A series of disturbing incidents at youth justice residences in recent weeks highlights a system that is beyond repair, writes Aphiphany Forward-Taua. We need transformation now – and the models for how to do so are already there.
Can any of us honestly say we’d be happy if our own children or siblings were taken into the care of Oranga Tamariki? I know that for many, the answer would be “absolutely not”. There is a real sadness in this reality, that as a society we are complicit in children and young people being placed into institutions that we wouldn’t approve of for our own. In the past fortnight, Oranga Tamariki has been in the media for reports of sexual allegations against young people in its care, two incidences in Christchurch and Auckland of young people climbing onto roofs in protest; and now video footage of Oranga Tamariki staff watching and encouraging fights in a youth justice residence. The children’s commissioner Judge Frances Eivers has been unequivocal in stating that Oranga Tamariki residences need to close:
“I have been clear that the current residential care system is not therapeutic, or rehabilitative. At the core of the new investigation is the fact that residences are not even safe. I believe the residences need to be shut down and replaced with a system that’s fit for purpose.”
JustSpeak strongly supports the commissioner’s position and urge you to support this call to action by signing our petition Rule out Residences.
It has baffled me that in the wake of the incident at the youth justice residence Korowai Manaaki in Auckland, public attention was on KFC being used as a negotiation tactic. Even more concerning was the focus of senior leadership on reinforcing the gib-lined ceiling instead of being on the wellbeing of these young people in their institutions. The first question that came to mind was, “where were the staff at the time eight young people escaped onto the roof?” My second thought was, “wow, these young people were persuaded by KFC!” I can’t imagine going onto a roof in the middle of winter, sitting there for 40 hours in the freezing cold only to succumb to the promise of some fried chicken. It certainly makes you wonder about the standard of care these young people are receiving. We still don’t know why they went to such great lengths to protest. Surely there is more to the story? After all, people don’t act out for no reason.
Last year, young people in a Hawke’s Bay prison protested in the same way by climbing onto a roof. Reportedly, they had been denied access to the sports area. While this might seem trivial, it’s clear that exercise offers mental and physical relief for young people while incarcerated. Exercise for many is a form of therapy. Depriving young people of this outlet seems contrary to the World Health Organisation mental health determinants for young people. Healthy habits for young people, like having an exercise routine, is essential for effective rehabilitation and therapy. This should be a priority of Oranga Tamariki, especially given the developmental vulnerability of the young people in their care.
Who cares about history?
Our country boasts a shameful history when it comes to children and young people in its state care and youth justice institutions. The Royal Commission of Inquiry into State Care Abuse has brought to the fore serious allegations against the state, among them stories of torture, physical, mental and sexual abuse – all evidenced by thousands of testimonies courageously shared by survivors. Tā Kim Workman, a lifelong justice advocate and kaumatua of JustSpeak, always says, “We must walk backwards into the future” – meaning we must take heed of our past mistakes to ensure meaningful change for the future.
Oliver Sutherland, a tireless justice campaigner, has contributed significantly to uncovering human rights violations by the state against children and young people. As a key member of the Auckland Committee Against Racism and Discrimination (ACORD), he developed robust campaigns to expose institutional and systemic racism. ACORD published Children in State Custody, which collated justice statistics and data over a 10- year period (1971-1981), which showed four children under eight years old, 16 eight-year-olds and 62 nine-year-olds were charged for theft(s), burglaries and car conversions. ACORD was also able to identify that of 116,595 juveniles processed between 1966 and 1976, 41% were Māori. The harshest sentence was a two-year term of borstal training (military training), and 59% of all borstal-sentenced youths were Māori. The short documentary When Nobody Was Looking captures the foundational youth justice campaign work of ACORD.
Is history repeating itself?
Currently, the capacity of youth justice residences across the country is 155 beds (an increase of 238% in just under 30 years). The recent youth indicator summary report shows that in the last decade, offending by children (10-13) and young people (14-16) has decreased by 63% respectively. Between 2021 and 2022, 92% of the children referred for a youth justice family group conference (FGC) had previously been the subject of a report of concern to Oranga Tamariki. The overrepresentation of Māori in secure youth justice residences is alarming, with 80% of all children in youth justice residences identifying as Māori. This is significantly higher than published figures for the adult prison system, where 52% are Māori. The 2021 Section 7AA Quality Standards report shows that 67% of young people in youth justice residences identify exclusively as Māori, with a further 13% identifying as both Māori and Pasifika. Comparatively, a total of 7% identify as exclusively Pasifika with others (including Pakeha) at 13%. This demonstrates that the youth justice system fails Māori at a grossly disproportionate rate.
