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Children, Young Persons, and Their Families (Advocacy, Workforce, and Age Settings) Amendment Bill

Year: 2016 Number: 142 Download PDF (120 KB)

The departmental disclosure statement for a government Bill seeks to bring together in one place a range of information to support and enhance the Parliamentary and public scrutiny of that Bill.

It identifies:

  • the general policy intent of the Bill and other background policy material;
  • some of the key quality assurance products and processes used to develop and test the content of the Bill;
  • the presence of certain significant powers or features in the Bill that might be of particular Parliamentary or public interest and warrant an explanation.

This disclosure statement was prepared by the Ministry of Social Development.

The Ministry of Social Development certifies that, to the best of its knowledge and understanding, the information provided is complete and accurate at the date of finalisation below.

24 May 2016

Part One: General Policy Statement

Introduction

This Bill forms part of the Government’s response to the Final Report of the Modernising Child, Youth and Family Expert Panel, released on 7 April 2016. It represents the first steps in reforming the system of services for responding to the needs of vulnerable children and young persons, and their families. The objectives of this Bill are to help achieve a child-centred system by—

  • extending State responsibility for the care and protection of vulnerable young persons:
  • ensuring that vulnerable children and young persons are able to express their views and have them considered as part of decision making in individual cases, and in the development of departmental services and policy:
  • enabling enhanced access to appropriate specialist skills and expertise to respond to the needs of vulnerable children and young persons.

The key changes introduced by this Bill are—

  • extending the provisions of the statutory care and protection system to young persons aged 17 years:
  • embedding the views of children and young persons at an individual and a systemic level by strengthening obligations in the Children, Young Persons, and Their Families Act 1989 (the CYPF Act) to support the participation of children and young persons:
  • supporting the establishment of independent advocacy services, with a particular focus on children and young persons in care, through a new duty imposed on the chief executive of the department administering the Act:
  • enabling a broader range of professionals to perform a wider set of functions under the CYPF Act to help identify and meet the needs of vulnerable children and young persons.

These changes require amendments to the CYPF Act. The Bill also makes minor consequential amendments to the Vulnerable Children Act 2014 and the Crown Proceedings Act 1950.

Context

The Modernising Child, Youth and Family Expert Panel was established in April 2015 to develop a plan for the modernisation of the statutory care, protection, and youth justice agency. In response to the recommendations of the Panel’s Final Report, the Government endorsed key elements of a reform programme. These key elements include creating a child-centred system with stronger system and organisational leadership and culture change. The Government also agreed to a new operating model with a single point of accountability for ensuring a coherent response for vulnerable children and young persons. Some of the specific features of the reform programme include—

  • greater flexibility to deliver services via strategic partners:
  • enabling a broader set of professionals to perform key functions under the CYPF Act:
  • subject to further advice, the establishment of a permanent independent advocacy service providing systemic and individual advocacy for children and young persons in care.

It is intended that this Bill be followed by a larger and more complex set of legislative amendments to give effect to further elements of the reforms.

Extending the provisions of the statutory care and protection system to 17-year-olds

The Bill amends the definition of a young person in the CYPF Act to include 17-year-olds, for care and protection purposes. This extends to these young persons the support and services currently available through the care and protection system to young persons aged under 17 years. This change brings the CYPF Act into closer alignment with the United Nations Convention on the Rights of the Child, which applies to everyone under 18 years. The Bill also consequentially amends the Vulnerable Children Act 2014, which restates the definition of young person in the CYPF Act.

Embedding the views of children and young persons at a systemic and an individual level

To help ensure the views of children and young persons are taken into account at a systemic level, the Bill also amends the CYPF Act to place a duty on the chief executive to ensure that, wherever possible, departmental policies and services have regard to the views of children and young persons, including views received through the advocacy services.

