Any legislation such as is suggested in this subheading would involve an

amendment of the Crimes Act and not merely an amendment of the Child

Welfare Act. The Committee therefore suggests to the Government that

further information be obtained as to how the law regarding "age of

consent" is operating in other jurisdictions and that the information so

obtained be submitted to the Law Revision Committee for its

consideration.

_XVI. Child Welfare in New Zealand_

=(1) History of Legislation=

In order the better to understand the limits and extent of the powers

under the Child Welfare Act, and how these powers are capable of

improvement and extension, it is desirable to set out briefly the

history of the law pertaining to institutions and homes established in

New Zealand for children in need of care or correction.

The first provisions were contained in the _Neglected and Criminal

Children Act 1867_. This statute provided that boys and girls under

fifteen years of age could be committed to industrial schools or

reformatories for periods up to seven years. In 1873 the Master of any

Industrial School established under the Act became _in loco parentis_ to

children of parents who, because of their criminal and dissolute habits,

were unfit to have the guardianship of their children.

In 1874 a _Naval Training Schools Act_ was passed under which boys of 10

to 14 years of age, convicted by magistrates for reasons varying from

vagrancy to bad associations, could be detained in naval training

schools or on training ships and apprenticed to the sea.

In 1882 the _Industrial Schools Act_ was passed making better provision

for the control, maintenance, education, and training of children under

the apparent age of fifteen years who were found to be destitute,

neglected, uncontrollable, living in a detrimental environment, or

associating with persons of ill repute, and also for children who had

committed offences against the law. Prior to the passing of this Act

several homes, orphanages, and schools had been established in various

parts of the Colony by religious organizations and benevolent societies.

They received financial aid out of a vote for charitable institutions

administered by the Colonial Secretary.

The _Private Industrial Schools Act_ of 1900 was introduced as a result

of public resentment against the treatment of boys in a private school.

For the protection of inmates a right of inspection of these private

schools was given to Judges, Members of Parliament, and other named

persons.

The _Industrial Schools Act_ of 1908 was mainly a consolidation of the

law up to that time but the age of children subject to the Act was

increased to 16 years.

The _Child Welfare Act_ of 1925 and the amending Act of 1927 made

substantial changes in the attitude of the State towards children who

had erred. They gave legislative expression to a new world-wide desire

for a more scientific approach to the social problem of dealing with

children who had manifested anti-social tendencies.

The new features provided for in these Acts were:

(_a_) A special branch (later renamed a Division) of the

Department of Education to be known as the "Child Welfare Branch"

was established. The Branch or Division consisted of the

Superintendent of Child Welfare, who, under the control of the

Minister and the Director of Education, was charged with the

administration of the Act; a Deputy Superintendent; and such

Welfare Officers, managers, etc., as might be required.

(_b_) Power was taken for the creation of Children's Courts.

=(2) The Children's Court=

The idea of treating children who misbehaved as "delinquents" rather

than as offenders against the law arose in Illinois in 1899. This

experiment in social welfare was followed in other States of America,

and the principle was introduced into New Zealand in 1925.

There has been, and still is, much misunderstanding concerning the

procedure in these Children's Courts and the duties of Welfare Officers.

As some recommendations about to be made by this Committee could not be

properly appreciated without a knowledge of the procedure of that Court,

and the way in which Welfare Officers perform their duties, it is

desirable to make the following brief explanation:

Under the Act of 1925 it is the parent and _not_ the child, who is

summoned to appear before the Children's Court. Section 13 (1) of the

Act reads:

On the complaint of any constable or of any Child Welfare

Officer that any child is a neglected, indigent, or delinquent

child, or is not under proper control, or is living in an

environment detrimental to its physical or moral well-being, any

Justice may issue his summons addressed to any person having the

custody of the child requiring him to appear before a Children's

Court at a time to be named in the summons, _either with or

without the child_, in order that the child may be dealt with in

accordance with the provisions of this Act.

This new feature in our law did not displace the jurisdiction of

Magistrates to deal with offences charged against young persons. Any

doubt regarding the continuance of their powers was removed by the

passing of the Child Welfare Amendment Act of 1927. All offences by

children (except murder and manslaughter) are therefore still dealt with

by a Magistrate, but in the Children's Court. In other words, it is not

at present mandatory upon a parent to attend the Children's Court when a

child is charged.

In practice it is frequently found that the parent comes to Court with a

child who is charged with a breach of the law. This may be due to a

family interest; it may be due to a direction by a Magistrate in some

district that he will not deal with a child in the absence of the

parent; it may be due to a misunderstanding of the law that, because a

parent is summoned for having a delinquent child and may be required to

bring the child with him, therefore when the child is summoned the

parent must also attend.

