Boy’s detention may breach ‘spirit’ of UN Convention

A judge has ruled that detention of a child needing care at protection at a youth justice facility near Christchurch was lawful, but may breach the spirit of the United Nations Convention on the Rights of the Child.

Justice Rachel Dunningham issued her decision after a legal bid to issue a writ of habeas corpus for the 16-year-old boy was heard 11 days ago. The writ would have forced the State to find a placement for him that was not at what is effectively a youth prison.

Justice Dunningham heard legal submissions by Grant Tyrrell for the boy, and Chris Lange for the chief executive of the Ministry of Vulnerable Children, Oranga Tamariki.

She issued her decision soon after the hearing, but a specially edited version – to protect the identity of the child – has been issued today to the reporters who were at the hearing.

Justice Dunningham said the boy had complex behavioural and learning difficulties. He has attempted suicide, and he has committed assaults and abuse of staff, and a sexual assault.

She ruled that he was being “detained” at the Te Puna Wai youth justice facility at Rolleston, but it was not unlawful.

He had been held there because no other option was available while he awaited a placement at a residential facility in the North Island during November.

She ruled that he was being held in a “residence” and secure care was a different form of detention within that residence. He was able to move around the residence, leave his room, and engage in activities. He was able to leave the residence completely, with supervision.

Those who had care of the boy appeared to have done their best to ensure an individualised programme at the residence.

But the judge said: “I consider it to be at the very least, undesirable, but potentially detrimental, to place a young person who is in need of care and protection in an environment that is designed for the provision of custody for remanded or sentenced youth offenders.  Furthermore, it breaches, at least, the spirit of the United Nations Convention on the Rights of the Child.”

She said she expected that Oranga Tamariki would not place a young person subject to a care and protection regime in a youth justice residence. “It would be unfortunate if the circumstances in which [the boy] has found himself in this case were to be replicated,” she said.

She found it extremely surprising that a young person who had been granted bail by the Youth Court could be placed in a residence that was primarily designed for young people who had been remanded in custody or sentenced by the Youth Court.

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