Chapter 1 - CYP & Family Harm

Question 1

Can a Weapons Condition be removed as a condition on a Protection Order.

Answer 1

True.

(Past Exam Question)

Question 2

Section 222 who can be nominated as a nominated person for the Child or Young Person ?

Answer 2

A parent or guardian of the child or young person

An adult member of the family, whanau, or family group of the child or young person

Any other adult selected by the child or young person

If the child or young person refuses or fails to nominate any person in any accordance with above. Any adult (which is not an enforcement officer) can be nominated for this purpose by an enforcement officer.

Question 3

What is Section 39 of the Orange Tamariki Act 1989 ?

Answer 3

Place of safety warrant.

A district court judge can issue the order. If no district court judge is available any issuing officer (within the meaning of section 3 of the S&S Act 2012) Reasonable grounds for suspecting that a child or young person is suffering , or is likely to suffer, I’ll treatment, neglect, deprivation, abuse, or harm may issue a warrant authorising to search for a child or young person.

The function of executing a warrant issued in the name of the chief executive may be performed by a social worker or any any other person authorised under a delegation to carry out that function.

An application for this warrant can be made by a constable or the chief executive.

Question 4

What powers do you have when executing a Section 39 - Place of Safety Warrant

Answer 4

Enter & Search, by force if necessary, any dwelling house, building, aircraft, ship, carriage, vehicle, premises or place

If that person believes on reasonable grounds that the child or young person has suffered, or is likely to suffer, I’ll treatment, serious neglect, abuse, serious deprivation, or serious harm

Remove or detain, by force if necessary, the child or young person and place them into the custody of the chief executive

If they are in a hospital inform the Medical Superintendent of that hospital to keep the child or young person in that hospital

Any direction pursuant to above the child or young person is in the custody of the chief executive pursuant to the section above (3)(b)(ii)

Question 5

What is Section 42 of the Oranga Tamariki Act 1989 ?

Answer 5

Search without warrant (Critically necessary to prevent death or injury)

Question 6

What are the powers you have relating to a Section 42 of the Oranga Tamariki Act

Answer 6

If a constable believes on reasonable grounds that it is critically necessary to protect a child or young person from injury or death may, without warrant

Enter and search, by force if necessary, any dwelling house, building, aircraft, ship, carriage, vehicle, premises or place

Remove or detain, by force if necessary to place that child or young person into the custody of the chief executive

Question 7

What are the requirements when executing a Section 42

Answer 7

Every constable that exercises this power, must firstly before entry

Product Evidence of Identity
Disclose that those powers are being exercised under this section

Question 8

How long do you have to report a use of Section 42 to the commissioner of police ?

Answer 8

Any constable who exercised this power shall within 3 DAYS after the power was exercised, forward to the commissioner of police a written report on the exercised power.

Question 9

Can you arrest a child or young person under section 48 of the Oranga Tamariki Act 1989

Answer 9

No

This section can not be relied on to arrest a child or young person.

Question 10

Elements for Section 48 of the Oranga Tamariki Act 1989

Answer 10

Where a child or young person is found unaccompanied by a parent or guardian or other person who usually has the care of the child or young person in a situation in which the child’s or young persons

PHYSICAL
MENTAL HEALTH (BEING IMPAIRED, OR IS LIKELY TO BE)

A constable may using REASONABLE FORCE, take the child or young person to

Deliver to parents or guardian.

If child or young person does not wish to be returned to parents or guardian and there are no appropriate options, no parents or guardian are willing to have custody of the child or young person.

Place the child or young person into the custody of the chief executive by delivering that child or young person.

Question 11

What is section 214 of the Oranga Tamariki Act 1989 ?

Answer 11

Section 214 allows power of an arrest for a child or young person. A constable may arrest a child or young person if that constable believes on reasonable grounds that it is necessary to arrest that child or young person without warrant for the purpose of

Ensure the appearance of the child or young person before the court

Prevent that child or young person from committing further offences

Preventing the loss of destruction of evidence relating to an offence committed by the child or young person or an offence that the enforcement officer has reasonable cause to suspect that child or young person of having committed, or preventing interference with any witness in respect of any such offence and

Where the child or young person may be proceeded against by way of summons, the proceeding of summons would not achieve that purpose

Question 12

When arresting a child or young person under Section 214 what are the requirements regarding reporting to the commissioner ?