The Bill amends the CYPF Act to include a duty to ensure that, for actions and decisions under the Act that may significantly affect a child or young person, the child or young person is encouraged and assisted to participate in the matter. The duty also requires that the child or young person be supported to express his or her views freely where he or she faces barriers such as those relating to age, disability, or language. It also requires that any views that the child or young person expresses be taken into account in taking these actions and making these decisions. Responsibility for ensuring the duty is fulfilled rests with the person responsible for the corresponding proceeding or process. These persons can include a Judge or other person presiding at a court proceeding, a barrister or solicitor, a person responsible for convening a family group conference, a person preparing or reviewing a plan, or a person responsible for taking an action or making a decision. Strengthening obligations in the CYPF Act to support the participation of children and young persons helps to—

  • emphasise the significance that should be accorded to the views of children and young persons:
  • ensure that obtaining and considering these views is embedded within the core practices of the department.

Supporting the establishment of independent advocacy services

The Bill places a duty on the chief executive of the department administering the CYPF Act to ensure that, for children and young persons who are subject to any action or who are receiving any service under Parts 2 to 7 of the Act, services are available that provide an opportunity for them, and support them, to express their views on—

  • matters that are important to them in relation to that action or service:
  • the operation and effectiveness of processes and services under the Act for the purpose of contributing to improving these.

The new duty requires particular consideration to be given to the needs of children and young persons in care. To confer a degree of independence, the Bill specifies that advocacy services should operate independently from other services provided under the CYPF Act. This new duty is intended to establish within the new system an independent advocacy service for children and young persons, without constraining the design of the service, which is currently being developed in partnership with the philanthropic sector. Any additional legislative amendments to establish the advocacy service will be considered once the design of the service is more advanced.

Enabling a wider range of professionals to have core roles in discharging functions under the CYPF Act

The Bill amends the CYPF Act to vest in the chief executive of the department administering the Act those functions and powers currently residing with social workers. This provides greater ability for delegation to other professionals to play core roles in helping to identify and meet the needs of vulnerable children and young persons where they are equally or better placed to do so.

To reflect the intention that the core contribution of social workers in child protection and care and the youth justice system will continue, the Bill provides that where the chief executive is delegating functions and powers to anyone other than a social worker, the chief executive must be satisfied that the person is appropriately qualified to perform the functions or exercise the powers, taking into account the person’s training, experience, and interpersonal skills. In order to ensure that these functions are exercised in a competent, controlled, and transparent manner, the Bill additionally requires that,—

  • if delegating outside of the State services, the chief executive must have in place contractual arrangements that are sufficient to support the appropriate exercise of the delegation:
  • the chief executive must publicly notify each delegation on an Internet site and certain information about any delegation must continue to be available until the delegation is revoked.

These controls will also be extended to delegation of the chief executive’s existing functions under the CYPF Act.

The CYPF Act currently requires a social worker approving a young person’s detention in Police custody to be a senior social worker. The Bill requires that those functions that currently reside with a senior social worker be only undertaken by an employee of the department who is sufficiently senior to hold this responsibility. This is intended to retain the added protection that seniority, and employment by the department, provides for the use of these coercive powers of the State.

Requirements for social workers to provide reports to the court to support the making of certain orders are unchanged by this Bill, as there are similar provisions in the Care of Children Act 2004 and further consideration is required as to whether amending the CYPF Act provisions would be desirable.

The Bill provides that social workers may not subdelegate any powers or functions delegated to them by the chief executive on the basis that the framework has been designed so that social workers are able (as now) to perform those functions themselves, but the chief executive is enabled to delegate to another party to take on those functions. Under section 41 of the State Sector Act 1988, other Public Service employees or contractors working in the Public Service acting under delegation from the chief executive would be able to subdelegate those powers or functions to certain parties under certain circumstances. It is envisaged that subdelegation would occur rarely and would be primarily of value where the initial delegation was made to a person in a management role in another Public Service agency and the subdelegation is required to enable another person in that agency to actually perform the function under the CYPF Act.

The Bill also provides that people outside the Public Service acting under delegation from the chief executive have the same good faith immunity from liability in civil proceedings that Public Service employees have. This requires a consequential amendment to the Crown Proceedings Act 1950 to provide that the immunity will be disregarded in any civil proceedings against the Crown for the actions or omissions of the delegate.