There is a significant body of scientific evidence that tells us that life-course factors can predispose children to the prison pipeline. Early intervention is critical to prevent this. It is well established that the age of an offender is a mitigating factor under section 9(2)(a) Sentencing Act 2002. In the case of Churchward v R [2011] NZCA 531, the court emphasised that there are age‐related neurological differences between young people and adults. These differences include that young people are more vulnerable or susceptible to negative influences and peer pressure, and that they are more impulsive than adults. Significantly, the effect of imprisonment on young people is more detrimental when compared to adults. Also, young people have a greater capacity for rehabilitation because their character has not yet formed. It’s clear that our state care system has been left behind by both scientific and legal developments. The only plausible next step is to establish a pathway away from youth justice residences to a community-based model of care.
The cost of living crisis, housing crisis and pressures across our health and education systems are causing immense hardship on all communities. This hardship is particularly acute for low socio-economic communities. The media recently reported two high school students working full-time jobs to help support their families while balancing working towards their NCEA Level 2 qualification. Investment in communities to ensure everyone has what they need to thrive is integral to changing outcomes for everyone in Aotearoa New Zealand. When deprivation is present in families and communities, crime often becomes the only option to put food on the table and a roof over your head.
OK, but how do we transition?
Oranga Tamariki’s oversight processes and transparency to the public is subpar – especially for youth justice residences. As a democratic society we have the power and responsibility to hold our government to account when it falls short. This is particularly important when it comes to observing the human rights of vulnerable communities like children and young people. On its website, Oranga Tamariki says a young person placed into a youth justice residence will have their social, health and school needs met while being taught valuable life skills. Poor oversight and transparency is an issue we are seeing across the wider adult prison network, and is a a key concern we raised in our joint submission to the United Nations on the Convention Against Torture. Oranga Tamariki needs to improve its oversight processes immediately in line with UN standards.
The historical trauma of state care and youth justice residences in this country commands the government (including future governments) to commit to closing down youth justice residences. In 2021, the Oranga Tamariki Future Direction Plan agreed to transition away from care and protection residences to small family group homes in six to 12 months. Unfortunately, care and protection residences still exist in our communities two years on. As a first step, a robust transitional plan to close state care and youth justice residences in the next two to five years. This must be implemented and made available to the public for the purpose of transparency and accountability.
The UN Convention on the Rights of the Child (UNCROC) states that all children should grow up in a family environment. Last month the state of California closed its last three youth justice facilities. Separately, in the state of New York they are transitioning away from youth prisons to community-based models like the Close to Home Initiative. Under Close to Home, those who’ve committed even the most serious crimes are housed in small, local facilities, or live at home under community supervision. This initiative has two types of placements: non-secure and limited secure. The programme is designed to ensure young people receive therapeutic services in small group homes where they are close to resources that can support their treatment and transition back into their communities. In 2020, only 12 young people were housed in buildings with a lock on the door. If the US can make the transition, so can we.
Given that 80% of young people in youth justice residences are Māori, our response needs to be one that accords with te ao Māori and youth development best practice. Minimising the drivers of crime, such as poverty and lack of access to education, is also critical. Whakatakapokai is a Māori-centred facility that is operated by a partnership agreement between Oranga Tamariki and Waikato-Tainui. This model is similar to the Close to Home Initiative in the US and is a good example of us moving towards a model of devolved power, though there is still room for improvement.
Ngā Tini Whetū (NTW) is a Māori-led whānau-centric model that devolves decision making and resource power from government agencies (ACC, Te Puni Kōkiri, Whānau Ora and Oranga Tamariki) to regional communities. NTW aims to address issues before they reach crisis point by targeting and reducing whānau poverty. NTW supports motuhake (self-determination) within regional communities and is a fundamental reason for the success of this programme. Unlike one-size-fits-all models of residential care, NTW provides an opportunity for whānau, hapū and iwi to develop models of care that are fit for purpose and in alignment with local tikanga and ways of living.
Transformation of our failing state care and justice system needs to happen now. There is no merit in prolonging the harm that is imposed on young people and children’s lives through incremental changes to a system that is not fit for purpose. It’s clear that the answers to our state care and youth justice crisis are there… but only if you are willing to look hard enough. It’s time that we as a society call on our government to rule out residences for good.
Aphiphany Forward-Taua (Waikato-Tainui, Ngāti Maniapoto, Ngāti Hinerangi) is the executive director of justice advocacy NGO JustSpeak.