Cross Examination: A National Disgrace – Will the CYF Overhaul be 15th Time’s the Charm?

Content Contributor,  Jess Fitzgerald

It has long been a public perception that Child Youth and Family (“CYF”) does not fully serve those it was designed to look after – vulnerable New Zealand children. The service has been especially present in the media for the past two years for all the wrong reasons. It has previously gained attention for its passive role and subsequent inquiry into the Roast Busters case, and more recently, due to the Children’s Commissioner’s “scathing” 2015 State of Care report concerning the statutory service.[1][2] The report identifies CYF’s mandate as[3]:

“Protecting children from abuse and neglect, providing secure care to those who need it, and the care of children who have committed an offence. New Zealanders expect CYF to keep children safe from immediate harm and hold children who have committed offences accountable, but more than that, we expect CYF and other government agencies to take good care of children and improve their life outcomes.”

The legislative framework for CYF and its surrounding agencies is primarily provided by the Children, Young Persons and Their Families Act 1989 (CYP&F Act). The Act establishes the first and paramount consideration as being the welfare and interests of the child or young person – and directs the court or person exercising powers under the Act to ensure that the child or young person is protected from harm and their rights are upheld.[4]

While the Commissioner’s report identified CYF as being “very focused on keeping children safe and managing the intake and assessment processes at entry to the system”, it was said that “they’ve lost sight of what children need while in care and what they need to receive to ensure they thrive once they’ve left”.

The report further identified a lack of support for children in the system with “Māori whakapapa to identify with their culture”, as well as less collaboration between agencies leading to “children falling through the cracks in the system”.[5] The report’s comment that “generally, the longer a child spends in state care, the more likely they are to experience harmful consequences” is perhaps most concerning when directed towards a state agency created to do exactly the opposite.[6]

Youth Court Principal Judge Andrew Becroft, who has recently been appointed as the new Children’s Commissioner, labelled the report “vital”, and further affirmed its findings by noting the ‘staggering link’ between youth in CYF care and those who commit crime – with around 83% of prison inmates aged under 20 having been in the CYF system.[7]

The identification of concerns with CYF is not new: between 2011 and 2014, the Ministry of Social Development received a number of reports that identified significant issues with the operation of the care and protection system, and there have been 14 reviews of the service by successive governments since 1988.[8] [9] The Minister of Social Development, the Hon Anne Tolley, made mention of a study that found by age 21, “of children with a care placement who were born in the 12 months to June 1991:

  • Almost 90% are on a benefit
  • Around 25% are on a benefit with a child
  • Almost 80% do not have NCEA Level 2
  • More than 30% have a Youth Justice referral by age 18
  • Almost 20% have had a custodial sentence; and
  • Almost 40% have had a community sentence.”[10]

In early 2015, Mrs Tolley engaged an expert panel to compose interim and final reports detailing how the current state care and protection system can be improved. The minister consequently asked Cabinet to address a select few recommendations, with the aim of, rather than continue trying to renovate the dysfunctional and discredited CYF model, “[pulling] it down and [starting] afresh”.[11]

The panel recommended a completely new operating system with six foundation building blocks, being:

  1. “A child centered system;
  2. Engaging all New Zealanders;
  3. High aspirations for Māori children;
  4. A professional practice framework;
  5. Strategic partnering; and
  6. An investment approach.”[12]

This model was created in collaboration with stakeholders such as children and young people in or previously in the CYF system, families and caregivers, experts and more.[13]

Subsequent to the panel’s final report release, Mrs Tolley released Cabinet papers outlining the proposed reforms the Ministry of Social Development (“MSD”) announced it will be pushing from May 2016 onwards. These proposed reforms are centred around a new operating model, based upon the building blocks identified by the panel, that offers “five core services:

  1. A prevention service that invests early in children and families and whānau.
  2. An intensive intervention service when concerns escalate.
  3. A care support service that enables children to develop life-long relationships with caregiving families.
  4. A youth justice service that focuses on preventing reoffending and helping children lead crime free lives.
  5. A transition support service that invests in supported transitions to young adulthood.”[14]

In the panel’s interim and final reports, 81 recommendations were raised, with a significant number being carried over into the planned reforms. The most socially charged are perhaps the over-representation of Māori children in the care system, the recommendation to increase the maximum care and youth justice system ages, and the new agency’s apparent similarity to the Accident Compensation Corporation (“ACC”), in purchasing services from external providers to provide individuals with immediate assistance.[15]