Answer 12

Every enforcement officer who arrests a child or young person without a warrant, within 3 DAYS of making the arrest furnish a written report to the Commissioner of police.

Every report furnished pursuant to above shall state the reason why the child or young person was arrested without warrant.

Question 13

What are the requirements for arresting a child or young person under Section 214A ?

Answer 13

A constable may arrest a child or young person without a warrant if

The child or young person has been released on bail

The constable believes on reasonable grounds that the child or young person has breached a condition of that bail

The child or young person has on 2 or more previous occasions breached a condition of that bail (whether or not the same condition)

Question 14

Who can authorise the arrest of a child or young person under section 214A ?

Answer 14

Youth Aid Sergeant
Qualified Youth Aid Officer
Supervising Sergeant

Question 15

What is Section 215 of CYP act?

Answer 15

Child or Young Person to be informed of rights before questioned by enforcement officer.

Question 16

What is section 215A of the CYP act?

Answer 16

Rights to be explained to a child or young person on request.

Any enforcement officer is questioning any child or young person in relation to that child’s or young persons involvement in the commission of any offence or suspected offence and
That child or young person makes any enquiry of that enforcement officer being an enquiry that relates or that may reasonably be taken as relating (in whole or in part) to any of the matters set out in any of paragraphs (a) to (f) of section 215(1) that enforcement officer shall explain to that child or young person such of those matters as, in the circumstance of the particular case, are appropriate to the enquiry that was made.

Question 17

What is Section 216 of the CYP act?

Answer 17

Enforcement officer to explain rights to child or young person who is to be charged with an offence.

Question 18

Section 236 CYP act

Answer 18

Young Person who is being arrested may be detained in Police Custody

(1) Notwithstanding the provisions of section 234 and 235 but subject to section 244, where the chief executive (acting through his or her delegate) and a constable , being a senior sergeant or a constable who is of it above the level of position of inspector, are satisfied on reasonable grounds

(A) That a young person who has been arrested is likely to abscond or be violent ; and
(B) That suitable facilities for the detention in safe custody of that young person are not available to the chief executive - the young person may, on the join certificate in the prescribed form of the delegate and that constable be detained in Police Custody for a period exceeding 24 hours and until appearance before the court.

(2) If a joint certificate is issued under subsection (1) the shall within 5 days after the day on which the certificate is issued, be furnished by the delegate to the chief executive and by the constable to the Commissioner of Police
(A) a copy of the certificate
(B) a written report stating
•the circumstances in which the certificate came to be issued and
•the duration of the period for which the young person has been detained or is likely to be detained in Police Custody.

(3) any delegation by the chief executive of a function or power under this section must be made to a senior employee or senior employee of the department.

Question 19

What is section 217 of the CYP act ?

Answer 19

Rights to be explained to child or young person who is arrested

Subject to sections 233 (EBA) and 244, every enforcement officer shall, in arresting any child or young person pursuant to section 214, explain to that child or young person the matters specified in paragraphs (c) to (f) of section 215(1).

Question 20

What is section 218 of the CYP act?

Answer 20

Explanation to be given in manner and language appropriate to age and level of understanding of child or young person.

Every explanation required to be given to a child or young person pursuant to section 215,215A, 216, 217 shall be given in a manner and in language that is appropriate to the age and level of understanding of the child or young person.

Question 21

What is section 219 of the CYP Act?

Answer 21

Explanations not required if child or young person already informed of their rights.

Nothing in section 215, 215A, 216 or 217 requires any explanation to be given to a child or young person if the same explanation has been given to the child or young person not earlier than 1 hour before the later explanation would, apart from the section be required to be given.

Question 22

What is section 233 of the CYP act?

Answer 22

Breath Alcohol and Blood alcohol provisions of Land Transport Act 1998. It affected.

Nothing in the provision of section 214 to 232 limits it affects the powers of an enforcement officer under any of the provisions of section 68 to 72 of the Land Transport Act 1998.

Question 23

What is section 234 of the CYP act?

Answer 23

Custody of child or young person following arrest.

