An Analysis of the Children Young Persons and Their Families Act (1989)
Introduction
The Children Young Persons and Their Families Act (1989) is the New Zealand legislation that permits children to be removed from the care of their parents and families by the State.
The Department of Child Youth and Family Services (abbreviated as CYF or CYFS) is the Government Department that administers this legislation in New Zealand.
The Act has two different purposes. Firstly, the care and protection of children and young people in abusive families and, secondly, children and young people who are offenders caught up in the justice system.
The Act limits how the Police can treat Children and Young People that have been arrested as offenders or suspects in a crime.
The Act also permits the Police, (and only the Police), to take children into temporary (care and protection) custody if their lives are in danger, without a Court Order or Warrant.
But it also requires that Warrants or Court Orders be obtained before children can be permanently removed from their parents care.
CYF Social Workers, who administer the Act, must show the Family Court that they believe the children are at risk of serious harm.
The Act also requires that a Family Group Conference be held before the Family Court makes a decision.
Definition of a Child
New Zealand law has a range of definitions for when a person is a child or an adult.
These definitions vary depending on the legislation.
For the Children Young Persons and Their Families Act.
- Child :
- Is a person aged under 14 years old.
- Young Person :
- Is a person aged between 14 and 17 years old.
(Note: The United Nations Convention on the Rights of the Child defines a child as a person under 18 years old.)
Summary of 1989 CYPF Act (Up to Section 14)
The preface says it is law relating to children and young persons (hereafter 'children') who are in need of care and protection ... , and, in particular, -
(a) To advance the wellbeing of families and the wellbeing of children .. as members of families, whanau, hapu, iwi, and family groups (hereafter 'families':
(b) To make provision for families to receive assistance in caring for their children ...
(c) To make provision for matters relating to children who are in need of care or protection ... to be resolved, wherever possible, by their own family ...
General Objects
4. General Objects - The object of this Act is to promote the wellbeing of children, young persons, and their families ... by -
(a) Establishing and promoting ... services ... within the community that will advance the wellbeing of children and their families;
(b) Assisting parents, families, ... to discharge their responsibilities to prevent their children suffering harm, illtreatment, abuse, neglect, or deprivation;
(c) Assisting children and their parents, family, ... where the relationship between a child or young person and his or her parents, family, ... is disrupted;
(d) Assisting children in order to prevent them from suffering harm, illtreatment, abuse, neglect, and deprivation;
(e) Providing for the protection of children and young persons from suffering harm, illtreatment, abuse, neglect, and deprivation
General Principles
Section 5. The Family Court or social workers are to be guided by the following principles subject to section 6 of the Act:
(a) The principle that, wherever possible, a child's family should participate in the making of decisions affecting that child, and accordingly that, wherever possible, regard should be had to the views of that family;
(b) The principle that, wherever possible, the relationship between a child and his or her family should be maintained and strengthened;
(c) The principle that consideration must always be given to how a decision affecting a child will effect -
(i) The welfare of that child; and
(ii) The stability of that child's family.
(d) The principle that consideration should be given to the wishes of the child, so far as those wishes can be reasonably be ascertained, and that those wishes should be given such weight as is appropriate in the circumstances, having regard to the age, maturity, and culture of the child.
(e) The principle that endeavours should be made to obtain the support of -
(i) The parents or guardians or other persons having the care (hereafter 'caregiver') of a child; and
(ii) The child himself or herself - to the exercise, in relation to that child, of any power conferred by or under this Act;
Section 6. The welfare and interests of the child shall be the deciding factor, where any conflict of principles or interests arises in the application of the Act.
General Duties of the Director-General of Social Welfare
Section 7: These include the Director-General shall
(c) Ensure, wherever possible, that all policies adopted by the department, and all services provided by the Department, -
(i) & (ii) Recognise the social, economic, and cultural values of all cultural and ethnic groups, in particular, the values, culture, and beliefs of the Maori people.
(iii) Support the role of families, whanau, hapu, iwi, and family groups; and
(iv) Avoid the alienation of children from their family, whanau, etc..
