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cypfact-summary-submission

    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

    Facsimile: + 64 4 890 7301

    Email: office@allenandclarke.co.nz

    Website: www.allenandclarke.co.nz

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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 .......................................... 42

    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

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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,

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    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).

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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

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    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 viii

    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.

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