Subject to sections 235, 236, and 24 where a child or young person is arrested with or without warrant a constable shall-

(A) release the child or young person
(B) where the child or young person may be released on bail under section 21 of the Bail Act 2000 release the child or young person on bail or
(C) deliver the child or young person in the custody of
• any parent or guardian or other person have of the the child or young person.
• with the agreement of the child or young person any iwi social service or cultural social service or
•With the agreement of the child or young person any other person or organisation approved by the chief executive of a constable for the purpose.

Question 24

What is Section 235 of the CYP act?

Answer 24

Child or young person who is arrested may be placed in custody of chief executive.

(1) Notwithstanding section 234 but subject to section 244, a constable, in relation to any child or young person who has been arrested and if subsection (1A) applies
(A) must place the child or young person in the custody of the chief executive in accordance with subsection (2)
(B) must do so as soon as practicable and not later than 24 hours after the arrest.

(1A) This subsection applies if
(A) a constable believes on reasonable grounds that
(i) the child or young person is not likely to appear before the court
(ii) the child or young person may commit further offences; or
(iii) it is necessary to prevent
(A) the loss of destruction of evidence relating to an offence committtedd by the child or young person or an offence that the constable has reasonable cause to suspect the child or young person committed or
(B) interference with any witness in respect of any such offence or
The child or young person has been arrested under section 214A and Is likely to continue to breach any condition of bail.

(2) a child or young person shall be placed in the custody of the chief executive pursuant to this section by
(A) delivering the child or young person shall be place in the custody of chief executive pursuant to this section by
•delivering the child or young person to the chief executive
• presenting to the delegate on the prescribed form details relating to
•The identity of the child or young person and
• the circumstances of the arrest of the child or young person and
• the date and time of the intended appearance of the child or young person before the court having jurisdiction in the matter in relation to which the child or young person was arrested.

(3) placement of the child or young person in the custody of chief executive under subsection (1) shall be sufficient authority for the detention of the child or young person by a delegate or in a residence under this act, or under the care of any suitable person approved by a delegate.

(4) No constable shall exercise the power conferred by subsection (1) merely because the constable believes that any child or young person is in need of care or protection.

Question 25

What is section 236 of the CYP act?

Answer 25

Young person who is arrested may be detained in Police Custody.

Notwithstanding the provisions of 234, 245 but subject to section 244, where the chief executive (acting through his or her delegate) and a constable a senior sergeant who is of or above the level of position of inspector are satisfied that on reasonable grounds
• That a young person who has been arrested is likely to abscond or be violent.
• That suitable facilities for the detention in safe custody of that young person are not available to the chief executive- the young person may , on a joint certificate in the prescribed form of the delegate and that constable be detained in police custody for a period exceeding 24 hours and until appearance before the court.

(2) if a joint certificate is issued under subsection (1) the shall within 5 days after the day on which the certificate is issued be furnished by the delegate to the chief executive and by the constable to the commissioner of police

• a copy of the certificate
• a written report stating
The circumstances in which the certificate came to be issued.
The duration for period for which the young person has been detained or is likely to be detained in police custody.

(3) any delegation by the chief executive of a function or power under this section must be made to a senior employee or senior employees of the department

Question 26

Case Law Of R v Kahu (S39)

Answer 26

Place of safety warrant Section 39

Located cannabis during an assessment being done on the house. Checking the cupboards for food however came acrosss cannabis on the table and bedroom of the house. She was cautioned, BOR given and arrested. The children were taken into the car of social welfare custody.

The appellant appealed her conviction on the basis that the finding of the cannabis in the bedroom was a breach of Section 21 New Zealand Bill Of Rights Act 1990.

Held:

The discovery of the cannabis in the kitchen and the bedroom was not a result of an unreasonable search under section 21 BOR act 1990. A warrant under S39 CYP ACT authorised the holder of the warrant not only to search for the child, but also to remove by force if necessary and place the child into the custody of the director-general of social welfare. In order to form the requisite belief that the child is an “at risk” position, the holder of the warrant must be entititled to exercise his or her best judgement on the information then available, and to take positive steps to that end.

Those steps may appropriately include checking in the physical conditions of the child, the living condition, food supply , and other necessaries available for child’s well-being. This is implicit in the authority to search and the requirement that having located the child, the person executing the warrant from an independent judgement as to whether the child should be removed or detained. Therefore in appropriate circumstances governed by concerns for the welfare of the child as reflected in the criteria under S 39 Children, Young Persons and their families act 1989, the holder of a warrant under s 39 may check the supplies of food in the house and open cupboards for that purpose.