Section 8: Parents and others to be informed of decisions
Where any person takes any action or makes any decision, under the Act that significantly affects any child, that person shall ensure that, wherever practicable, the following persons are informed of that action or decision and of the reasons for it;
(a) Every person who is a parent or guardian or caregiver of the child.
(b) The child.
Except where the child is incapable of understanding it or it is plainly not in the child's best interests to be so informed.
Section 10. Duty of Court and counsel to explain proceedings
In Family Court hearings, the Court (clause 1), and the solicitor (clause 2) representing the person(s) appearing in the Court, shall explain in an understandable manner the nature of the proceedings.
Section 11. Duty of Court and counsel to encourage and assist the child to participate in proceedings, where necessary and appropriate, to the degree appropriate to the age and level of maturity of the child.
PART II
Care and protection of Children and Young Persons
13. Principles - Subject to sections 5 and 6 of this Act, and Court or person exercising any powers conferred by this Act shall be guided by the following principles:
(a) The principle that children must be protected from harm, their rights upheld, and their welfare promoted;
(b) The principle that the primary role in caring for and protecting a child lies with the child's family, whanau, etc. ... , and that accordingly --
(i) A child's family, etc. should be supported, assisted, and protected as much as possible; and
(ii) Intervention into family life should be the minimum necessary to ensure a child's safety and protection;
(c) The principle that it is desirable that a child live in association with his or her family and that his or her education, training, or employment be allowed to continue without interruption or disturbance;
(d) Where a child is considered to be in need of care and protection, the principle that, wherever practicable, the necessary assistance and support should be provided to enable the child to be cared for and protected within his or her own family;
(e) The principle that a child should be removed from his or her family only if there is a serious risk of harm to the child;
(f) Where a child is removed from his or her family the principles that, --
(i) Wherever practicable, the child should be returned to, and protected from harm within, that family; and
(ii) Where the child cannot immediately be returned to, and protected from harm within, his or her family, until the child can be so returned and protected he or she should wherever practicable, live in an appropriate family-like setting -
(A) in the same locality as before
(B) in which the child's links with his or her family, etc. are maintained and strengthened; and
(iii) Where a child cannot be returned to, and be protected from harm within, his or her family, etc., the child should live in an appropriate family-like setting, in which he or she can develop a sense of belonging and a sense of continuity and cultural identity are maintained.
(g) Where a child cannot remain with, or be returned to, his or own family, etc., the principle that care of the child should be given to a person
(i) Who is a member of the child's hapu or iwi or who has the same tribal, ethnic, or cultural background; and
(ii) Who lives in the same locality as the child.
(h) As in (g) the principle that the child should be given an opportunity to develop a significant psychological attachment to the person in whose care the child is placed.
Definition of child in need of care or protection
14. A child is in need of care and protection if -
(a) The child is being , or is likely to be, harmed (whether physically, emotionally or sexually), ill-treated, abused, or seriously deprived; or
(b) The child's development or physical or mental or emotional wellbeing (wellbeing) is being, or is likely to be, impaired or neglected, and that impairment or neglect is, or is likely to be, serious and avoidable; or
(c) Serious differences exist between the child and the parents or guardians of the child to such an extent that the physical, mental, emotional wellbeing of the child is being seriously impaired; or
(d) The child has behaved, or is behaving, in a manner that -
(i) Is, or is likely to be, harmful to the wellbeing of the child or to others; and
(ii) The child's parents, etc. are unable or unwilling to control; or
(e) In the case of a child between 10 and 14 inclusive, the child has committed an offense or offenses the number, nature, or magnitude of which is such as to give serious concern for the wellbeing of the child; or
(f) The parents, etc. of the child are unwilling or unable to care for the child; or
(g) The parents, etc. of the child have the abandoned the child; or
(h) Serious differences exist between a parent, etc. of the child and any other parent, etc. of the child to such an extent that the wellbeing of the child is being seriously impaired; or
(i) The ability of the child to form a significant psychological attachment to the person(s) caring for the child is being, or is likely to be, seriously impaired because of the number of occasions on which the child has been in the care or charge of a person for the purposes of maintaining the child apart from the child's parents or a guardians (but not any person who has custody of the child pursuant to a Court order or pursuant to an agreement to be under the care of the Director-general.
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