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.