This distinction between summoning the parent of a delinquent child to

the Children's Court and bringing an offending child up on an offence

can best be illustrated by what happened in the cases of carnal

knowledge and indecent assault which were brought prominently to the

notice of the public recently.

The offending boys were charged under those sections of the Crimes Act

which prescribed maximum penalties of five or seven years imprisonment.

In most cases convictions were recorded and the boys were admonished and

discharged; in a few cases the charges were dismissed; in other cases

the boys were committed to the care of the Superintendent or placed

under the supervision of a Child Welfare Officer.

The girls, not having committed a breach of the Crimes Act or any other

statute, could not be charged. Their parents were, in appropriate cases,

summoned to Court upon the complaint that they had the custody of a

"delinquent", or a child not under proper control.

That the above distinction is not merely a formal one is shown by the

fact that an offending boy's name, and the decision of the Court

regarding him, is always recorded in the _Police Gazette_. As the girl

is not charged as an offender her name is not so recorded, even although

(as shown in Section V (2) of this report) it may have been the

misbehaviour of the girl which led the boy into the commission of the

offence charged against him.

When a sophisticated girl entices a boy into the commission of an

offence it is anomalous[7] that his name should be recorded in the

_Police Gazette_ while the girl, who may be the real offender, is not

charged and, even when the girl is committed to the care of the State,

her offending is not recorded in the _Police Gazette_.

=(3) Corporal Punishment Abolished=

By the Statutes Amendment Act 1936 the power which formerly existed for

the Court to order a whipping was abolished in so far as children are

concerned. (The penalty of whipping was later abolished in all other

cases by section 30 of the Crimes Amendment Act 1941.)

Representations have been made to this Committee that the abolition of

corporal punishment as a deterrent may have led to an increase in sexual

misbehaviour. It was pointed out that parents and school teachers may

resort to physical chastisement where thought desirable, and it was

suggested that a Magistrate should have power to order a whipping in

suitable cases.

There is, however, a big difference between a parent or teacher himself

punishing by the cane or strap soon after the offence, and a Magistrate

ordering a beating to be inflicted by a complete stranger at a later

date.

The Committee, therefore, does not recommend the restoration of corporal

punishment. It merely notes the matter here as part of the history of

the law relating to child welfare and to show that the representations

on this point have been considered.

=(4) Defects in the Act and its Application=

Several matters have come to the notice of the Committee during its

investigations which prompt it respectfully to point out to the

Government that the present statutory provisions are out-moded and that

the time has arrived for a complete redrafting of the statute to remove

anomalies and to suit the needs of the times.

The terms of the order of reference scarcely require the Committee to

make detailed recommendations. It should suffice to point out certain

respects in which the Act itself might be improved and a new meaning

given to "child welfare" which might go a long way towards reducing the

amount of juvenile delinquency.

_(a) "Child Welfare" a Misnomer_

The preamble to the Act of 1925 describes the limited nature of its

intention. It is:

An Act to make Better Provision with respect to the Maintenance,

Care, and Control of Children who are specially under the

Protection of the State; and to provide generally for the

Protection and Training of Indigent, Neglected, or Delinquent

Children.

In other words, the Act aimed at dealing with children _after they have

become delinquents_. The new provisions for the welfare of children were

grafted on to statutes which were designed for "neglected" and

"criminal" children and for the establishment of "industrial schools".

The Act did not purport to have regard for the welfare of children who

_might_ become delinquent. It did not contain any provisions for the

doing of preventive work. That being so, it is not surprising to find

that it operates in different ways in different districts. The Committee

was impressed by the preventive work done in some districts, although

the officers doing this work were unable to point to any provisions in

the Act which required them to do it. In these circumstances it is not

possible to blame any Child Welfare Officer for failing to do preventive

work which, under the statute, he is not obliged, and, indeed, has no

authority to perform.

_(b) "Child Welfare" Merely a "Division"_

The Superintendent of Child Welfare is under the control of the Minister

of Education and the Director of Education. But his duties do not appear

to be integrated with those of the Education Department. The work of the

Division appears to be more associated with the police and the Courts

than the Education Department. In former times "industrial schools"

conveniently came under the Education Department. But nowadays, when

very many of the children committed to the care of the State are boarded

out among foster-parents, the work of the Child Welfare Division is more

closely associated with that of "Justice" than "Education".

The establishment, a few years ago, of a Ministry of Social Welfare, and

the urgent need for more preventive work to be done, suggest the

possibility of better administration if "Child Welfare" were given an

independent status under the control of the Ministry for Social

Welfare.

_(c) No Regulations Under the Act_

The Acts of 1925 and 1927 made provision for the gazetting of

regulations. In particular, clause 45 of the 1925 Act contemplated

regulations (_inter alia_) "regulating the appointment and prescribing

the duties of Child Welfare Officers". After the lapse of twenty-nine

years those duties have still not been defined and gazetted.