Question 27

Case Law Pettus v R (Search without warrant Section 42)

Answer 27

The court of appeal observed Section 42 is an EMERGENCY provision. It is in the scheme of the children, young persons and their families act, clearly intended to provide cases where danger is so serious and imminent that resort to other less urgent remedies in the act might not provide a sufficient assurance of safety.

There are other remedies for removal, under a degree of judicial scrutiny. For example S39 provides for the issue by a District Court Judge of a place of safety warrant authorising removal of a child of a warrant by a district court judge authorising removal in similar circumstances, in cases where an application has been made under S 67 for a care and protection declaration.

The very high threshold for intervention without warrant under Section 42 namely a belief that removal is critically necessary to protect a child from injury or death, is to be constructed with the lower threshold for intervention with a warrant under section 39 or 40.

Question 28

Case Law Police v D (Section 48, Detention under Section 48)

Answer 28

Made the CYP believe he was under arrest after being removed from a private property.

The issue
Counsel for the youth submitted that police had unlawfully detained the youth and should have taken the youth home and not further questioned him at the police station. Police submitted that the youths attendance at the station was necessary to facilitate police getting in touch with the caregiver (police having no reliable means to contact the caregiver in public). Police also relied on a particular interest in the youth as he was one of the local youth on a “special list”.

Question 29

Case Law Police v T - M (Section 214, S48 Whangerei CRN)

Answer 29

Backround
A number of burglaries had been reported in the central Whangārei business district over a relatively short period of time. During routine patrolling of the district. T who was known to police as a youth offender was seen in central Whangārei in the early hours of the morning.

Police invoked Section 48 of the CYP act and required T to return to the police station where he was interviewed about the recent burglaries. Approximately 3 weeks later the police went to T’s address. He was interviewed a second time during which a sign statement was obtained from him. T was then arrested for burglary.

Decision
In his written decision on the issue of the costs. Judge commented on the fact that when arresting a child or young person (CYP) the police must find a demonstrative need to arrest as limited by S214 CYP Act. In his decision the judge gave the following guidelines to assist frontline police when deciding whether or not to arrest a CYP.

1. Section 48 should not be used by police officers for the sole purpose of taking into custody a CYP who is suspected of having committed a crime. The section is limited in its scope and is meant only to apply to unaccompanied CYP’s that need to be placed in a situation of safety.
2. If a police officer believes that a CYP has committed an offence, arrest may be considered but only if section 214 of the Act would permit it. Section 214 provides that a CYP is not to be arrested unless the officer is satisfied on reasonable grounds that the arrest is necessary for

• ensuring the appearance before court.
• prevent further offending
• prevent loss or destruction of evidence / interference with witnesses.

3. Section 208 of the CYP act requires criminal proceedings should not be initiated unless there are no other means of dealing with the matter and any proceedings taken must take the last restrictive form appropriate to the circumstances.
4. Police may not arrest a young person simply as a means of requiring a young person to face the consequences of offending in a Youth Court. This is in contrast to adults who may be arrested for this purpose.
5. Generally unless the CYP is arrested as permitted by section 214, police officers encountering criminal offending by a child or young person must consult a Youth Justice Coordinator with a view to convening a FGC before the laying of charges in a youth court is contemplated. It is one of the roles of the FGC to discuss the offending and decide whether information should be laid.

Question 30

Case Law Police v T (Section 214 and Detention in Police Custody)

Answer 30

Holding a CYP in custody for over 24 hours for a charge of shoplifting.

Failure to bring the defendant to court constituted a breach of the young persons rights under the New Zealand Bill of Rights act to have the matter dealt with in the same day. A person arrested in the morning ought to be dealt with that afternoon except possibly in unusual circumstances.

The fact that the young person had spent 24 hours in police custody including a night in police cells was a serious breach of the law. Given the very limited ground for the court to remand a young person in police custody under S239(2) of the act, the police should be particularly careful not to hold young persons in custody unnecessarily.

Question 31

Case Law Elia v R (Section 215, 223)

Answer 31

Rights being reread to the the defendant as a new Support person was introduced during the interview.

