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Oranga Tamariki Act 1989

Youth justice - Custody of child or young person following arrest or pending hearing

239: Restrictions on power of court to order child or young person to be detained in custody

You could also call this:

"Rules for when a court can keep a child or young person in custody for their safety"

Illustration for Oranga Tamariki Act 1989

If you are a child or young person and you get in trouble with the law, the court might decide to keep you in custody. The court can only do this if they think you will run away, or commit another crime, or if they need to keep you safe so you do not get into more trouble. The court also needs to make sure that there is a safe place for you to stay.

If you are a young person, the court can only keep you in police custody if they think you will run away or be violent, and if there is no other safe place for you to stay. The court needs to be sure that keeping you in custody is the best way to keep you and others safe. They will look at all the options before making a decision.

In some cases, if you are 17 years old, the court might decide to keep you in a special unit in a prison. This can only happen if the people in charge of the prison and the people in charge of looking after you agree that it is the best option. The court needs to be sure that keeping you in this unit is necessary to keep you and others safe, and that the unit is available for you to stay in.

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This page was last updated on

View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM152953.

Topics:
Crime and justice > Courts and legal helpCrime and justice > Criminal law
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238: Custody of child or young person pending hearing, or

"What happens to you while waiting for a Youth Court hearing"

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239A: Expiry of sections 238(1A) to (1C), and 239(3), or

"Some rules in the Oranga Tamariki Act stopped being law on 17 December 2022"

Part 4Youth justice
Custody of child or young person following arrest or pending hearing

239Restrictions on power of court to order child or young person to be detained in custody

  1. The court shall not make an order under section 238(1)(d) for the detention of a child or young person in the custody of the chief executive or an iwi social service or a cultural social service unless it appears to the court that pending the determination of the charge, or if the order is being considered under section 296F(3), pending the determination of the breach application or variation or cancellation application,—

  2. the child or young person is likely to abscond; or
    1. the child or young person may commit further offences; or
      1. it is necessary to prevent the loss or destruction of evidence relating to the offence with which the child or young person is charged or prevent interference with any witness in respect of any such offence.

        1. The court shall not make an order under section 238(1)(e) for the detention of a young person in Police custody unless the court is satisfied—

        2. that the young person is likely to abscond or be violent; and
          1. that suitable facilities for the detention in safe custody of that young person are not available to the chief executive.

            1. The court may make an order under section 238(1)(f) for the detention of a young person (aged 17 years) in a prison only if—

            2. a joint application has been made by the chief executive and the chief executive of the Department of Corrections for the order; and
              1. the court is satisfied that the order is necessary to ensure the safety of any young person (as defined in section 2(1)) who is in the custody of the chief executive; and
                1. the court is satisfied that a youth unit within a prison is available for the young person to stay in.

                  Compare
                  • 1974 No 72 s 43(6)
                  • 1982 No 135 s 10
                  Notes
                  • Section 239(1): amended, on , by section 8 of the Children, Young Persons, and Their Families (Youth Courts Jurisdiction and Orders) Amendment Act 2010 (2010 No 2).
                  • Section 239(1): amended, on , by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).
                  • Section 239(1): amended, on , by section 46 of the Children, Young Persons, and Their Families Amendment Act 1994 (1994 No 121).
                  • Section 239(2): amended, on , by section 7(2) of the Children, Young Persons, and Their Families (Youth Courts Jurisdiction and Orders) Amendment Act 2010 (2010 No 2).
                  • Section 239(2)(a): amended, on , by section 7(2) of the Children, Young Persons, and Their Families (Youth Courts Jurisdiction and Orders) Amendment Act 2010 (2010 No 2).
                  • Section 239(2)(b): amended, on , by section 7(2) of the Children, Young Persons, and Their Families (Youth Courts Jurisdiction and Orders) Amendment Act 2010 (2010 No 2).
                  • Section 239(2)(b): amended, on , by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).
                  • Section 239(2A): inserted, on , by section 104 of the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 (2017 No 31).
                  • Section 239(3): expired, on , by section 239A.