Furthermore, "Child Welfare Officers" are, under section 6, "officers of

the Public Service". It is astounding, therefore, to hear that, year by

year, "Honorary Child Welfare Officers" are appointed. The Committee has

been informed that this year 179 people were appointed or reappointed as

"honorary" officers, although there is no statutory authority for their

appointment and their duties are not prescribed.

The Superintendent, in his evidence regarding honorary Welfare Officers

stated: "Some of them have nominal office only. They have the name and

that is all it amounts to". Such a position cannot be regarded as

satisfactory. If any of them do perform useful functions (as to which no

opinion can be here expressed) at least their duties should be defined.

It is very easy (as happened a few weeks ago) for a person to pose as a

Child Welfare Officer in such circumstances as pertain at present.

_(d) No Special Selection of Magistrates_

The Act contemplates (section 27 of 1925 and section 16 of 1927) that

Magistrates shall be specially appointed to the Children's Court. In

practice, however, all Magistrates have been given jurisdiction to sit

in the Children's Court. As a result, the practice and procedure of the

Court varies throughout the Dominion.

_(e) Separate Court Buildings Not Used_

The Act also contemplated that, when a Children's Court was established,

it should not be held in an ordinary Court building. There is a

provision that if a Court has not been established in any district the

proceedings should be in a room other than the ordinary Court Room.

Serious complaints were made to the Committee that some children in the

Hutt cases had to remain in the precincts of the Magistrate's Court at

Lower Hutt awaiting an opportunity for the cases as regards them to be

called. After the children and parents had waited about for a long time

most of these cases were adjourned till another date, when again much

the same sort of thing happened. One special purpose of the Children's

Court was defeated by the fact that the Children's Court in that city

was held in the ordinary Court building.

_(f) Should Proceedings be Open to the Press_

There may be reasons why a Children's Court should be open to the public

even although the publication of names is prohibited. Under section 30

press reporters may not attend a sitting of the Children's Court unless

"specially permitted or required by the Court to be present". It has

often happened that a series of offences has created considerable

apprehension in the public mind. On investigation they have been found

to be due to the work of a gang or to the influence of some definite

adverse factor in the community. The public has a right to know how

child offenders have been dealt with. The Committee does not recommend

any alteration in the provision prohibiting the publication of the name

of any child or of any name or particulars likely to lead to

identification. Subject to this, it is desirable that reporters should

be allowed to attend. The Court should not be a completely secret

chamber, the decisions of which have to be gathered by rumour or by the

seeking of information through interviews away from the Court.

_(g) No Follow-up Procedure_

When children are placed "under supervision" there is not any procedure

whereby reports are submitted to the Court or other body concerning

their welfare or their doings. Again, when children are committed to the

care of the State or are under supervision as a result of delinquency

they may lawfully be transferred from one institution to another or may

be boarded out in foster-homes without any intimation being made to

their own parents. If a child is boarded out in another district it may

be enrolled at a school without the principal being given such

information as might enable him to be of assistance in its reclamation.

The Committee feels that there should be some person or body apart from

the departmental officers to whom a child could turn for help if it is

unhappy in its new surroundings or feels that it is not being properly

treated.

=(5) Changes Proposed=

In the foregoing subsections it was sought to show how it came about

that the statute itself is not a completely satisfactory one. Some of

its provisions were adapted from earlier statutes which dealt with

"neglected" and "criminal" children, and "industrial schools".

In the course of the history of the legislation the age of a "child" has

been progressively raised from 14 to 15, to 16, to 17, and to 18 years.

Many of those dealt with would scorn to be regarded as "children" in the

outside world, but they are glad to have the advantages accruing from

being dealt with in a Children's Court.

It is pleasing to know that some officers of the Division are

concentrating upon preventive work, but just where, and how such work is

being done, and the effect of it cannot be measured.

The Committee makes the following recommendations for amendments to the

existing legislation:

_(a) The Creation of a New Offence_ under which children of either sex

who are guilty of indecent behaviour may be charged as "delinquents" in

lieu of the present procedure under which the boy must necessarily be

charged and gazetted as a criminal while the girl is not charged at all.

A suitable amending clause would be:

Every child shall be deemed to be a delinquent child within the

meaning of the Principal Act who--

(i) Being a male, carnally knows or attempts to carnally know

any female child under the age of sixteen years;

(ii) Being a female, incites or encourages a male to carnally

know her and permits or suffers him to do so;

(iii) Indecently assaults any other child.

It shall not be a defence to an information or complaint under

this section that any child consented to the act.

_(b) The Attendance of Parents at a Children's Court Should be Made

Compulsory:_ There is not at present any provision whereby the parents

of a child who commits an offence must attend Court. The provision in

section 13 (1) that the Justice may require the person having the

custody of a "delinquent" child to attend, with or without the child,

does not meet present needs.