Question 32

What are the principles that Guide Police Practice (Family Harm)

Answer 32

Early Intervention
Culturally Appropriate
Safety
Collecting Risk Information
Accountability
Working Collaboratively

Question 33

Steps for attending Family Harm Episodes / Situations when firearms may be present

Answer 33

Step 1
Always consider or other weapons may be involved or that the suspect has access to these. This information will be available in ONDUTY.

Step 2
Whether a PSO or a protection order is in place. If a PSO has been issued any firearms licence is suspended for the duration of that order. Where a protection order is in force any firearms licence held by the respondent will be revoked. Any firearms also need to be surrendered. Check any licence endorsements and if there are any firearms in secure storage.

Step 3
Consider whether there are sufficient safety concerns to warrant the issue of a PSO, or where there is sufficient evidence to arrest, making an application for a protection order. In either cases all firearms, ammunition or explosives in the possession or control of the suspect must be surrendered to Police or seized pursuant to Section 18 of the Search and Surveillance Act 2012.

Step 4
Ensure all relevant information is recorded in
• Firearms Search and Seizure (FSS) notifications database - fulfils the legal requirement (S169(1) of the S&S Act 2012) to notify the commissioner of any search under the act.
• If the firearm is Brough to a police station, record details in PROP.
• record details of the offence or incident that led to the seizure into - NIA as an occurrence.

District Command Centres:
1. RIOD - in the daily occurrence log via the DCC
2. Gun Safe - RIOD firearms event log

Step 5

Following surrender or seizure of firearms, complete enquires (including the views of the victims) to determine whether any licence firearms holder is considered to be “proper and fit” to hold a firearms licence. If appropriate, take revocation action pursuant to S27 and S27A Arms Act 1983z this may include informing and/or seeking assistance if the police arms officer.

Question 34

Investigation - Corroboration (Family Harm)

Answer 34

Corroboration is important if the victim becomes a reluctant witness. Information that may corroborate a family violence victims allegation include

• Medical examinations and doctors reports (of suspect and victim)
• Photographs of injuries
• Scene examination evidence, including photographs and scene diagrams.
• clothing
• witness statements (neighbours, friends, colleagues, emergency medical staff)
• 111 Call - obtain a copy from Comms for court.
• old POL FVIR ratings, previous family violence reports and ODARA scores.
• emails, text messages, phone records, internet browsing history, bank records
• admissions or other corroboring or damaging statements by a suspect.

These should be attached to the investigation in NIA.

Question 35

Interviewing Victims, Witness’s, Suspects
(Family Harm)

Answer 35

Under the evidence act 2006 Section 82 Criminal Procedure Act 2011, police can get evidence sworn which can later be used. If it is likely that the victim will minimise their allegation, or face pressure and become reluctant, maintain momentum with the victim on the day of the offence/episode. Their evidence can be sworn the same day thus lessening the likelihood that they will change it later. Give the nature of family harm, it is imperative to be in regular contact with victims and witnesses, providing as much support as possible, with the assistance of our partner agencies.

Section 106A of the Evidence Act 2006 allows an adult Family Violence complainant to give evidence in chief by a. Video recording made before the hearing. The video recording must be made by a police employee, in accordance with the evidence regulations. NO LATER THAN 2 WEEKS AFTER THE ALLEGED FAMILY VIOLENCE EPISODE.

All forensic interviews of child abuse victims or of child witnesses of serious crime must be carried out by specially trained child witness interviewers according to the Specialist child witness interview guide. NOTE: this does not prevent a preliminary interview with a child occurring during initial attendance as part of identifying their role and the wider safety assessment.

Question 36

Breaches of Protection Orders (Family Harm)

Answer 36

When a protection order or related property order has been breached and there is evidential sufficiency to prove a charge, you must:

• Charge the offender with the breach
• Not release the offender on Police Bail for 24 Hours unless there is a court hearing earlier that this where court bail can be determined. The offender is not bailable as of right pursuant to S7(2) of the Bail Act.

When considering Police bail for a defendant charged with a Family Harm Offence, the primary consideration is the need to protect the victim, their family members and all protected persons.

Dual Defendants
Dual defendants can occur when it is unclear who the actual aggressor or victim is, there are counter allegations, and both parties are arrested and charged.

