Report of the Special Committee on Moral Delinquency in Children and Adolescents Part 10

=(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 pa.s.sing 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 ill.u.s.trated by what happened in the cases of carnal knowledge and indecent a.s.sault 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 s.e.xual misbehaviour. It was pointed out that parents and school teachers may resort to physical chastis.e.m.e.nt 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 punis.h.i.+ng 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 circ.u.mstances 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 a.s.sociated 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 a.s.sociated 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 circ.u.mstances 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 inst.i.tution 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 princ.i.p.al being given such information as might enable him to be of a.s.sistance 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=