The Committee therefore recommends the acceptance by the legislature of

the following new provision:

In every case in which a complaint or information is laid

against any child, or against the parent or guardian of a child,

under section 13 of the principal Act, the Justice before whom

the said complaint or information is laid shall issue his

summons to at least one of the parents of the said child or to

the guardian or other person having the custody of such child to

appear before the Children's Court with the said child.

_(c) The Court Should Have Power to Make Orders Against the Parents of

Offending or Delinquent Children:_ Suitable clauses in this connection

submitted for the consideration of the Government are:

(1) Where a child is charged with any offence for the commission

of which a fine or costs may be imposed, if the Court is of the

opinion that the case would be best met by the imposition of a

fine or costs, whether with or without any other punishment or

remedy provided by the principal Act, the Court may order that

the whole or any part of the fine or costs awarded to the

informant or complainant be paid by any parent or guardian of

such child unless the Court is satisfied that such parent or

guardian has not conduced to the commission of the offence by

neglecting to exercise due care and control of the child.

(2) In the case of a child charged with any offence the Court

may, in addition to or without entering a conviction against the

child, order that the parent or guardian give security for the

good behaviour of such child in the future for such period as to

the Court may appear just and expedient.

(3) The Court may also in its discretion make an order directing

that the children's benefit or family benefit payable to the

parent or guardian in respect of such child by the Social

Security Commission be suspended until the parent or guardian

gives the security required by the preceding subsection hereof

for such future further or other period as the Court may think

fit or until the Court is assured that the said parent or

guardian is exercising due care and control of the child.

(4) A copy of any order made in directing the suspension of the

payment of any children's benefit or family benefit shall

immediately be forwarded by the Court to the Social Security

Commission.

(5) The Court may suspend the coming into force of any such

order or may at any time terminate the period of suspension or

revoke any order made by it, whereupon the Commission of Social

Security may pay to the parent or guardian all such benefits or

allowances as would have been payable but for the order of

suspension from the date of the said suspension or from such

other date as the Court may think fair and just.

(6) Nothing herein shall be deemed to effect or limit the powers

vested in the Social Security Commission by sections 62 and 72

of the Social Security Act 1938.

(7) An order under this section may be made against a parent or

guardian who, having been required to attend at the Court with

the said child, has failed to do so, but, save as aforesaid, no

such order shall be made without giving the parent or guardian

an opportunity of being heard.

(8) A parent or guardian may appeal to the Supreme Court against

any order made under this section.

_(d) When Any Child is Expelled From School Notification of the Fact

Should Immediately be Given to the Child Welfare Division:_ The

following draft clause expresses what the Committee has in mind:

When any child under the school leaving age has been expelled

from school for any reason or any other child has been suspended

or expelled for immoral behaviour, it shall be the duty of the

principal or the governing body of the school or other person

(whichever has the power to suspend or expel), to inform the

Superintendent of Child Welfare or the nearest Child Welfare

Officer of the fact that the said child has been suspended or

expelled from the school, and the said Superintendent or Child

Welfare Officer shall immediately on receipt of such information

take such action as may be proper or desirable in the interests

of the said child.

_(e) Whenever Any Child Has Been Found by the Court to Have Committed an

Offence or to be a Delinquent Child or a Child Not Under Proper Control

the Principal of the School Should be Informed:_ The suggested clause

might read as follows:

Whenever any child has been found by the Court to have committed

an offence or to be a delinquent child or a child not under

proper control and is either a pupil of a school or is

subsequently enrolled as a pupil it shall be the duty of the

Superintendent of Child Welfare to inform the principal of such

school of the nature of the offence and the circumstances which

led to the delinquency in order that the principal may assist

the said child and protect the other pupils of the school.

_(f) That the Statute Should be Completely Redrafted and the Child

Welfare Division Reorganized on an Autonomous Basis:_ In this redrafting

and reorganization special regard should be had to:

(_a_) The precise duties expected of every Child Welfare

Officer, whether he or she be a member of the Public Service or

an "honorary Child Welfare Officer".

(_b_) The provision of Children's Court rooms away from the

Magistrate's Court or the holding of sittings of the Children's

Court on days when no other Court business is being conducted.

(_c_) The selection of Magistrates who are specially qualified

to perform the duties required of a Justice of the Children's

Court.

(_d_) The opening of proceedings to accredited representatives

of the press, who should not, however, be permitted to publish

the names of persons brought before the Court whether as

offenders, parents, or witnesses, or any facts by which they may

be identified.

(_e_) The taking of the opinion of a school principal on any

recommendation affecting the future of one of his pupils.

Report of the Special Committee on Moral Delinquency in Children and Adolescents · 第 5 / 7 段