 

Part Two: Background Material and Policy Information

Published reviews or evaluations

2.1. Are there any publicly available inquiry, review or evaluation reports that have informed, or are relevant to, the policy to be given effect by this Bill?

YES

The policy to be given effect by the Bill forms part of Government’s response to the recommendations made by the Modernising Child, Youth and Family Expert Panel. The Panel’s reports are:

 

 

Relevant international treaties

2.2. Does this Bill seek to give effect to New Zealand action in relation to an international treaty?

NO

 

Regulatory impact analysis

2.3. Were any regulatory impact statements provided to inform the policy decisions that led to this Bill?

YES

To inform the main policy decisions taken by the Government relating to the contents of this Bill, three Regulatory Impact Statements (RISs) were produced:

These Regulatory Impact Statements can also be accessed from: http://www.treasury.govt.nz/publications/informationreleases/ris

 

Some text from the two RISs, Children, Young Persons, and Their Families Act age settings and Modernising Child, Youth and Family: Enhancing children and young people’s participation, is being withheld as it refers to material that is currently under active consideration.

2.3.1. If so, did the RIA Team in the Treasury provide an independent opinion on the quality of any of these regulatory impact statements?

YES

Only the RIS dated 9 March 2016 (Children, Young Persons, and Their Families Act age settings) met the threshold for receiving an independent opinion from the RIA Team based in the Treasury. The opinion provided by the RIA Team for Cabinet on that RIS is set out in full below:

“The Regulatory Impact Analysis Team (RIAT) has reviewed the RIS prepared by the Ministry of Social Development and associated supporting material, and considers that the information and analysis summarised in the RIS partially meets the quality assurance criteria.

RIAT notes the timeframes for seeking decisions have not allowed for a full assessment of the fiscal and operational costs of the age setting proposals. The risk of any unexpected costs associated with the preferred options will be managed as part of the further design work and, if evident, identified in the Cabinet report back in June 2016.”

The other RISs identified above did not meet the threshold for receiving an independent opinion on the quality of the RIS from the RIA Team based in the Treasury.

 

2.3.2. Are there aspects of the policy to be given effect by this Bill that were not addressed by, or that now vary materially from, the policy options analysed in these regulatory impact statements?

NO

The following options identified in the RISs correspond reasonably closely with the key policy features of the Bill:

  • Option 2 in the care and protection options of the Children, Young Persons, and Their Families Act age settingsRIS
  • Options 2, 3 and 4b in the Modernising Child, Youth and Family: Enhancing children and young people’s participationRIS
  • Option 2 in the Modernising Child, Youth and Family: Vulnerable children workforce settings RIS.

Extent of impact analysis available

2.4. Has further impact analysis become available for any aspects of the policy to be given effect by this Bill?

NO

 

 

2.5. For the policy to be given effect by this Bill, is there analysis available on:

 

(a)   the size of the potential costs and benefits?

YES

(b)   the potential for any group of persons to suffer a substantial unavoidable loss of income or wealth?

NO

Further information is provided in Appendix One.

 

 

2.6. For the policy to be given effect by this Bill, are the potential costs or benefits likely to be impacted by:

 

(a)   the level of effective compliance or non-compliance with applicable obligations or standards?

YES

(b)   the nature and level of regulator effort put into encouraging or securing compliance?

YES

Further information is provided in Appendix One.

Part Three: Testing of Legislative Content

Consistency with New Zealand’s international obligations

3.1. What steps have been taken to determine whether the policy to be given effect by this Bill is consistent with New Zealand’s international obligations?

During development of the proposals, the policy to be given effect by this Bill was assessed against New Zealand’s international obligations.

Consideration of consistency with the United Nations Convention on the Rights of the Child (UNCROC) included assessing whether, and how, the policy proposals addressed UNCROC articles as well as recommendations made to New Zealand by the Committee on the Rights of the Child. It included considering how other jurisdictions have given effect to children’s rights. The following RISs include sections addressing consistency with UNCROC:

  • Children, Young Persons, and Their Families Act age settings(pages 16–21).
  • Modernising Child, Youth and Family: Enhancing children and young people’s participation(pages 17–21).

