Restorative Justice in the Youth Court: A Square Peg in a Round Hole?

The New Zealand Youth Justice system is a world leader in restorative responses to youth offending. The ground-breaking system is made up of the acclaimed Family Group Conference and the Youth Court processes. Family Group Conferences (“FGCs”) have been described as the “jewel in the Crown” of the restorative response. They have been extensively researched – and rightly so given that they are the essence or “lynchpin” of the system. However, the operation of the Youth Court is seldom analysed in such depth, particularly on the question of whether its operation can be described as restorative. For this reason, this paper is limited to an assessment of restorative practices in the Youth Court.

Given that the Children Young Persons and Their Families Act 1989 (“CYPF Act”), and in particular the Youth Justice provisions of that Act, do not explicitly mention “restorative justice”, this paper will consider whether the principle should be embraced by the Court. Concluding that restorative justice is not a statutorily mandated goal but is, nevertheless, consistent with the use of these principles in the Youth Court, it will then examine to what extent the Youth Court is successful in achieving a truly restorative model within its own processes. It will also discuss therapeutic jurisprudence and the role of the Youth Court in monitoring restorative justice concepts in the wider youth justice arena.

The FGC process has fostered restorative practice outside the Youth Court but, arguably, the Youth Court has too often maintained a formal adversarial model of operation and failed to incorporate restorative processes. The formal system is important to at least maintain the rights of individuals and to determine guilt or innocence. This begs the question as to whether restorative processes should be further incorporated into the operation of the Youth Court or whether they are inappropriate in that context – effectively a square peg in a round hole.

To what Extent are the Goals of Restorative Justice Achieved in the Youth Court?

The question, then, is to what extent are principles such as inclusion, accountability, voluntariness, group involvement in decision-making, support and freedom of discourse already in evidence in the Youth Court. A typical Court hearing involves youth advocates, police, social workers, the offender and their family and supporters and, of course, a Judge. Many Judges encourage discussion and participation from these individuals and a key goal of Youth Court outcomes is accountability. At first glance, then, a Youth Court appears to display features of restorative justice but, as noted, levels of discussion and inclusion vary from Court to Court. What follows is an assessment of particular features of the Youth Court and whether the law and actual practice assist or hinder restorative justice in the Court.

(i)    “Not Denied”
The British adversarial concept of putting the prosecution “to the proof” can be seen as a discouragement to people to plead guilty and accept responsibility for their actions. The Youth Court avoids taking a guilty or not guilty plea and, instead, asks the young person whether the charge is “not denied”. When a charge is “not denied” it is transferred to FGC where the young person may nevertheless opt to deny the charge but in the majority of cases the charge is proven by admission. The “not denied” mechanism allows the parties to meet and discuss the charge(s) before the offender commits themselves to a plea. Once matters are admitted (including finalisation of the proper charge(s) and the summary of facts) the parties can then move along the reconciliation path. Thus, the formal Court process assists restorative justice processes because if the Youth Court insisted upon the making of a guilty or not guilty plea, this would inhibit prompt access to the FGC process.

(ii)    Court layout
In practice, many Youth Court hearings are held in adult Courtrooms, which have proven almost impossible to alter for Youth Court hearings due to in-built furniture and, for example, the placing of electrical fittings for microphones. This inhibits inclusion and freedom of discourse and may make it difficult for supporters to sit near the offender as they must be seated in the public gallery. The ideal Youth Court arrangement has the desks arranged in a “U” shape around which the social workers, youth advocates and police sit. Family and supporters of the offender are seated against one side wall and other interested parties are seated along the facing side wall. The offender stands behind the “U” shape of desks, facing the Judge. This layout has been successfully adopted in Courts such as the Wellington Youth Court.

(iii) Involvement of victims in the Youth Court
The involvement of victims is an integral part of the restorative justice response. Their presence forces offenders to face the often crushing impact of their offence and give a genuine apology - an important first step away from a life of crime. Restorative justice approaches encourage dialogue and mutual agreement between the parties to restore relationships between victim and offender. This can be an important part of healing for the victim and Youth Court Judge Henwood has described the victim’s presence as a “powerful event”.
However, victims are not currently entitled to attend Youth Court. The CYPF Act lists a range of people who may attend the Court including family, legal representatives and social workers but victims are excluded. The Judge may permit “any other person” to be present but this is at the discretion of the Judge. Further, if the Judge allows a victim to be present, they are not entitled to address the Court as of right.

(iv)    Young people’s participation and comprehension in the Youth Court
The Youth Court has a duty to explain proceedings to a young person in a manner and in language they can understand. And if the Court makes an order against the young person it must explain that order to the young person and to any parent, guardian or person who takes care of that young person. Further, the Court is under a duty to encourage and assist the child or young person to participate in proceedings. These are vital provisions for achieving the goals of restorative justice but they are too easily reduced to bare minimum requirements. There are a number of reasons for this including:
 

• Youth Court Judges, although chosen for their special attributes and understanding, are not full-time specialists and Youth Court work is a small part of their caseload – usually under 15% of their work. Typically, Youth Court cases make up only 5% to 6 % of total cases coming before the District Court annually.

• Time and resource constraints.

• Some Youth Court professionals are less adept than others at communicating with young people.

