the introduction of transition from care provisions to address these issues.
Transition from care
There was very strong support for including provisions regarding transition from care in the Act. Reasons for supporting this included an acknowledgment that all children need support, and that this is an area that has previously been overlooked. Three submitters noted that incorporating any provisions related to transition from care should not be implemented as an alternative to increasing the upper age range.
Where submitters indicated a preference for an amendment, the New South Wales text was proposed.
Children with Disabilities
There was no clear consensus on the best pathway(s) for children with disabilities to access care and protection should this be required either as a result of their disability, or because of a neglect, harm, or abuse issue. Submitters who did not support legislative change noted that the current provisions acknowledge that children with disabilities have different care and protection needs, which require discrete entry pathways. Submitters who supported amendments raised rights and discrimination arguments to support their position. Other justifications included that amendment would enable the provisions relating to children with disabilities to be a strengths-based family empowerment model (rather than an institutional model)
Few submitters identified potential legislative amendments that could be made to better support the families of children and young people with disabilities. Most comments received related to practices or other non-legislative mechanisms (such as those identified in the Best of Care report). Any legislative proposals were generally non-specific (eg, provide resourcing). One submitter noted that Alberta family support legislation mandates a specific level of service be provided to children with disabilities.
Child Offending and Youth Justice
Structure of the provisions relating to child offending and youth justice
Submitters supported restructuring the Act so that all provisions relating to youth justice were contained in one place. This reflected concerns that the Act can be difficult to navigate, particularly when a case presents with both youth justice and care and protection issues.
Changes to the way in which child offending is addressed in the Act
Responses to this question supported changing the way in which young offenders are dealt with. The majority of submitters did not support lowering the age of offending (in line with submissions on the Young Offenders Bill). There was support to simplify the entry into Court processes, especially where the offending is particularly serious, or related to driving offences.
Changes to court-ordered bail
Submitters did supported improvements such as clarifying Police powers and improving enforceability (eg, in line with those proposed in the Amendment Bill).
Attendance of entitled persons in family group conferences
Submitters commented both generically about family group conferences, and/or provided specific comments relating to legal representation at intention-to-charge family group conferences. Generally, submitters were supportive of increasing the range of entitled persons. Proposals included whanau, hapu, and iwi, disability providers, social workers, foster caregivers, or school staff.
There was limited consensus regarding the presence of community organisations and legal/youth advocates. Arguments for legal representation at intention-to-charge conferences included that the child/young person has a right to be represented and to have access to legal advice. Submitters who did not support the inclusion of legal representation commented that the family group conference model is restorative and not litigious. Reasons for not supporting community involvement noted that the family group conference co-ordinator can invite anyone to attend, so inclusion was not seen as necessary, whereas supporters thought it could improve representation.
There appears to be no clear consensus about allowing youth advocates or lawyers to be present at the intention-to-charge conference.
Youth Court orders
There was considerable support to improve the range of orders available to the Youth Court, particularly those related to extended supervision with activity or extended supervision with residence orders. Generally support for extensions was due to the need for some serious offending to be dealt with differently from more minor offending. For example, submitters generally supported increasing the extension period for six months.
Provisions for victims
Of the submitters who commented on this, there was strong support for improving the provisions relating to victims. Some of the proposals put forward by submitters included requirements for:
· victim impact statements at family group conferences, or at Youth Court
· victims needs to be taken into consideration when setting the conference
· consultation and ongoing involvement of the victim in the restorative justice process, and
· support for victims.
Clause-by-clause analysis
The questions in the Discussion document were very broad, effectively inviting comment on any of the sections of the Act. In total, specific comments were made of 58 care and protection provisions, one disability-related provision, and 41 youth justice provisions.
Other comments
Submitters raised a number of issues that are peripherally or more indirectly related to the CYPF Act. These issues included resourcing, social work practice, service delivery, research, training, and other issues related to the project.
Submitters also commented on the project’s parameters, with many noting support for the review and requesting continued involvement.
7
1 Introduction
In April 2007, the Ministry of Social Development released a discussion document on the Children, Young Persons, and their Families Act 1989 (the CYPF Act). This document was structured around four themes: technical amendments, care and protection, children with disabilities, and child offending and youth justice. Some of the issues discussed in the document are also considered as part of the Children, Young Persons, and Their Families Amendment Bill (No 4). Stakeholders were given a broad mandate to comment on any component of the CYPF Act by being invited to identify:
· ways in which the CYPF Act could better support best practice
· provisions in the CYPF Act that are not working well or that need improvement
· omissions in the coverage provided by the CYPF Act, and
· any other issues considered to be relevant.
The Ministry of Social Development contracted Allen and Clarke Policy and Regulatory Specialists Ltd to review the 95 written submissions received, to prepare individual summaries of each submissions, and to draft an overall summary of submitter views. This report presents the overall analysis of submitter views. The individual summaries of submissions have been provided to the Ministry in an electronic database prepared in Microsoft Access.
1.1 Submissions received
A total of 95 submissions were received. Sixty-one submissions were receive from groups, organisations, and agencies and the remainder were received from individuals (34). The group submission classes and the number of submitters in each group class were:
· Service provider 25
· Government agency/Crown entity 15
· Child/youth agency 6
· Legal agency 6
· Professional body 5