Consistency with the government’s Treaty of Waitangi obligations

3.2. What steps have been taken to determine whether the policy to be given effect by this Bill is consistent with the principles of the Treaty of Waitangi?

The policy to be given effect by the Bill forms part of Government’s response to the recommendations of the Modernising Child, Youth and Family Expert Panel.

The scope identified in the Terms of Reference of the Expert Panel included “how to ensure the new operating model delivers better outcomes for all Child, Youth and Family’s clients, and particularly for Māori.” The work of the Expert Panel included measures to ensure the implications for Māori were considered, such as:

  • The Expert Panel included membership with strong understanding of tikanga Māori, as specified in its Terms of Reference.
  • A Māori Reference Group provided independent critical advice and expertise to the design work of the Expert Panel to ensure any elements relating to the circumstances of vulnerable Maori children were properly considered.

Te Puni Kōkiri was consulted on the policy proposals to be included in the Bill, and the draft Bill itself.

Consistency with the New Zealand Bill of Rights Act 1990

3.3. Has advice been provided to the Attorney-General on whether any provisions of this Bill appear to limit any of the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990?

YES

Advice provided to the Attorney-General by the Ministry of Justice is generally expected to be available on the Ministry of Justice’s website upon introduction of a Bill. Such advice, or reports, will be accessible on the Ministry’s website at http://www.justice.govt.nz/policy/constitutional-law-and-human-rights/human-rights/bill-of-rights

Offences, penalties and court jurisdictions

3.4. Does this Bill create, amend, or remove:

 

(a)   offences or penalties (including infringement offences or penalties and civil pecuniary penalty regimes)?

NO

(b)   the jurisdiction of a court or tribunal (including rights to judicial review or rights of appeal)?

YES

Clause 4 amends the definition of a “young person” under the CYPF Act for care and protection purposes to include 17 year-olds. This brings 17 year-olds within the jurisdiction of the Family Court when exercising its jurisdiction under the care and protection provisions of the CYPF Act.

Clause 8 extends obligations on Judges of District, Family and Youth Courts in proceedings under the CYPF Act and higher courts on appeal, to encourage and assist children and young people’s participation in proceedings, and to ensure their views are taken into account.  This includes ensuring that if a child or young person has difficulties in expressing his or her views or being understood (for example, because of age, language or disability), support is provided to assist him or her to express his or her views and to be understood.  

 

3.4.1. Was the Ministry of Justice consulted about these provisions?

YES

The Ministry of Justice was consulted on this Bill as part of the development of the RISs, but this was done within limited timeframes and it was not possible to determine detailed and precise fiscal and operational impacts. The Ministry of Justice identified that there would be some impact for courts as a result of these amendments.

Further detailed costing will be developed as part of an overall additional investment strategy for the new operating model for responding to the needs of vulnerable children, young people and their families. This will include identifying any fiscal or other impacts for the courts.

Final investment options will be presented to the Ministerial Oversight Group for agreement, ahead of funding being drawn from the contingency fund for the reform programme being established through Budget 2016.

In relation to the amendments relating to children and young people’s participation and views, these provisions were discussed with the Ministry of Justice. Changes were made to the draft Bill to clarify the nature of the support that needed to be provided where a child or young person has difficulties expressing views or being understood, and that the persons responsible for the duties must either perform the duties or be satisfied that the duties have been performed.

Privacy issues

3.5. Does this Bill create, amend or remove any provisions relating to the collection, storage, access to, correction of, use or disclosure of personal information?

YES

Schedule 2 of the Bill, which relates to the vesting of functions residing in social workers instead in the chief executive, amends:

  • sections 33 and 266 of the CYPF Act – sections 33 and 266 provide that the department is to maintain written records of family group conference proceedings, and specifies who may have access to these records. The amendment provides that the chief executive shall have access to any such record, rather than any social worker.
  • section 59 of the CYPF Act – section 59 enables a social worker to apply to the court for an order requiring a person to produce a document relevant to an investigation of whether a child or young person is in need of care or protection. The amendment provides for the chief executive to make an application for the document.
  • section 66 of the CYPF Act – section 66 provides that Government departments are required to supply information for the purposes of determining whether a child or young person is in need of care and protection, or for the purposes of any care and protection proceedings. The amendment provides that this information may be required to be supplied to the chief executive of the department administering the Act, instead of to a social worker.