The panel identified the potential causes of Māori overrepresentation as “higher levels of deprivation in Māori families, conscious and unconscious bias in the system, and a lack of strong, culturally appropriate models for strengthening families and child development.”[16] Under the CYP&F Act, the Chief Executive of the Department is charged with ensuring that all policies and services adopted must have “particular regard for the values, culture, and beliefs of the Māori people; support the role of families, whānau, hapu, iwi, and family groups; and avoid the alienation of children and young persons from their family, whānau, hapu, iwi, and family group”.[17] The MSD have responded to this recommendation by introducing a ‘high expectation’ to improve outcomes and meet targets, as well as announcing strategic partnerships with iwi,

Māori organisations and Whānau Ora Commissioning Agencies “to provide appropriate wrap-around services for vulnerable Māori families, making better use of the capability and capacity of these organisations to serve the needs of Māori children and young people.”

Another of the panel’s recommendations being enacted by the MSD is extending the jurisdiction of the care and protection system to encompass 17 year olds, which is particularly important given young people are not afforded many rights accorded to adults until they are aged 18. This has meant that, even now, a gap exists in the care legislation, effectively withdrawing care protection for children in care once they turn 17, but denying them most adult rights until the age of 18 is attained.[18] This is not the case in many comparable jurisdictions such as Australia, Ireland, Canada, and the United States, where young people do not have to leave state care until the age of 18. Some countries also provide extended care leaving provisions significantly beyond the age of 18, which New Zealand does not.[19]

FIGURE 1

Dark blue: minimum statutory care-leaving ages in comparable jurisdictions.
Light blue: extended care-leaving provisions provisions through to early adulthood.

The panel’s report gives two significant recommendations pertaining to criminal conduct and age. The first is raising the maximum age limit in the youth justice system to 17 years from the current 16 years, and the second is raising the minimum age of criminal responsibility from 10 to 12.[20] The former change would mean that, in line with comparative jurisdictions, only 18 year olds and older would be processed in the adult justice system. This is justified by evidence which suggests that dealing with young people in the Youth Courts, as opposed to the adult system, is “likely to reduce reoffending and reduce the number of victims of crime.”[21] The Panel goes even further and suggests that where an 18 or 19-year-old “is charged with an offence, a court would have the power to transfer the case to the Youth Court, if the court considers it is in the interests of justice to do so” – taking into account age, maturity, offence nature and criminal history.[22]

With regard to the second age recommendation, New Zealand’s “current lower age of criminal responsibility of 10 years of age is younger than most comparable jurisdictions, yet no New Zealand child aged 10 or 11 has ever been convicted of an offence”.[23] The Expert Panel recommends raising this age to 12 in order to synchronize New Zealand with similar jurisdictions, deal with 10 and 11 year old offenders in the care system, and acknowledge the developmental difference between these ages.[24]

The new model also proposes structural similarities to the ACC. This is due to its ability to buy specialist services such as counselling on behalf of the child or young person as needed. MSD hopes that staff will spend more time with the children as a result, rather than negotiating with external service agencies, as is the current norm. Mrs Tolley referred to this as “funding following the child, rather than being siloed in individual agency processes or thresholds”, with the aim of more immediate action to meet a child or young person’s needs.[25] Labour Party’s children’s spokesperson, the Hon Jacinda Ardern, expressed her concern over the new approach’s similarity to ACC – stating that if this is the case, she has real concerns “about the commitment of that agency to the well-being of children and making sure children are at the centre of its work”.

In the last of three Cabinet papers accompanying the Final Report, Mrs Tolley noted that although the scale of reform to the relevant legislature will be the most significant since the establishment of the CYP&F Act in 1989, current legislation need not be repealed, as this reform is “sufficiently consistent with the overall intention and framework of the CYP&F Act.”[26] The Ministry of Social Development has set out an indicative timeline for when legislation will be implemented, with the first stage involving extending the care and protection’s jurisdiction to include 17 year olds, as well as establishing and supporting an advocacy service and enabling a broader set of professionals to be involved in the new system. Mrs Tolley is seeking Cabinet approval for the second, more complex stage of reforms, which will ideally include:

  • “New measures to embed the voice of children and young people into the operation of the system;
  • Major reform to the principles, obligations, decision-making processes and oversight mechanisms for the care system,
  • A new legislative framework for young people who have exited the care system through to age 25,
  • Expanded duties and new processes in relation to the prevention and intensive intervention services;
  • A bespoke information sharing framework within the CYP&F Act 1989;
  • New obligations and processes in relation to children with disabilities;
  • Amended provisions to enable a system level response to the needs of vulnerable children and their families that could include the use of a broader set of professionals, where appropriate; and
  • Any minor reforms that follow…”[27]