Question 37

Do Police Safety Orders Override Parenting Orders ?

Answer 37

Yes

If a bound person is a party to a parenting order or agreement, that parenting order is suspended. Any day to day contact or core of a person provided for in the parenting order has no effect and the provisions of the safety order apply.

Question 38

What happens when you are unable to issue and serve a PSO during the detention period?

Answer 38

Release the detained person after the two hour period.

You then have a period of 48 hours to issue and serve the order on that person. The opportunity to serve a PSO will expire if it has not been served within that time period. The 48 hours commences from the time a qualified constable authorised the issuing of the PSO.

Question 39

What must prosecutors do with the victim after a court has issued a new PSO on the bound person?

Answer 39

• Make three attempts of telephone calls in one hour
• Send a local unit and complete a 4Q follow up event.
• Update the NIA record to reflect the action taken.

Question 40

Protection Orders and conditions relating to weapons

Answer 40

It is a condition of every protection order that the respondent must not:

• possess, or have any weapon (firearm, air gun, pistol, restricted weapon, ammunition or explosive) under their control.
• hold a firearms licence

The respondent must surrender to Police any weapon in their possible or under their control (whether or not it is lawfully in their possession or under their control) and any firearms licence held by them:

• as soon as practice after the protection order is served on them (and within 24 hours of the service) and
• on demand made, at anytime by a constable.

On the making of a protection order, any firearms licence held by the respondent is also deemed to be suspended. The licence is deemed to be revoked when an order becomes final.

Question 41

What are the core principles that are part of the principle that guide effective police response to family harm ?

Answer 41

Safety
Information Gathering
Accountability
Working collaboratively

Question 42

Section 9 of the Family Violence Act (The meaning of Family Violence)

Answer 42

(1) In this act Family Violence, in relation to a person, means violence inflicted

• Against that person, and
• by any other person with whom that person is, or has been, in a Family Relationship.

(2) In this section violence means all or any of the following

• physical abuse
• sexual abuse
• psychological abuse

(3) Violence against a person includes a pattern of behaviour (done, for example, to isolate from family members or friends) that is made up of a number of acts that are all or any of physical abuse, sexual abuse, and psychological abuse, and that may have 1 or both of the following features:

• it is coercive or controlling (because it is done against the person to coerce or control, or with the effect of coercing or controlling, that person)
• it causes the person, or may cause the person, cumulative harm.

Question 43

Section 12 of the Family Violence Act (Meaning of family relationship general)

Answer 43

(For the purpose of this Act, a person (A) is in a Family Relationship with another person (B) if A -

• Is a spouse or partner of B or
• is a family member of B or
• Ordinarily shares a household with B
• has a close personal relationship with B

Question 44

Section 13 of the Family Violence Act (Meaning of family relationship sharing household)

Answer 44

For the purposes of section 12(c) a person (A) is not regarded as sharing a household with another person (B) by reasons only if the fact that

• A has with B

A landlord-tenant relationship or
An employer-employee relationship or
An employee-employee relationship and

(B) A and B occupy a common dwelling house (whether or not other people also occupy that dwelling-house).

Question 45

Section 14 of the Family Violence Act (Meaning of family relationship: close personal relationship)

Answer 45

It is not necessary for a person to have a sexual relationship with another person in order for to have a close personal relationship.

Question 46

Case Law Police v Elliott (Consent to remain on property)

Answer 46

Held

• the applicant is able to withdraw, at any time, their consent for the responding to remain at the address. Once withdrawn, the respondent must leave within a reasonable time.
• Police should inform the respondent that they are required to leave and should provide a reasonable time to gather some basic items together (e.g clothing) and also to arrange for somewhere to go.
• if having been informed that they must leave, the respondent refuses to go, they breach the order and can be arrested.
• if violence has been used, the non-contact provisions of the order constrained in s19(2) do not apply. Violence will amount to a breach of s19(1) and the respondent may be arrested.

Question 47

Case Law Senior v Police (Family Harm)

Answer 47

Protection order breaches referring to indirect breaches. Making a Facebook post about someone even though you might not be friends on the social media site.

The decision confirms the abuse doesn’t have to be addressed directly towards the protected person, and there doesn’t need to be direct evidence the abuser attended the protected person to see or hear the abuse.