 


3.5.1. Was the Privacy Commissioner consulted about these provisions?

YES

Officials from the Ministry of Social Development met with the Office of Privacy Commissioner to discuss the amendment to section 66 of the CYPF Act. We understand the Privacy Commissioner does not have any concerns with the amendment. The Office of the Privacy Commissioner was satisfied that the legislation provided appropriate controls if this function was exercised by a delegate of the chief executive. The other amendments were also brought to the attention of the Office of the Privacy Commissioner, who indicated there were no concerns with these.

External consultation

3.6. Has there been any external consultation on the policy to be given effect by this Bill, or on a draft of this Bill?

YES

Appendix 2 contains information on the external consultation undertaken on the policy to be given effect by the Bill. 

No external consultation was undertaken on the draft Bill itself due to time constraints.

Other testing of proposals

3.7. Have the policy details to be given effect by this Bill been otherwise tested or assessed in any way to ensure the Bill’s provisions are workable and complete? 

NO

 

Part Four: Significant Legislative Features

Compulsory acquisition of private property

4.1. Does this Bill contain any provisions that could result in the compulsory acquisition of private property?

NO

 

Charges in the nature of a tax

4.2. Does this Bill create or amend a power to impose a fee, levy or charge in the nature of a tax?

NO

 

Retrospective effect

4.3. Does this Bill affect rights, freedoms, or impose obligations, retrospectively?

NO

 

Strict liability or reversal of the usual burden of proof for offences

4.4. Does this Bill:

 

(a)   create or amend a strict or absolute liability offence?

NO

(b)   reverse or modify the usual burden of proof for an offence or a civil pecuniary penalty proceeding?

NO

 

Civil or criminal immunity

4.5. Does this Bill create or amend a civil or criminal immunity for any person?

YES

Clause 7 inserts new section 7E relating to immunity for delegates outside the Public Service.

The Bill applies section 86 of the State Sector Act1988 to a delegate outside the Public Service acting under delegation from the chief executive under the CYPF Act. Section 86 of the State Sector Act has the effect of conferring immunity for Public Service chief executives and employees from liability in civil proceedings for good faith actions or omissions in pursuance or intended pursuance of their duties, functions, or powers. This amendment will give a delegate outside the Public Service acting under delegation from the chief executive under the CYPF Act the same level of protection as members of the Public Service exercising those functions. It would help avoid reluctance from those outside the Public Service to take on functions because of concerns about exposure to legal proceedings.

This requires a consequential amendment to the Crown Proceedings Act 1950 so that, although the delegate outside the Public Service will be immune from being sued, the immunity will be disregarded in any civil proceedings against the Crown for the actions or omissions of the delegate. This is consistent with the provision in the Crown Proceedings Act 1950 that applies to the immunity for public servants and the responsibility of the chief executive under section 41 of the State Sector Act 1988 for the actions of his or her delegates.

Significant decision-making powers

4.6. Does this Bill create or amend a decision-making power to make a determination about a person’s rights, obligations, or interests protected or recognised by law, and that could have a significant impact on those rights, obligations, or interests?

YES

Age-settings

Raising the age of care and protection extends the ability of the care and protection system to receive reports of concern for 17 year-olds, determine that they are in need of care and protection, and take action including convening a family group conference and seeking Family Court orders. A range of care and protection interventions can have a significant impact on the rights and interests of 17 year-olds. All the safeguards that currently apply to care and protection decision-making powers under the CYPF Act to children and young people aged up to 17 will also apply to 17 year-olds under this amendment.

 

Workforce changes

Schedule 2 amends sections 236 and 242 of the CYPF Act, which relate to the detention of a child or young person in Police custody. These provisions currently require a senior social worker (and a constable or senior sergeant at, or above, the level of inspector) to be satisfied that certain conditions exist before a young person may be detained in Police custody for more than 24 hours. The amendment will vest the powers that currently reside with senior social workers instead in the chief executive of the department administering the Act. This does not amend a decision-making power, but does amend who can exercise that power.