Though the Expert Panel’s report proposes major changes in order to transform CYF into a system that truly meets its mandate, it remains to be seen if this will be truly implemented. Mrs Tolley’s “dogged determination”, along with the Minister for Finance, the Hon Bill English’s support for social investment, may mean the proposals are green-lighted by their fellow Cabinet Ministers – that is, if the extra $524 million more per year on top of CYF’s existing $783 million budget, does not dissuade them.[28] [29] The panel has recommended that approximately $421 million of the extra $524 million cost be taken from the current Health, Education, Corrections and Work and Income budgets, which has drawn criticism from the Labour Party’s children’s spokesperson, the Hon Jacinda Ardern, who noted that other governmental services should not suffer as a consequence.[30] [31] Mrs Tolley confirmed that she will be proposing a ‘contingency fund’ through the 2016 National Budget for new funding components.[32] Save the Children, IHC, Barnardos and the Children’s Commissioner were all swift to welcome the Minister’s overhaul announcement on 7 April 2016, but unanimously agreed that getting the details and execution right would be the difficult part.[33]

Mrs Tolley’s vision for a transformed care system in 4-5 years is clearly ambitious, and such a large scale change to this system has not been achieved in almost 40 years. This is not to say it cannot be done – particularly given the amount of research and small legislative steps that the Minister has already begun to take. This service’s successful implementation is crucial to the future wellbeing of New Zealand’s most vulnerable citizens, and therefore must be watched – and administered – carefully.

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[1] Michael Daly and others “Roast Busters case subject of another review” Stuff (online ed, New Zealand, 19 March 2015) <www.stuff.co.nz>

[2] “Minister vows to get CYF overhaul right” RNZ (online ed., New Zealand, 27 August 2015) <www.radionz.co.nz>

[3] Children’s Commissioner State of Care 2015 (August 2015) at 4.

[4] Children, Young Persons and Their Families Act 1989, s 13(2).

[5] Office of the Children’s Commissioner “Children’s Commissioner releases first State of Care report” (press release, 27 August 2015) <www.scoop.co.nz>

[6] RNZ, above n 2.

[7] “‘Staggering’ link between CYF care and crime” RNZ (online ed., New Zealand, 28 August 2015) <radionz.co.nz>

[8] Cabinet Paper “Modernising Child, Youth and Family Expert Panel: Interim Report” (July 2015) <www.msd.govt.nz>

[9] Daly, above n 1.

[10] Anne Tolley, Minister for Social Development of New Zealand. “The future of child protection and care” (Ministry public announcement, Wellington, 7 April 2016) <www.beehive.govt.nz>

[11] “CYF is gone” The Listener (online ed., New Zealand, 21 April 2016) <www.listener.co.nz>

[12] The Modernising Child, Youth and Family Panel Expert Panel Final Report (Ministry of Social Development, December 2015) <www.msd.govt.nz>

[13] Ministry of Social Development, above n 12.

[14] Cabinet Paper “Paper One – Final Report of the Modernising CYF Panel: The new operating model” (2015) <www.msd.govt.nz>

[15] “More protection for young in CYF overhaul” Otago Daily Times (online ed., New Zealand, 7 April 2016). <www.odt.co.nz>

[16] Ministry of Social Development, above n 12.

[17] Section 7(c).

[18] Ministry of Social Development, above n 12.

[19] Cabinet Paper “Paper Two – Final Report of the Modernising CYF Expert Panel: Policy and Legislation” (2015) <www.msd.govt.nz>

[20] Ministry of Social Development, above n 12.

[21] Ministry of Social Development, above n 12..

[22] Ministry of Social Development, above n 12.

[23] Ministry of Social Development, above n 12.

[24] Ministry of Social Development, above n 12.

[25] Cabinet Paper “Overview – Final Report of the Modernising CYF Expert Panel: Policy and Legislation” (2015) <www.msd.govt.nz>

[26] Ministry of Social Development, above n 12.

[27] Ministry of Social Development, above n 19.

[28] The Listener, above n 11.

[29] Otago Daily Times, above n 15.

[30] Otago Daily Times, above n 15.

[31] “New plan for children in care unveiled” RNZ (online ed., New Zealand, 7 April 2016) <www.radionz.co.nz>

[32] Ministry of Social Development, above n 14.

[33] Barnardos “Recommendations on care of vulnerable children welcomed” (press release, 7 April 2016) <www.scoop.co.nz>