(v)    The importance of Lay Advocates
The CYPF Act contains provision for the appointment of lay advocates. Lay advocates must ensure that the Court is aware of all cultural matters that are relevant to proceedings and represent the interests of the young person’s whanau, hapu, and iwi (or equivalent) to the extent that those interests are not otherwise represented in the proceedings. Lay advocates may provide a voice for families and foster dialogue between families and young offenders, thus assisting in the restoration of those relationships. This is vital given that section 208(c) CYPF Act states that “any measures for dealing with offending by children or young persons should be designed-

• To strengthen the family, whanau, hapu, iwi, and family group of the child or young person concerned; and

• To foster the ability of families, whanau, hapu, iwi, and family groups to develop their own means of dealing with offending by their children and young persons.”

Section 5 states that “wherever possible” the family group should participate in the making of decisions affecting that child or young person, and regard should be had to their views.” Wherever possible, the relationship between a child or young person and his or her family group(s) should be maintained and strengthened. Lay advocates are potentially a powerful tool in achieving these goals but, in fact, lay advocates are rarely appointed. And attempts to introduce lay advocates into three New Zealand Courts in 2004 at the initiative of the Principal Youth Court Judge, received a lukewarm response from the various professionals involved.

(vi)    Community Involvement
A truly restorative Court process would ensure that all stakeholders were full participants at hearings. One stakeholder that is difficult to adequately represent is the community which becomes weakened or embattled through rising crime levels. A large number of meanings can be ascribed to “the community” depending on whether the context is a large city, a small town, a particular community of interest or an indigenous community. It could be argued that the police, Judges or social workers represent the community in some sense and certainly victims and offenders are community members. Lay advocates potentially represent a sector of the community and this inclusion of a non-professional as a community representative has been encouraged by some commentators.

(vii)    Power Imbalance
Consensus decision-making is important to achieve the goals of inclusion and voluntariness in restorative justice. However, particularly where young people are concerned, there is a danger that power imbalances may lead young people to feel unable to contribute. This is particularly pronounced in the formal setting of the Courtroom where a collection of lawyers, social workers, police, a Court taker and a Judge all turn to watch the young person respond to questions. Haines notes that, from a young person’s perspective, both the traditional Courtroom and the FGC involve facing “a room full of adults”.

It is not surprising, then, that young people tend to agree with charges or plans that are presented. This thwarts the goals of restorative justice because rather than emerging from the hearing with a commitment to change, young people may leave such proceedings with a sense of injustice or dissatisfaction. In order to re-establish their sense of identity, they make use of a variety of adaptive mechanisms to distance themselves from the experience. At FGC the primary stakeholders are empowered but under “conventional” adversarial processes they are largely in the control of professionals.

The young person’s family may also feel daunted by the Courtroom and its room full of professionals particularly if they are uneducated or hail from a non-Western culture. They are likely to be unsure as to whether they may speak or how to interject if, for example, incorrect information is given. To achieve meaningful participation by the parties it is vital that Judges make families and supporters feel welcome and regularly give them opportunities to contribute. Similarly, offenders must be encouraged to participate. If the parties are mute throughout proceedings they will not take ownership of the outcomes and the process cannot be described as restorative.

(viii)    Restorative Outcomes
Outcomes of restorative justice processes are focussed on the victims and perpetrators of crime. A change in re-offending is not one of the primary goals of restorative justice but certainly changes in re-offending behaviour are an expected outcome of the restorative process. This is often achieved in both restorative and conventional criminal justice responses by the referral of offenders to appropriate treatment programmes. The difference with restorative justice is that offenders are active participants in deciding what the reparative and rehabilitative outcomes should be. Research shows that individuals who participate in the process are more likely to comply with outcomes. However, the young person is unlikely to be an active participant in determining the outcome in the Youth Court. It is vital, then, that the young person is heard at the FGC level and in the Youth Court in order to ensure the process is truly “restorative”.

For victims, restorative justice outcomes have three objectives, the restoration of a sense of security, the restoration of a victims’ self-respect and dignity, and the restoration of a sense of control. As described above, victim’s needs are insufficiently accounted for in the Youth Court and this part of the process cannot be described as restorative.

(ix)    Maintaining the dignity of participants
The Youth Court aims to uphold the dignity of participants and thereby maintain an atmosphere conducive to restorative justice through a number of statutorily based measures. Firstly, the Courtroom must be arranged so that participants are not brought into contact with people attending any other Court. This ensures that youth offenders are kept away from adult offenders and assists in maintaining their privacy. Further, the extent to which children and young people are able to associate within the Court premises and the extent to which parents must congregate in common areas while awaiting their hearing should be “reduced to a minimum”. This is assisted in that Youth Court proceedings must be arranged in a manner that keeps waiting times to a minimum and that the time stated in a summons must be a time that “accords with the reasonable expectation of the Registrar of the Court of the time when the proceedings in respect of which the summons is issued will be heard”.

The dignity of participants is further maintained by the prohibition on the publication of any information about the young person including their name, school, or any other details likely to lead to the identification of the young person or their school. Along with upholding the dignity of young people and their families, these measures maintain the faith of participants in the system. They also ensure that young people are not overtly criminalized by the process.

Conclusion

 

Restorative justice has a key role to play in an effective youth justice system – and restorative practices should be incorporated, where possible, into Youth Court systems. Restorative justice is also a good “fit” with young people, and it should be made to “fit” in the Youth Court, at least in part. This is not accommodating “a square peg in a round hole”. Appropriate use of restorative processes, even where decisions must be the prerogative and responsibility of the Court, are perfectly compatible with Youth Court decision-making and need not detract from the authority, dignity and “mana” of the Court. Rather, their adoption will allow a flexible, meaningful, holistic and inclusive response to deal with the needs of young people who have broken the law, their victims and, indirectly, community interests as a whole.

 

Judge Andrew J. Becroft
May 2006