Since these provisions allow a young person to be held in Police custody without the oversight of the court, the Bill places some additional limits on the range of persons to whom these functions may be delegated. The Bill specifies that the function that currently resides with senior social workers under sections 236 and 242 can only be delegated to a senior employee of the department and cannot be delegated outside the department.

Powers to make delegated legislation

4.7. Does this Bill create or amend a power to make delegated legislation that could amend an Act, define the meaning of a term in an Act, or grant an exemption from an Act or delegated legislation?

NO

 

 

4.8. Does this Bill create or amend any other powers to make delegated legislation?

NO

 

Any other unusual provisions or features

4.9. Does this Bill contain any provisions (other than those noted above) that are unusual or call for special comment?

NO

 

Appendix One: Further Information Relating to Part Two

Extent of impact analysis available – question 2.5 (a)

Analysis on the size of the potential costs and benefits of the proposals is available in the relevant RISs (italicised below, accessible at http://www.msd.govt.nz/about-msd-and-our-work/publications-resources/regulatory-impact-statements/index.html and http://www.treasury.govt.nz/publications/informationreleases/ris):

  • Children, Young Persons, and Their Families Act age settings(pages 19–21). The analysis provides only a general indication of the relative scope and magnitude of the proposal’s fiscal and operational implications, as further detailed design work being undertaken for the new operating model needs to be progressed before the precise fiscal and operational impacts can be determined.
  • Modernising Child, Youth and Family: Enhancing children and young people’s participation (pages 21–23, 25–26) The analysis provides only a general indication of the relative scope and magnitude of the fiscal and operational implications of the proposals, as further detailed design work being undertaken for the new operating model needs to be progressed before the precise fiscal and operational impacts can be determined. Detailed work on the potential cost implications has not been undertaken, and some of the cost implications will be subject to the outcomes of the co-design work underway on the independent advocacy service.

Analysis of the cost implications of the workforce settings proposal was not undertaken as the change enables rather than prescribes workforce changes and these will depend on future design proposals.

Extent of impact analysis available – question 2.6 (a) and (b)

(a)

The benefits of the new duty to ensure that the child or young person is encouraged and assisted to participate in decisions and actions under the Act are likely to be dependent on the level of effective compliance with the new duty.

Responsibility for fulfilling this duty rests with the person responsible for the corresponding proceedings or process. The duty requires those persons responsible for relevant proceedings and processes under the Act to ensure that necessary avenues for supporting children’s participation are followed. These persons can include the Judge or other person presiding at a court proceeding, a barrister or solicitor, a person responsible for convening a family group conference.

The benefits of this proposal are not likely to be fully realised unless there is effective compliance by these persons. It is expected that training, guidance and the establishment of new processes will be required to ensure that the responsible persons have the information and skills they need to comply with the duty.

The benefits of other provisions in the Bill are dependent largely on the chief executive’s compliance. As there is an expectation of chief executive compliance with legislation, it is not considered that benefits or costs will be affected by potential for varying levels of compliance.

 

(b)

The benefits of the new duty to encourage and assist children and young people’s participation is likely to be dependent on the effort that is put in by the respective agencies in ensuring training, guidance and establishing new processes.

Appendix Two: Further Information Relating to Part Three

External consultation – question 3.6

Details of relevant consultation on the policy matters to be given effect by the Bill are provided in the following Regulatory Impact Statements, accessible at http://www.msd.govt.nz/about-msd-and-our-work/publications-resources/regulatory-impact-statements/index.html and http://www.treasury.govt.nz/publications/informationreleases/ris)

  • Children, Young Persons, and Their Families Act age settings – produced by the Ministry of Social Development – 9 March 2016, pages 28, and 34–35
  • Modernising Child, Youth and Family: Enhancing children and young people’s participation – produced by the Ministry of Social Development – 5 April 2016, pages 24–25
  • Modernising Child, Youth and Family: Vulnerable children workforce settings – produced by the Ministry of Social Development – 5 April 2016, pages 17–18, and 20.

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